Morrisseau v. Fayette

• Decision Date: 09 November 1995
• Docket Number: No. 94-506,94-506
• Citation: 670 A.2d 820,164 Vt. 358
• Parties: Dennis MORRISSEAU v. Frederick FAYETTE, Jr., et al.
• Court: Vermont Supreme Court

Page 820

670 A.2d 820

164 Vt. 358

Dennis MORRISSEAU v. Frederick FAYETTE, Jr., et al.

No. 94-506.

Supreme Court of Vermont.

Nov. 9, 1995.

On Appeal from Chittenden Superior Court; Matthew I. Katz, Judge.

Samuel H. Press of Portnow, Little & Cicchetti, P.C., Burlington, for plaintiff-appellant.

John J. Collins and Michael J. Harris of Sutherland & Collins, Inc., Burlington, for defendants-appellees.

Before ALLEN, C.J., DOOLEY, MORSE and JOHNSON, JJ., and CHEEVER, Superior Judge, Specially Assigned.

DOOLEY, Justice.

Plaintiff Dennis Morrisseau appeals the Chittenden County Superior Court's grant of summary judgment to defendants, Philip Fayette and the heirs to the estate of Frederick J. Fayette, in an action for specific performance of a purchase agreement for the sale of Juniper Island, an island in Lake Champlain. Plaintiff argues (1) that the trial court improperly reversed previous rulings of law by another judge in the same action, (2) that performance of a contract for sale of real estate was stayed by defendants' appeal of a probate court order approving that sale, and (3) that the liquidated damages clause of the purchase agreement does not limit defendants' liability solely to the return of plaintiff's deposit. We affirm.

I.

At least by anecdotal reputation, this is the latest episode (and we hope the last), in the longest running litigation in Vermont. The matter began with the 1974 death intestate of Frederick Fayette, Sr. while he owned Juniper Island. After opening the estate, the probate court appointed commissioners, pursuant to the procedure then in effect, to assign to the widow the "third in value of the real estate" to which she was entitled by statute. See 14 V.S.A. § 466. Apparently, the commissioners reported that they could not set out the widow's share of the many properties involved and they obtained from the probate court a license to sell all of the real estate to pay the widow's share. See 14 V.S.A. § 469. Title to some of these properties, including Juniper Island, was disputed by Philip Fayette; for example, he claimed to own 50% of the Island. The commissioners were specifically authorized to sell the properties involved in the disputed claims, subject to the claims. Pursuant to the authority of the license, the commissioners entered into a contract with plaintiff, allowing him to purchase Juniper Island if the estate perfected title to it by June, 1984, some four years after the purchase agreement was signed. Plaintiff put up $10,000 to insure performance, to be refunded if the estate could not clear up the title.

The heirs objected to certain actions of the commissioners, including the sale of Juniper Island. After hearing, the probate court decided with respect to Juniper Island that the applicable statute did not authorize the commissioners "to enter into such a long-time, option type, contingent contract for the sale of the subject land." The court ordered the return of plaintiff's deposit and that all other rights under the purchase and sale contract were "extinguished."

The commissioners, who still held a license to sell Juniper Island, renegotiated the contract with plaintiff to eliminate the estate's obligation to clear title and to provide for the payment of the $100,000 purchase price in three installments, the first two of $2,500 and the third of $95,000. The contract states that it is "subject to the approval of the Chittenden District Probate Court" and that it would "become effective and binding for all purposes as soon as a court order approving it is issued by the probate court." Closing was to take place "one hundred eighty (180) days--or such lesser period as Buyer may elect on ten (10) days notice to sellers--after Probate Court approval of this agreement." The probate court approved this agreement, including the following language in the findings:

Purchase Agreement is to become effective and binding for all purposes as soon as a Court Order, approving it, is issued by the Probate Court. It is the expressed intent of both parties that the times specified for performance shall commence from date of Probate Court approval of the Purchase Agreement, notwithstanding appeal by any other party to this contract of sale.

Defendants appealed the approval order to the superior court on April 17, 1980.

A second installment of $2,500 was due under the contract in July 1980. Plaintiff unsuccessfully sought a stay of his obligations under the contract, pending the appeal, from the Chittenden Superior Court. He failed to pay the second installment, prompting the commissioners to terminate the contract in a letter to plaintiff, which provided:

You ... became obligated to pay the sum of $2,500.00 on July 10, 1980.

We are aware that you requested a stay of the above-mentioned order of the probate court pending appeal.... [I]t is our position that such request does not relieve you of any of your obligations under the contract.

Since you failed to make the payment specified in the contract and have ignored our offer to extend the time of payment for six (6) months in return for an increase of the additional deposit from $2,500.00 to $5,000.00, we regard the contract as terminated and hereby give you formal notice to that effect.

On July 22, 1985, the Chittenden County Probate Court entered a decree of settlement and distribution regarding the Fayette Estate. Juniper Island was granted to defendants, each of whom received an undivided one-eleventh interest in the property. In August 1985, upon learning that title to Juniper Island had been settled, plaintiff tendered to defendants the second $2,500 payment required by the contract. Defendants returned plaintiff's check and refused to perform. Plaintiff then brought suit for specific performance of the purchase agreement on September 6, 1985.

On October 19, 1987 the superior court dismissed plaintiff's action for specific performance of the purchase agreement, finding that plaintiff had failed to timely serve three of the eleven defendant heirs under V.R.C.P. 3, and had not requested an enlargement of time in which to serve them under V.R.C.P. 6(b). The trial court also found that paragraph 9 of the purchase agreement restricted plaintiff's remedy to the return of his deposit. Plaintiff appealed, and we affirmed based on the trial court's procedural decision, without reaching the remedy issue. Morrisseau v Estate of Fayette, 155 Vt. 371, 371, 584 A.2d 1119, 1119 (1990).

In December of 1990, plaintiff commenced this action, known colloquially as Juniper IV, seeking specific performance and damages for defendants' alleged breach of contract. On March 4, 1991, defendants' motion to dismiss and for sanctions was denied. Plaintiff's motion for summary judgment was denied on September 3, 1991.

Approximately six months into the litigation, Judge Frank Mahady, who had presided over the early stages of the litigation, rotated out of the Chittenden Superior Court and the case was assigned to Judge Matthew Katz. On September 6, 1994, Judge Katz granted defendants ' motion for summary judgment. In his order, Judge Katz found that plaintiff breached the contract and, as a result, was not entitled to the remedy. He held that, notwithstanding the stay of enforcement of the probate court order approving the sale occasioned by defendants' appeal, the plain language of the contract required plaintiff to tender the second $2,500 payment on July 10, 1980, and he failed to do so. Judge Katz also found that paragraph 9 was a valid liquidated damages clause and restricted plaintiff's remedy to return of his deposit.

II.

Plaintiff first argues that Judge Katz erred by reversing Judge Mahady's previous rulings of law in this action in the absence of new evidence or other grounds for such reversal. Specifically, plaintiff argues that, by granting defendants' motion for summary judgment after a similar motion by plaintiff had been previously denied, Judge Katz allowed defendants an impermissible "horizontal appeal" and modified the law of the case.

The issue relates to both grounds for the decision granting summary judgment. The first ground, that plaintiff failed to tender the second installment of the price and, thus, breached the purchase and sale contract, was resolved at least indirectly in Judge Mahady's ruling that Juniper IV was not barred by the statute of limitations. Judge Mahady ruled that plaintiff did not have to tender further payments once defendants appealed the probate court approval of the contract. On the second issue, whether plaintiff's remedy was restricted to return of the deposit, Judge Mahady ruled that further factual development was necessary, but Judge Katz ruled the remedy was so restricted without this factual development.

Plaintiff labels defendants' second motion for summary judgment, on which Judge Katz ruled, as a "horizontal appeal" from one superior judge to another, ¹ prohibited by our opinion in Economou v. Economou, 133 Vt. 418, 421-22, 340 A.2d 86, 88 (1975). In Economou, we reversed a judgment on the pleadings for two reasons, one of which was that the decision represented a horizontal appeal from the denial of a motion for summary judgment by another judge. We explained why such a horizontal appeal was undesirable:

[t]o allow a subsequent irreconcilable ruling to stand would encourage litigants in superior courts to delay proceedings already initiated while awaiting the future assignment of a presiding judge they believed more likely to rule in their favor.

Id. Plaintiff argues that Economou applies equally to the grant of summary judgment after the denial of summary judgment by another judge.

Where only one judge is involved, we have upheld a decision granting summary judgment following an earlier decision which denied the motion. See Kelly v. Town of Barnard, 155 Vt. 296, 307, 583 A.2d 614, 620 (1990); Morrisville Lumber Co. v. Okcuoglu, 148 Vt. 180, 182, 531 A.2d 887, 888 (1987)...