M.O.C. Inc. v. Main St. Landing, No. S0720-02 Cnc (Katz, J., May 10, 

2005) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. S0720-02 CnC 

M.O.C., INC. 

v. 

MAIN STREET LANDING CO. 

ENTRY 

 Defendant Main Street Landing seeks to pare down the claims 

against it by M.O.C., Inc. To that end, it has moved for partial summary 
judgment on the basis that there is no evidence to support the plaintiff’s 

claims of defamation and breach of the covenant of good faith and fair 

dealing. Main Street also argues that this dispute is between itself and 

M.O.C. and should not involve either Melinda Moulton or Manon 

O’Connor. As each argument raised by Main Street deals with a discrete 

issue, we will address them individually. 

 We begin by incorporating our January 13, 2004 and February 26, 

2004 entry, which summarized the relevant facts in this case. Briefly, 

M.O.C., a company owned by Manon O’Connor, seeks damages resulting 

from actions taken by Main Street, its landlord, in violation of their lease 

agreement. Primarily these are for the collapse of M.O.C.’s business as a 

result of Main Street locking M.O.C. out of the premises. 

Breach of Lease

 Main Street seeks to remove Manon O’Connor as a plaintiff in the 

breach of contract claim stemming from the lease. It argues that, since 

O’Connor was neither a party to the lease nor an expressly named 

beneficiary, she lacks standing to bring an action to enforce its terms. This 

proposition is supported by well-established contract law, which holds that 

a stranger to an agreement cannot sue for breach unless the parties to the 

contract intended it to directly benefit the stranger. Robins Dry Dock 

Repair Co. v. Flint, 275 U.S. 303, 307 (1927) (Holmes, J.) (quoting German 

Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230 (1912)); 

see also Restatement (Second) of Contracts § 315. 

 Such a direct beneficiary is called an intended beneficiary and is 

contrasted with an incidental beneficiary, who may reap some benefit from 

the contract but was not an intended by the parties to be the beneficiary. 
Restatement (Second) of Contracts § 302 cmt. e. Discerning between an 

incidental and intended beneficiary is a matter of contract construction. 

17A Am. Jur. 2d Contracts § 448. This means looking to the language of 

the lease to determine if the parties intended to make O’Connor a direct 

beneficiary of the lease. As O’Connor concedes, she was neither a party to 

the lease nor an explicit beneficiary. However, she argues that her interest 

in the lease, as owner of M.O.C. was so intertwined that she is clearly 

implied beneficiary. 

 We disagree with O’Connor’s argument. At the time that the parties 

signed the lease, O’Connor, her husband, and Main Street chose to make 

the M.O.C. corporation a party and not the O’Connors individually. By 

doing so the O’Connors limited their liability on the lease to their corporate 

identity. Just as Main Street could not have sued to enforce the lease 

against either of the O’Connors, so too is O’Connor prevented from 

slipping out of her corporate identity to bring an action in breach. As one 

Federal Court wrote of this situation: 

[W]hen one creates a corporation as the sole shareholder and uses 

the corporation to sign contracts, the person is using the 

corporation as a shield from individual liability. To allow that 

individual to sue on a contract signed only by the corporation 

would be to allow that person the benefits of a corporation without 

the limitations. If one wishes to preserve the right to sue as an 

individual in this situation, one may sign the contract as an 

individual.

Amesco Exports, Inc. v. Associated Aircraft Manufacturing & Sales, Inc., 

977 F. Supp. 1014, 1016 (C.D. Cal. 1997) (vacated on other grounds by, 

Amesco Exports, Inc. v. Associated Aircraft Mfg. & Sales, Inc., 87 F.Supp. 

2d 1013 (C.D.Cal. 1997)). 
 To bolster her argument, O’Connor cites deposition testimony and 

other evidence showing Melinda Moulton, on behalf of Main Street, 

referring to O’Connor personally whenever she intended to identify M.O.C. 

For example, O’Connor cites to e-mails that Moulton sent saying, “when 

[O’Connor] refused to pay rent—we served her on default . . .and she still 

refused to pay. So what were we to do. We locked her out and took back 

the space.” Pl. Supp. Mem. in Opp’n to Def. Mot. for Partial Summ. J., at 

Ex. G (Dec. 3, 2004). This, she argues, establishes that Main Street always 

considered her a party to the lease. There are two reasons why this evidence 

does not change the outcome. First, parties intentions are gleaned from the 

contract and the circumstances surrounding its formation and not testimony 

given years after the lease was formed. Isbrandtsen v. North Branch Corp., 

150 Vt. 575, 577–78 (1988). Second, this statement cited by O’Connor, 

merely anthropomorphizes a closely held corporation into its majority 

shareholder. This proves only that M.O.C., Inc. and O’Connor were 

closely associated with each other, but it does not prove that the parties, at 

the time when they made the lease, intended O’Connor to be a party or a 

direct beneficiary of the lease. The problem here is that, while M.O.C. and 

O’Connor share some interests, the mere alignment of interests does not 

create a direct benefit. Rather it is what the parties intend to create when 

they draft the agreement. Restatement (Second) of Contracts § 302. Here, 

parties limited themselves to their corporate identities and made no 

provision to retain either liability or a right to claim breach of contract. 

O’Connor did receive some benefit from the lease but this benefit was 

incidental to the agreement and was not the direct purpose, which was to 

benefit M.O.C. and Main Street. 13 R. Lord, Williston on Contracts § 37:1, 

at 9 (2000). Therefore, O’Connor is an incidental beneficiary and cannot 

be a party to the contract claims for lack of standing. 
Moulton Liability 

 Main Street next seeks to remove Moulton as a party to this case 

because all of her actions were done as a corporate officer. In this respect, 

our previous analysis of third-party beneficiaries applies equally to 

Moulton. Since she was neither a party to the lease nor an intended 

beneficiary, she cannot be liable for breach of contract. M.O.C. does not 

explicitly disagree with this conclusion but, nevertheless, seeks to make 

Moulton liable for her wrongful conduct. 

 The main thrust of M.O.C.’s argument seeks to hold Moulton liable 

by “piercing the corporate veil” and reaching out to her individually. 

M.O.C. urges us to take this action because allowing her to hide behind the 

corporate shield would frustrate the ends of justice, namely attaching 

Moulton to this case to hold her responsible for her alleged wrongdoing. 

While this argument may tap into what M.O.C. feels is the equity of the 

situation, it does not in-and-of-itself justify piercing the corporate veil in 

this case. Agway, Inc. v. Brooks, 173 Vt. 259, 263 (2001) (courts will 

pierce the corporate veil where “fairness, equity, and the public need” 

require). When a court pierces the corporate veil, the court is essentially 

ignoring the corporate structure with its inherent limitation on liability 

because the owners and officers of the corporation through underfinancing 

or fraudulent behavior have abused the corporate form and behaved outside 

the corporate structure. Id. (citing In re Vt. Toy Works, Inc., 135 B.R. 762, 

770 (D. Vt. 1991)). This is an extraordinary measure for a court to take and 

must be justified by some abuse of the corporate structure rather than any 

general negligence or wrongdoing by an officer. R. Thompson, Piercing 

the Corporate Veil: An Empirical Study, 76 Cornell L. Rev. 1036, 1041 

(1991). Here there is simply no evidence that either Moulton or Main 
Street abused the corporate structure, acted ultra vires to the business’ 

purpose, or disregarded the corporate structure in anyway that would justify 

treating them outside their roles as officers, directors, and shareholders. 

 Instead, Moulton’s potential liability comes from the more ordinary 

route of officer liability. It is a general rule that an officer of a company, 

even one acting in an official capacity, is liable only for the torts that she 

personally commits. 3A W. Fletcher, Fletcher Cyclopedia of the Law of 

Corporations § 1135 (2002). Conversely, an officer is not liable for the 

torts of a corporation merely by virtue of her office. Id. at § 1137; see also 

Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., 425 S.E.2d 144, 148–

49 (W.Va. 1992) (collecting cases). This is the doctrine of corporate officer 

liability. See generally C. Fain, Corporate Director and Officer Liability, 

18 U. Ark. Little Rock L.J. 417 (1996) (discussing the limits of corporate 

duties and liabilities for individuals). 

 Even though the evidence shows that this lock-out was a corporate, 

rather than a personal, action. Moulton, as the human decision-maker who 

authorized the lock-out, may be personally liable to the extent that her 

action was a tort. This is not to say that the lock-out was a tort-per se. It 

was not. Much of our previous decision focused on the wrongfulness of the 

action within the context of the landlord-tenant relationship. See M.O.C., 

Inc. v. Main Street Landing, No. S0720-02 CnC (Katz, J. Jan. 13, 2004) 

(explaining that the lock-out was improper in the context of the viable 

tenancy). Such wrongfulness does not make Moulton liable to M.O.C. 

M.O.C.’s third claim of intentional interference with prospective business 

relations alleges a slightly different source of tort liability. This claim is 

premised on the fact that Moulton knew her decision would effectively end 

M.O.C.’s business and that by ordering the lock-out she effectively ended 
any opportunity M.O.C. had to either sell or carry on its business. 

 Main Street argues that this claim should be dismissed for a lack of 

evidence since M.O.C. did not have a prospective purchaser. This is a valid 

argument so far as M.O.C. claims interference with its ability to sell the 

restaurant. M.O.C. has no evidence that it had any potential buyers or 

interested prospects. While it is possible, it may have found a buyer for its 

financially troubled restaurant business, it has not shown where it was 

probable. Although the tort of intentional interference with prospective 

business relations does not require that the prospect be reduced to a 

contractual right, it does require a specific rather than a speculative 

prospect. See generally 2 D. Dobbs, The Law of Torts § 450 (2001) 

(discussing cases that have balanced interference claims based on probable 

prospects with a defendant’s inherent right to act). To the extent that 

M.O.C.’s claim corresponds to lost business and encompasses its attempt to 

maintain its restaurant business, M.O.C. can support its claim, at least for 

the purposes of summary judgment, with its reservations and history of 

steady, albeit irregular, business history. To the extent that M.O.C.’s 

argument is a claim for these losses as a result of the lock-out, it satisfies its 

burden for summary judgment and the claim against Moulton cannot be 

dismissed. 

Breach of the Covenant of Good Faith & Fair Dealing

 Main Street argues that M.O.C. has failed to present any evidence 

that Main Street breached the covenant of good faith and fair dealing. This 

covenant is implied in all contracts and states that “each party promises not 

to do anything to undermine or destroy the other's rights to receive the 

benefits of the agreement.” Carmichael v. Adirondack Bottled Gas Corp. 
of Vt., 161 Vt. 200, 208 (1993). This standard allows a claim where 

plaintiffs can establish some evidence that the other party acted in “bad 

faith” and in a way that violated “community standards of decency, fairness 

or reasonableness.” Id. at 209 (quoting Restatement (Second) of Contracts

§ 205); see also T. Diamond & H. Foss, Proposed Standards for 

Evaluating When the Covenant of Good Faith and Fair Dealing Has Been 

Violated: a Framework for Resolving the Mystery, 47 Hastings L.J. 585, 

590–93 (1996) (criticizing this particular approach as vague and 

unpredictable). In this case, M.O.C. alleges that Main Street acted in bad 

faith when it wrongfully locked it out of the premises, knowing that a 

lockout would mean the end of M.O.C.’s business. 

 This claim, however, fails to met the criteria for a good-faith-andfair-dealing claim. Essentially, M.O.C. is arguing a consequential damage 

of the breach of contract as a separate tort. As defined in the Restatement 

(Second) of Contracts, the covenant of good faith and fair dealing is a 

promise not to undercut the other party’s intentions. See Restatement 

(Second) of Contracts § 205 cmt. d (citing examples of bad faith). As an 

example the Restatement gives the following illustration: 

2. A, owner of a shopping center, leases part of it to B, giving B 

the exclusive right to conduct a supermarket, the rent to be a 

percentage of B's gross receipts. During the term of the lease A 

acquires adjoining land, expands the shopping center, and leases 

part of the adjoining land to C for a competing supermarket. 

Unless such action was contemplated or is otherwise justified, 

there is a breach of contract by A.

 While plaintiffs are not limited by the factual scenario of the 

illustration, the illustration and cases like Carmichael establish a much 
more limited cause of action. Carmichael, 161 Vt. at 208. In Carmichael, 

the plaintiffs complained that Adirondak Gas had unfairly terminated their 

business relationship. Id. This was in violation of the evidence that 

demonstrated the parties owed each other a duty beyond the contract to 

wind business down. This additional duty was dependant on the type of 

business (propane supply business) and the nature of their termination (a 

winding down of affairs). Id. Like illustration 2 from the restatement, 

Carmichael hinges upon a violation of the spirit and purpose of the contract 

without technically violating it. In this case, parties were in a difficult 

relationship with each other and Main Street had a concern about M.O.C.’s 

continued viability and its ability to maintain the property with rent. 

Whether or not Main Street acted inappropriately by locking M.O.C. out, is 

irrelevant to the question of good faith and fair dealing. It acted in its own 

interests, which only secondarily violated M.O.C.’s interest. 

 This is the major feature that distinguishing the present case from § 

205 and Carmichael. If a party acts with bad faith and breaches the 

contract, the non-breach party has a remedy through an action for breach of 

contract and possibly for punitive damages. To then add another cause of 

action merely because the breach violated the non-breaching parties would 

open parties up to liability not based on their actions but the effect of the 

breach. That is, if a breach went against a non-breaching party’s interest—

and the question is When does it not?—then the breaching party would be 

liable in both tort and contract for the same activity and not based on the 

party’s actions but its effect. As a limiting principle, we find that 

Carmichael and the Restatement, allow for such a limitation where 

appropriate. See also Diamond & Foss, supra, at 600–01 (suggesting that 

such claims are limited to dishonesty and commercial unreasonableness). 

While Main Street’s actions may have breached its lease with M.O.C. and 
caused such consequential damages as loss of business, its actions did not 

in and of themselves breach the covenant of good faith and fair dealing. 

Therefore, M.O.C.’s claim for such a breach is dismissed. 

Defamation

 Main Street’s final argument is that O’Connor has not established a 

claim for defamation stemming from the Moulton e-mail. In that e-mail, 

Moulton told another person that: “when [O’Connor] refused to pay rent—

we served her on default . . .and she still refused to pay. So what were we 

to do. We locked her out and took back the space.” Pl. Supp. Mem. in 

Opp’n to Def. Mot. for Partial Summ. J., at Ex. G (Dec. 3, 2004). 

O’Connor argues that this claim has been proven by our previous rulings on 

the question of whether she paid rent. O’Connor misinterprets our previous 

entries in this case. In those, we ruled only that the notice to quit that Main 

Street gave was insufficient as a matter of law to support the lock-out. We 

did not rule that she did or did not pay rent. In fact, the evidence shows 

that M.O.C. did not pay rent at various times and that its struggling fiscal 

circumstances led to the tensions between the parties and the eventual lockout. Truth always defeats a cause of action for defamation and is a 

complete defense. Lent v. Huntoon, 143 Vt. 539, 548 (1983). Based on the 

veracity of Moulton’s e-mail, there is no cause for a defamation claim in 

the evidence presented. Poplaski v. Lamphere, 152 Vt. 251, 254–55 

(1989). Therefore, O’Connor’s claim for defamation is dismissed. 

Conclusion

 Based on the foregoing, defendant Main Street’s motion for partial 

summary judgment is granted. Plaintiffs M.O.C. and O’Connor’s claims 

for defamation and breach of the covenant of good faith and fair dealing are 

dismissed. O’Connor is removed as a party to the breach of contract claim, 

and Moulton’s liability is limited to her tortious behavior. 

 Dated at Burlington, Vermont________________, 2005.