Arnold v. Cantini

• Decision Date: 30 March 1990
• Docket Number: No. 88-457,88-457
• Citation: 154 Vt. 142,573 A.2d 1193
• Court: Vermont Supreme Court
• Parties: Andrew and Joanne ARNOLD v. Gerald P. CANTINI and Trask & Waite Realtors, Inc.

Page 1193

573 A.2d 1193

154 Vt. 142

Andrew and Joanne ARNOLD v. Gerald P. CANTINI and Trask & Waite Realtors, Inc.

No. 88-457.

Supreme Court of Vermont.

March 30, 1990.

William J. Bloomer of Bloomer & Bloomer, P.C., Rutland, for plaintiffs-appellants.

Harold E. Eaton, Jr., of Miller, Cleary & Faignant, Ltd., Rutland, for defendant-appellee.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

PECK, Justice.

Plaintiffs appeal from a jury verdict in favor of defendant listing broker in an action brought to recover an earnest money deposit of $10,000. We reverse and remand.

On October 10, 1982, plaintiffs Joanne and Andrew Arnold signed a purchase and sale agreement for a parcel of land in Winhall, Vermont. Hickory Hills, Inc. owned the property, and the agreement provided that Hickory Hills would build a house on the lot according to specifications attached to the agreement. The Arnolds gave a $10,000 earnest money deposit to Trask &amp Waite Realtors, Inc. for deposit in a client's trust account. John Waite, the realtor, signed for Trask & Waite. The agreement provided that the deposit was to be released at the closing, set for October 22.

The closing did not take place on October 22. The Arnolds retained a local attorney, Gerald Cantini, and on October 25, executed a power of attorney giving Cantini authority to act for them in transactions relating to the property. Andrew Arnold mailed a check for $20,000 to John Waite so that work could begin, enclosing a note saying that "[p]er our verbal agreement, you will wait for Mr. Cantini's permission to use the funds." There was conflicting testimony about a telephone conversation between Cantini and Waite, in which Cantini purportedly authorized the release of both the $20,000 and the $10,000 held in escrow. It is undisputed that $30,000 of the fund was ultimately released to Hickory Hills, and that Hickory Hills paid Trask & Waite $10,000 in connection with the deal.

Building commenced on the house, but no closing ever took place. In January of 1983, the Arnolds occupied the house. Plaintiffs had made a number of progress payments, and had withheld only $2,000 of the $130,000 price agreed upon. Green Mountain Bank held a mortgage on the property, and when Hickory Hills failed to pay, the Bank foreclosed. The Arnolds bought the property from the Bank, and paid off delinquent taxes and other liens.

Plaintiffs sued Gerald Cantini and Trask & Waite to recover the $10,000 deposit. By this time, Hickory Hills had gone out of business, and its owner, Steven Bruehl, could not be located. Plaintiffs settled with Cantini. The case was tried against Trask & Waite, and the jury returned a verdict for defendant. This appeal ensued.

Plaintiffs raise three issues on appeal. The first two concern the content of the trial judge's charge to the jury. Plaintiffs assert that the jury instructions mischaracterized the transaction in question, because specific contractual language was not mentioned, and because the judge removed the issue of the propriety of the payment of a broker's commission from the jury's consideration. Plaintiffs also claim that the trial court erred in refusing to permit plaintiffs' attorneys to split the closing argument between them.

First, plaintiffs assert that the court's charge to the jury concerning Trask & Waite's obligations with respect to the deposit did not emphasize the details of the particular purchase and sale agreement. The court's charge was as follows:

Although a real estate broker is ordinarily considered the agent of the seller, he has a contractual duty to the buyer and that is not to disburse the purchaser's earnest money or down payment if the contract is broken by the seller.

In order to find the defendant liable under this theory of recovery, you must be convinced by a preponderance of the evidence of the following: First, that the contract was broken by the seller; second, that the defendant knew that the contract had been broken by the seller; third, having known of the seller's breach of contract or inability to perform, the defendant nevertheless paid the earnest money or down payment over to the seller without the buyer's permission; fourth, that because of the defendant's breach of the contractual duty, the plaintiffs occasioned a financial loss; fifth, you must find by a preponderance of the evidence the amount of any financial loss sustained by the plaintiffs....

The defendant alleges in defense to the plaintiffs' cause of action that it was directed by the plaintiffs or their agent to disburse the earnest money deposit to Hickory Hills. If you find that the plaintiffs or their duly authorized agent directed or permitted the disbursement of the earnest money, that is a defense to the plaintiffs' claim under this cause of action. (Emphasis added.)

Plaintiffs made prompt objection to the charge.

An appellant challenging the trial court's instruction has the burden of showing that the charge was both erroneous and prejudicial. Sachse v. Lumley, 147 Vt. 584, 588, 524 A.2d 599, 601 (1987). The trial court must advise the jury thoroughly and accurately on each evidentiary point that is significant and necessary to an informed decision. Id. The court is obliged "to...