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= ; &= nbsp; &nb= sp;  = ; &= nbsp; ENTRY ORDER
= ; &= nbsp; &nb= sp; SUPREME COURT DOCKET NO. 2004-410
= ; &= nbsp; &nb= sp;  = ; &= nbsp; APRIL TERM, 2005
WHM Corporation &nb= sp;  = ; &= nbsp; &nb= sp; } = APPEALED FROM:
v. = &n= bsp; &nbs= p; = &n= bsp; } = Windham Superior Court
Trial J= udge: Karen R. Carroll
<= span style=3D'mso-tab-count:1'> = &n= bsp; &nbs= p; In the above-entitled cause, the Clerk will enter:
Defendant Thomas Utter appeals from the trial court’s order, after a jury tria= l, awarding plaintiff WHM Corporation $12,650 in damages for unpaid rent. He argues that the court erred by= : (1) holding him to a mistaken adm= ission in his answer to plaintiff’s complaint; (2) excluding relevant evide= nce; (3) precluding him from arguing that he should not be held personally liab= le for an alleged debt of Vermont Mountain Sports Corporation (VMSC); and (4) allowing him, as a pro se litigant, to answer on behalf of a corporation.<= span style=3D'mso-spacerun:yes'> He also asserts that the jury fai= led to follow the court’s instructions.* We affirm.
July 2003, WHM filed a complaint against Utter, individually, and VMSC.
May 2004, WHM filed a motion to remove VMSC as a defendant, explaining that
because defendants had vacated the premises, its only remaining claim was
against Utter for back rent. Utter
did not respond to the motion, and the court granted WHM’s request.<=
style=3D'mso-spacerun:yes'> A jury draw was held on June 14,
2004. On June 18, 2004, Utte=
to dismiss the case, asserting that the rental agreement had been between
Walter Herrmann, individually, and VMSC.&=
Utter stated that he, as an individual, had never been a tenant of =
nor had he had any transactions with it.&=
He argued that the case should be dismissed because WHM was seeking=
rent for a building that it did not own or manage, from him, individually,=
he was never a tenant of the property.&nb=
The court denied Utter’s motion, finding it out of time as the
jury had been drawn, and the matter was scheduled for trial in two days.
The court also found the motion w=
merit as Utter had admitted in his answer to WHM’s complaint that WHM
owned the premises, and he had entered into a lease agreement personally w=
A jury trial was held. At tria= l, Walter Herrmann testified that WHM had rented property to Utter, as a tena= nt, on a month-to-month basis. On cross-examination, Utter sought to introduce evidence that the lease had b= een between Herrmann, individually, and VMSC.= WHM objected, and the court ruled that Utter was bound by his earli= er admission in his answer that the lease had been between WHM and himself, i= ndividually. The court explained that it would= be unfair at this stage of the proceedings to require WHM to present evidence= that its claim was valid against Utter, and not VMSC, because both WHM and the = court had relied on Utter’s admission.&nb= sp; The jury found Utter liable to WHM for $12,650 in damages, and the = court issued a final judgment order to this effect. Utter filed a motion to set aside= the judgment, which was denied. = This appeal followed.
We first address Utter’s assertion that he should not have been held to= his admission because it dispose= s of Utter’s related arguments. Pursuant to V.R.C.P. 8(b), Utter was required to file an answer to WHM’s complaint admitting or denying the averments upon which WHM re= lied. Utter admitted in his answer that= he had leased the property individually from WHM. As we have explained, the admission of a fact alleged in a complain= t is a judicial admission that is “binding and conclusive.” Barber v. Chase, 101 Vt. 3= 43, 350 (1928); see also Dennis v. French, 135 Vt. 77, 78 (1977) (admitting= fact alleged in complaint under V.R.C.P. 8(d) because it was not denied in answer). We find no merit in Utter’s assertion that his answer is invalid because the court should have intervened, and informed him that he could not answer on behalf of VMSC. The court was under no obligation to so advise Utter, and in any event, the admission at issue in= this case concerns Utter, individually. While Utter states that his admission was a mistake, the record sho= ws that Utter did not file a motion to amend his answer. We reject Utter’s assertion= that his motion to dismiss, filed on the eve of trial, should have been constru= ed as a motion to amend. We simila= rly reject Utter’s allegation that he was “tricked” into mak= ing the admission, and that he could not have known that the court would have interpreted his answer as an admission that he, individually, was the tenant. The record refutes t= hese arguments. In this case, as = the trial court explained, both WHM and the court relied on Utter’s admi= ssion in preparing for trial and in dismissing VMSC from the case. Utter was properly held to his ju= dicial admission, and the trial court did not abuse its discretion in refusing to allow Utter to introduce evidence at trial to contradict his admission.
Utter did not raise his remaining argument below, and it is therefore waived on appeal. See Bull v. Pinkh= am Eng’g Assocs., 170 Vt. 450, 459 (2000) (“Contentions not r= aised or fairly presented to the trial court are not preserved for appeal.”= ;).
BY THE COURT:
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Freder= ic W. Allen, Chief Justice (Ret.),
Specia= lly Assigned
* Utter filed two briefs in this matter, both of which raise essentia= lly the same claims.