Cameron v. Burke, 88-241

Decision Date02 February 1990
Docket NumberNo. 88-241,88-241
Citation572 A.2d 1361,153 Vt. 565
CourtVermont Supreme Court
PartiesLawrence CAMERON v. Karen BURKE.

Matt Harnett, Rutland, for plaintiff-appellee.

Karen M. Burke, pro se, Winthrop, defendant-appellant.

Before ALLEN, C.J., GIBSON, DOOLEY and MORSE, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Defendant appeals from a superior court order awarding plaintiff damages for unpaid loans, interest, and partial attorney fees. We affirm.

I.
A.

The underlying issue in this case is whether sums provided by plaintiff to defendant, a woman with whom plaintiff had an intimate relationship, were loans or gifts. Plaintiff and defendant first became intimate in February, 1984, while defendant was a full-time law student at Vermont Law School. At the time, defendant was experiencing financial difficulties due to condominium payments, car payments, and education and maintenance expenses for herself and her two children, one of whom was attending college. Between March and September of 1984, plaintiff presented defendant with several checks amounting to over eight thousand dollars. Plaintiff claims that defendant agreed to repay the money upon the sale of her condominium some time after a planned move to Maine for work.

In May of 1984, defendant moved to Maine. Shortly after the demise of their relationship in October, 1984, plaintiff wrote to defendant through his attorney, requesting that defendant execute a promissory note and a mortgage on the condominium to secure the loan. Defendant responded by denying the existence of a loan agreement and refusing to execute the promissory note or mortgage. Defendant sold her condominium in June of 1985 without notifying plaintiff and without repaying the alleged loan.

B.

On January 31, 1986, plaintiff filed a complaint seeking damages for defendant's breach of the parties' agreement. Defendant denied the existence of an oral loan agreement and asserted counterclaims sounding in abuse of process, negligent infliction of emotional distress, violation of privacy, tortious interference with business relationships, and harassment and abuse, totalling $375,000 in damages.

Trial of the case was continued twice at defendant's request. The trial date was first moved from August 14, 1987 to September 24, 1987 in order to give defendant's new counsel time to prepare the case. Two days prior to that second specially assigned trial date, defendant again moved for a continuance, citing, among other reasons, plaintiff's failure to comply with discovery, her conflicting work schedule, and her desire to further review plaintiff's deposition. The motion was granted and trial was again specially assigned for December 28, 1987.

Defendant filed several motions as the trial date drew near, three of which we discuss below. On December 9, 1987, defendant moved for a continuance for the third time, stating that she was an attorney in a case set for trial in the federal district court in Maine on January 5, 1988, and that she would be heavily involved in pretrial preparations until that time. The court denied defendant's motion for a third continuance on the basis that defendant had had three months to clear her calendar in anticipation of the specially assigned trial date. Defendant also filed a December 15 motion to amend her complaint to include the Statute of Frauds as an affirmative defense. The motion was opposed by plaintiff and, apparently, never acted on by the court. On December 14, defendant's attorney moved to withdraw as counsel on the ground that his client insisted that he impeach a potential witness who was a close friend of his. The court denied the motion, suggesting that defendant herself, as a trial attorney, could examine the witness if need be.

The trial commenced on December 30, 1987 and lasted three days. Defendant failed to appear personally but was represented by her attorney. At the end of testimony on the third day of trial, the court denied a motion to admit defendant's deposition, ruling that defendant was not unavailable as a witness and, therefore, there was no hearsay exception under V.R.E. 804. The court also dismissed defendant's five counterclaims by directed verdict for lack of evidence. On February 5, 1988 the court ruled in plaintiff's favor. The judgment order was amended on March 30 to include partial attorney's fees.

On appeal, defendant contends that the trial court lacked personal jurisdiction, and that the court's findings of fact are clearly erroneous and cannot stand as a basis for its conclusions and order. Defendant also contends that the trial court abused its discretion in (1) denying her motion for a third continuance, (2) denying her counsel's motion to withdraw, (3) denying her post-trial motions, and (4) denying her motion to reopen the case. Finally, defendant challenges the court's award of partial attorney's fees.

II.

Defendant first argues, albeit briefly, that the trial court retained no personal jurisdiction over her in the instant matter, and that the court never addressed the issue of personal jurisdiction. We disagree. Based on its findings of fact, the court found that (1) the oral promise to repay the loans occurred in Vermont, (2) substantial portions of the oral agreement were executed in Vermont, and (3) defendant's condominium, the sale of which was to trigger defendant's duty to repay the loans, was located in Vermont. These findings are supported by the record, which plainly shows that defendant began receiving funds from plaintiff while she was still living in Vermont and that she retained ownership of her Vermont condominium long after she received all the funds advanced by plaintiff. Accordingly, the court properly exercised personal jurisdiction over defendant. See V.R.C.P. 4(e); 12 V.S.A. § 913(b); Rollins v. Vidmar, 147 Ariz. 494, 496-97, 711 P.2d 633, 635-36 (Ct.App.1985) ("minimum contacts" existed to confer jurisdiction on Arizona courts where mother residing in Arizona agreed to loan money to daughter in another state from funds originating in Arizona).

III.

Defendant next contends that the trial court's findings of fact do not address certain critical issues and, therefore, are clearly erroneous. Specifically, defendant argues that because plaintiff's complaint

does not put the defendant on notice that plaintiff expected repayment out of the proceeds of the sale of her house, it is not properly part of the case and evidence concerning repayment from the sale of the house is immaterial, since it does not tend to prove any fact placed in issue by the pleadings.

Plaintiff's complaint alleged that defendant orally promised to repay plaintiff "upon demand." According to defendant, the failure of plaintiff to amend his complaint to include a statement that defendant agreed to repay the advances upon sale of the condominium, coupled with the failure of the court to rule on defendant's request to amend her answer to include a Statute of Frauds defense, indicates that there was no "meeting of the minds" and no basis for the suit because no demand was ever made. We disagree.

As defendant states in her brief, "the purpose of the complaint is to put the defendant on fair notice of the claim against [her]." Hodgdon v. Stockwell, 138 Vt. 473, 474, 417 A.2d 931, 931 (1980). In Hodgdon, we affirmed the trial court's decision to exclude trial testimony concerning the defendant's failure to provide a fire watch, as plaintiff's complaint "repeatedly and unequivocally" alleged a claim based only on defendant's negligence in allowing a defective forklift to be used around the work place. Id. Unlike the plaintiff in Hodgdon, plaintiff here never attempted to offer evidence at trial regarding a claim not yet brought to the attention of the opposing party. The fact that the complaint did not specify when plaintiff's demand took place, or that plaintiff had agreed to forestall his demand until defendant sold her condominium, is immaterial. The complaint fully apprised defendant of the claim against her. Further, as defendant readily admits, the specifics of plaintiff's contentions regarding the demand were made available to defendant through plaintiff's deposition a full three months prior to trial.

Defendant's argument that the purported "switch" in "legal theories" precluded her from claiming the Statute of Frauds as an affirmative defense is not supported by the record. After the parties' break-up, plaintiff, through his attorney, asked defendant to sign a promissory note and mortgage in order to secure payment of sums previously loaned to defendant. For all practical purposes, this letter constituted a demand for payment, if not right then, at a specified future date. The fact that the payment was to coincide with the selling of defendant's condominium does not put the agreement within the ambit of the Statute of Frauds. We agree with plaintiff that the oral agreement between the parties could have been performed within a year and did not create an interest in land. See 12 V.S.A. § 181(4), (5). At the time the oral contract was made, the parties agreed that the loans would be repaid when defendant had funds available from the sale of her condominium; at that time, plaintiff held no interest in defendant's land. Cf. Vaughan v. Tetzlaff, 141 Vt. 150, 154, 446 A.2d 356, 358 (1982) ("The time for measuring a 'meeting of the minds' is the point of agreement, not performance."). Further, plaintiff at no time acquired "any right, privilege, power or immunity" over defendant's land; therefore, the Statute of Frauds is inapplicable. See Restatement (Second) of Contracts § 127 (1981); cf. Bumgarner v. Tomblin, 63 N.C.App. 636, 640-41, 306 S.E.2d 178, 182 (1983) (Statute of Frauds did not apply since the plaintiffs sought to enforce a promise to satisfy debt payments through resale of land, not a promise to sell the land).

In brief, the trial court's order requiring that defendant repay...

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