Soucy v. Soucy Motors, Inc.

Gibson, J.,

dissenting. I must dissent from the majority opinion. The jurisdictional issue has been resolved previously by this Court, and in deviating from the established case law the majority is opening a Pandora’s box that will cause myriad troubles to litigants, bench and bar for years to come.

The controversy revolves around 4 V.S.A. § 219, which provides:

*621 All rights, powers and duties of a chancellor shall vest exclusively in the presiding judges of the superior court and the powers and jurisdiction of the courts that were heretofore vested in the courts of chancery shall vest in the superior court. District and probate judges shall have the powers of a chancellor in passing upon all civil matters which may come before them.

The majority rely on Pockette v. LaDuke, 139 Vt. 625 , 432 A.2d 1191 (1981), which holds that “[a] superior court constituted with one presiding judge and two assistant judges is without jurisdiction to hear a case sounding in equity.” Id. at 627 , 432 A.2d at 1192 . Not mentioned in the majority opinion is a subsequent case that was also reversed on jurisdictional grounds because two assistant judges sat in an action for specific performance and participated in the making of findings of fact and conclusions of law. Maskell v. Beaulieu, 140 Vt. 75 , 435 A.2d 699 (1981).

There is no question but that in superior court all authority in equitable matters vests exclusively in the presiding judge. The assistant judges have no decision-making or any other power in such matters. The majority of this Court, however, have confused the privilege of sitting and listening to the evidence with the power to render a decision.

In a long line of cases, including four decisions subsequent to Pockette , this Court has consistently refused to find jurisdictional defect where the presiding judge has been joined by the assistant judges in the unanimous decision of an equitable matter. Swanson v. Bishop Farm, Inc., 140 Vt. 606 , 443 A.2d 464 (1982); Braun v. Humiston, 140 Vt. 302 , 437 A.2d 1388 (1981); White Current Corp. v. State, 140 Vt. 290 , 438 A.2d 393 (1981) ; Brower v. Holmes Transportation, Inc., 140 Vt. 114 , 435 A.2d 952 (1981); Travelers Insurance Co. v. Blanchard, 139 Vt. 559 , 433 A.2d 296 (1981) ; Nugent v. Shamhor, 138 Vt. 194 , 413 A.2d 1210 (1980) ; Kelly v. Rhodes, 136 Vt. 534 , 396 A.2d 130 (1978); Villeneuve v. Bovat, 128 Vt. 345 , 262 A.2d 925 (1970). These cases have found either that the participation of the assistant judges was unnecessary and may be “treated as surplusage,” Kelly v. Rhodes, supra, 136 Vt. at 535 , 396 A.2d at 131 ; Villeneuve v. Bovat, supra, 128 Vt. at 346 , 262 A.2d at 926 ; that the decision was unani *622 mous and the presence of the assistant judges was harmless error, Swanson v. Bishop Farm, Inc., supra, 140 Vt. at 611-12, 443 A.2d at 466 ; Braun v. Humiston, supra, 140 Vt. at 305, 437 A.2d at 1389 ; White Current Corp. v. State, supra, 140 Vt. at 291, 438 A.2d at 394 ; or that improper constitution of the court did not affect the eventual result and, therefore, presented no ground for reversal, Brower v. Holmes Transportation, Inc., supra, 140 Vt. at 118, 435 A.2d at 954.

In Brower , the Court went so far as to distinguish its holding in Pockette , stating:

Nor does it appear why the assistant judges sat in a case where specific performance was requested. V.R.C.P. 83(1). But we are presented with no grounds for reversal. This case is clearly distinguishable from Pockette v. LaDuke, 139 Vt. 625 , 432 A.2d 1191 (1981), where the assistant judges, sitting improperly, prevailed over the presiding judge. The authority of that case should be limited to situations where improper constitution of the court may have affected the eventual result. See Maskell v. Beaulieu, 140 Vt. 75 , 435 A.2d 699 (1981). No such influence is indicated here, where only a legal ruling as to summary judgment is involved.

Id.

The Court has taken a similar position in the analogous area of tax appeals where 32 V.S.A. § 4461(a) provides:

The appeal to the superior court shall be heard by the presiding judge, sitting alone and without jury.

This language is comparable to that of 4 V.S.A. § 111(a), which states that “[i]n claims for equitable relief . . . , trial shall be by the presiding judge sitting alone.”

In the tax appeal case of Monti v. Town of Northfield, 135 Vt. 97 , 369 A.2d 1373 (1977), this Court dealt with the presence of assistant j udges in the following terms:

It is, of course, true that the procedure for hearing property tax appeals established by 32 V.S.A. § 4461 (a) requires that the matter be “heard by the presiding judge, sitting alone and without a jury.” Further, 32 V.S.A. § 4467, dealing with the manner in which appeals *623 are to be conducted, refers to the determining body as “the court of chancery.” Historically, prior to the passage of 4 V.S.A. § 219 vesting the rights, duties and powers of a chancellor in the presiding judges of the superior courts, jurisdiction conferred in the court of chancery was deemed vested exclusively in a single chancellor. Turner v. Bragg, 113 Vt. 156, 159 , 30 A.2d 450 (1943). Enactment of 4 V.S.A. § 219 continued this practice in respect to those matters falling within the purview of the courts of chancery. Obviously, then, the presence of the assistant judges in this particular jurisdictional area was unnecessary and should be regarded as surplusage. Villeneuve v. Bovat, 128 Vt. 345, 346 , 262 A.2d 925 (1970). Even if the presence of the assistant judges was erroneous, defendant has failed to show how such error has harmed it in any way. The defendant is obliged to establish that the alleged error was prejudicial and injured its rights. (Citations omitted.)

Id. at 99, 369 A.2d at 1375 .

Equity courts historically have had authority to use advisory juries to hear issues of fact and, upon receipt of their verdicts, either to accept or disregard and override them. Adams v. Soule, 33 Vt. 538, 540 (1860); 27 Am. Jur. 2d Equity §§ 238-244. This procedure has been carried forward into modern rules of practice, and is currently embodied in V.R.C.P. 39(c).

Further, since 1878 a chancellor has had discretion to refer a cause to a special master for hearing. No. 17 of the Acts of 1878. The special master, after hearing the evidence out of the presence of the court, would submit his report to the chancellor for decision. This procedure has likewise been carried forward and included in the present civil rules. V.R.C.P. 53.

In light of the precedents of this Court and the historical equitable practice of holding hearings before advisory juries and special masters, I fail to see how the mere presence of assistant judges at the trial of an equitable action can constitute error per se. Unless there is a showing of harm or prejudice (see Nugent v. Shambor, supra, 138 Vt. at 199 , 413 A.2d at 1213 (Billings, J., concurring, joined by Justice Hill)), *624 their presence and their signatures on the findings and order of the court are harmless and should be treated as surplus. Swanson v. Bishop Farm, Inc., supra; Braun v. Humiston, supra; White Current Corp. v. State, supra; Kelly v. Rhodes, supra; Villeneuve v. Bovat, supra.

Plaintiffs herein claim no prejudicial error from the presence of the assistant judge, and a review of the record reveals none. There has been insufficient showing to warrant reversal on jurisdictional grounds.

As a result of the action taken by the majority today, I for-see much frustration ahead for many litigants and lawyers, not to mention undue expense and wasted time and effort. The judicial system itself will suffer from the added burdens imposed upon it by retrials mandated by this decision.

When Vermont adopted the Rules of Civil Procedure in 1971, it sanctioned a change in its pleading practice, proclaiming that there would henceforth be “one form of action.” V.R.C.P. 2. Proeedurally, law and equity have been merged. “[Sjince July 1, 1971, equity is no longer a distinct action,” Wells v. Village of Orleans, Inc., 132 Vt. 216, 219 , 315 A.2d 463, 465 (1974), and equitable and legal claims are now lumped together in a single pleading. Today’s decision means that whenever a whiff of equity appears in any complaint that case will have to go before a judge sitting alone; any miscalculation as to whether a case is to be treated as one at law or in equity will automatically mean a retrial, with a concomitant waste of time and money to litigants and an already too busy judiciary.

The majority decision is a step backward, an anomalous step for a judicial system that is making great strides in modernizing its procedures. Pandora’s box has been opened. The troubles contained therein will soon appear.

I am authorized to say that Justice Hill joins in this dissent.