Khamnei v. South Dakota Dev. Corp., No. 963-11-16 Cncv (Mello, J., Oct. 5, 2017).

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VERMONT SUPERIOR COURT

CHITTENDEN UNIT

CIVIL DIVISION

│

CHRIS C. KHAMNEI, │

 Plaintiff │

│

 v. │ Docket No. 963-11-16 Cncv

│

SOUTH DAKOTA DEVELOPMENT CORP.,│

 Defendant │

│

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND 

PLAINTIFF’S MOTION TO AMEND COMPLAINT

In this declaratory judgment and breach of contract action, Plaintiff Chris C. 

Khamnei, the purchaser of real property at a foreclosure auction, alleges that the seller, 

Defendant South Dakota Development Corporation (“South Dakota”), was responsible for 

paying $8,004.16 in property taxes that accrued after the auction and before the closing, 

which it failed to pay. South Dakota moves for summary judgment on the basis that the 

contract unambiguously obligated Khamnei to pay those taxes. Khamnei moves to amend 

his complaint to add a claim for consumer fraud. Finally, South Dakota seeks attorney’s 

fees for defending against this action pursuant to a contractual provision. Khamnei is pro 

se. Alexandra E. Edelman, Esq. represents South Dakota. 

Preliminarily, the court must address a procedural matter with respect to 

Khamnei’s May 8, 2017 filings, which requires some brief background. South Dakota’s 

motion for summary judgment was filed on March 15, 2017. On March 28, Khamnei 

moved for additional time to respond. On April 18, 2017, the court ordered that Khamnei 

would have until May 8 to file his opposition to South Dakota’s motion for summary 

judgment. On April 13, Khamnei received news from overseas that his father had passed 

away and, due to travel obligations, was forced to quickly file his opposition and neglected 

to file a response to South Dakota’s statement of undisputed material facts. South Dakota 

filed a reply on May 3. On May 8, 2017, Khamnei filed a “corrected” opposition, a response 

to the statement of undisputed material facts, and a sur-reply. South Dakota asks the 

court to disregard Khamnei’s May 8, 2017 filings as untimely. 

The court explicitly allowed Khamnei until May 8, 2017 to respond to South 

Dakota’s motion for summary judgment. Khamnei filed his “corrected” opposition and 

response to South Dakota’s statement of undisputed material facts on that date. Under 

the circumstances, the court will consider those documents in ruling on the pending 
2

motion for summary judgment. Neither Rule 56 nor Rule 78(b)(1) allow for the filing of a 

sur-reply, however. The court will disregard Khamnei’s sur-reply. 

Undisputed Facts

South Dakota foreclosed on real property located at 449 South Prospect Street in 

Burlington, which was pledged as security for a commercial loan made by South Dakota. 

In the foreclosure action, the court entered a Judgment and Degree of Foreclosure by 

Judicial Sale on April 6, 2015, which provides: “At the sale, the person holding the public 

sale shall sell to the highest bidder the Mortgaged Property, subject to property taxes and 

municipal assessments, if any.” 

A public auction was held on May 20, 2016, and Khamnei was the winning bidder 

at $500,000. The Thomas Hirchak Company provided a brochure to all registered bidders 

at the auction, which states on the first page: “Terms: All of the Mortgaged Property shall 

sell to the highest bidder, subject to property taxes and municipal taxes, if any.” The 

brochure further states, under “Statistics”:

Assessment......................$560,000

Year Taxes........................$14,279.44

Past Due Taxes.................None as of 4/15/16

Next Installment due June 2016 ($3,569.86)

As the winning bidder, Khamnei executed a purchase and sale agreement 

governing the purchase of the property. Paragraph 8 of that contract provides: 

The Property will be sold subject to any monies due to and 

liens of the City of Burlington for real estate taxes and 

assessments, municipal water or sewer assessments, if any 

(delinquent and current), and any liens or encumbrances with 

priority to the lien of the Plaintiff’s mortgage upon which the 

Decree is based. Purchaser shall be solely responsible to pay 

any amounts secured by municipal liens or other senior liens 

or encumbrances on the property.

Auction Sale & Purchase Agreement ¶ 8.1 The contract also states that closing shall occur 

“within 10 days after confirmation by the court or Forty-Five (45) days from date of 

auction (the “Closing Date”), whichever is longer; at such place as mutually agreeable by 

the parties.” Id. ¶ 4. The contract further includes a provision for attorney’s fees: “If 

Plaintiff is required to enforce any of its rights under this Agreement, it shall be entitled 

to recover from Purchaser its reasonable attorney’s fees, court costs and other expenses 

incurred by it in connection with the enforcement of those rights or in defending an action 

brought by the Purchaser.” Id. ¶ 16. 

1 As the plaintiff in the underlying foreclosure action, South Dakota Development Corporation is referred 

to as “Plaintiff” in the Auction Sale & Purchase Agreement. South Dakota is, of course, the defendant in the 

present action. 
3

This court confirmed the sale of the property to Khamnei by Confirmation Order 

dated September 12, 2016. Because Khamnei was on vacation from September 17–24, 

2016, he requested a closing date of September 30, 2016, to which South Dakota agreed. 

The closing occurred at Khamnei’s attorney’s office on that date. Khamnei was 

represented by counsel prior to and at the closing of the sale. In connection with the 

closing, Khamnei’s counsel prepared a HUD-1 Settlement Statement itemizing all costs 

and expenses for the sale. Section J of the HUD-1 statement, which summarizes the gross 

amount due from the buyer, includes at line 104 “Delinquent Taxes” in the amount of 

$8004.16. Khamnei’s counsel sent the HUD-1 statement to South Dakota’s counsel prior 

to the closing. While Khamnei objected to paying the taxes, he agreed to close and 

subsequently litigate the contract language regarding taxes. It is not clear whether or 

when those taxes were actually paid to the City of Burlington, but is undisputed that South 

Dakota did not pay them. 

Khamnei now seeks reimbursement from South Dakota for the taxes. South

Dakota contends it has no obligation to pay Khamnei for the taxes. 

Discussion

This dispute turns principally upon the interpretation of the Auction Sale &

Purchase Agreement, signed by the parties on May 20, 2016. The issue is whether that 

contract obligates South Dakota to pay taxes that might have accrued on the subject 

property between the auction date and the closing date. 

Ordinarily, the interpretation of a contract is a question of law. Cate v. City of 

Burlington, 2013 VT 64, ¶ 15, 194 Vt. 265 (citing Dep’t of Corr. v. Matrix Health Sys., P.C.,

2008 VT 32, ¶ 11, 183 Vt. 348). “A contract is interpreted foremost to give effect to the 

parties’ intent, which is reflected in the contractual language, if that language is clear.” B 

& C Mgmt. Vermont, Inc. v. John, 2015 VT 61, ¶ 11 (citing R & G Props., Inc. v. Column 

Fin., Inc., 2008 VT 113, ¶ 17, 184 Vt. 494). The court must consider the contract “as a 

whole and give effect to every part contained therein to arrive at a consistent, harmonious 

meaning, if possible.” Matrix Health Sys., 2008 VT 32, ¶ 12 (quoting Main St. Landing, 

LLC v. Lake St. Ass’n, 2006 VT 13, ¶ 7, 179 Vt. 583 (mem.)). However, when ambiguity 

exists, interpretation of the contract becomes a question of fact for the factfinder to 

resolve and summary judgment is inappropriate. Id. “Ambiguity will be found where a 

writing in and of itself supports a different interpretation from that which appears when 

it is read in light of the surrounding circumstances, and both interpretations are 

reasonable.” B & C Mgmt. Vermont, Inc., 2015 VT 61, ¶ 11 (quoting Isbrandtsen v. N. 

Branch Corp., 150 Vt. 575, 579 (1988)).

As quoted above, the Auction Sale & Purchase agreement provides in relevant part 

that the property “will be sold subject to any monies due to and liens of the City of 

Burlington for real estate taxes and assessments . . . if any (delinquent and current) . . . .” 

Auction Sale & Purchase Agreement ¶ 8. That paragraph of the agreement goes on to say 

that the purchaser (here, Khamnei) “shall be solely responsible to pay any amounts 

secured by municipal liens or other senior liens or encumbrances on the property.” Id. 

The contract also explicitly provided that closing would occur “within 10 days after 
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confirmation by the court or Forty-Five (45) days from date of auction (the “Closing 

Date”), whichever is longer

The term “subject to” is defined as “[l]iable, subordinate, subservient, inferior, 

obedient to; governed or affected by; provided that; provided; answerable for.” Black’s 

Law Dictionary 1278 (5th ed. 1979). As used in the Auction Sale and Purchase agreement, 

that term plainly means that South Dakota is not responsible for paying any property 

taxes due to the City of Burlington for the property in question. The purchaser, Khamnei, 

agreed to take the property “subject to” the taxes. Khamnei offers no rational 

interpretation by which South Dakota was obligated to pay any taxes due. He contends 

that the contract is ambiguous because it “fails to state specifically that the property will 

be sold subject to the purchaser paying for any monies due . . . .” Pl.’s Opp’n to Def.’s Mot. 

for Summ. J. at 3–4. But what else could that provision mean? It clearly and 

unambiguously precludes any obligation on South Dakota’s part to pay the outstanding 

taxes. 

Khamnei complains that there were no outstanding taxes as of the public auction, 

May 20, 2016, and that the auction brochure stated that no past taxes were due as of April 

15, 2016 and that the next installment of $3,569.86 was due in June 2016. While that 

might have been true, that does not somehow make South Dakota responsible for taxes 

that subsequently accrued, in light of the plain language of the contract. Property taxes of 

$8004.16 were owed at the time of the closing. Thus, the property was sold to Khamnei 

subject to those taxes. 

Khamnei also cites 12 V.S.A. § 4935, which provides: 

A tax assessed upon mortgaged real estate in this State may be 

paid by the mortgagee or assignee of the mortgage upon such 

property. The amount so paid, including costs, if any, shall 

thereupon be added to and become a part of the debt or 

obligation secured by such mortgage.

As South Dakota correctly observes, while that statute entitles a mortgagee to pay 

property taxes on mortgaged property and then add that amount to the debt secured by 

the mortgage, it does not require the mortgagee to do so. As Khamnei offers no genuinely 

disputed material fact demonstrating that South Dakota has any responsibility for the 

$8,004.16 in taxes due, South Dakota is entitled to summary judgment.2

2 The court ruled earlier in this decision that it would disregard Khamnei’s sur-reply filed on May 8, 2017. 

The court notes that, even if it considered that sur-reply, it would not aid Khamnei’s cause. In the sur-reply, 

Khamnei argues that the “TIME OF SALE” was the date of the auction, May 20, 2016. The logic of this 

argument is not clear. The sale did not close until September 30, 2016. Even assuming the “TIME OF SALE” 

was the date of the auction, that would appear to further undermine Khamnei’s argument that he is not 

responsible for taxes that accrued after the auction. 
5

PLAINTIFF’S MOTION TO AMEND COMPLAINT

Khamnei moves to amend his complaint to add a claim for consumer fraud. A party 

may amend their pleading “only by leave of court or by written consent of the adverse 

party; and leave shall be freely given when justice so requires.” V.R.C.P. 15(a). The 

Supreme Court of Vermont has recognized a liberal policy for permitting amendments to 

the pleadings. See, e.g., Lillicrap v. Martin, 156 Vt. 165 (1991). Denial of a motion under 

Rule 15(a) may be justified based on the futility of amendment. Prive v. Vermont Asbestos 

Grp., 2010 VT 2, ¶¶ 12–13, 187 Vt. 280 (quoting Colby v. Umbrella, 2008 VT 20, ¶¶ 12–

13, 184 Vt. 1). To determine whether a proposed amendment is “futile,” the court must 

examine whether plaintiff’s amended complaint would survive a 12(b)(6) motion to 

dismiss. Id. ¶ 13. 

Preliminarily, the court observes that, in addition to consumer fraud, Khamnei 

apparently also seeks to add a claim for breach of contract. This makes no sense, as 

Khamnei’s original complaint already includes a claim for breach of contract. See Compl. 

¶ 18 (“This action is for breach of contract and specific performance of contract . . . .”). In 

any event, to the extent Khamnei did not previously allege a breach of contract claim, the 

proposed amendment is futile in light of the court’s ruling above on South Dakota’s 

summary judgment motion. South Dakota did not breach the Auction Sale & Purchase 

Agreement by failing to pay the $8,004.16 in taxes. Nor does Khamnei allege any 

additional material facts that would change the ruling. 

The proposed consumer fraud claim is also futile. The consumer protection act 

prohibits “[u]nfair methods of competition in commerce and unfair or deceptive acts or 

practices in commerce . . . .” 9 V.S.A. § 2453(a). “Any consumer who contracts for goods 

or services in reliance upon false or fraudulent representations or practices prohibited by 

section 2453 . . . , or who sustains damages or injury as a result of” any such prohibited 

representations or practices, may sue and recover damages from the “seller, solicitor, or 

other violator . . . .” 9 V.S.A. § 2461(b). It appears that Khamnei is not a “consumer” under 

the act, nor has he alleged or cited any authority suggesting that he is a “consumer.” See

id. § 2451a(a). 

Moreover, despite Khamnei’s argument that South Dakota “made numerous 

misleading representations . . . through advertisements and a contract,” Pl.’s Mot. to Am. 

Compl. at 2, the proposed amendment fails to identify any misrepresentations or 

deceptive acts that misled Khamnei. Indeed, the documents Khamnei attached to his own 

complaint, including a pre-auction brochure, the contract, and the foreclosure judgment, 

all note that the property will be sold to the highest bidder “subject to property taxes and 

municipal asessments.” 

The proposed amendment (as well as the original amendment) cites the 

“Auctioneer’s Disclaimer,” which reads: “Announcements from the Auction Block will 

take precedence over any previous printed material or any other oral statements made.” 

Khamnei alleges that “[t]he Auctioneer did NOT give warning that delinquent taxes were 

due or that the purchaser would be responsible for taxes due for the time between . . . the 

auction and the closing of the property.” Am. Compl. ¶ 6; Compl. ¶ 6. The fact that the 
6

auctioneer did not mention taxes does not negate the prior and subsequent clear 

statements that the purchaser would buy the property “subject to” real estate taxes. There 

was simply no misrepresentation. 

Khamnei also alleges—both in the proposed amendment and the original 

complaint—that “[b]ecause the property was advertised with no past due taxes, the 

purchaser was made to believe he was responsible for at most 10 days of taxes . . . .” Am. 

Compl. ¶ 12; Compl. ¶ 9. This allegation is completely meritless. The contract patently 

provides that closing shall occur “within 10 days after confirmation by the court or FortyFive (45) days from date of auction (the “Closing Date”), whichever is longer; at such place 

as mutually agreeable by the parties.” Auction Sale & Purchase Agreement ¶ 4. Khamnei 

had ample notice that the time between the auction and closing could take significantly 

longer than 10 days. Again, there was clearly no misrepresentation by South Dakota. 

Additionally, Khamnei argues that South Dakota “forced the execution of the 

contract by threatening to sell the property to a different buyer and withholding [his] 

earnest money.” Pl.’ Mot. to Am. Compl. at 2. Once again, this was not a 

misrepresentation. South Dakota merely reiterated its rights under the contract: 

In the event the Purchaser shall fail to pay the balance of said 

purchase price on the Closing Date, Plaintiff shall have the 

right to request that the Court make an order forfeiting the 

deposit and vacating the confirmation order. Plaintiff shall 

also have the right to request that the court issue a 

confirmation order for sale to the second highest bidder. 

Auction Sale & Purchase Agreement ¶ 5. 

In short, the proposed amendment really alleges nothing more than what was 

already alleged in the original declaratory judgment and breach of contract complaint. 

See Greene v. Stevens Gas Serv., 2004 VT 67, ¶ 15, 177 Vt. 90 (“a mere breach of contract 

cannot be sufficient to show consumer fraud”) (citing Winey v. William E. Dailey, Inc.,

161 Vt. 129, 136 (1993)). Because the proposed amendment is futile, it is denied. 

ATTORNEY’S FEES

Lastly, South Dakota seeks attorney’s fees in this action pursuant to paragraph 16 

of the Auction Sale & Purchase Agreement. That paragraph provides: “If Plaintiff is 

required to enforce any of its rights under this Agreement, it shall be entitled to recover 

from Purchaser its reasonable attorney’s fees, court costs and other expenses incurred by 

it in connection with the enforcement of those rights or in defending an action brought 

by the Purchaser.” (emphasis added).3

3 As noted above, the “Plaintiff” in the Auction Sale & Purchase Agreement is South Dakota Development 

Corporation, the defendant here. 
7

It is well established that attorney’s fees are recoverable pursuant to a contractual 

provision. See Harsch Properties, Inc. v. Nicholas, 2007 VT 70, ¶¶ 11–20, 182 Vt. 196 

(affirming award of attorney’s fees for party who prevailed on good faith and fair dealing 

claim where underlying contract specifically provided for recovery of such fees); Ianelli v. 

Standish, 156 Vt. 386, 389 (1991) (granting fees due under a real estate transaction 

contract to the prevailing party as a matter of law). “When a contract provides for 

attorney’s fees, Vermont courts are loath to revise the agreement struck by the parties and 

deny them the benefit of their bargain.” Fletcher Hill, Inc. v. Crosbie, 2005 VT 1, ¶ 5, 178 

Vt. 77.

The contract at issue here clearly provides that South Dakota’s attorney’s fees are 

recoverable in defending an action brought by Khamnei with respect to the contract, 

which is exactly what happened here. Khamnei contends that South Dakota seeks 

attorney’s fees “pursuant to 12 V.S.A. § 4937 on merits not yet heard.” Pl.’s Statement of 

Disputed Material Facts ¶ 22. This contention is incorrect. South Dakota seeks fees 

pursuant to a contractual provision, and the court will enforce the contract. 

Order

Defendant’s motion for summary judgment is granted. 

Plaintiff’s motion to amend complaint is denied.

Defendant is entitled to attorney’s fees, costs, and expenses incurred in defending 

against this action pursuant to the contract. Defendant shall submit, no later than October 

17, 2017, a sworn affidavit detailing the amount of fees, costs, and expenses it incurred in 

defending against this action. 

SO ORDERED this 3rd day of October, 2017.

_____________________________

Robert A. Mello

Superior Court Judge