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.

Commercial lease. Defective eviction notice means “wrongful eviction” and forfeiture of right to rent or liquidated damages.

Vermont Small Business Development Corp. v. Fifth Son Corp., 2013 VT 7 (Dooley, J.)
Landlord appeals a partial summary judgment order concluding that his eviction of tenant from a property was wrongful, as well as the trial court’s ruling on a post-trial motion that tenant was not liable to landlord for rent that accrued post-eviction. Because landlord’s notice of default was defective, and because a wrongful eviction releases a tenant from liability for rent accrued post-eviction, we affirm.

Our law is clear on the necessity of strict compliance with terms in a lease in order to effectuate an eviction: The time, mode and manner of notice of termination must conform to the agreement. With respect residential leases, we require “punctilious compliance with all statutory eviction procedures, including notice provisions. There is no reason to require less “punctilious compliance” with terms of a lease providing for notice in the nonresidential context.

The notice of default was defective in two ways. First, although the terms of the restaurant lease clearly require lessor to “specify[] the occurrence giving rise to [the] Event of Default,” it failed to do so. Second, although the restaurant lease provides that the notice must “stat[e] that this Agreement and terms hereby demised shall expire and terminate on the date specified in such notice,” lessor did not specify any such date. (Emphasis added.) The lease states that the date of termination must be “at least twenty (20) days after the giving of such notice.” (Emphasis added.) We cannot read that language as setting the date of termination at twenty days after the date of the notice.

Because the notice of termination of the restaurant lease was defective, we affirm the trial court’s finding on summary judgment that lessor’s eviction of lessee from the restaurant was wrongful.

Because lessor did not properly terminate the tenancy, we uphold the trial court decision that lessor cannot collect post-eviction rent, whether labeled as such or as liquidated damages.

SCOVT NOTE: In Panagiotidis v  Galanis, 2015 VT 134 the Court refused to extend the requirement of punctiolous compliance to the manner of notice, as opposed to the contents, where the manner of notice given is actually more certain.

How cited

Appeals. Zoning finality. Rules suspended to confer appellate jursidiction over interlocutory appeal from order remanding zoning case to DRB. Stowe Club test does not preclude amended permit, because changing lot designated for required hotel did not require change in permit condition.

In re Stowe Highlands Merger/Subdivision Application, 2013 VT 4 (Burgess, J.) 

This appeal stems from Stowe Highlands’ application to amend its PUD by subdividing and then merging certain lots, including one designated for a hotel. The DRB concluded that the amendment amounted to a change in the permit conditions and that Stowe Highlands had not demonstrated an unanticipated change in factual circumstances beyond its control. The Environmental Division reversed, concluding that the application required no permit condition change. We affirm.

The Environmental Division’s order was not a final judgment, because the court remanded the case back to the DRB to conduct a merits review. See In re Cliffside Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.) (concluding that environmental court’s decision remanding case to zoning board for review was not a final judgment). Nonetheless, no party moved to dismiss the appeal for lack of a final judgment and the case has been fully briefed and oral argument presented. The appellate rules can be suspended as a matter of discretion in the interest of judicial economy, and we do so here and decide the issue presented. In re Paynter 2-Lot Subdivision, 2010 VT 28, ¶ 3 n.2, 187 Vt. 637, 996 A.2d 219 (mem.) (allowing suspension of appellate rules when, as here, dismissal of the appeal “most likely would result in an appeal after final judgment”); see V.R.A.P. 2.

The DRB applied the Stowe Club test to evaluate whether to grant such a change. Under this test, the Board examines whether a permit modification is justified by: changes in factual or regulatory circumstances beyond the permittee’s control, changes in the project’s construction or operation not reasonably foreseeable at the time the permit was issued, or changes in technology. In re Stowe Club Highlands, 166 Vt. at 38-39, 687 A.2d at 105-06; see In re Hildebrand, 2007 VT 5, ¶¶ 7, 13-15, 181 Vt. 568, 917 A.2d 478 (mem.) (explaining and applying Stowe Club test).

The court was correct in its assessment that no evidence supported a reading of the permit to condition development of Parcel 1 to nothing beyond a hotel or inn. The application proposed to decrease the lot size for the hotel, but reserved Parcel 1A for the same sized 21-unit hotel as previously permitted. Because the proposed amendment did not require a change in a permit condition, the Stowe Club test was not applicable, and the Environmental Division’s reversal and remand to the DRB for further review of the application was proper.

Biological rights. Where putative father’s claim is based on biology alone, Vt law constitutionally precludes a second parentage action after final judgment in first parentage action to which the putative father was not party.

Columbia v. Lawton, 2013 VT 2 (Robinson, J.)  

This case requires us to consider the constitutional rights of a putative biological father who seeks an order of parentage when a court has already issued a parentage order determining the minor child’s parents. We conclude that Vermont’s parentage statute does not authorize a court to allow a second parentage action involving a particular child brought by or against a different putative parent and that constitutional considerations do not require the court in this case to entertain the second parentage case.

In this case, even if plaintiff is the genetic parent of the minor child, he does not have constitutionally-protected parental rights. He did not seek to establish a legal tie to the minor child until more than two years after the child’s birth, and never had any significant custodial, personal, or financial relationship with the minor child despite ample opportunity to formally declare and pursue his assertion of parentage.  After the child's birth he wrote  mother from jail requesting photos of the child, but the request for pictures, without accompanying efforts to take responsibility for the child by establishing a relationship, providing nurturing, offering support, or asserting his legal rights was not enough. When he did step forward, more than two years after the child's birth, he could not claim any indicia of parenthood other than, possibly, a genetic connection. Accordingly, we affirm the trial court’s decision denying plaintiff’s motion for genetic testing and dismissing his complaint for establishment of parentage.

Unclean hands defense precludes constructive trust as remedy for unjust enrichment claims based on an unmarried cohabitant’s investment in property owned by the other.

Shattuck v. Peck, 2013 VT 1 (Burgess, J.)  (Robinson, J., dissenting.)

Defendant appeals from a superior court judgment granting plaintiff  a writ of possession for the parties’ former residence in Cavendish and denying defendant’s counterclaim for an equitable interest in the Cavendish property and another former residence in Springfield. We affirm. 

A court may apply unclean hands doctrine, even where not set up as defense, where “the unconscionable character of a transaction” is plain. The property transfers were intended to circumvent governmental regulations that jeopardized defendants continued eligibility to receive Social Security disability benefits. Although the trial court here did not rule on this issue, there is no factual dispute concerning the intended purpose of the property transfers. The undisputed evidence demonstrates that defendant lacked the “clean hands” necessary for an award of equitable relief. Accordingly, we affirm the judgment on that basis. 

ROBINSON, J., dissenting. These parties were involved in a long-term, committed, intimate partnership. Defendant brought into the relationship substantial equity in the Springfield property and mobile home, and the trial court expressly found that she made a significant contribution to the purchase of the second parcel in Cavendish. Now that the parties’ relationship has ended with plaintiff holding legal title to both properties, the majority declines to address defendant’s claims for equitable relief on the ground that she has “unclean hands.” Because the majority relies solely on its own findings that defendant had a “guilty mind” when transferring her interests in the properties to plaintiff, without consideration of whether defendant actually benefitted from the arrangement, I respectfully dissent.

How cited

Nursing negligence. Summary judgment for defense where plaintiff had no expert.

Taylor v. Fletcher Allen Health Care,  2012 VT 86 (Skoglund, J.) (Dooley, J., joined by Robinson, J., concurring and dissenting.)

Plaintiff Sally J. Taylor sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following a surgery. A nurse was assisting plaintiff in moving to the bathroom when plaintiff alleges that the nurse "withdrew support and assistance . . . unexpectedly and without warning and caused [p]laintiff to fall violently on to the toilet." After plaintiff failed to disclose any expert witness in response to discovery requests, FAHC moved for summary judgment, arguing that plaintiff’s claims failed as a matter of law without an expert witness.  The trial court granted FAHC’s motion.  We agree with the trial court that this case is sufficiently complex that plaintiff cannot prove her claims without expert testimony.  Accordingly, we affirm.

Whether a gait belt should have been used in this case or whether the use of a gait belt could have prevented her drop onto the toilet is beyond the ken of a layperson. There are countless variables that could explain the lack of a gait belt, and only testimony from an expert familiar with general nursing practices and the details of plaintiff's medical record would enable a jury to make an informed decision as to whether FAHC breached its duty of care by not using a gait belt in this case. ...Our holding here is limited to the unique facts of this case given the specificity of plaintiff's argument that the nurse failed to use a specific tool and technique and that the drop was the cause of the need for the second surgery. Those claims are outside of the experience of typical lay person's understanding.

Dooley, J., concurring and dissenting,  concurs in the dismissal of plaintiff's claims that FAHC was negligent in its failure to recognize and diagnose the problems with the hardware and in its treatment of the pain complaints as well as her claim for negligent infliction of emotional distress. I do not concur with the dismissal of the claim that FAHC was negligent when plaintiff fell while attended by a nurse. The majority unnecessarily transforms a routine hospital-fall case into a complex medical-malpractice action requiring expert evidence.