Reynolds v. Brosseau ( 2003 )


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  • Reynolds v. Brosseau, S1153-01 CnC (Katz, J., Dec. 29, 2003)
    [The text of this Vermont trial court opinion is unofficial. It has been
    reformatted from the original. The accuracy of the text and the
    accompanying data included in the Vermont trial court opinion database is
    not guaranteed.]
    STATE OF VERMONT                          SUPERIOR COURT
    Chittenden County, ss.:                   Docket No. S1153-01 CnC
    DORIS REYNOLDS, TRUSTEE OF THE FRANK IRISH TRUST
    v.
    RONALD P. BROSSEAU and PETER SMEJKAL
    ENTRY
    This is a contract formation case. Defendants Brosseau and Smejkal
    seek specific performance on a purchase and sale agreement that they
    signed with Frank Irish as purchasers on March 18, 1996. This action was
    originated by Frank Irish, recently deceased. Doris Reynolds as trustee of
    the Frank Irish trust now holds title to the land in question subject to
    probate review of the will. Reynolds as trustee disputes the enforceability
    of the agreement citing to its incomplete and missing terms as illustrative of
    its lack of binding intent. Both parties have moved for summary judgment.
    Frank Irish’s estate contains a 26.3 acre lot on Allen road in South
    Burlington, where Irish had farmed. As with many farms in the areas
    immediately outlying Burlington, Irish appears to have moved away from
    agrarian pursuits in the mid-1990s toward developing his parcel into much
    more profitable suburban sub-developments. In 1996, Irish had an
    increased property tax bill from the city and limited means to pay it. (Pl.
    Resp. to Mot. to Am. Answer, Feb. 18, 2003, at 7). Irish was also suffering
    from serious medical problems. Id. at ex. 4 (Dep. of Frank Irish); (Aff.
    Doris Reynolds, Jun. 12, 2002). During this time, his brother-in-law,
    Brosseau and Smejkal approached Irish about purchasing the 26.3 acre lot
    on Allen Road. (Pl. Stmt. Of Undisp. Facts, Feb. 18, 2003).
    This led to a document signed on March 18, 1996, titled “purchase
    and sale agreement.”1 (Def. Suppl. Memo. in Opp’n to Summ. J., Jun. 26,
    2003, at ex. A). The document identifies Frank Irish as seller and the Irish
    Development Corporation, represented by partners Ronald P. Brosseau and
    Peter Smejkal, as purchaser. Id. It describes the lot and its location, and
    states it will be conveyed for the purpose of developing the land into 48
    residential lots based on the seller’s preliminary sketch. Id. The document
    lays out the price as $225,000 for the property minus $10,000 down at
    signing and “other advance payments if any will be made prior to the final
    closing and ownership transfer.” Id. The document does not contain any
    payment or financing terms leaving them to “be clarified at a later date.”
    Id. These terms were apparently never clarified between the parties
    although there is evidence that Brosseau and Smejkal paid Irish $30,000 at
    1
    While Irish came to dispute even signing the document, we will infer
    solely for the purposes of summary judgment that the signature is authentic.
    later points in time. (Pl. Resp. to Mot. to Am. Answer, Feb. 18, 2003, at ex.
    4 (Dep. of Frank Irish)) The final paragraph of the agreement allows
    purchaser to change the development plan for Act 250 or state and local
    permits. (Def. Suppl. Memo. in Opp’n to Summ. J., Jun. 26, 2003, at ex.
    A).
    The week after the agreement was signed by all parties, Irish hired a
    contractor who began work on excavating and draining out wetland areas
    on the 26.3 acres, without a permit, which led to charges against Irish in
    Environmental Court. Agency of Natural Resources v. Irish, 
    169 Vt. 407
    ,
    409 (1999). At the beginning of the permit litigation, Brosseau appeared
    to act as agent for Irish, Agency of Natural Resources v. Irish, 69-5-97
    Vtec (Wright, J., Nov. 19, 1999), but neither Brosseau nor Smejkal
    attempted to intervene or assert their rights as future owners in this
    litigation. They also stopped all work on obtaining permits or modification
    their design work after September 1996. (Pl. Stmt. of Undisp.Facts, Feb.
    13, 2003). Neither Brosseau nor Smejkal attempted to close on the
    agreement, even after the case against Irish was resolved in August 2000.
    Despite facial appearances, an agreement cannot be an enforceable
    contract unless it clearly and definitely expresses all of the essential terms.
    Evarts v. Forte, 
    135 Vt. 306
    , 310 (1977). The agreement that Irish signed
    lacks several necessary terms including: 1) payment terms (reserved for
    another document, which was never executed); and 2) a closing date.
    Brosseau and Smejkal argue that these terms are not essential and may be
    filled in.
    Brosseau and Smejkal argue that the payment terms are not
    important because “if the parties did not agree upon a time or method of
    payment, ‘the law construes the offer to be for cash on delivery.’” (Def.
    Suppl. Memo. in Opp’n to Summ. J., Jun. 26, 2003, at 4) (quoting Dickson
    v. McMahan, 
    140 Vt. 23
    , 25–26 (1981)). There are several problems with
    the defendant’s use of Dickson and its statement concerning methods of
    payment. The facts of Dickson involve a series of agreements between the
    parties that established every term of the sale except for time and method of
    payment. Dickson, 140 Vt. at 24. This included arranging for the source
    of the payment and establishing a closing date. Id. at 26. The Irish
    agreement has no mention of payment source or closing date. The
    discussions between the parties in Dickson also made the time and method
    of payment non-essential since the purchaser had clearly communicated
    that it was amenable to any form and left it to seller to determine which
    would be best for his tax purposes.
    In the Irish agreement, the payment terms were never resolved to
    any degree or apparently discussed. The indicated buyer, Irish
    Development Corporation did not exist at the time of signing, does not
    currently exist, and has never existed as either a registered corporation or
    factual entity. (Pl. Resp. to Memo. in Opp’n, Apr. 28, 2003, at ex. 3). In
    fact, the only other evidence of this name is in an application Brosseau and
    Smejkal made to the South Burlington Planning Commission in February
    1996. Id. at ex. 4. Selling to Brosseau and Smejkal would essentially
    constitute a reformation of the contract, since the purchaser is listed as Irish
    Development and Brosseau and Smejkal are only its agents. New York
    Life Ins. Co. v. Kimball, 
    93 Vt. 147
    , 153 (1919) (stating the limited
    equitable grounds upon which reformation will be granted).
    Brosseau and Smejkal’s claimed willingness to pay cash on delivery
    is irrelevant to resolving the payment term because it was never discussed
    or agreed to by Irish. Evarts v. Forte, 
    135 Vt. 306
    , (1977) (“It is never
    enough that the parties think they have made a contract; they must express
    their subjective intent in a manner that is capable of understanding), quoted
    in Quenneville v. Buttolph, 
    2003 Vt. 82
     at ¶ 15. Whatever Brosseau and
    Smejkal’s present willingness is, it was not what Irish agreed to. 
    Id.
     Full
    payment, all at once, is not something Irish would have necessarily found
    advantageous, and since he did not state a willingness otherwise, it remains
    an essential, unfulfilled term.
    Brosseau and Smejkal’s reliance on Dickson is further undercut by
    the facts surrounding Quenneville. In Quennevile, the plaintiffs, Houghton
    and Campbell, sent a down payment with a note expressing their intent to
    be bound. Quenneville v. Buttolph, 
    2003 Vt. 82
     at ¶ 3. The landowner
    signed a document agreeing to sell his farm to Houghton and Campbell. Id.
    at ¶ 4. Shortly thereafter, the sellers began negotiating with another party,
    the Quennevilles, eventually forming an oral contract. Id. at ¶ 5. The
    Quennevilles acted upon their “purchase” and moved onto the farm and
    began managing it. Id. at ¶ 6. When Houghton and Campbell sought to
    enforce their agreement, the court found that it was not final and lacked
    several important details including the financing of the purchase, amount of
    payments, items included as “grey matter,” security for purchaser’s note,
    and an option to be retained on a portion of land. Id. at ¶ 8. Sellers had not
    entered into an enforceable contract with Houghton and Campbell and were
    not bound to sell. Id. Even though both parties appeared to be close on
    several issues, the court refused to enforce what had never been reached on
    agreement. Id. at ¶ 13. The same failure to include necessary terms in a
    land sale contract clearly envisioning owner financing is fatal to
    defendant’s position here.
    In contrast to the Quennevilles, Brosseau and Smejkal have not
    done anything to further their ownership of the Irish property since 1996.
    They have actually receded from possession of the Irish land since their
    initial actions in 1996. Their incomplete agreement is more akin to
    Houghton and Campbell, whom they resemble as interested parties who
    negotiated but never concluded. Such limited actions do not constitute the
    behavior of purchasers who are trying to become property owners. Nor do
    they provide any of the missing terms in their agreement.
    Brosseau and Smejkal’s argument concerning the lack of a closing
    date is also similarly flawed. Brosseau and Smejkal argue that when a
    purchase and sale agreement lacks a closing date, it should be presumed
    within a reasonable time. (Def. Suppl. Memo. in Opp’n to Summ. J., Jun.
    26, 2003, at 5) (citing Sisters & Brothers Investment Group v. Vermont
    Nat’l Bank, 
    172 Vt. 539
    , 542 n.* (2001) (mem.)). In Sisters, the question
    of a court-implied closing date arose in a transaction between two
    competing buyers seeking a property under foreclosure. Sisters, 172 Vt. at
    539–40. The Court concluded that the absence of a closing date does not
    defeat a contract on the presumption that the parties mean to close within a
    reasonable time. Id. at 542–43 n.*. The Court found a reasonable time
    easy to determine because the foreclosure action determined it. Id. In the
    present case, a reasonable time is not quite as easy to determine. Brosseau
    and Smejkal argue that a reasonable time is a fact based determination
    based on the intent of the parties and what was contemplated at the time of
    the performance, and circumstances attending. (Def. Suppl. Memo. in
    Opp’n to Summ. J., Jun. 26, 2003, at 5). They argue that the wetlands
    issues which led to the Environmental Court case was unexpected and
    made it unreasonable for them to close at the time until they knew “what
    the costs would be associated with the restoration of the property.” Id. at 6.
    The problem with this is that the litigation Irish was involved in did not
    affect his title to the land or his ability to sell it. What it really shows is that
    Brosseau and Smejkal did not deem themselves obligated to close.
    The argument is also disingenuous in that contradicts the defendants’
    own reasoning. Looking at the agreement defendants would like enforced,
    there is no language making the transaction conditional on obtaining
    permits or the resolution of any potential litigation. The agreement does
    address permitting and environmental regulations but only to the extent that
    it allows Brosseau and Smejkal to reform the development plan. This show
    that the parties considered the potential problems and delays that Vermont
    and South Burlington’s development regulations pose to developers.
    Instead of making the sale, the closing date, or any of the details of the sale
    conditional on this aspect, the parties chose only to allow alterations to the
    development plan. Thus, at the time of contracting, the parties did not
    evince any intent to postpone the closing. A reasonable time is not limitless
    or subject to the parties whim. 17A Am. Jur. 2d Contracts § 480. It is
    impossible at this point to determine when a reasonable time to close would
    have been. Holyoke Mut. Fire Ins. Co. v. Horton, 
    100 Vt. 228
    , 231 (1927)
    (“What constitutes a reasonable time is ordinarily a question of fact to be
    determined from the attending circumstances . . .”). But, it is quite certain
    that seven years after the agreement was signed is not reasonable.
    In conclusion, this 1996 agreement explicitly evinces the expectation
    of a later agreement. An agreement to later agree is not a contract.
    Quenneville v. Buttolph, 
    2003 Vt. 82
     at ¶ 16. Without this later agreement,
    there are several missing or vague terms that leave it incomplete. While the
    law allows for some missing terms, incomplete agreements cannot be
    bootstrapped into enforceable contracts.
    Based on the foregoing, defendants motion for summary judgment is
    denied. Plaintiff’s motion for summary judgment is granted. The purchase
    and sale agreement between the two parties is declared unenforceable.
    Dated at Burlington, Vermont________________, 2003.
    ________________________
    Judge
    

Document Info

Docket Number: S1153

Filed Date: 12/29/2003

Precedential Status: Precedential

Modified Date: 4/24/2018