VERMONT SUPREME COURT Case No. 23-AP-341
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APRIL TERM, 2024
David LeBlanc* v. Estate of Robert Snelgrove } APPEALED FROM:
}
} Superior Court, Orleans Unit, Civil Division
} CASE NO. 339-12-08 Oscv
Trial Judge: Daniel Richardson
In the above-entitled cause, the Clerk will enter:
Plaintiff David LeBlanc appeals the trial court’s decision awarding summary judgment in
favor of defendant, the Estate of Robert Snelgrove.1 We affirm.
The following facts were undisputed for purposes of summary judgment. This dispute
involves two neighboring properties on Lake Memphremagog in Newport, Vermont. Plaintiff’s
parents Herman and Lucienne LeBlanc acquired the southerly parcel in 1963. They later
transferred title to the parcel to their four children—Jacques LeBlanc, James LeBlanc, Christine
LeBlanc Fortin, and David LeBlanc—as tenants in common.2 In 1999, Robert Snelgrove
purchased the parcel to the north of the LeBlanc property.
The boundary between the two properties ran along the southerly edge of a boathouse on
Snelgrove’s property, which sat over a stream that drained into the lake. In 2006, Snelgrove tore
down the boathouse and built a new boathouse to the north and east of the original site. As part
of the project, Snelgrove constructed concrete retaining walls and a sluiceway to direct the
stream around the new boathouse and into the lake. Part of a retaining wall extended onto the
LeBlanc property. Snelgrove asserted that this work was necessary to prevent the LeBlanc lands
from eroding into the stream, and constituted an improvement to their property. Snelgrove
further asserted that his contractor communicated the plans to Herman and other LeBlanc family
members, and no one objected at the time.
In 2008, Herman and his four children filed this action seeking damages from defendant.
They alleged that the new boathouse encroached on their property, that Snelgrove had cut off a
1
The original complaint named Robert Snelgrove as the defendant. After Snelgrove died
in 2021, his estate was substituted as the defendant.
2
Because plaintiff’s father and most of his siblings share the same last name, we refer to
them by their first names in this opinion for clarity. No disrespect is intended thereby.
water pipe leading from a spring to the LeBlanc property, and that the construction had caused
drainage to flow onto their property. They asserted claims of unlawful mischief, ejectment, and
trespass, and sought damages and injunctive relief. Snelgrove counterclaimed, seeking a
declaratory judgment that he owned the boathouse and portions of the retaining walls, as well as
damages for trespass against Herman.
In 2013, the court dismissed Herman as a plaintiff in this action, concluding that he
lacked standing because he had transferred ownership to his children, but Herman remained a
defendant in relation to Snelgrove’s counterclaims. The court subsequently held a bench trial on
the boundary, spring, and encroachment issues. The court determined that the boathouse and
northern retaining wall were on Snelgrove’s property and that an easement in favor of
Snelgrove’s property permitted the construction of the southerly retaining wall on the LeBlanc
property. In a subsequent jury trial, the jury awarded damages to Snelgrove for trespass. Both
parties appealed to this Court. In a 2015 decision, we affirmed the boundary-line decision and
the judgment in favor of Snelgrove on Snelgrove’s claims against Herman, but reversed the
court’s conclusions regarding the easement and remanded for retrial of the LeBlancs’ ejectment,
trespass, and unlawful-mischief claims. LeBlanc v. Snelgrove, 2015 VT 112, ¶ 47, 200 Vt. 570.
Meanwhile, in 2013, Jacques died. His estate did not enter an appearance in the case and
he was eventually dismissed as a plaintiff. In 2015 and 2016, Jacques’s widow and David’s
other two siblings, James and Christine, each sold their interests in the LeBlanc parcel to
Snelgrove. James and Christine were dismissed from the case as a result. In October 2015,
David transferred his title in the property back to Herman, who held it until the court ordered it
transferred to Snelgrove in a separate partition proceeding. The trial court determined in a 2020
order that David was the sole remaining plaintiff in this case and his claims were limited to
damages that occurred between 2006 and 2015, when he owned an interest in the LeBlanc
parcel. It appears from the record that David was self-represented by this point.
In May 2023, David moved to amend the complaint to add a claim for conversion of
personal property and to consolidate the case with another trespass proceeding that was filed by
Snelgrove in 2017. The court denied the request for consolidation as moot because it had
entered a final judgment in the other proceeding. It denied David’s request to amend the
complaint because he had an opportunity to raise his personal-property claim in the partition
action and was therefore precluded from raising it again.
Snelgrove’s estate then moved for summary judgment on David’s remaining claims,
arguing that David had failed to prove any damages resulting from the construction of the
retaining wall. David opposed the motion, asserting that he was never notified about the 2013
trial and that the trial court violated his and his father’s right to a jury trial. He argued that
portions of the retaining wall and sluiceway were undisputedly on the LeBlanc property. David
did not identify any facts that were in dispute or point to any portions of the record supporting
his claims for damages.
The court concluded that Snelgrove’s estate was entitled to summary judgment. David
had asserted in response to discovery requests that he had suffered the following damages:
emotional distress from the litigation in the amount of $100,000; emotional distress from seeing
the stream compromised in the amount of $500,000; expenses associated with traveling from his
home in Montana to Vermont for the litigation in the amount of $50,000; loss of his and his
father’s personal property totaling $100,000; and trespass from 2008 to 2019 totaling $250,000.
The court ruled that David could not assert damages on behalf of his father, who was not a
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plaintiff in the action. It further held that damages for emotional distress were not available in a
trespass action. The court denied David’s claim for personal property as barred by the partition
action. It denied the motion for costs as premature because the court had not yet determined the
prevailing party. As for the claim of damages for trespass, it concluded that David had failed to
support his claim with any evidence, and therefore denied that as well. Because David failed to
demonstrate a genuine dispute of fact that could be a basis for relief at trial, the court granted
summary judgment to Snelgrove’s estate. David appealed the court’s decision.
In his appellate briefs, David primarily argues that there was a conspiracy by the various
attorneys he and his family retained in this matter to deny the family of their rights, that he was
never notified by his attorneys of the trial or various other events in the case, and that the judge
in the separate partition action acted improperly. David’s claims regarding his attorneys’
conduct towards him, and the actions of a judge in a different case, are irrelevant to the question
of whether the trial court appropriately granted summary judgment here. We therefore do not
address them.
David also argues that it was inappropriate on this record for the trial court to award
summary judgment to Snelgrove’s estate. We review a motion for summary judgment de novo
using the same standard as the trial court. Provost v. Fletcher Allen Health Care, Inc., 2005 VT
115, ¶ 10, 179 Vt. 545 (mem.). “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” V.R.C.P. 56(a). When determining whether a genuine dispute of fact exists, we
give the nonmoving party “the benefit of all reasonable doubts and inferences,” and “accept as
true the allegations made in opposition to the motion for summary judgment, so long as they are
supported by affidavits or other evidentiary material.” Gates v. Mack Molding Co., 2022 VT 24,
¶ 13, 216 Vt. 379 (quotations omitted).
David asserted claims of unlawful mischief, ejectment, and trespassing. Each of these
claims required him to prove damages resulting from the trespass or encroachment. See
LeBlanc, 2015 VT 112, ¶ 58 (stating that proof of actual damages is required for unlawful
mischief claim); Kellogg v. Shushereba, 2013 VT 76, ¶ 23, 194 Vt. 446 (explaining that measure
of damages under action for ejectment is “mesne profits,” meaning “the pecuniary gains and
benefits received by the disseizor during his unlawful occupancy” (quotation omitted)); Bean v.
Sears, Roebuck & Co., 129 Vt. 278, 282 (1971) (stating that damages for continuing trespass are
typically measured based on “variance in value of the property before and after the injury”).
In its summary-judgment motion, Snelgrove’s estate provided evidence tending to show
that there was no diminution in value of the LeBlanc parcel resulting from the construction of the
retaining wall and that the wall had instead improved the property by reducing erosion and
leveling a previously unusable area. The estate further asserted that there was no evidence to
establish damages under any of David’s theories. Consistent with the summary-judgment rule,
the estate provided a statement of undisputed material facts with citations to evidence that would
be admissible at trial. V.R.C.P. 56(c). David failed to specifically deny any of these facts or cite
any portions of the record that demonstrated a factual dispute. See id.; White v. Quechee Lakes
Landowners’ Ass’n, Inc., 170 Vt. 25, 28 (1999) (explaining that party asserting that facts are in
dispute must support allegations with affidavits or other evidentiary material). Nor did David
provide any evidence to support his claimed damages.
“Where the moving party does not bear the burden of persuasion at trial, it may satisfy its
burden of production by showing the court that there is an absence of evidence in the record to
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support the nonmoving party’s case.” Ross v. Times Mirror, Inc., 164 Vt. 13, 18 (1995). “To
survive a defendant’s motion for summary judgment, the plaintiff must respond with specific
facts to raise a triable issue and demonstrate sufficient admissible evidence to support a prima
facie case.” Gates, 2022 VT 24, ¶ 14. David failed to meet this burden. The trial court therefore
properly awarded summary judgment to Snelgrove’s estate. See Gore v. Green Mountain Lakes,
Inc., 140 Vt. 262, 266 (1981) (“Allegations alone cannot create triable issues of fact.”).
To the extent David argues that the summary-judgment decision improperly deprived him
of his right to a jury trial, his claim lacks merit. “[W]here a plaintiff has an available remedy at
law but fails to prove an element of his or her case, it is plaintiff’s own failure, rather than
constitutionally suspect action by the trial court, that forecloses a remedy.” Mello v. Cohen, 168
Vt. 639, 640 (1998) (mem.). The right to a jury trial does not preclude a court from entering
summary judgment where there is no genuine factual dispute for a jury to decide. Id.
Affirmed.
BY THE COURT:
Karen R. Carroll, Associate Justice
William D. Cohen, Associate Justice
Nancy J. Waples, Associate Justice
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