Entry Regarding Motion Page 1 of 4

408-12-20 Wncv Corfman et al vs. Hooker Mountain Farm L3C et al

VERMONT SUPERIOR COURT CIVIL DIVISION

Washington Unit

65 State Street

Montpelier VT 05602

802-828-2091

www.vermontjudiciary.org

Case No. 408-12-20 Wncv

Corfman et al vs. Hooker Mountain Farm L3C et al

ENTRY REGARDING MOTION

Title: Motion to Enforce Motion to Enforce Settlement Agreement (Motion: 1)

Filer:

Filed Date: June 04, 2021

The motion is GRANTED.

Plaintiffs’ Motion to Enforce Settlement Agreement

Plaintiffs, four out-of-state residents, brought this suit to collect on loans they made to 

Defendant Hooker Mountain Farm L3C and its member-managers (collectively, HMF) in support 

of its development of a distillery business. HMF solicited investments from the public, and 

Plaintiffs, in total, lent $45,000 which, they allege, was never paid back, with or without 

interest, after it became due. They also allege that HMF failed to live up to other promises 

made in the investment materials. As the parties commenced discovery, they engaged in 

settlement negotiations through counsel, all on e-mail. Plaintiffs’ position is that they arrived at 

an enforceable settlement agreement, but HMF since has attempted to back out. Plaintiffs 

have filed a motion seeking an order enforcing the parties’ agreement. As to the status of the 

negotiations, the record consists almost exclusively of the complete e-mailed communications 

between the parties’ lawyers. Neither party has indicated any need to present additional 

evidence. The parties have briefed the issues, and the court now determines as follows.

Plaintiffs’ counsel e-mailed HMF’s counsel on April 20, 2021, demanding $90,000 in 

settlement and asserting that consumer fraud claims, as well as interest, would bring the 

possible value of the case to $148,000 exclusive of attorney fees. HMF’s counsel e-mailed back 

on May 3, stating:

My clients have given significant consideration to the unreasonable demand 

most recently proffered by your clients to resolve this matter. My clients have 

decided to make one final, take or leave it, offer of $50,000 to resolve all claims 

between the parties. This is a final offer and, if not accepted, my clients are 
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408-12-20 Wncv Corfman et al vs. Hooker Mountain Farm L3C et al

committed to using all of the resources they have marshalled (effectively the 

amount offered) to defend against the claims of your clients. This offer will 

remain open until close of business on May 14, 2021.

On May 10, 2021, Plaintiffs’ counsel wrote, “My clients accept your clients’ offer of $50,000 to 

resolve all claims between the parties. In the next day or so I will send over a settlement 

agreement that reflects that acceptance.” HMF’s counsel responded, “Thanks for letting me 

know. I will look for the agreement.” Up to this point, the only settlement terms mentioned by 

the parties was the amount of HMF’s payment in exchange for resolution of all claims.

Four days later, on May 14, 2021, HMF’s counsel wrote: “Hey, I forgot to mention that 

my clients want to keep this settlement confidential. Can you include that in an agreement if 

you were not already intending to do so?” On May 17, Plaintiffs’ counsel advised that the deal 

was set at $50,000 and did not include a confidentiality agreement but that Plaintiffs were 

willing to include that for an additional $10,000. The balance of the communication between 

counsel addressed their respective positions concerning the additional consideration and the 

confidentiality clause. HMF refused to pay the additional $10,000 and asserted that the deal 

was off.

Plaintiffs seek to have the court enforce the agreement at $50,000 without a 

confidentiality clause as agreed to on May 10. 

HMF directs the court’s attention to Miller v. Flegenheimer, 2016 VT 125, 203 Vt. 620, as 

controlling. That case, and the one it principally relies on, Catamount Slate Products, Inc. v. 

Sheldon, 20003 VT 112, 176 Vt. 158, require the court to consider whether, by the facts 

presented, viewed objectively, the parties intended to be bound by the terms of an oral or 

informal agreement, such as may appear in e-mails, that is sufficiently definite.

The risk involved, of course, is that if courts overzealously enforce preliminary 

agreements or negotiations as though they were final agreements, then adversaries’ willingness 

to negotiate towards settlement may be stifled and discouraged. On the other hand, where 

agreements are sufficiently definite as to be enforceable, the contract law of offer and 

acceptance applies. As Miller explains:

Here, whether the series of e-mails constituted an enforceable contract or—

instead—a preliminary agreement depends on two factors: the parties’ intent to be 

bound and the definiteness of terms in the communications between the parties. We 

therefore begin our analysis by examining whether the parties intended to be bound by 

their e-mails. In doing so we recognize the paramount right of each party to determine 

the exact moment at which it becomes bound to an agreement. This consideration is 

born out of the “primary concern for courts in such disputes . . . to avoid trapping 

parties in surprise contractual obligations that they never intended.”
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Miller, 2016 VT 125, ¶ 13 (citations omitted). Catamount Slate adopts a 4-part test to help 

evaluate whether a preliminary agreement only is at issue or whether the material terms of an 

agreement were resolved: ‘‘(1) whether there has been an express reservation of the right not 

to be bound in the absence of a writing; (2) whether there has been partial performance of the 

contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) 

whether the agreement at issue is the type of contract that is usually committed to writing.’’ 

Id. ¶ 17. The trial court had found that e-mails between business co-owners addressing a buyout of one by the other were sufficient to infer an enforceable agreement. However, the 

Supreme Court reversed, finding that by the terms of the e-mails, a more specific and complete 

agreement contemplating such things as non-competition and confidentiality were left 

undetermined and were material to the deal.

Here, there was no express reservation of the right not to be bound in the absence of a 

writing or any other condition. There was mention between the parties of a settlement 

agreement being drafted by Plaintiffs’ counsel, but Plaintiffs’ counsel proposed to do that 

simply to reduce to writing Plaintiffs’ acceptance of HMF’s $50,000 offer. In fact, by HMF’s own 

words, the $50,000 offer was to resolve all issues between the parties.

There has been no partial performance of the settlement. Thus, all parties remain in 

their pre-settlement position. While the lack of partial performance does not assist Plaintiffs’ 

showing, this is not a significant issue in the context of this case.

Settlement of most lawsuits are committed to writing, although sometimes not complex 

ones, as the law has a whole set of rules concerning the resolution of litigated claims and their 

finality. Given the simplicity of the matter being settled, this also is not a significant issue in this 

case.

The closer call is whether all the material terms of the contract were in fact agreed 

upon. The court refers back to the nature of the complaint—a complaint for debt and related 

statutory violations resulting in a dollar claim. This is unlike Miller, where there was much to be 

done to get the parties’ affairs separated. There, they had a business deal requiring much more 

than just a dollar amount. Here, no confidentiality clause had ever been mentioned prior to 

offer and acceptance, and there would be no reason to infer the need for one. HMF proposed 

the dollar amount, said nothing about other terms, much less a confidentiality agreement, and 

Plaintiffs accepted. The case is no less settled without it a confidentiality arrangement.

The court concludes that this agreement to settle without a confidentiality clause was 

sufficiently definite to enforce. HMF offered it and Plaintiffs accepted on the terms offered. 

“The materiality of additional . . . terms introduced after an oral agreement is reached is not 

established simply by one party’s intransigence.” Dillard v. Starcon Intern., Inc., 483 F.3d 502, 

508 (7th Cir. 2007); see also Platcher v. Health Professionals, Ltd., 549 F.Supp.2d 1040, 1044 (D. 

Ill. 2008) (“[I]f a defendant wishes to tack on a confidentiality agreement and argue that the 

term is material long after a final agreement is reached on the settlement amount, then the 
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408-12-20 Wncv Corfman et al vs. Hooker Mountain Farm L3C et al

defendant must have at least [discussed] the proposed confidentiality agreement during 

negotiations.”). Plaintiffs are entitled to judgment in the amount of $50,000.

Order

Plaintiffs’ motion to enforce is granted. Plaintiffs’ counsel shall submit a form of 

judgment. V.R.C.P. 58(d). 

Electronically signed on 7/19/2021 3:03 PM, pursuant to V.R.E.F. 9(d)