Robert and Cecile Bergeron v. Sidney Boyle

This case concerns a contract for the sale of
real estate. Plaintiffs Robert and Cecile Bergeron petitioned the
Chittenden Superior Court for specific performance of their agreement with
defendant Sidney Boyle to purchase 100 acres of his farm. Following an
evidentiary hearing, the trial court determined that the parties entered
into a valid, enforceable contract for the purchase and sale of defendant's
farm, and granted plaintiffs' petition. The court, however, denied
plaintiffs' request for attorney's fees. On appeal, defendant argues that
Chittenden County was the improper venue for plaintiffs' action; that he
properly revoked his offer to sell the farm prior to plaintiffs'
acceptance; and that plaintiffs' consideration was illusory. Plaintiffs
cross-appeal, claiming that attorney's fees were available pursuant to the
terms of their written agreement. We affirm.

2. The trial court found the following facts. On July 11, 1999,
plaintiffs, in response to a For Sale sign posted on defendant's property,
met with defendant at defendant's home and inquired about the available
realty. Defendant indicated that he was selling 100 acres of his 150 acre
farm in South Hero, Vermont, including a farmhouse and attendant
outbuildings, at a price of $180,000. With defendant's guidance,
plaintiffs examined the acreage, farmhouse, and outbuildings. During this
examination, the parties discussed the subdivision configuration of the
lot, as well as defendant's desire to use the farm's outbuildings for one
year to enable sufficient time to move machinery, hay, and other equipment.
Plaintiffs also inquired about the zoning regulations affecting the
property, and indicated that "in order to close [plaintiffs] wanted to be
satisfied through investigation . . . at the Town Clerk's office that there
were no problems with the title, encumbrances and liens, and any other
legal defects of the property."

3. After inspecting the property, the parties discussed the price
of the farm. Plaintiffs requested a price reduction, but defendant
maintained his asking price of $180,000. Plaintiffs agreed to defendant's
price and to provide a $5000 deposit, which defendant accepted. Desiring
to reduce the terms of their agreement to writing, defendant produced a
blank, preprinted form provided to him earlier by a realtor entitled
"Purchase and Sale Contract." The Purchase and Sale Contract contains the
following pre-printed language in clause two: "Purchaser hereby offers and
agrees to buy the Property described herein at the price and on the terms
and conditions stated herein."

4. Defendant proceeded to add the necessary information to the
preprinted Purchase and Sale Contract. In clause one, defendant handwrote
both the plaintiff-purchasers' and defendant-seller's names and addresses;
in clause three, defendant identified the time agreed upon by the parties
for acceptance as August 11; in clause four, defendant described the real
property as "100 acres +/- . . . 493 RT 2 South Hero Grand Isle VT;" in
clause five, the total purchase price was set at $180,000; and the contract
deposit amount of $5000 was noted in clause six. Under clause ten of the
agreement, labeled "Special Conditions of Contract," defendant included two
specific provisions: first, that "Purchaser will give seller 1 year from
closing to move machinery, hay and other personal property off farm," and
second, in response to plaintiffs' concern they would forfeit their deposit
if defendant was unable to convey marketable title, defendant wrote that
"[i]f purchaser revokes offer the $5000.00 deposit will be refunded."
Defendant then signed and dated the agreement under the section labeled
Acceptance of Offer and Agreement to Sell, which states "Seller hereby
accepts Purchaser's offer and agrees to sell the property at the price and
upon the terms set forth in this contract and any addenda thereto."
Although willing, plaintiffs did not sign the agreement after defendant
suggested that their signatures were unnecessary, but did provide defendant
with a personal check in the amount of the agreed upon deposit. The
parties each kept a copy of the agreement.

5. On the morning of July 21, defendant told plaintiffs' daughter
that he no longer wanted to sell his farm. The next day, defendant met
with an attorney, who drafted a letter to plaintiffs, stating in part that
"[d]ue to physical and emotional difficulties at this time [defendant] is
withdrawing his offer to sell the property. We are, therefore, enclosing
your deposit check and apologize for any inconvenience." The trial court
determined that defendant's attorney mailed this letter after 4:00 p.m. on
July 22. Plaintiffs received this letter on July 23.

6. In the interim, plaintiffs' daughter had informed her parents
of defendant's statement. In response, plaintiffs signed their copy of the
Purchase and Sale Contract. Plaintiffs' daughter delivered the signed
agreement to defendant on July 22. On July 26, plaintiffs recorded a copy
of the signed agreement in the Town Clerk's office. On July 27,
plaintiffs' attorney returned the deposit check to defendant's attorney,
stating that plaintiffs "had accepted [defendant's] offer at 10:05 a.m. on
July 22nd and had delivered a signed copy to [defendant] at 1:22 p.m.,
before the offer to sell was withdrawn." The attorney also noted that
plaintiffs could close on the property within four or five days after
receiving notice.

7. The parties continued to communicate through their attorneys,
and unsuccessfully attempted to resolve their dispute through mediation.
On August 26, 1999, plaintiffs filed a complaint for declaratory relief,
specific performance, and attorney's fees in Chittenden Superior Court.
Defendant moved to dismiss based on improper venue, asserting that pursuant
to 12 V.S.A. § 402(a), the case should be heard in Grand Isle County, the
situs of the property at issue. The court denied this motion, as well as
the parties' subsequent cross-motions for summary judgment, finding that
the contract at issue was ambiguous as a matter of law. After additional
pleadings and discovery, a merits hearing was held in April 2002. The
trial court found that the parties had formed a valid, enforceable contract
and granted plaintiffs' request for specific performance. The court,
however, denied plaintiffs' request for attorney's fees.

8. Defendant appealed to this Court on September 9, 2002.
Plaintiffs filed a cross-appeal on October 15, alleging that they are
entitled to attorney's fees under the terms of the Purchase and Sale
Contract. Defendant objected to plaintiffs' cross-appeal as untimely. The
trial court deemed plaintiffs' failure to timely file their cross-appeal
excusable neglect, and allowed the cross-appeal to proceed to this Court.
Defendant now asks this Court to determine whether the trial court erred in
concluding (1) that venue was proper, (2) that the parties entered into a
valid, enforceable contract, and (3) whether plaintiffs are entitled to
appeal the trial court's denial of attorney's fees. We find no error in
the trial court's ultimate conclusions.

I. Venue

9. The threshold question in this appeal is whether Chittenden
Superior Court was the proper venue in which to hear this action.
Defendant claims that plaintiffs' contract action seeking specific
performance is one "concerning real estate" pursuant to 12 V.S.A. § 402(a),
thereby placing proper venue in Grand Isle County, where the property is
located. Plaintiffs argue, however, that this is a dispute over contract
rights, not real estate. The trial court agreed concluding that "[t]his is
a suit about $5,000, not land," and denied defendant's motion to dismiss
for improper venue. While we disagree with the court's assessment of the
nature of this action, we find that venue was proper in Chittenden County.
See Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990)
(Court may affirm correct judgment on grounds other than those stated by
trial court).

10. Section 402(a) of Title 12 establishes venue for actions in
superior court:

An action before a superior court shall be brought in the county
in which one of the parties resides, if either resides in the
state; otherwise, on motion, the complaint shall be dismissed. If
neither party resides in the state, the action may be brought in
any county. Actions concerning real estate shall be brought in
the county in which the lands, or some part thereof, lie.

In creating distinct trial venues based on the subject matter of the claim
filed, this statute mirrors the common law distinction between local and
transitory actions. At common law, "[i]f the cause of action could have
arisen in any place whatsoever, it was said to be transitory, and an action
thereon might be brought in any county wherein the defendant was found."
Page v. Newbury, 113 Vt. 336, 338, 34 A.2d 218, 219 (1943). If, on the
other hand, "the cause of action could have arisen in one place only, it
was local and suit could be brought only where the cause arose." Id. This
dichotomy parallels that which exists between in personam and in rem
jurisdiction. Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d
503, 506 (7th Cir. 1984) (citing Mostyn v. Fabrigas, 1 Cowp. 161, 98
Eng.Rep. 1021 (K.B. 1744)). "The reason for this parallel is simply that,
in order to provide in rem relief, the court must have jurisdiction over
the real property at issue, and a local action must therefore be brought in
the jurisdiction in which that real property is located." Id.; see also
Gerdel v. Gerdel, 132 Vt. 58, 62, 313 A.2d 8, 10 (1973) ("The basic
characteristic of an in rem action is a competent court passing judgment
over the status of some particular subject matter.") To provide in
personam relief, however, the court need only have personal jurisdiction
over the defendant. Id. at 61, 313 A.2d at 9.

11. Thus § 402(a) maintains the general structure of the common
law distinction between local and transitory actions. Today, actions are
not local "unless made so by statute." Page, 113 Vt. at 338, 34 A.2d at
219. Prior to the Legislature's promulgation of § 402(a) in 1972, the
relevant statute controlling venue in the superior court specifically
limited local actions to those "of ejectment and actions in tort for
trespass on the freehold . . . ." 1947 V.S. § 1604; see also 1971, No. 185
(Adj. Sess.), § 31 (codified as 12 V.S.A. § 402(a)); Page, 133 Vt. at 338,
34 A.2d at 219 (interpreting 1933 P.L. 1565, a statutory predecessor of 12
V.S.A. § 402(a), which limited local actions to those for ejectment or
trespass on the freehold). Although the "concerning real estate" language
currently employed by § 402(a) appears broader than its statutory
predecessors and could conceivably encompass any action that, at least in
part, relates to real property, such a far-reaching construction is
unwarranted. (FN1) Rather, we have construed § 402(a) narrowly to place
venue in the county where the land is located only in actions to "establish
or to settle title to real estate." State v. Fisher, 134 Vt. 339, 340, 360
A.2d 102, 104 (1976) (district court ejectment action brought under 12
V.S.A. § 4851 not a proceeding to establish or settle title to land and did
not implicate "concerning real estate" language of § 402(a)); Estate of
Emilo v. St. Pierre, 146 Vt. 421, 423, 505 A.2d 664, 665 (1985) (same).
Where no party disputes title, real property actions - including those for
ejectment - may properly be brought in the county where either party
resides. See Estate of Emilo, 146 Vt. at 423, 505 A.2d at 665. Therefore,
unless an action requires the court to directly establish, quiet, attach,
transfer or bestow title to real property, the "concerning real estate"
language of § 402(a) does not apply. Cf. 17 Moore's Federal Practice §
110.20[2] (3d ed. 2003) ("[L]ocal actions are those that directly affect
real property.").

12. Here, plaintiffs' action does not involve a title dispute, but
is properly seen as a declaratory judgment action to determine the
existence of a contract to transfer land, and to compel specific
performance of that contract. While plaintiffs' request for specific
performance, if granted, undeniably affects real estate, an action is
traditionally considered transitory, and therefore not directly affecting
real property if:

the type of relief requested is personal in nature so that the
court acts on the defendant's person or personal property, which
is within its control, and not directly on the lands involved. A
wide variety of types of actions that affect lands, from the
conveyance of real estate to the enforcement of lease provisions,
are nonetheless considered transitory actions requiring only in
personam jurisdiction over the defendant. Thus, most types of
actions are considered transitory even thought the outcome of the
litigation may affect property.

17 Moore's Federal Practice § 110.20[2]; Musicus, 743 F.2d at 507 (action
considered transitory even when "plaintiff seeks a personal judgment which
will ultimately affect real property - so long as the action is based in
fraud, trust or contract"). Since plaintiffs' request for specific
performance is personal in nature - the relief sought would require
defendant to fulfill his contractual obligations-their action is transitory
despite its affect on real property. Consequently, Chittenden County was a
proper venue for plaintiffs' action under 12 V.S.A. § 402(a). Defendant's
first claim on appeal fails.

II. Purchase and Sale Contract

13. Defendant next contends that the trial court erred in
concluding that the parties entered into a contract for the purchase and
sale of defendant's farm on July 11, 1999. Specifically, defendant asserts
that letters written by attorneys for both parties characterizing their
agreement as an "offer to sell" are persuasive evidence that the Purchase
and Sale Contract constituted only an offer by defendant. According to
defendant, the attorneys' letters are "far superior to potentially
falsified testimony in establishing the parties' construction of the
[agreement]." Defendant is incorrect.

14. Generally, construction of a contract is a matter of law.
Housing Vt. v. Goldsmith & Morris, 165 Vt. 428, 430, 685 A.2d 1086, 1088
(1996). If a court finds a writing ambiguous, however, "the proper
interpretation becomes a question of fact, to be determined on all relevant
evidence." New England P'ship v. Rutland City Sch. Dist., 173 Vt. 69, 77,
786 A.2d 408, 415 (2001) (internal quotations omitted); Bixler v. Bullard,
172 Vt. 53, 58, 769 A.2d 690, 694 (2001) (intent to be bound by contract is
question of fact); Housing Vt., 165 Vt. at 430, 685 A.2d at 1088 ("[W]here
the meaning of a contract is uncertain, the intent of the parties becomes a
question of fact."); see also Isbrandtsen v. N. Branch Corp., 150 Vt. 575,
579, 556 A.2d 81, 84-85 (1988) (when ambiguity found, "court may then rely
on subordinate rules of construction in order to interpret the meaning of
the disputed terms"). In this case, the trial court found the Purchase and
Sale Contract ambiguous on its face. The court concluded that:

[o]n its face, the defendant "accepted" the [plaintiffs'] $180,000
"offer" to buy the property on July 11, 199[9]. But, also, on the
contract's face, the [plaintiffs] signed the contract stating the
date of the "offer" was on July 22, eleven days after the
"acceptance." Furthermore, there was a provision that the "offer"
was to remain open until August 11, and another provision which
entitled the [plaintiffs] to be refunded their $5000 deposit if
they chose to revoke their offer. Again, since the defendant's
acceptance apparently occurred as soon as the contract was
created, it is unclear what these provisions were meant to
accomplish.

15. After assessing the credibility of witnesses and weighing the
evidence presented at the evidentiary hearing, the trial court made
findings regarding the ambiguities of the writing. These findings are
entitled to substantial deference. Housing Vt., 165 Vt. at 430, 685 A.2d
at 1088; Kannan v. Kannan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995)
(trial court is granted wide deference on review because it is in a unique
position to assess credibility of witnesses and weight of evidence
presented). We will not set aside a trial court's findings unless they are
clearly erroneous, nor will we disturb conclusions that are reasonably
supported by the findings. V.R.C.P. 52; New England P'ship, 173 Vt. at 77,
786 A.2d at 415 (2001) (citations omitted).

16. Specifically, the court found that the parties had negotiated
all material terms and intended to be bound by them on July 11. With
regard to the ambiguous clause of the agreement stating that "[i]f
purchaser revokes offer the $5000.00 will be refunded," the court, after
assessing contradictory testimony concerning the intent of this provision,
found that the purpose of this clause was to clarify that if plaintiffs
discovered defects in title, or any other encumbrances not represented by
defendant which would prevent conveyance of marketable title, plaintiffs
would not forfeit their deposit. The court concluded that there was no
reliable evidence, including defendant's contrary testimony, suggesting an
alternative interpretation of this ambiguous provision.

17. The court's findings support the conclusion that the Purchase
and Sale Contract constituted plaintiffs' offer to purchase 100 acres of
defendant's 150 acre farm for $180,000, which defendant accepted and signed
on July 11. As a result, plaintiffs created a contract they were entitled
to enforce against defendant. (FN2) See 12 V.S.A. § 181 (under the statute
of frauds, a contract for the sale of land enforceable if signed by the
party to be charged); Starr Farm Beach Campowners Assoc. v. Boylan, __ Vt.
__, __, 811 A.2d 155, 158 (2002) (mem.) (enforceable contract demonstrates
"a meeting of the minds of the parties: an offer by one of them and an
acceptance of such offer by the other"). That the attorneys for the
parties erroneously characterized the agreement in their subsequent
correspondence does not alter this conclusion. See New England P'ship, 173
Vt. at 77, 786 A.2d at 415 (trial court's findings upheld even if
substantial contradictory evidence exists if credible evidence supports
those findings). Defendant's claim therefore fails. (FN3)

18. Defendant also avers that the trial court erred in concluding
that the parties' agreement was supported by consideration. Defendant
argues that because plaintiffs could revoke their offer to purchase the
farm according to the terms of the contract - which, if done, would require
defendant to return plaintiffs' $5000.00 deposit - the consideration
provided was illusory. Again, defendant is incorrect.

19. The existence of sufficient consideration for a contract is a
question of law and is evaluated at the time the contract was formed.
Lloyd's Credit Corp. v. Marlin Mgmt. Servs., Inc., 158 Vt. 594, 598-99, 614
A.2d 812, 814-15 (1992). "Either a benefit to the promisor or a detriment
to the promisee is sufficient consideration for a contract." Id. at 598,
614 A.2d at 814. Mutual promises, " 'in each of which the promisor
undertakes some act or forbearance that will be, or apparently may be,
detrimental to the promisor or beneficial to the promisee, and neither of
which is void, are sufficient consideration for one another.' " H.P. Hood
& Sons v. Heins, 124 Vt. 331, 337, 205 A.2d 561, 565 (1964) (quoting 1
Williston on Contracts § 103 at 395-96 (3d ed. 1957)). In this case, the
trial court's findings demonstrate that plaintiffs promised to purchase
defendant's farm for $180,000 and, in return defendant promised to sell the
farm to plaintiffs for that price. This bargained for exchange of mutual
promises was sufficient consideration to support the contract. See Ragosta
v. Wilder, 156 Vt. 390, 393-94, 592 A.2d 367, 369 (1991) (to constitute
consideration, a return promise must be bargained for); Restatement
(Second) of Contracts § 71(2) (1981) ("A performance or return promise is
bargained for if it is sought by the promisor in exchange for his promise
and is given by the promisee in exchange for that promise."). Further, as
the trial court noted:

the giving of . . . [a bank draft for] $5,000.00 amounted to a
transfer of the use of funds to [defendant]. The fact that
[defendant] had not negotiated the check is irrelevant . . .
[plaintiffs] directed their bank to pay him $5000.00 of their
money upon demand, and thereby deprived themselves of the use of
that money. This by itself is sufficient consideration.

Therefore, defendant's claim that consideration was illusory fails.

III. Attorney's Fees

20. Finally, plaintiffs cross-appeal alleging that they are
entitled to attorney's fees pursuant to the Purchase and Sale Contract
because (1) the contract included an unambiguous provision for reasonable
attorney's fees in the event of a breach, and (2) defendant breached the
contract. The trial court, which allowed plaintiffs' cross-appeal despite
their failure to timely file, denied plaintiffs' request for attorney's
fees, finding that their "claim and . . . remedy are entirely equitable in
nature, and thus attorney's fees are discretionary with the court."
Defendant contends on appeal that plaintiffs are not entitled to attorney's
fees because (1) the lower court abused its discretion in allowing
plaintiffs to file an untimely cross-appeal, and, irrespective of that
error, (2) there was no breach of contract. We find that the trial court
abused its discretion in allowing plaintiffs to file an untimely
cross-appeal.

21. On September 9, 2002, defendant filed a notice of appeal.
Plaintiffs therefore had fourteen days to file a cross-appeal. See
V.R.A.P. 4 ("If a timely notice of appeal is filed by a party, any other
party may file and serve a notice of appeal within 14 days . . . ."). This
deadline passed, and thereafter, pursuant to Rule 4, plaintiffs filed a
motion with the superior court to extend time. See id. ("The superior or
district court may extend the time for filing the notice of appeal . . .
for excusable neglect, upon motion and notice, if request therefore is made
within 30 days after the expiration of the period originally prescribed by
this subdivision.") The trial court granted this motion, noting that there
was "[n]o harm to defendant, as case already in appeal process and fee
issue would not seem to require add'l record . . . all this adds up to
reasonable care, no prejudice, excusable neglect. Discretion thereby
points to granting motion."

22. The excusable neglect standard embodied in Rule 4 is a strict
one. As we announced in our recent case In re Town of Killington, although
the standard for excusable neglect has become more of an elastic concept,
its application "must remain strict lest there be a de facto enlargement of
appeal-filing time to sixty days." Killington, 2003 VT 87, 17. In Town
of Killington, we specifically held that the more commonly occurring
situations - such as an internal office mistake - do not constitute
excusable neglect. Id. 2003 VT 87, at 19; see also Gibbons v. United
States, 317 F.3d 852, 855 (8th Cir. 2003) (affirming denial of extension
where solo practitioner failed to timely file because of vacation followed
by temporary illness). Plaintiffs' excuse that an attorney's vacation and
a related breakdown in internal office procedures resulted in the late
filing is insufficient to warrant a finding of excusable neglect.
Plaintiffs' cross-appeal was untimely and therefore fails.

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