Access to the Courts and to Municipal Proceedings are Fundamental Rights that Can Only Be Waived Knowingly and Intentionally

In Weinstein v. Leonard and Sayour, 2015 VT 136 (November 13, 2015), the Vermont Supreme Court affirmed summary judgment for the Plaintiff and her attorneys against Defendants’ counterclaims of breach of contract, tortious invasion of privacy, and abuse of process.

Issue: Defendants obtained a DRB permit to build a barn on their land. Their neighbor, Plaintiff (an attorney represented by her attorney husband and his firm) pursued an (ultimately unsuccessful) appeal of the permit all the way to the Supreme Court, and also brought civil suit on several grounds, including that Defendants had violated the declaration of the homeowner’s association (“HOA Declaration”) by building the barn. Defendants counterclaimed on several grounds, but the trial court found for Plaintiff on summary judgment. Defendants appealed the grant of summary judgment on their counterclaims of breach of contract, tortious invasion of privacy, and abuse of process.

Holding: Reviewing the matter de novo, the Court affirmed. On the breach of contract claim – in which Defendants claimed that Plaintiff breached a provision of the HOA Declaration which prohibits interference with another’s development within the community – the Court found that it would not uphold that provision as an exculpatory waiver agreement, because the language and circumstances of signing did not make it clear that both parties knowingly and intentionally agreed that Plaintiff would be waiving the right to participate in municipal development proceedings and the right of free access to the courts (both of which the Court characterized as “fundamental”). On the abuse of process claim, the Court found that Plaintiff’s right to access the courts is not limited simply because she is an attorney, and that (regardless of whether she or her attorneys were acting maliciously) there was no indication that they improperly used specific court processes. Finally, the Court found that, while Plaintiff’s actions in yelling at Defendants and approaching them with a large dog may have been “irritating and frightening,” it did not amount to an intrusion upon seclusion so as to vindicate a claim of tortious privacy invasion.