Soon K. Kwon
Eric Edson and Dina Well
Appeal from Superior Court, Chittenden Unit, Civil Division,
Robert A. Mello, J.
Herbert J. Downing of Kolvoord, Overton & Wilson, P.C.,
Essex Junction, for Plaintiff-Appellant.
Samantha V. Lednicky of Murdoch Hughes Twarog Tarnelli
Attorneys at Law, P.C., Burlington, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. In this landlord-tenant dispute, following a bench trial,
the court found that the parties had an oral rental agreement
and awarded plaintiff landlord back rent and reimbursement
for electric bills. The court granted tenant Edson damages to
compensate him for work he performed on landlord's
properties and tenant Well compensatory and punitive damages
for breach of the implied warranty of habitability and
illegal eviction. Landlord appeals, arguing that the court
erred in (1) finding that there was an oral rental agreement
between the parties and that defendants were tenants; (2)
awarding rent for only a portion of the period tenants
occupied the property; (3) awarding tenant Edson damages
because the claim was not properly pled; and (4) awarding
tenant Well punitive damages. Tenants cross appeal, arguing
that the court abused its discretion in finding there was an
agreement to pay rent once the building was compliant with
the housing code and erred in awarding landlord back rent
based on a theory of unjust enrichment. We affirm in part and
reverse and remand in part.
2. In sum, we conclude that the evidence supports the
court's finding that the parties entered an oral
agreement allowing tenants to stay in landlord's
apartment rent-free for some portion of time. The record does
not support the court's findings as to the terms of that
agreement: that tenants agreed to pay rent after the building
became compliant with the housing code and that the building
did not become code-compliant until the third week of
November 2016. Consequently, we strike the award of back rent
and reimbursement for electrical costs to landlord and remand
for the court to make new findings regarding the nature of
the parties' agreement and to enter any revised judgment
if supported by the facts. We affirm the court's award of
damages to tenant Edson for the work he performed for
landlord, concluding that the issue was tried by implied
consent. Finally, we conclude that an award of punitive
damages was allowable as damages for breach of the warranty
of habitability and affirm the award of punitive damages to
3. Following a bench trial, the court found the following.
Landlord and his wife own an apartment building on South
Union Street in Burlington. In June 2016, the building
required indoor and outdoor painting to be brought into
compliance with the city's lead-paint requirements.
Landlord contacted a painting company, but he was unable to
reach an agreement. Tenant Edson, who was employed by the
painting company, offered to do the painting during his
nonwork hours. Edson provided an initial estimate of $30, 000
but landlord was not willing to spend that much money.
Instead, the parties reached an agreement under which Edson
would work on the building in his free time and landlord
would pay for the materials and compensate Edson $35 an hour
for his labor. Landlord gave Edson an initial check for $500
and the code to access the building in July 2016.
4. By early August 2016, Edson had finished the first phase
of the work and requested payment of $3000 for his labor.
Landlord was satisfied with the quality of the work but gave
Edson only an additional $500. Edson told landlord that he
would discontinue working unless he received the balance of
$2500. Landlord offered that if Edson continued to paint, he
would pay Edson in full for all his work and agreed that
Edson and his girlfriend, tenant Well, could reside in
apartment 2 of the building rent-free until the building was
fully brought up to code. At that time, tenants would pay
landlord $1650 in monthly rent. Edson accepted the offer and
5. Edson continued painting the building through the summer
and fall of 2016. He did other work on the property,
including replacing locks and fire alarms, removing satellite
dishes, replacing a toilet, and painting indoor hand
railings, doors, and windows. Edson and Well also did
cleaning and trash removal. The building became compliant
with the city's lead-paint requirements. Landlord was
satisfied with the quality of Edson's work and sent him
checks totaling $1400, which was far less than what Edson was
owed. The court found that landlord owed Edson $12, 400 for
the painting and other work.
6. Throughout the summer and fall of 2016, tenants resided in
apartment 2. They did not have a written lease and did not
pay rent. Landlord knew that tenants were residing in the
apartment without a lease or security deposit and without
paying rent. Landlord paid the electrical bill for that
apartment. Landlord did not attempt to evict tenants.
7. In November 2016, the building was up to code except that
landlord needed to pay the city a reinspection fee before he
could receive a certificate of occupancy.
8. Also, in November 2016, the Department of Corrections
revoked Edson's furlough status and he was incarcerated.
He has not resided in the apartment since that time. Well
continued to reside in the apartment without paying rent. She
did not have an agreement to perform services for landlord in
lieu of rent.
9. In March 2017, landlord sent tenants a letter requesting
that they move out by the end of April 2017 and indicating
that landlord needed to prepare the apartment for new
tenants. He stated that he would disconnect the utilities
since tenants had not taken over the utilities. Well did not
vacate the apartment, but she did contact the electric
department and transferred the electric bill to her name. In
May 2017, landlord sent tenants a notice entitled
"Termination of Your Tenancy for Non-Payment of
Rent." The notice stated that the tenancy was terminated
as of May 31, 2017 due to nonpayment of rent and that there
was ten months of back rent due totaling $16, 500. This was
the first time that landlord alleged tenants owed back rent.
Tenant Well responded by removing her name from the electric
10. Landlord initiated this eviction action in June 2017. In
his complaint, landlord alleged that tenants agreed to rent
from him on a month-to-month basis and agreed to pay him
$1650 in monthly rent plus electricity. He stated that
tenants moved in around August 1, 2016 and had paid no rent.
Tenants counterclaimed, pleading breach of the implied
warranty of habitability and illegal eviction and seeking