Kelly v. Lord

• Citation: 783 A.2d 974
• Decision Date: 21 September 2001
• Docket Number: No. 99-496.,99-496.
• Parties: Daniel J. and Jodi C. KELLY v. Edwin P. LORD, Helen Lord, IngaBritt Lillbask, Morris Teig, Robert Ziccardi, Carl Roof and Department of Corrections
• Court: Vermont Supreme Court

783 A.2d 974

Daniel J. and Jodi C. KELLY v. Edwin P. LORD, Helen Lord, IngaBritt Lillbask, Morris Teig, Robert Ziccardi, Carl Roof and Department of Corrections

No. 99-496.

Supreme Court of Vermont.

September 21, 2001.

William J. Donahue, White River Junction, for Plaintiffs-Appellees.

Christopher Dye, Bradford, for Defendant-Appellant Edwin P. Lord.

Present: DOOLEY, MORSE and JOHNSON, JJ., and KATZ, Superior Judge, and GIBSON, J. (Ret.), Specially Assigned.

JOHNSON, J.

Seller Edwin P. Lord appeals from several superior court orders, which address the claim of buyers Daniel and Jodi Kelly to enforce a contract to purchase Stonecliff Farm from seller. In various orders, the court ruled that (1) the parties' original installment contract was assigned by seller to a trust and subsequently modified by the trustees; (2) under the terms of the modified contract, seller must deliver the deed to the farm to buyers' attorney pending negotiations with the Agency of Natural Resources (ANR) concerning the solid waste that seller had illegally dumped on the property; and (3) the modified contract cancelled the installments buyers owed under the original contract. The court entered partial final judgments under V.R.C.P. 54(b) on these rulings and subsequently granted buyers' motion to enforce the order requiring seller to deliver the deed to buyers' attorney. Seller appeals from all of these orders. We affirm.

Following a trial by court on buyers' claim for specific performance of the contract, the court made twenty-five pages of findings, which we summarize here. In 1983, seller Edwin P. Lord acquired title to Stonecliff Farm in Bradford, Vermont. On April 26, 1990, the State of Vermont filed a criminal action, charging seller with operating a solid waste facility on the property without a certificate in violation of 10 V.S.A. § 6605(a), claiming that investigators had found more than sixty tractor-trailer truckloads of debris in a ravine about 200 yards behind the farmhouse. In the spring of 1991, buyers Daniel and Jodi Kelly drove by the property, liked it and stopped to talk to seller about buying it. Buyers inspected the property, observed the debris, and learned from town officials that the debris had been illegally dumped. Although buyers knew that a criminal action was pending, they took possession of the farm and then, a few days later, on June 28, 1991, entered into an installment land contract to purchase it.

The installment contract provided in relevant part as follows:

(1) Buyers agreed to buy Stonecliff Farm for $300,000, of which $20,000 was paid on or before June 28, 1991, and the remaining $280,000 was to be paid in monthly installments of $3,111.00-$1,555.50 of each payment being applied to principal and the same amount applied to interest — for a term of fifteen years.

(2) Seller agreed to pay two notes secured by mortgages on the property. In the event that buyers paid any amount on these notes, they were entitled to deduct an equal amount from their monthly installments due to seller.

(3) Seller agreed to pay all expenses for the proper removal and disposal of the debris as required by law. In the event that buyers paid any of these expenses, they were entitled to deduct an equal amount from their monthly installments to seller.

(4) Buyers agreed to pay all real estate taxes starting in 1991.

(5) Upon receiving payment of the entire principal and any accrued interest, seller agreed to execute a warranty deed conveying the property to buyers free of any liens.

On August 7, 1991, a jury convicted seller on four counts of operating an illegal solid waste facility. Later that month, seller was sentenced to zero-to-six months on each count, consecutive, for a total maximum of twenty-four months incarceration and a $100,000 fine. The court set an appeal bond in the amount of $100,000. Seller's mother, Helen Lord, paid $70,000 for the bail, seller paid the remaining $30,000, and seller was released. Seller filed a pro se notice of appeal.

On October 21, 1991, seller created the Edwin P. Lord Irrevocable Trust, appointed Helen Lord, his mother, and IngaBritt Lillbask as trustees, and assigned "all of his interest, right and title in and to said Installment Land Contract to Helen Lord and IngaBritt Lillbask, Trustees of the Edwin P. Lord Irrevocable trust u/a/t dated October 21, 1991." Seller remained the record owner of the farm but buyers were given to understand that seller had deeded the farm to the trust. In late 1991, seller hired attorney Peter Hall to represent him in his criminal case on appeal. Attorney Hall also incorrectly believed that seller had deeded the farm to the trust and made this erroneous representation to the assistant attorney general in the criminal case, the attorney for ANR, attorney Donahue representing buyers, and Judge Cashman. In January 1992, attorney Hall began to represent Helen Lord and IngaBritt Lillbask as trustees of the trust also.

In early January 1992, seller suffered a traumatic brain injury at the home of IngaBritt Lillbask in Connecticut. On February 17, 1992, attorney Hall entered his appearance as counsel for seller in his criminal appeal and requested a stay, alleging that seller had hired him to appeal the conviction but had since suffered a traumatic brain injury and therefore could not consult with him. This Court stayed the criminal appeal until April 20, 1992, and upon further motion, until July 6, 1992. On March 5, 1992, the Connecticut probate court appointed Camilla Lillbask as conservator of seller's estate and person.

In the spring of 1992, buyers sought a bank loan to pay off the installment contract, but the bank wanted assurance from ANR that no clean-up of the debris would be required. At this point, buyers contacted ANR, learned that clean-up would be required, and became concerned that the cost of removing the debris would exceed what they owed in principal. On August 20, 1993, ANR sent buyers and attorney Hall a draft administrative order for the clean-up, which found buyers and seller guilty of running a solid waste landfill and ordered buyers and seller to provide an engineer's report evaluating the impact of the disposal site and the cost of debris removal or capping. Attorney Hall responded to ANR, maintaining that seller had brain damage and could not make decisions on his own but that Hall was authorized to represent seller in the administrative proceedings and that a court-appointed conservator would act for seller on any agreements. On October 28, 1993, the Connecticut probate court accepted the resignation of Camilla Lillbask as seller's conservator and appointed Morris Teig as successor. Attorney Hall wrote this Court indicating that he was attempting to work out a global resolution of the criminal case and the debris removal and that Teig had been appointed seller's new conservator.

On November 24, 1993, attorney Donahue sent a letter to attorney Hall confirming their telephone conversation of that day. The letter stated that he and Hall were working toward an agreement wherein buyers would take title to the property and assume the mortgages and remediation costs, provided that seller's $30,000 bail money could be contributed. Donahue told Hall that buyers would make no further payments under the installment contract but were willing to make the mortgage payments directly to the bank. On December 10, 1993, Hall wrote Donahue, indicating that he thought the State would agree that the $30,000 in bail money could be used for the clean-up, that Teig agreed with the November 24 proposal, that buyers would have to give a third mortgage to seller/the trustees to secure buyers' obligation to complete the clean-up, and that this mortgage would not be necessary if ANR relieved seller of clean-up responsibilities. Finally, Hall agreed that buyers would receive a deed to the property from the trust when an agreement was reached with ANR.

On December 17, 1993, the State and Hall stipulated to dismissal of seller's criminal appeal, and subsequently, this Court dismissed the appeal. On February 4, 1994, Hall moved before the district court for reduction of the sentence, alleging that seller was not able to take responsibility for himself and that Teig had been appointed his conservator. Hall indicated that seller was negotiating with ANR to clean up the property contingent on the court resentencing seller.

On March 14, 1994, the district court granted the motion for reduction of sentence, imposing a sentence as follows: (a) zero-to-six months on each of the four counts of operating an illegal solid waste facility, to run concurrently, all suspended upon conditions of probation; (b) all fines reduced to zero; and (c) probation conditions in the attached probation order, plus the additional conditions, summarized as follows:

(1) Defendant shall transfer $30,000 in bail funds to William Donahue as trustee to be disbursed to pay for costs of the clean-up of Stonecliff Farm, "to be accomplished under an agreement negotiated with the Agency of Natural Resources, Daniel and Jodi Kelly, present occupants of the Farm, defendant and the "Helen Lord Trust."¹

(2) To effect the clean-up of the farm under the ANR agreement, defendant shall release to the Kellys all interests in the farm held by defendant or the Helen Lord Trust, subject only to the two bank mortgages and any security given by the Kellys for their agreement to clean up the property.

(3) Upon transfer of the $30,000 to Donahue and conveyance of all interests in the farm to the Kellys, the court will discharge defendant from probation.

The court issued a probation order under which (1) condition 10 required restitution of $30,000 as provided in the sentence-reduction order, and (2) condition 14 required seller "to transfer any remaining legal or equitable right in subject real estate to Daniel and Jodi Kelly provided said grantee clean up property in accordance with agreement...