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Weinstein v. Leonard

Supreme Court of Vermont

November 13, 2015

Jennifer Weinstein
Jeanmarie Leonard and Carol Sayour
Lloyd J. Weinstein and the Weinstein Group, P.C

Page 548

          On Appeal from Superior Court, Bennington Unit, Civil Division. John P. Wesley, J.


          Lloyd J. Weinstein of The Weinstein Group, PC, Woodbury, New York, for Plaintiffs-Appellees/Third-Party Defendants.

          Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Defendants-Appellants/Third-Party Plaintiffs.

         Present: Dooley, Skoglund, Robinson and Eaton, JJ., and Morse, J. (Ret.), Specially Assigned


Page 549

          Dooley, J.

          [¶1] Defendants-counterclaimants Jeanmarie Leonard and Carol Sayour appeal from the superior court's grant of summary judgment on their counterclaims in favor of plaintiff Jennifer Weinstein and third-party defendants, Lloyd Weinstein, plaintiff's husband, and his law firm, The Weinstein Group, P.C. Defendants claim on appeal that there are disputed material facts to justify a jury trial on their counterclaims of breach of contract, tortious invasion of privacy, and abuse of process,

Page 550

and that their reading of the allegedly breached contract is, at a minimum, a reasonable one precluding summary judgment. We affirm.

          [¶2] Construing the facts in the light most favorable to defendants, the genesis of this case is an application for a permit to construct a barn made by defendants in May 2012. Defendants, as well as plaintiff and her husband, are residents of the Rocking Stone Farm Subdivision in Manchester, Vermont. Defendants own Lot #10 of the subdivision and plaintiff solely owns Lot #9. On May 29, 2012, defendants received a zoning permit from Manchester's zoning administrator allowing them to construct a barn on Lot #10. Pursuant to the Declaration for Rocking Stone Farm (the Declaration), defendants received a waiver from the Homeowner's Association (the Association), through the president and principal Tommy Harmon, permitting them to erect the barn. Plaintiff appealed the permit to the Manchester Development Review Board (the DRB) on June 12, 2012. The DRB affirmed the grant of the permit on August 6.

          [¶3] On August 25, defendant Leonard and her husband were walking along Lot #10 with a landscape contractor when plaintiff began yelling at them from her upstairs window. Plaintiff then left her home and entered Lot #10, accompanied by a " very large dog." Despite being asked to leave, she physically confronted the Leonards, who eventually left the lot.

          [¶4] Two days later, plaintiff filed an appeal of the DRB's decision to the Environmental Division of the superior court. Plaintiff, a trained attorney, initially represented herself, but Mr. Weinstein and his law firm, The Weinstein Group, P.C., entered an appearance as counsel for her on December 18. In November and December, both the Association and counsel for defendants advised plaintiff by letter that her opposition to the barn permit constituted a violation of the Non-Interference Clause of the Declaration, which provides that each owner of a lot in Rocking Stone Farm agrees " not [to] take any action to contest or interfere with any development in the Community so long as such development is consistent with the Land Use Approvals."

          [¶5] On February 4, 2013, the Environmental Division rendered judgment in favor of defendants. Plaintiff appealed that decision to this Court on February 13. On March 15, plaintiff also filed suit against defendants in superior court with a ten-count complaint, alleging, among other things, that the Declaration had been breached by defendants' construction of the barn. Defendants filed counterclaims against plaintiff for trespass, civil assault, breach of contract, tortious invasion of privacy, as well as abuse of process and third-party claims against Mr. Weinstein and his law firm for abuse of process and breach of contract.

          [¶6] Although counsel for plaintiffs had told Mr. Weinstein that their counsel had been authorized to accept process, defendants were served personally in their homes on or about March 26. Mr. Weinstein also sent letters directly to Mr. Harmon and defendants the night before oral argument in this Court in the zoning appeal, despite knowing they were represented by counsel. On September 13, this Court affirmed the decision of the Environmental Decision upholding the zoning permit. Following the Court's decision, Ms. Weinstein raised no more objections to the town's issuance of the permit.

          [¶7] In November 2014, with a jury trial scheduled for January 2015 in the remaining civil suit, plaintiff and Mr. Weinstein and The Weinstein Group, P.C., filed for summary judgment regarding the counterclaims and third-party claims asserted by

Page 551

defendants. On December 24, plaintiff filed a motion to voluntarily dismiss all remaining claims she had asserted against defendants. Finally, on January 12, 2015 the superior court partially granted the summary judgment motions, dismissing all but the civil assault and trespass claims against plaintiff and dismissing all claims against Mr. Weinstein and his law firm. Defendants then voluntarily withdrew their remaining two claims against plaintiff and appealed the grant of summary judgment to this Court.

          [¶8] Summary judgment decisions are reviewed de novo. " Summary judgment will be granted when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Glassford v. Dufresne & ...

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