paquette v. neuse smith venman ( 2024 )

STATE OF VERMONT
ADDISON COUNTY, SS.
MAURICE PAQUETTE and )
MILDRED PAQUETTE )
) Addison Superior Court
V. ) Docket No. $24-1-00 Ancv
)
NEUSE, SMITH & VENMAN, P.C. )
MEMORANDUM OF DECISION
This matter is before the court on the Defendant’s Motion for Summary Judgment filed
February 16, 2001, and the Plaintiffs’ Motion for Partial Summary Judgment filed April 2, 2001.
Oral arguments were heard on June 18, 2001. The Plaintiffs are represented by Kevin E. Brown,
Esq. The Defendant is represented by Thomas F. Heilmann, Esq.
Background
The salient facts are not in dispute. Mr. and Mrs. Paquette had operated a dairy farm on
their farm property for many years prior to 1991. Karl Neuse, an attorney in the Defendant law
firm, was their attorney, and they consulted with him many times over the years with respect to
financial circumstances related to the farm. In 1991 they sought to reduce debts by subdividing a
portion of the farm to create residential lots to sell, leaving sufficient land open and usable for
themselves, and possibly their son, to continue farming. They entered into an agreement with
Clark Hinsdale and his business entity, Sweetmeadow Properties, whereby he would help them
do the necessary work to obtain planning commission approval and sell the lots in exchange for a
commission on the sale of the lots. They consulted with Mr. Neuse regarding this plan. Mr.
Hinsdale prepared a one-page written agreement, which the Paquettes took to Mr. Neuse. An
attorney at the firm redrafted the agreement considerably before it was signed by all parties in the
form prepared by the attorney. A sketch of the proposed development was attached to and
referenced in the terms of the agreement. It showed a rough configuration of the 200 acre farm
with a designation of the 120 acre Paquette Farm Parcel to be retained by the Paquettes, and the
remaining 80 acres to be subdivided into 8 10-acre long skinny lots. Each of the 10-acre lots had
a 2 acre “building envelope” on the road frontage, and the back 8-acre portion of each lot was
shown without subdivision lines as part of an overall area marked “Restricted Farmland To Be
Used by Paquette Farm.” The contract specifies in paragraph 1 that the Paquettes approve the
plan because the building envelopes “preserve useable farmland to a maximum degree.”
Paragraph 11 contemplates the possibility of a sale of “the development rights on the remaining
farmland” to a land trust or other non-profit organization, and specifies that it was Mr. Hinsdale’s
responsibility to promote and arrange for such a transaction, for which he would receive a fee of
ADDISON SUPERIOR COURT
FILED
JUL - 9 2001 | |
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KATHLEEN R K EFI Ca
signed on behalf of the Town later in the month, and recorded on J uly 28, 1992.
There was no further activity on this project during the next three years. On August 8,
1995, the first lot sale in the Paquette subdivision took place when the Paquettes sold Lot #2 to
their son. The Open Space Agreement and Planning Commission Order were referenced in the
deed. In late1995 or early 1996, the Paquettes conveyed another lot (#5 or #6) to the Whites.
The Open Space Agreement and Planning Commission Order were referenced in the deed. In
November 1996, the Paquettes conveyed Lot #9 to the Houstons. The Open Space Agreement
and Planning Commission Order were referenced in the deed. In all three deeds, there was no
specific reservation to the Paquettes of the exclusive right to use the property for agricultural or
any other purposes consistent with the Open Space Agreement. The Paquettes’ son and the
Whites understood that the back 8 acres were going to be farmed by the Paquettes. The
Paquettes themselves believed that they had retained the exclusive right to crop the restricted
land. Attorney Neuse understood that the Paquettes intended to retain the exclusive right to crop
the restricted land. |
Attorney Roper was the attorney in the Defendant law firm who revised the Open Space
Agreement on behalf of the Paquettes in 1992 and prepared the warranty deed of Lot #2 to their
son in 1995 on behalf of the Paquettes. At the time of preparing these documents, the law firm
had in its file a copy of the original contract between the Paquettes and Clark Hinsdale and
Sweetmeadow Properties, to which the original sketch plan was attached as an exhibit. When he
prepared the deed to the Paquettes’ son in 1995, Attorney Roper did not intend to reserve to the
Paquettes the exclusive right to use the back 8 acres of Lot #2. He did not know or understand
that it was the Paquettes’ intention to reserve for themselves exclusively the right to farm the
restricted area.
In March of 1997, four months after the Houstons purchased Lot #9, they conveyed it to
Jeanne Banach. In June of 1997, Jeanne Banach placed a fence around the entire 10 acres of Lot
#9 and proceeded to crop the back 8 acres for herself. There is no specific provision in the deed
to her, or in the prior deed from the Paquettes to the Houstons, that reserves for the Paquettes the
exclusive right to crop the back 8 acres on her lot. The effect of the fence is to prevent the
Paquettes from haying the back 8 acres of Lot #9. Jeanne Banach, through a person who resides
on her property, continues to crop the hay to the present.
After the erection of the Banach fence and the ensuing dispute with Jeanne Banach, the
Paquettes met with Attorney Neuse to discuss the situation. He admitted that the deed drafted by
his firm restricts use on Lot #9, but does not specifically reserve the back 8 acres of Lot #9 for
the Paquettes’ exclusive agricultural use. The Defendant law firm subsequently prepared
supplemental agreements for Lots #2 and #6 which expressly reserved to the Paquettes the
exclusive-right to farm the back 8 acres of the subdivided lots.
Discussion
In this case, Plaintiffs claim professional negligence on the part of the Defendant law firm
for failing to reserve the back 8 acres on Lot #9 for the exclusive agricultural use of the
Paquettes. Defendant law firm has moved for summary judgment, claiming that the effect of the
provisions of all recorded documents supports an interpretation that the Paquettes do hold an
exclusive right to farm the back 8 acres. Plaintiffs have moved for partial summary judgment on
the issue of liability, claiming that the undisputed facts support a ruling as a matter of law that
Defendant was negligent.
Defendant’s argument is that the recorded survey shows the back 8 acres of Lot #9 to be
under restriction, that the recorded Open Space Agreement restricts the property, that the
Planning Commission conditions require the property to be under the restriction of the Open
Space Agreement, and that the recorded deed references these other documents, which establish
the property as a restricted area. Defendant relies more particularly on the provisions quoted
above from the Open Space Agreement, specifically on the language in the final paragraph
quoted above, when the “Grantors” retained the exclusive right to use the property for themselves
and their heirs, executors, administrators, successors and assigns. Defendant argues that this
language supports an interpretation that the right was reserved for the Paquettes alone, as owners
of the retained farm parcel, and does not need to be read to refer to successors and assigns of
subdivided lots.
This argument is not consistent with other language of the Open Space Agreement itself,
or with normal rules of construction of deed language. In the two other provisions quoted above,
the Grantors make covenants on behalf of themselves, their heirs and assigns, and it is clear that
the reference is intended to include subsequent grantees as well as themselves personally.
Furthermore, that is the standard meaning of such language. “Assigns” include all subsequent
grantees, either immediately or remotely from an assignor. “Assignees; those to whom property
is, will, or may be assigned.” Black’s Law Dictionary, Sixth Edition. The Open Space
Agreement conveys to the Town an easement for the benefit of the Town, and reserves for the
Paquettes, as owners of all the restricted land at that time, the right to use the easement area for
all purposes not inconsistent with the easement, but it is silent as to who will hold that right in
the future: the Paquettes themselves, as current owners of all or any portion of the restricted area
or as owners of the retained “Paquette Farm Parcel”, or subsequent grantees of the subdivision
lots. While this could have been addressed as a provision in the Open Space Agreement (as was
the issue of responsibility for property taxes), it was not, leaving any allocation to be sorted out at
the time of subsequent conveyances. Contrary to Defendant’s argument, the language of the
Open Space Agreement does not support a ruling as a matter of law that the Paquettes retained
the exclusive right to agricultural use on the back 8 acres of the subdivided lots, nor do any of the
other recorded documents relied on, either singly or collectively. Jn Re: Stowe Club Highlands,
164 Vt. 272, 277 (1995). -
As a consequence, references to the Open Space Agreement and the recorded Survey Map
in the warranty deed from the Paquettes to the Houstons do not support a ruling as a matter of
law that the Paquettes reserved for themselves or their heirs, successors and assigns of either the
120 acre farm parcel or of other restricted land the exclusive right to agriculture use of the back 8
acres on Lot #9. Accordingly, Lot #9 was conveyed to the Houstons subject to an open space
easement enforceable by the Town, but not subject to any right of the Paquettes to the exclusive
right to use the back 8 acres for purposes consistent with the open space easement.
Defendant fails in its claim that the Plaintiffs cannot show that the deed to the Houstons contains
no reservation of a right to exclusive agricultural use in favor of the Paquettes.
Plaintiffs claim that the undisputed facts entitle them to a ruling as a matter of law that
Defendant law firm was negligent. Normally, a cause of action for legal malpractice requires an
expert opinion on the duty owed to the client under the circumstances, and whether that duty was
breached by the conduct of the attorney. Tetreault v. Greenwood, 165 Vt. 577 (1996). The
exception is if the lack of care is so apparent that only common knowledge and experience are
needed to comprehend it. Estate of Fleming v. Nicholson, 168 Vt. 495 (1998).
The undisputed facts show that Karl Neuse of the Defendant law firm knew and
understood that the Paquettes’ plan for their property included an exclusive reservation for
themselves of the right to use the back 8 acres of all the subdivided lots for farming purposes.
He was the attorney who worked with them personally and obtained this information from them.
It was reflected in the sketch plan attached to the Hinsdale/Sweetmeadow contract that was a
foundation document for the whole plan from the beginning. The sketch plan identified the
restricted area as “Restricted Farmland to be used by Paquette Farm.” The sketch plan was
attached to the contract that continued to affect all subsequent conveyances, as it specified Mr.
Hinsdale’s responsibilities with respect to selling the lots and the terms of his commission on
each sale, and a copy was in the law firm records and available for reference at the time of
subsequent transactions.
The undisputed facts also show that the individual attorney assigned to prepare
subsequent conveyancing documents, Mr. Roper, did not know that on behalf of the Paquettes,
he was supposed to prepare deeds that specifically reserved to the Paquettes the exclusive right to
agricultural use on the back 8 acres. It is not clear whether he did not know this because Mr.
Neuse did not tell him, or whether Mr. Neuse told him but he did not understand properly or
made no attempt to carry out the instructions. There is also a question about whether, separate
and apart from whether he was told or not, he should have understood from the sketch plan in the
law firm file that it was his obligation to prepare deed reserving exclusive agricultural use to the
Paquettes. If the entire case hung on this last question, expert opinion testimony might be
needed, since such a question might requite knowledge of circumstances unique to the
profession.
Under these facts, however, it is undisputed that the Paquettes communicated their
specific desire to retain exclusive agriculture use of the restricted land to Mr. Neuse, that he
understood that this is what they wanted, that the Paquettes provided him with a sketch plan that
made their intentions clear visually and verbally, and that this document was attached to the
Hinsdale/Sweetmeadow contract redrafted by the Neuse law firm which formed the basis for
subsequent conveyancing work the law firm was asked to do over time.
It is also undisputed that the attorney who actually prepared the deeds did not include
provisions reserving exclusive agricultural use to the Paquettes. Furthermore, as the court has
concluded above, the conveyance to the Houstons did not reserve for the Paquettes the exclusive
right to agricultural use on Lot #9. This is not a question of whether an attorney effort to reserve
exclusive agricultural use was done improperly because the deed language was faulty, which .
might require expert testimony, but whether it was done at all. The undisputed facts show that
Mr. Neuse knew it should be done and intended it to be done, but the attorney who actually did
the work did not ever intend to do it, and did not do it. On these facts, it does not take expert
testimony to establish the attorney’s duty to the clients, and whether the conduct of the defendant
constituted a breach of that duty, as such a determination does not require understanding unique
to the profession. Defendant has introduced no facts (such as the existence of a binding contract
for sale to the Houstons that did not include a reservation of exclusive agricultural use on the
back 8 acres to the Paquettes) to show that the circumstances with respect to the law firm’s duty
to the clients require expert understanding. The law firm owed a duty to the Paquettes to prepare
conveyancing documents that reserved to the Paquettes exclusive acricultural use of the restricted —
land, and it did not do is in the deed to the Houstons. As a result, Jeanne Banach holds Lot #9
subject to an open space easement in favor of the Town, but not subject to any right of the
Paquettes to farm the back 8 acres, and the Paquettes have lost the ability to farm 8 acres of land.
As the undisputed facts show a duty, breach, and causation, Plaintiffs are entitled to a
ruling as a matter of law on the issue of liability.
ORDER
For on the foregoing reasons,
1. Defendant’s Motion for Summary Judgment is denied.
2. Plaintiffs’ Motion for Partial Summary Judgment on the issue of liability is granted.
3. A status conference will be scheduled.
Dated this 5" day of July, 2001.
Way Wher Sects
Hon. Maly Miles Teachout
Superior Judge, presiding