Donald Bishop v. Town of Springfield ( 2015 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2014-348
MARCH TERM, 2015
Donald Bishop } APPEALED FROM:
}
}
} Superior Court, Windsor Unit,
v. } Civil Division
}
Town of Springfield } DOCKET NO. 316-5-14 Wrcv
Trial Judge: Mary Miles Teachout
In the above-entitled cause, the Clerk will enter:
Plaintiff Donald Bishop appeals from the court’s dismissal of his complaint for failure to
state a claim upon which relief could be granted. We affirm.
The trial court identified the following facts, reviewing plaintiff’s submission in the light
most favorable to him, and giving him the benefit of all reasonable inferences. See Amiot v.
Ames, 166 Vt. 288, 291 (1997) (explaining that in reviewing disposition of motion to dismiss,
court must assume as true all factual allegations pleaded by the nonmoving party, and accept as
true all reasonable inferences that can be drawn from nonmoving party’s pleadings). In
September 2013, the Town of Springfield Select Board issued an order finding a building owned
by plaintiff to be a “dangerous or unsafe building or structurally unsafe building” as defined in
§ 5-26 of the town code. The order declared the building a public nuisance and required plaintiff
to make necessary repairs by December 1, 2013. The order required plaintiff to demonstrate that
he had made these repairs by submitting a certification by a Vermont licensed structural engineer
that based on his or her examination, the building was no longer structurally unsafe as defined
under § 5-26. The engineer was specifically required to certify that three particular conditions
were no longer applicable. If plaintiff failed to comply with these requirements, the order
provided that the town, without any further notice, could demolish the building. Giving plaintiff
the benefit of all possible ambiguity, the court found that the repair and certification date was
later extended to April 30, 2014.
In May 2014, plaintiff filed a “complaint and appeal” in superior court. He sought to
appeal the September 2013 order and to enjoin the town from proceeding with any demolition.
The town moved to dismiss the complaint as untimely as it was not filed within thirty days of the
town’s decision. The court agreed, and dismissed plaintiff’s appeal of the 2013 order as
untimely. Plaintiff also sought injunctive relief to prevent the demolition. Plaintiff contended
that he had submitted reports from two individuals stating that the building had been stabilized.
The court found that one report was from a person who was undisputedly not a licensed
engineer. The other report, dated December 2013, was from a licensed engineer. The court
found that this letter, on its face, did not support a prima facie case of compliance with the
requirements of the September 2013 order. The letter specifically provided that any stabilization
work was incomplete. The letter also described the continuing risks posed by the building.
The court found it clear that there had been no certification that the building was no
longer a structurally unsafe building as defined in the town code, and no certification that the
three identified issues no longer existed. At best, the court explained, there was a
communication that some efforts were made prior to December 2013. The court thus concluded
that, taking plaintiff’s submission in the light most favorable to him and accepting all reasonable
inferences for his benefit, it was beyond doubt that there were no facts or circumstances that
would entitle plaintiff to relief. The court thus dismissed the complaint for injunctive relief.
This appeal followed.
Plaintiff argues that the town building code does not require a “certification” as specified
in the town’s order, and he thus maintains that the town had no authority to require such
certification. According to plaintiff, the letter he submitted from an engineer established that the
building was structurally sound for purposes of Vermont Rule of Civil Procedure Rule 12(b)(6).
Plaintiff also argues that he should be allowed to appeal the September 2013 town order because
it was not a final order. Additionally, plaintiff asserts for the first time on appeal that the town
was obligated to follow a process set forth by statute in order to declare his building unsafe.
Because the town did not follow this process, plaintiff maintains that the town’s order is void and
unenforceable.
We find these arguments without merit. First, the 2013 order was a final appealable
order. It was issued following a hearing and it resolved plaintiff’s appeal of an earlier ruling by
the Select Board. While the order gave plaintiff the opportunity to remedy certain defects, it
plainly made a “final disposition of the subject matter” before the Select Board. In re Pelham N.,
Inc., 154 Vt. 651, 652 (1990) (mem.) (“The test for finality is whether the order makes a final
disposition of the subject matter.”). In its decision, the Select Board found that the building was
structurally unsafe and that it was a public nuisance. It explained to plaintiff the steps he would
need to take to avoid demolition.
To the extent that plaintiff sought to challenge the Select Board’s findings, or the steps he
was required to take to prevent demolition, he needed to file an appeal from the Select Board’s
decision within thirty days. See V.R.C.P. 75(c) (allowing appeal from action by a board, and
providing that “if no time limit is specified by statute, the complaint shall be filed within 30 days
after notice of any action or refusal to act of which review is sought unless the court enlarges the
time in accordance with [Vermont Rule of Civil Procedure] 6(b).”); Coutu v. Town of
Cavendish, 2011 VT 27, ¶ 13, 189 Vt. 336 (recognizing this requirement and upholding
dismissal of untimely filed complaint). Plaintiff did not file a timely appeal, and he cannot now
challenge the merits of the town’s decision. This includes his challenge to the conditions set by
the town.
Plaintiff did not argue below that the town erred by following the condemnation process
set forth in the town code rather than following a process set forth by statute and that its
September 2013 order was therefore “void” and unenforceable. Our longstanding rule on
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preservation requires a party to raise an issue with specificity at the trial court level to allow the
trial court the opportunity to consider it. In re White, 172 Vt. 335, 343 (2001). This rule applies
equally in the context of motions to dismiss. See, e.g., Gilman v. Maine Mut. Fire Ins. Co., 2003
VT 55, ¶ 12 n.2, 175 Vt. 554 (in reviewing trial court’s ruling on motion to dismiss for failure to
state a claim, Supreme Court would not consider arguments raised for first time on appeal). This
Court will not address arguments raised for the first time on appeal. See Bull v. Pinkham Eng’g
Assocs., 170 Vt. 450, 459 (2000) (“Contentions not raised or fairly presented to the trial court are
not preserved for appeal.”).
We conclude that the trial court properly dismissed plaintiff’s complaint as time-barred.
It is apparent, moreover, that the letter from plaintiff’s engineer on its face did not satisfy the
requirements of the 2013 order. We find no error. See Amiot, 166 Vt. at 291 (explaining that
motion to dismiss should be granted when “it appears beyond doubt” that there exist no facts or
circumstances that would entitle plaintiff to relief (quotation omitted)).
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
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