Bergeron v. Boyle

• Decision Date: 24 October 2003
• Docket Number: No. 02-410.,02-410.
• Citation: 838 A.2d 918
• Court: Vermont Supreme Court
• Parties: Robert and Cecile BERGERON v. Sidney BOYLE.

838 A.2d 918

Robert and Cecile BERGERON v. Sidney BOYLE.

No. 02-410.

Supreme Court of Vermont.

October 24, 2003.

Heather Rider Hammond and Robert F. O'Neill of Gravel and Shea, Burlington, for Plaintiffs-Appellees.

Michael S. Gawne of Brown, Cahill, Gawne & Miller and Michael Rose (On the Brief), St. Albans, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

SKOGLUND, J.

¶ 1. This case concerns a contract for the sale of real estate. Plaintiffs Robert and Cecile Bergeron petitioned the Chittenden Superior Court for specific performance of their agreement with defendant Sidney Boyle to purchase 100 acres of his farm. Following an evidentiary hearing, the trial court determined that the parties entered into a valid, enforceable contract for the purchase and sale of defendant's farm, and granted plaintiffs' petition. The court, however, denied plaintiffs' request for attorney's fees. On appeal, defendant argues that Chittenden County was the improper venue for plaintiffs' action; that he properly revoked his offer to sell the farm prior to plaintiffs' acceptance; and that plaintiffs' consideration was illusory. Plaintiffs cross-appeal, claiming that attorney's fees were available pursuant to the terms of their written agreement. We affirm.

¶ 2. The trial court found the following facts. On July 11, 1999, plaintiffs, in response to a For Sale sign posted on defendant's property, met with defendant at defendant's home and inquired about the available realty. Defendant indicated that he was selling 100 acres of his 150 acre farm in South Hero, Vermont, including a farmhouse and attendant outbuildings, at a price of $180,000. With defendant's guidance, plaintiffs examined the acreage, farmhouse, and outbuildings. During this examination, the parties discussed the subdivision configuration of the lot, as well as defendant's desire to use the farm's outbuildings for one year to enable sufficient time to move machinery, hay, and other equipment. Plaintiffs also inquired about the zoning regulations affecting the property, and indicated that "in order to close [plaintiffs] wanted to be satisfied through investigation ... at the Town Clerk's office that there were no problems with the title, encumbrances and liens, and any other legal defects of the property."

¶ 3. After inspecting the property, the parties discussed the price of the farm. Plaintiffs requested a price reduction, but defendant maintained his asking price of $180,000. Plaintiffs agreed to defendant's price and to provide a $5000 deposit, which defendant accepted. Desiring to reduce the terms of their agreement to writing, defendant produced a blank, preprinted form provided to him earlier by a realtor entitled "Purchase and Sale Contract." The Purchase and Sale Contract contains the following preprinted language in clause two: "Purchaser hereby offers and agrees to buy the Property described herein at the price and on the terms and conditions stated herein."

¶ 4. Defendant proceeded to add the necessary information to the preprinted Purchase and Sale Contract. In clause one, defendant handwrote both the plaintiff-purchasers' and defendant-seller's names and addresses; in clause three, defendant identified the time agreed upon by the parties for acceptance as August 11; in clause four, defendant described the real property as "100 acres +/- ... 493 RT 2 South Hero Grand Isle VT", in clause five, the total purchase price was set at $180,000; and the contract deposit amount of $5000 was noted in clause six. Under clause ten of the agreement, labeled "Special Conditions of Contract," defendant included two specific provisions: first, that "Purchaser will give seller 1 year from closing to move machinery, hay and other personal property off farm," and second, in response to plaintiffs' concern they would forfeit their deposit if defendant was unable to convey marketable title, defendant wrote that "[i]f purchaser revokes offer the $5000.00 deposit will be refunded." Defendant then signed and dated the agreement under the section labeled Acceptance of Offer and Agreement to Sell, which states "Seller hereby accepts Purchaser's offer and agrees to sell the property at the price and upon the terms set forth in this contract and any addenda thereto." Although willing, plaintiffs did not sign the agreement after defendant suggested that their signatures were unnecessary, but did provide defendant with a personal check in the amount of the agreed upon deposit. The parties each kept a copy of the agreement.

¶ 5. On the morning of July 21, defendant told plaintiffs' daughter that he no longer wanted to sell his farm. The next day, defendant met with an attorney, who drafted a letter to plaintiffs, stating in part that "[d]ue to physical and emotional difficulties at this time [defendant] is withdrawing his offer to sell the property. We are, therefore, enclosing your deposit check and apologize for any inconvenience." The trial court determined that defendant's attorney mailed this letter after 4:00 p.m. on July 22. Plaintiffs received this letter on July 23.

¶ 6. In the interim, plaintiffs' daughter had informed her parents of defendant's statement. In response, plaintiffs signed their copy of the Purchase and Sale Contract. Plaintiffs' daughter delivered the signed agreement to defendant on July 22. On July 26, plaintiffs recorded a copy of the signed agreement in the Town Clerk's office. On July 27, plaintiffs' attorney returned the deposit check to defendant's attorney, stating that plaintiffs "had accepted [defendant's] offer at 10:05 a.m. on July 22nd and had delivered a signed copy to [defendant] at 1:22 p.m., before the offer to sell was withdrawn." The attorney also noted that plaintiffs could close on the property within four or five days after receiving notice.

¶ 7. The parties continued to communicate through their attorneys, and unsuccessfully attempted to resolve their dispute through mediation. On August 26, 1999, plaintiffs filed a complaint for declaratory relief, specific performance, and attorney's fees in Chittenden Superior Court. Defendant moved to dismiss based on improper venue, asserting that pursuant to 12 V.S.A. § 402(a), the case should be heard in Grand Isle County, the situs of the property at issue. The court denied this motion, as well as the parties' subsequent cross-motions for summary judgment, finding that the contract at issue was ambiguous as a matter of law. After additional pleadings and discovery, a merits hearing was held in April 2002. The trial court found that the parties had formed a valid, enforceable contract and granted plaintiffs' request for specific performance. The court, however, denied plaintiffs' request for attorney's fees.

¶ 8. Defendant appealed to this Court on September 9, 2002. Plaintiffs filed a cross-appeal on October 15, alleging that they are entitled to attorney's fees under the terms of the Purchase and Sale Contract. Defendant objected to plaintiffs' cross-appeal as untimely. The trial court deemed plaintiffs' failure to timely file their cross-appeal excusable neglect, and allowed the cross-appeal to proceed to this Court. Defendant now asks this Court to determine whether the trial court erred in concluding (1) that venue was proper, (2) that the parties entered into a valid, enforceable contract, and (3) whether plaintiffs are entitled to appeal the trial court's denial of attorney's fees. We find no error in the trial court's ultimate conclusions.

I. Venue

¶ 9. The threshold question in this appeal is whether Chittenden Superior Court was the proper venue in which to hear this action. Defendant claims that plaintiffs' contract action seeking specific performance is one "concerning real estate" pursuant to 12 V.S.A. § 402(a), thereby placing proper venue in Grand Isle County, where the property is located. Plaintiffs argue, however, that this is a dispute over contract rights, not real estate. The trial court agreed concluding that "[t]his is a suit about $5,000, not land," and denied defendant's motion to dismiss for improper venue. While we disagree with the court's assessment of the nature of this action, we find that venue was proper in Chittenden County. See Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990) (Court may affirm correct judgment on grounds other than those stated by trial court).

¶ 10. Section 402(a) of Title 12 establishes venue for actions in superior court:

An action before a superior court shall be brought in the county in which one of the parties resides, if either resides in the state; otherwise, on motion, the complaint shall be dismissed. If neither party resides in the state, the action may be brought in any county. Actions concerning real estate shall be brought in the county in which the lands, or some part thereof, lie.

In creating distinct trial venues based on the subject matter of the claim filed, this statute mirrors the common law distinction between local and transitory actions. At common law, "[i]f the cause of action could have arisen in any place whatsoever, it was said to be transitory, and an action thereon might be brought in any county wherein the defendant was found." Page v. Town of Newbury, 113 Vt. 336, 338, 34 A.2d 218, 219 (1943). If, on the other hand, "the cause of action could have arisen in one place only, it was local and suit could be brought only where the cause arose." Id. This dichotomy parallels that which exists between in personam and in rem jurisdiction. Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d 503, 506 (7th Cir. 1984) (citing Mostyn v. Fabrigas, 1 Cowp. 161, 98 Eng. Rep. 1021 (K.B. 1744)). "The reason for this parallel is simply that, in order to provide in rem relief, the court must have jurisdiction over the real property at issue, and a local action must therefore be brought in the jurisdiction...