Single-Application Continuity and Propane Tank Removal Standards under CF 111: Bourne’s Inc. v. Lemelson

Introduction

In Bourne’s Inc. d/b/a v. Emmanuel Lemelson, the Vermont Supreme Court (May 9, 2025) addressed two interrelated issues:

Whether a single “Application for Fuel Delivery and Service” may govern multiple delivery points or accounts opened at different times without separate signatures; and
The scope and timing of propane-tank removal obligations under the Vermont Consumer Fraud Rule (CF 111), including exceptions for weather and access constraints.

Plaintiff Bourne’s Inc. (a fuel supplier) sought unpaid balances, finance charges, collection costs and attorney’s fees for three customer accounts maintained on one form. Defendant Lemelson counterclaimed under the Vermont Consumer Protection Act (VCPA) and CF 111 for failure to remove underground tanks within the prescribed period.

Summary of the Judgment

The Superior Court had found that:

The 2016 application applied to all three fuel accounts (heating oil and two propane tanks).
Monthly 1.5% finance charges were contractually authorized and never objected to until after termination.
Defendant’s termination in January 2020 left three outstanding balances totaling $9,450.82, offset by unused-propane credits to $8,747.85.
Removal delays were excused by weather and access issues under CF 111.15’s “as soon as weather and access allow” exception.
Defendant was not entitled to penalties under CF 111 or attorney’s fees for consumer-fraud counterclaims.
Plaintiff was entitled to contractual attorney’s fees of $39,056 plus costs of $6,694.

On appeal, the Vermont Supreme Court affirmed each ruling, applying deferential “clear error” review to factual findings and “reasonably supported” review to conclusions of law.

Analysis

Precedents Cited

Soon Kwon v. Edson (2019 VT 59): Standard for reviewing bench-trial findings—clear-error review of facts; conclusions of law upheld if “reasonably supported.”
Hirchak v. Hirchak (2024 VT 81): Reaffirming clear-error standard.
Highgate Assocs., Ltd. v. Merryfield (157 Vt. 313 (1991)): Deference to correct legal standards.
State v. Young (2010 VT 97): Credibility determinations in conflict-filled testimony.
Rowe v. Brown (157 Vt. 373 (1991)): Arguments not adequately briefed may be deemed waived.
Vastano v. Killington Valley Real Est. (2010 VT 12): Fee awards need not be proportionate to damages.
Soon Kwon v. Eaton (2010 VT 73): Reasonableness standard for attorney’s fees; lodestar analysis.
L’Esperance v. Benware (2003 VT 43): Lodestar approach—hours × rate, then adjustment for novelty, complexity, results obtained.

Legal Reasoning

1. Single-Application Doctrine: Testimony from Bourne’s personnel confirmed a uniform practice of using one application form for all delivery points. Defendant’s invoices showed consistent finance-charge application across three accounts. Self-serving testimony that he did not understand the contract was outweighed by objective record evidence. The court’s credibility determinations and contract interpretation were upheld under clear-error review.

2. Finance Charges and Offsets: The agreement authorized 1.5% monthly finance charges. The court credited unused propane recovered on tank removal against outstanding balances. Defendant presented no contrary documentary evidence, and the calculations were upheld as supported by credible testimony.

3. CF 111 Tank Removal Obligations: • CF 111.15(a) requires seller-owned tank removal within 30 days for underground tanks, “or as soon as weather and access allow.” • Bourne’s demonstrated weather and access constraints that delayed removal until June and October 2020. The court found no CF 111.15 violation. CF 111.16’s refund requirement applies only upon seller disconnection, not when the customer unearths and surrenders tanks. Bourne’s promptly credited unused propane; no rule breach occurred.

4. Attorney’s Fees (Lodestar Analysis): • Total billed: $61,428; plaintiff sought $54,907. • Court excluded $9,484 for redundant billing, intra-office strategy, and overbilled partner hours, yielding a lodestar base of $45,423. • Additional reductions of $6,367 for unreasonable opposition tactics. • Final award: $39,056, based on complexity, multi-year litigation, and involvement of an inexperienced associate requiring partner supervision. Under L’Esperance and Soon Kwon, the court’s reasoned adjustments fell within its discretion.

Impact

This decision reaffirms several key points for Vermont fuel-service providers:

A single, properly executed customer-service application can govern multiple delivery accounts without separate signatures.
Monthly finance charges stipulated in a contract will be enforced absent timely objection.
Propane-tank removal obligations under CF 111 are subject to an exception for weather and access, limiting consumer-fraud penalties when removal is physically impracticable.
Lodestar attorney’s-fee awards will be scrutinized for redundancy and reasonable scope, but courts will defer to well-documented billing practices.

Future litigants should ensure clear contract documentation for multiple service points, monitor timely objections to finance charges, and maintain contemporaneous records of any weather- or access-related delays in tank removal.

Complex Concepts Simplified

Clear-Error Review: A standard where appellate courts defer to the trial court’s factual findings unless there is no credible evidence supporting them.
Lodestar: The baseline fee calculation: (Reasonable hours worked) × (Reasonable hourly rate), adjusted up or down for case complexity, novelty, and results.
CF 111: Vermont’s Propane Sales Rule, promulgated under the Consumer Fraud Act, setting timelines and refund requirements for propane tank removal and disconnection.
Offset: A credit applied to reduce outstanding debt, here reflecting the monetary value of unused propane recovered from tanks.

Conclusion

Bourne’s Inc. v. Lemelson clarifies two important points in Vermont fuel-service law:

A single customer-service application may validly cover multiple accounts and delivery points, binding the customer to uniform finance-charge and attorney-fee provisions.
Under CF 111, requirements to remove seller-owned underground propane tanks are excused by weather and access constraints, and refund obligations attach only when the seller itself disconnects service.

The case underscores the importance of clear contracting practices, prompt dispute resolution, and thorough documentation of operational delays. It will guide both suppliers and consumers in structuring agreements and handling post-termination obligations in the Vermont energy-service sector.