Real estate agreement was contract for deed, not lease option. Though a contract for deed is treated as a mortgage, foreclosure remedy is not available under Rule 54(c) without notice, and appeal is not barred by Rule 80.1(m) requiring permission.

Prue v. Royer, 2013 VT 12 (Dooley, J.) 

The parties in this case entered into a real estate agreement which the trial court held to be contract for deed giving the purchasers an equitable interest in the property in question. The court initiated a foreclosure on that interest, even though it had not been pled. Plaintiffs, the purchasers as found by the trial court, appeal from the foreclosure. Defendant, the seller as found by the court, appeals from the court’s conclusions that the contract was an enforceable contract for deed. We affirm the trial court’s rulings that the agreement was a contract for deed, that its modifications were enforceable under the Statute of Frauds, that plaintiffs had an equitable interest in the property, and that they did not abandon that interest. We also hold that this matter is properly before us, despite noncompliance with 12 V.S.A. § 4601, and affirm the conditional award for damages for waste. Because the court’s foreclosure ruling awarded a remedy that was not pled or fully litigated, however, we reverse the foreclosure decree as premature and remand for a new foreclosure proceeding.

This case arises out of the lack of clarity in the parties’ agreements. The primary agreement is completed on a realtor pre-printed contract entitled “Purchase and Sale Contract,” but “Lease-Option to Purchase” is handwritten below that title. A separate page is entitled “Financing Property Agreement.” Plaintiffs characterized the agreement as a contract for deed, such that they acquired equitable title subject to a mortgage. Defendant, in contrast, characterized the agreement as a lease-option contract, such that plaintiffs were only leaseholders until they paid the purchase price.

Unlike a contract for deed, a lease-option to purchase is a unilateral contract; its acceptance rests wholly in the discretion of the leasee -optionee. The other main way in which a lease option is distinguished from a contract for deed is that the lease payments are not applied on the purchase price. Because we find that the contract represented a bilateral agreement to purchase the property, and that the payments went towards the purchase price of the property, we affirm the finding of the trial court that the agreement was a contract for deed, rather than a lease-option agreement. The consequence of this conclusion is that defendant’s interest is as an equitable mortgagee, not as a landlord or optionor.

Vermont has consistently treated a contract for deed as an equitable mortgage. It has been one of only a small minority of states to do so, however, a trend has developed consistent with the Vermont view. Thus, the Restatement (Third) of Property: Mortgages § 3.4(b) (1997) provides that “[a] contract for deed creates a mortgage.”

Defendant argues that plaintiffs failed to seek permission to appeal within ten days as required by Rule 80.1(m). Rule 80.1(m) applies only where “the permission to appeal [is] required by law.” 12 V.S.A. § 4601 provides, “When a judgment is for the foreclosure of a mortgage, permission of the court shall be required for review.” The issue is controlled by Herrick v. Teachout, 74 Vt. 196, 202, 52 A. 432, 434 (1902) (statute applies only to mortgages which are such upon their face, or recognized as such by the parties, and not to cases where the character of the instrument is in issue.) This is not a run-of-the-mill foreclosure action, and permission was not required by law.

Vermont Rule of Civil Procedure 54(c) states “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” Despite the breadth of the language of the rule, it is overriden by considerations of “substantial justice” here, where Plaintiffs were prejudiced by the court’s sua sponte introduction of foreclosure into the case.

Discovery. Experts. SCOVT holds general expert disclosure insufficient to reveal “substance” of opinion, by not answering detailed time, place and manner follow-up questions.

Stella v. Spaulding, 2013 VT 8 (Skoglund, J.)  (Robinson, J., joined by Dooley J., dissenting.)

In this medical malpractice action, plaintiff appeals the court’s entry of judgment in defendants’ favor following the court’s discovery sanction, which precluded plaintiff from offering expert testimony or evidence regarding defendants’ negligence as was requested in Interrogatories 64 and 71. Because of the sanction plaintiff could not oppose summary judgment, which the court granted in defendants’ favor. On appeal, plaintiff claims its disclosure was adequate and that no further information was required under the applicable rule. We affirm.

Interrogatory 64 requested the “identity of experts to be employed at trial of this matter, the subject of their testimony, their opinions and the substance of the facts, which are grounds therefore.” Plaintiff responded by identifying a traeting physiciaon who would testify the defendant new or should have known that the patient had developed an infection at the site of her surgical incision but failed to aggressively treat the infection with antibiotics in breach of the standard of care

Interrogatory 71 asked plaintiff to state the alleged negligent acts or omissions committed by Dr. Spaulding specified by date and time, how the act impacted patient, and what the proper course of care should have been. Plaintiff failed to answer this question with more than general allegations, making no delineation as to what acts or omissions committed by defendants at particular times were negligent or how those acts led to the patient’s death, other than the treating physician’s medical record.

The critical and limited issue here is whether interrogatory 71 sought to obtain more than what was required by Rule 26(b)(4). Did the court abuse its discretion in concluding that plaintiff had failed to provide “the substance of the facts and opinions as to which the expert is expected to testify.” V.R.C.P. 26(b)(4)(A)(i). Interrogatory 71 asked about plaintiff’s specific theory of the case. We hold the court did not abuse its discretion; the incidents of negligence committed, the dates of those acts and how those acts deviated from the standard of care lies within the bounds of what the rule requires to be disclosed.

We reject the dissent’s assertion that the court’s chosen sanction was beyond its discretion because the sanction essentially amounted to dismissal. When a trial court imposes the ultimate sanction of dismissal, we require findings of fact to show bad faith or deliberate and willful disregard of the court’s orders, as well as prejudice to the opposing party. But in this instance no no dismissal was imposed. Because the sanction in this case precluded plaintiff from offering certain evidence, but was not a dismissal, no special findings were required.


ROBINSON, J., (joined by Dooley J., dissenting.) The issue in this case is whether defendants were entitled to get the reqauest infomraiotin by the particular tool of expert interrogatories pursuant to Vermont Rule of Civil Procedure 26(b)(4)(A)(i). In affirming the trial court, the majority applies a far more exacting standard than the Rule supports. Moreover, the trial court’s sanction for the purported discovery violation, which was tantamount to dismissal of plaintiff’s case on the merits, exceeded the trial court’s broad discretion.

Dr. Stickney was a treating physiciian and is an “event witness.” To the extent that the facts he knows and opinions he holds were not acquired or developed in anticipation of litigation, but, rather, arise from his own participation in the case, plaintiff was not obligated to make expert disclosures for Dr. Stickney pursuant to Rule In fact, in the context of a medical malpractice case, this Court has held that the defendant hospital did not run afoul of Rule 26(b)(4) when it introduced opinion testimony from treating physicians without having disclosed them as expert witnesses. Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 582, 776 A.2d 376, 379 (2001) 26(b)(4). However plaintiff waived this point.

The question presented by this case is whether plaintiff’s expert disclosures were sufficient to give defendant “notice of the basic arguments” plaintiff intended to pursue at trial. This is the disclosure:

"The refusal of [defendants] to treat [decedent’s infection] caused her to develop sepsis which led to her death. Specifically, [defendants] knew or should have known that [decedent] had developed a[n] . . . infection at the site of her surgical incision and that she should have been treated with antibiotics. This failure to aggressively treat [decedent’s infection] with antibiotics was a breach of the standard of care. In addition, [defendants], when contacted by Dr. Stickney, refused to allow Dr. Stickney to prescribe [decedent] antibiotics for her [infection] claiming that she was their patient and her post surgicaltreatment was their responsibility. The refusal of [defendants] to allow Dr. Stickney to treat [decedent] with antibiotics was a breach of the standard of care."

What more need plaintiff say to put defendants on notice of its theory of malpractice? Plaintiff in this case was not required to answer by interrogatory the litany of detailed follow-up questions posed by defendant. Plaintiff was not required to facilitate an expert-deposition-by-interrogatory. The fact that some questions posed by defendant remain unanswered, or unanswered to defendant’s satisfaction, does not mean that plaintiff has failed to comply with its obligations pursuant to Rule 26(b)(4)(A)(i). Plaintiff’s disclosure as to the substance of Dr. Stickney’s opinions was more than sufficiently detailed to put defendant on notice of the arguments plaintiff intended to press at trial.