Twombly v. Horne: Reaffirming the Appellant’s Duty to Perfect the Record and the Automatic Writ of Possession under Vermont’s Rent-Escrow Statute

Introduction

Oliver Twombly v. Marcia Horne, 2025 VT ___ (Entry Order), arose from a residential eviction dispute in Barre, Vermont. The landlord, Oliver Twombly, sought possession for non-payment of rent and accrued arrears under an oral week-to-week tenancy. The tenant, Marcia Horne (self-represented), advanced an array of defenses and counterclaims—ranging from habitability complaints to allegations of discrimination and macabre claims of decomposing human remains in the building. After a bench trial, the Washington Unit, Civil Division, found for the landlord, awarding $6,615.20 in net back rent and costs. Horne appealed, contending (1) that portions of the superior-court record were missing or altered, and (2) that the trial court erred in crediting the landlord’s testimony over hers.

The Vermont Supreme Court, sitting as a three-justice panel, affirmed. Although entry orders of three-justice panels do not bind future tribunals as precedent, this decision nonetheless clarifies two doctrinal points that will likely influence Vermont practice:

Appellants bear the exclusive burden to ensure a complete and accurate record on appeal, and any alleged gaps must be addressed first in the trial court under V.R.A.P. 10(e).
Failure to comply with a rent-escrow order under 12 V.S.A. § 4853a(h) entitles the landlord to an immediate writ of possession, essentially making the order self-executing once default occurs.

Summary of the Judgment

The Supreme Court rejected Horne’s challenge on two independent grounds:

Record-Deficiency Claim: Horne alleged that pleadings and audio recordings containing “material admissions” by the landlord were removed or edited. Citing V.R.A.P. 10(e), the Court held that disagreements over the content of the record must be resolved in the superior court. Because Horne never sought such relief below, the claimed deficiencies were “beyond the scope of appellate review.”
Credibility and Merits: Applying the clearly-erroneous standard, the Court deferred to the trial judge’s credibility determinations. The findings that (i) back rent was $10,120, (ii) the tenant failed to prove her counterclaims, and (iii) a utility-service deduction was appropriate, were all reasonably supported by the evidence; therefore the judgment for $6,615.20 stood.

Analysis

Precedents Cited and Their Influence

Banker v. Dodge, 126 Vt. 534 (1967) – Established the appellant’s responsibility for furnishing a true record; referenced in Reporter’s Notes to V.R.A.P. 10 and reaffirmed here.
Hoover v. Hoover, 171 Vt. 256 (2000) – Confirmed that appellate review is confined to the record as transmitted. The Court uses Hoover to dispose of Horne’s extra-record arguments.
Kwon v. Edson, 2019 VT 59 – Restated the limited scope of review after a bench trial; specifically, appellate courts do not re-weigh evidence.
Moyers v. Poon, 2021 VT 46; Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82; Hirchak v. Hirchak, 2024 VT 81 – Collectively underscore deference to fact-finder credibility determinations and the “clearly erroneous” standard.
12 V.S.A. § 4853a(h) – Statutory provision mandating issuance of an immediate writ of possession when a tenant defaults on a rent-escrow order; the decision operationalizes this statute.

Legal Reasoning of the Court

Procedural Threshold – V.R.A.P. 10(e)
• Any dispute about the completeness or accuracy of the record must be settled in the trial court.
• Because Horne skipped this step, the Supreme Court treated the existing record as conclusive.
• The rule places the “risk of deficiency or mistake” squarely on the appellant.
Standard of Review – Credibility & Findings
• The Court reiterated that factual findings “will not be disturbed unless clearly erroneous.”
• Even contradictory evidence is insufficient to overturn findings if “any credible evidence” supports them.
• Assertions of judicial bias require clear record evidence; mere dissatisfaction with outcome does not suffice.
Substantive Law – Rent-Escrow Default
• Once a rent-escrow order is served and the tenant misses a payment, § 4853a(h) gives the landlord an automatic right to possession.
• The superior court correctly issued the writ; the Supreme Court found no legal error.

Potential Impact

Appellate Practice: Lawyers and self-represented litigants alike must vigilantly preserve and perfect the record below. Expect more frequent use of V.R.A.P. 10(e) motions when inaccuracies are alleged.
Landlord-Tenant Litigation: The decision underscores that rent-escrow defaults trigger near-certain loss of possession. Tenants contesting habitability or other defenses must still comply with escrow orders or risk eviction before trial.
Credibility Battles: The ruling illustrates how appellate courts rarely overturn trial-level credibility findings, even in sensational fact patterns.

Complex Concepts Simplified

Rent-Escrow Order: A court directive compelling the tenant to deposit ongoing rent payments with the court clerk while litigation is pending. Failure to pay typically expedites possession for the landlord.
Writ of Possession: A court order authorizing the sheriff or constable to remove the tenant and return possession to the landlord.
Record on Appeal: The complete collection of pleadings, exhibits, transcripts, recordings, and docket entries transmitted from the trial court to the appellate court.
V.R.A.P. 10(e) “Record Correction”: The procedural mechanism to fix or supplement the record in the trial court when disputes arise.
Clearly Erroneous Standard: An appellate court will not disturb a factual finding unless, after reviewing the entire record, it is left with the “definite and firm conviction” that a mistake has been made.
Self-Represented Litigant (SRL) Leeway: While Vermont gives SRLs some flexibility, they must still comply with briefing and preservation requirements (V.R.A.P. 28).

Conclusion

Although formally non-precedential, Twombly v. Horne sends two clear messages: (1) appellate success begins with curating a meticulous record in the trial court, and (2) rent-escrow compliance is not optional if a tenant wishes to contest eviction on the merits. The Supreme Court’s treatment of V.R.A.P. 10(e) and § 4853a(h) fortifies procedural rigor in Vermont’s appellate and landlord-tenant arenas. Going forward, litigants—especially those without counsel—must appreciate that factual assertions unsupported by the record will not rescue an appeal, and ignoring a rent-escrow order is almost certain to cede one’s home.