Estate of Gorton, In re

• Decision Date: 12 December 1997
• Docket Number: No. 96-454,96-454
• Citation: 167 Vt. 357,706 A.2d 947
• Parties: In re ESTATE OF Doris I. GORTON (Leo and Betty Lou Gorton, Appellants).
• Court: Vermont Supreme Court

Page 947

706 A.2d 947

167 Vt. 357

In re ESTATE OF Doris I. GORTON (Leo and Betty Lou Gorton Appellants).

No. 96-454.

Supreme Court of Vermont.

Dec. 12, 1997.

Motion for Reargument Denied Dec. 31, 1997.

Andrew Jackson, Middlebury, for Appellants.

James C. Foley of Deppman & Foley, P.C., Middlebury, for Appellee.

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

JOHNSON, Justice.

Appellants Leo and Betty Lou Gorton, the son and daughter-in-law of the deceased, Doris Gorton, appeal from a decision of the superior court dismissing their claim against the estate of the deceased. Appellants allege that they had an oral agreement with the deceased to provide services and make payments to her during her life in exchange for the transfer of a barn and farmland to them upon her death. They contend that the court erred by concluding that their allegations are insufficient to establish reliance on the oral agreement such that they are equitably entitled to specific performance. Appellants also appeal the court's decision that, under V.R.C.P. 72(d), they are not entitled to a jury trial on their claim. We reverse and remand for trial by court.

This case presents us with a procedural puzzle. Although the parties refer to the motion before the superior court as a motion for summary judgment, the record contains no affidavits, depositions, answers to interrogatories or admissions. Further, the decision of the court indicates that the court assumed that all of appellants' allegations were supported by sworn testimony in the probate court, evidently without ever reviewing that testimony. Thus, we review the superior court decision as though it dismissed appellants' request for a trial de novo on the pleadings. See V.R.C.P. 12(c). To review a judgment on the pleadings, we consider all the factual allegations in the pleadings of the nonmoving party and all reasonable inferences that can be drawn from them to be true and allegations to the contrary by the moving party to be false. Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126 (1990). The administratrix of the estate is not entitled to judgment if appellants' allegations, if proved, permit recovery. Id. Thus, we summarize the facts as alleged by appellants.

Leo Gorton, Sr. and Doris I. Gorton owned and operated a farm in Cornwall, Vermont, where they raised their six children. ¹ The farm consists of seventy acres and a barn on the west side of West Street and forty-two acres and a home on the east side of West Street. None of the six children continued in farming. Appellants Leo Gorton, Jr. and Betty Lou Gorton live next door to the family farm on their own land. Leo Jr. worked in the construction business, and Betty Lou worked at the Middlebury A & P.

In 1986, Doris first complained of ailments that later were diagnosed as resulting from cancer, and Betty Lou left her job of fourteen years to care for her mother-in-law. In April 1988, Doris was diagnosed with cancer and began chemotherapy treatments, and in May 1988, Leo Sr. died, leaving his share of the farm to his wife Doris. Because Doris wanted to keep the farm in the family, Leo Jr. and Betty Lou agreed to pay Doris $350 per month and one-half of her real estate taxes, plus provide assistance by maintaining her home and farm and providing for her care. In exchange, Doris agreed that upon her death certain farmland would be conveyed to Leo Jr. and Betty Lou. Under the agreement, Leo Jr. and Betty Lou began farming a portion of his mother's land by purchasing beef cattle in June 1988. Doris spoke with her attorney, a surveyor, friends and family members over the years about the agreement.

The same summer, Doris and Leo Jr. hired a survey technician, Ramona Powers. They explained to Ms. Powers that they wanted her to prepare maps of the land Doris intended to convey to Leo Jr. and Betty Lou. Ms. Powers prepared maps indicating the four lots that were to be conveyed: seventy acres on the west side of West Street and three lots of 3.75 acres, 8.75 acres and 4.75 acres on the east side of West Street. In 1989, Doris visited her attorney, Mike Mathes, and informed him that she had an agreement with Leo Jr. and that Leo Jr. was getting a large part of the farm, including a large pasture and barn on the west side of the road. In 1991, Leo Jr. and Betty Lou purchased 178 acres of land that has no road frontage but that adjoins Doris's land on the west side of the street. Attorney Mathes represented the seller at the closing and remembers Leo Jr. informing him that he was purchasing the 178 acres to go along with the land he was getting from his mother. Leo Jr. invested in expensive fencing and spent over a week enclosing all the lands, which he operated as one farm.

Performing their part of the agreement, Leo Jr. and Betty Lou paid Doris $350 monthly and one-half the taxes on the whole farm every year until Doris died, an amount three times the rental value of the farm property. Betty Lou cared for Doris by preparing meals, driving her to hospital appointments and staying overnight with her in the last months of her life, while Leo made substantial repairs and capital improvements to Doris's home.

In August 1994, Betty Lou informed attorney Mathes that Doris's cancer was terminal. Based on the maps prepared by Ramona Powers, attorney Mathes prepared three deeds covering the four lots and took them to Doris's house on August 22, 1994, but Doris was not feeling well enough to discuss the deeds. On August 31, 1994, Betty Lou telephoned attorney Mathes and told him that Doris was alert and able to deal with the deeds but attorney Mathes was unable to get to Doris's home that day. Doris died on September 1, 1994.

In January 1995, the administratrix of the estate of Doris Gorton sent Leo Jr. a demand for rent payment of $350 per month for the last five months and for one-half of the property taxes on the entire farm for use of the barn and farmlands. Leo Jr. and Betty Lou responded by filing a claim against the estate for the barn and the surveyed lands on the basis of the oral agreement with Doris. The administratrix disallowed the claim. Following a hearing, the probate court concluded that (1) the testimony of attorney Mathes must be excluded due to the attorney/client privilege, ² (2) appellants had an oral contract with the deceased for the transfer of real estate in exchange for payments and care given her in her lifetime, (3) appellants had not shown a change in position in reliance on the oral agreement requiring specific performance, but (4) appellants were entitled to damages for the expenses they incurred as a result of the oral contract.

Appellants requested a trial de novo by jury in superior court. See V.R.C.P. 72(d) and Reporter's Notes (appeal from probate court is by trial de novo in superior court). Rule 72 limits the issues before the superior court to those raised by appellants in their statement of questions. See Reporter's Notes to V.R.C.P. 72. Appellants' statement asserted that they were raising all issues that were before the probate court, but then specified two questions regarding recovery only: (1) whether appellants were entitled to specific performance, and (2) if not, whether appellants were entitled to damages. Because appellants won damages before the probate court and the administratrix did not appeal from that judgment, we review this case as though the only issue before the superior court was the issue of specific performance. ³

The administratrix filed a motion for summary judgment in superior court without any supporting affidavits. Appellants responded to the motion, also without any supporting affidavits, but with references to the taperecording of the testimony before the probate court. The court granted the administratrix's motion without reviewing the testimony, holding that, accepting all appellants' factual claims as true, the agreement was too vague to enforce and was barred by the Statute of Frauds. The court also held that appellants had no right to trial by jury because an action for specific performance sounded in equity, and therefore, did not afford the right to trial by jury. Nonetheless, the court affirmed the decision of the probate court awarding appellants damages. Appellants appeal.

I.

In general, a contract for the sale of lands is controlled by the Statute of Frauds and must be in writing to be enforceable. Chomicky v. Buttolph, 147 Vt. 128, 130, 513 A.2d 1174, 1175 (1986); see 12 V.S.A. § 181(5). A court may specifically enforce an oral contract to convey land, despite the Statute of Frauds, where the plaintiff is equitably entitled to the real estate. Enforcement is justified on the ground that repudiation by one party after the other has fully performed amounts to a virtual fraud. Restatement (Second) of Contracts § 129 cmt. a (1981). In such circumstances, enforcing the requirements of the Statute of Frauds would promote rather than prevent a fraud. Towsley v. Champlain Oil Co., 127 Vt. 541, 543, 254 A.2d 440, 442 (1969).

The Restatement (Second) of Contracts § 129 (1981) states the exception to the general rule in the Statute of Frauds A contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.

Accord Nutting v. Freda, 153 Vt. 501, 502, 572 A.2d 896, 897 (1990). Thus, the court may enforce an oral agreement for the transfer of land where the plaintiffs can show that (1) there was an oral agreement (2) upon which they reasonably relied (3) by changing their position so that they cannot be returned to their former position, and (4) the other party to the agreement knew of such reliance.

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