michael v. bird ( 2023 )

STATE OF VERMONT
RUTLAND COUNTY
NICHOLAS MICHAEL ) Rutland Superior Court
) Docket No. 352-5-08 Rdcv
Vv. )
) on appeal from
WENDA BIRD dba ) Docket No. 761-7-07 Rdsc
CENTURY 21, WENDA BIRD) CONFOR Wer
REAL ESTATE ) RUTLAND KMED
JUL - 1 2008
SMALL CLAIMS APPEAL
Decision
This matter is before this Court on appeal from the Opinion and Decision of the
Small Claims Court dated March 13, 2008, in which judgment for Defendant Wenda Bird
dba Century 21, Bird Real Estate was entered and Mr. Michael’s complaint was
dismissed. Mr. Michael has appealed.
This Court has reviewed the record, heard oral argument on June 19, 2008, and
listened to the tape recording of the full hearing held in Small Claims Court on March 6,
2008. Both parties represented themselves in the Small Claims Court and are
representing themselves in this appeal.
It is not the function of the Superior Court to substitute its own judgment for that
of the Small Claims Court Judge. Rather, the role of the Superior Court is to determine
whether or not the evidence presented at the hearing supports the facts that the Judge
decided were the credible facts, and whether or not the Judge correctly applied the proper
law and procedure.
Mr. Michael pursued the case on behalf of his wife, which he was permitted to do
by the Judge. His wife signed a real estate contract to purchase a residence in Fair
Haven, subject to various contingencies. A $500.00 deposit was paid. Mr. Michael’s
wife did not complete the purchase, and the suit was filed seeking return of the $500.00
deposit, which the Defendant realtor had turned over to the seller. Mr. Michael claimed
that his wife did not have the legal capacity to enter into a purchase and sales agreement,
and that in addition, the deposit should have been returned when the sale did not occur.
The Small Claims Judge ruled that Mr. Michael’s wife was not entitled to the return of
the deposit.
Mr. Michael cites two grounds for appeal: that the Judge would not permit him to
produce evidence of his wife’s disability, and that the seller was not entitled to the
deposit because no damages on the part of the seller were shown to justify the transfer of
the deposit funds by the defendant realtor to the seller.
Preclusion from introducing evidence of disability
Mr. Michael stated at the hearing that his wife was disabled and did not have the
legal capacity to make a contract, but he did not testify about any specific basis for that
opinion. He also testified that he had been present when she signed contract documents,
which had taken place three years before. The Judge asked him if any witnesses were
present who might give testimony on his wife’s disability. Mr. Michael responded that
he had no such witnesses. His wife was also not present, and not able to testify herself.
When Mr. Michael asked for the hearing to be continued, and asked to be able to
submit statements in writing later on concerning his wife’s condition, the Judge declined
his request, explaining that the hearing had been scheduled for the specific time set aside
for that purpose, and it was his job to have witnesses present at the hearing to give
testimony and be cross examined.
The Small Claims Judge did not err in making this ruling. See In re Odessa
Corp., 2006 VT 35, § 17, 179 Vt. 640 (mem.) (explaining that parties are responsible for
securing the attendance of their own witnesses, and that trial court rulings on motions for
continuances will be upheld if there is a reasonable basis for the action). The Judge’s
ruling was not clearly unreasonable. Small claims hearings are meant to be efficient, and
parties are expected to have their witnesses present at the scheduled hearing time. There
was no error in the ruling, and it is not a basis of reversing the decision on the merits.
Lack of proof of damages
The contract admitted into evidence provided for various contingencies and a
closing on October 14, 2004. The various contingencies either expired or became
unenforceable or were waived. On October 12, 2004, after the expiration of all
contingencies, Mr. Michael sent a letter stating that financing could not be obtained and
he was terminating the contract, and he requested a return of the $500.00 deposit.
Paragraph 20 of the contract provided that if the purchaser failed to close or was
in default, the seller could terminate the contract “and retain all Contract Deposits as
liquidated damages, or may pursue all legal and equitable remedies provided by law.”
The evidence showed that Mr. Michael’s wife failed to close and that the deposit funds
were transferred by the defendant realtor to the sellers. There was no evidence that the
sellers elected to pursue the specified alternate remedy.
Mr. Michael argues that there was no evidence of damage to the sellers that
supports the transfer of the deposit to them. Where the contract specifies that an amount
of a deposit may be retained by the seller as liquidated damages, it is not necessary for
the seller to prove actual damages as long as the amount specified as liquidated damages
was not unreasonable at the time the parties entered into their agreement. Renaudette v.
Barrett Trucking Co., Inc., 167 Vt. 634, 635-36 (1998) (mem.).
“Liquidated damages” means an agreed-upon sum the parties specify in advance
as an amount of damages to be paid where it would otherwise be difficult to quantify in
dollars the harm and inconvenience caused by a breach of contract. Three criteria must
be met: damages from a breach would be difficult to calculate accurately, the amount
must be a reasonable estimate of likely damages, and the amount must be intended for
compensation and not a penalty. /d. At 635.
“The damages incurred from a breach of a real estate contract are hard to
anticipate because it is difficult to determine if the property will be resold for an
equivalent price or the amount of time required for a resale of the property.” Id. At 636.
In this case, the sellers were entitled by contract terms to liquidated damages in the
amount of the $500.00 deposit, which was not an unreasonable amount at the time the
contract was signed as an estimate of likely damages that might result from a breach.
It was not an error of law for the Small Claims Judge to enter judgment for the
Defendant and dismiss the Plaintiff's claim even though there was not evidence of actual
damages on the part of the sellers.
Therefore, the Judgment of March 13, 2008 is affirmed.
Dated at Rutland, Vermont this 30 day of June, 2008.
Hon. Marty Miles Teachout
Superior Court Judge