explaining that “[t]o properly preserve an issue for appeal a party must present the issue with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it” and “[w]e have repeatedly stressed that we will not address arguments not properly preserved for appeal”
How later courts described this case
- explaining that “[t]o properly preserve an issue for appeal a party must present the issue with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it” and “[w]e have repeatedly stressed that we will not address arguments not properly preserved for appeal”
- explaining that "to properly preserve an issue for appeal a party must present the issue with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it" (quotation omitted)
- stating our repeated admonition that issues are not preserved for review on appeal unless they were presented below with specificity and clarity so as to provide trial court with opportunity to rule on them
- explaining that “party must present the issue with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it” to properly preserve it for appeal (quotation omitted)
Written by the judges who cited it.
The opinion
Amestoy, CJ.,
dissenting. If ever resort to the law could be compared to “having a wolf by the ears,” one need look no further than Lawrence White’s experience with Act 250. Although the majority candidly acknowledges that it was the Environmental Board’s fundamental misinterpretation of our decision in In re Conway, 152 Vt. 526 , 567 A.2d 1145 (1989), that led to the revocation of White’s longstanding Act 250 permits and the otherwise baseless requirement that he initiate an entirely new permit process, today’s decision denies the benefit of its holding to White because he allegedly failed to preserve the issue below. Because I believe the majority’s overly rigid application of the “preservation” rule compounds the utter unfairness of a process that virtually devoured the applicant, I respectfully dissent.
The extraordinary procedural maze in which White found himself has been admirably summarized in the majority opinion, but a few salient points bear emphasis. First, the filing of a petition by the adjoining landowner (Harris Peel) to revoke White’s Act 250 permits based on White’s failure to provide notice to Peel in applying for the permits in question came eight years after the first relevant permit *350 was granted. Second, in response to the claim that White’s failure to provide notice was either wilful or grossly negligent, the Board concluded:
In each instance, an effort was made to identify the adjoining landowners and then list them as part of the applications. This effort was complicated by the Town of Danby not having a tax map which identifies ownership of property. While these efforts were faulty, the omission of Peel was not intentional nor was it so flagrant as to constitute the failure to exercise even a slight degree of care.
Third, among the “perhaps unforeseen” consequences acknowledged by the majority was that neighbors who had participated in the original permitting process, and who were later denied party status in the revocation hearing, were ultimately allowed to participate in the joint revoeation/new permit proceeding.
The more fundamental point, however, concerns the majority’s conclusion that we are “foreclosed” from addressing the Board’s erroneous overextension of Conway . The majority concedes that White did argue below that the Board incorrectly applied Rule 38(A)(2) and further that he addressed arguments to both subsections (a) and (b). As to subsection (a), White contended that his permits should not be revoked because he did not omit Peel either wilfully or with gross negligence. As to subsection (b) — while the majority is correct that White argued below that his innocent failure to list an adjoining landowner should not lead to the draconian step of revocation (implicitly conceding that such failure could be considered a violation of 2(b)) — it takes an extraordinarily cramped view of White’s argument to conclude that he therefore failed to preserve his challenge to Rule 38(A). This is especially so where White filed proposed findings of fact and conclusions of law which urged the District Commission to conclude that “the facts in Conway are so significantly different from those in this proceeding, that a departure from its reasoning is justified.” In this regard, White specifically noted that it was the Commission in Conway that erroneously denied the adjoining landowner party status, not the inadvertent omission of the applicant, and that the permit application process in Conway was ongoing, not final for over eight years, as in this case.
To be sure, White did not precisely assert that the inadvertent omission of the adjoining landowner from his application was not a violation of a Board rule. Yet the essence of the argument was there, *351 and was certainly stated with sufficient clarity to fairly alert the Commission and the Board to the question whether Comuay controlled in these circumstances. This was enough to preserve the issue for appellate review. See Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459 , 752 A.2d 26, 33 (2000) (matters not “fairly presented” to trial court are not preserved for review); State v. Ben-Mont Corp., 163 Vt. 53, 61 , 652 A.2d 1004, 1009 (1994) (purpose of preservation rule is to afford trial court “a fair opportunity to rule” on issue before it reaches this Court).
The final consequence of today’s ruling is that an undisputed error by the Board — fairly raised and asserted below — remains uncorrected, and White is left with a result that is neither fair nor compelled by law. Accordingly, I would reverse the judgment of the Board.