Wark v. Zucker
| Decision Date | 28 May 2021 |
| Docket Number | No. 2019-344,2019-344 |
| Citation | 2021 VT 37 |
| Parties | Gregory C. Wark v. Donald Zucker |
| Court | Vermont Supreme Court |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from Superior Court, Windsor Unit, Civil Division
Victor J. Segale, Rutland, for Plaintiff-Appellee.
Paul S. Kulig and Shannon A. Bertrand of Facey Goss & McPhee, P.C., Rutland, for Defendant-Appellant.
PRESENT: Robinson, Eaton, Carroll and Cohen, JJ., and Tomasi, Supr. J., Specially Assigned
¶ 1. CARROLL, J. Donald Zucker appeals a summary-judgment decision awarding attorney's fees to Gregory Wark because Zucker refused to mediate a dispute arising out of a purchase and sale agreement. On appeal, Zucker argues that he was not required to mediate because the purchase and sale agreement was not an enforceable contract. We agree, reverse the trial court's grant of partial summary judgment, and vacate the trial court's award of attorney's fees.
¶ 2. The following facts are undisputed. Zucker owns a roughly sixty-five-acre tract of land in Bridgewater, Vermont. In August 2013, Zucker granted an easement to Eugene Heselton, which gave Heselton the right to build a road across a portion of Zucker's tract so that he could access his adjoining property. On December 17, 2014, Wark signed a purchase and sale agreement providing that Zucker would sell his property to Wark. Zucker signed the agreement the next day.
¶ 3. The purchase and sale agreement was prepared using a pre-printed contract from Vermont Realtors, a brokerage firm. In paragraph 10 of the agreement, entitled "Special Conditions," the following language was added:
See attached addendum. In addition, both Parties agree that this contract is subject to an Attorney Review of the Terms of the Contract with the exception of price by the Purchaser's Attorney and the Seller's Attorney. Said review shall be done within 30 calendar days of the Seller's signed acceptance of the Purchase and Sale Contract.
The attached addendum outlined the following additional special conditions:
¶ 4. In paragraph thirty, the agreement specified that a binding contract would not be created unless the seller and purchaser agreed in a signed writing to the "conditions of any offer(s) and/or counteroffer(s), including any addenda or supplemental conditions" by December 31, 2014. In bold, the agreement provided that if a binding contract was not made by that date, "neither party [would] have any obligations to the other party." Finally, the agreement contained a mediation clause, which required the parties to submit "any dispute or claim arising out of or relating to th[e] Contract . . . to mediation prior to the initiation of any lawsuit." If a lawsuit was filed without first seeking mediation, the mediation clause provided that any party would "be entitled toreimbursement of the reasonable cost of attorney's fees or other expenses arising out of such lawsuit" until mediation occurred.
¶ 5. Between January and March 2015, the attorneys for Zucker, Wark, and Heselton exchanged numerous emails discussing, among other things, the status of the easement, the logistics of having an engineer assess the road Heselton was building, and the possibility of moving the closing date. Following these exchanges, Zucker's attorney sent the following email to Wark's attorney:
Relative to the contract negotiations between Mr. Donald Zucker and your client, Mr. Gregory Wark, and based upon all of the recent flow of communications back and forth regarding the uncertain status of the road/driveway being built by Mr. Eugene Heselton . . . we would simply think it prudent to withdraw the property from the market . . . .
On March 18, 2016, almost a year later, Wark, through counsel, sent a letter to Zucker demanding mediation pursuant to the mediation clause in the purchase and sale agreement. After a second demand for mediation in July, Zucker, through counsel, responded that the contract was properly terminated, and he would not participate in mediation unless ordered to do so by a court.
¶ 6. Wark filed suit alleging breach of contract and fraud and sought specific performance. Zucker moved for summary judgment arguing that the purchase and sale agreement was unenforceable. Wark filed a cross motion for partial summary judgment arguing, in part, that because Zucker declined his request to mediate, he was entitled to attorney's fees under the mediation clause.
¶ 7. The trial court granted summary judgment to Zucker on the breach-of-contract claim, explaining that although the special condition regarding the easement required Heselton to timely construct the easement, the purchase and sale agreement was "silent as to how the terms and conditions were to be enforced against [him]." Because such terms were not outlined in the purchase and sale agreement, the court held that there was no meeting of the minds and therefore no enforceable contract. Alternatively, the court held that Zucker terminated the contract bywithdrawing the property from the market, which the addendum incorporated into the agreement expressly "permitted him to do if agreement was not reached as to additional proposed conditions."
¶ 8. Although the court granted summary judgment to Zucker on the breach-of-contract claim, it concluded that the mediation clause was still enforceable because "courts of external jurisdictions have found that the termination of a contract prior to a demand for alternative dispute resolution (ADR) will generally have no effect on such demand, provided that the dispute in question either arose out of the terms of the contract or arose when a broad contractual [ADR] clause was still in effect." (Quotation omitted.) Because the mediation clause was still enforceable, and Zucker refused to mediate, the court granted partial summary judgment to Wark and directed him to submit evidence in support of attorney's fees.
¶ 9. In August 2019, the court awarded $2430 in attorney's fees and costs to Wark. The court noted that in opposing the requested fees, Zucker misconstrued the court's earlier decision as holding that there was no contract:
To clarify, the court never held that there was no contract. Rather, the court specifically stated that "the parties in this case executed a Purchase and Sale [agreement] that included special conditions," but held that the [agreement] was "not enforceable against Mr. Zucker," in part because of the lack of a "meeting of the minds" with respect to those Special Conditions, as well as because [Zucker] terminated the contract when the parties failed to reach agreement as to additional proposed conditions. [Zucker] has not timely requested reconsideration and the court is not persuaded to amend its decision.
Zucker subsequently appealed the court's grant of partial summary judgment and award of attorney's fees to Wark.
¶ 10. "We review a grant of summary judgment de novo, using the same standard as the superior court." Tillson v. Lane, 2015 VT 121, ¶ 7, 200 Vt. 534, 133 A.3d 832. Summary judgment is appropriate if, resolving all reasonable doubts in favor of the nonmoving party, the moving party can "demonstrate[] that there are no genuine issues of material fact and the party is entitled to judgment as a matter of law." Smith v. Parrott, 2003 VT 64, ¶ 6, 175 Vt. 375, 833 A.2d843. Here, there are no disputed material facts. The issue presented is a legal one—whether Wark, pursuant to the mediation clause, is entitled to attorney's fees for Zucker's refusal to mediate.
¶ 11. Zucker argues that because the trial court held that the purchase and sale agreement was unenforceable in granting summary judgment on Wark's breach-of-contract claim—and Wark did not appeal that decision—it necessarily follows that the mediation clause is also unenforceable. In response, Wark argues that the court did not hold that there was no contract; rather, he contends, the court held that the contract was not enforceable against Zucker. Alternatively, Wark argues that the purchase and sale agreement created an obligation to mediate regardless of whether the parties had reached agreement regarding the special condition.
¶ 12. Zucker is certainly correct that because neither party appealed the court's summary-judgment decision on the breach-of-contract claim, the question of whether the purchase-and-sale agreement was enforceable is not directly before the Court. The only question presented is whether the mediation clause is enforceable. Nevertheless, to determine whether a mediation...
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