Vermont Superior Court Filed 01

Franldl/n30412it4 VERMONT SUPERIOR COURT CIVIL DIVISION

Franklin Unit Case Nos. 22-CV-00547

17 Church Street 22-CV-4537

St. Albans VT 05478 802-524-7993 WWW.Vermontjudiciary.org

$4

DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Eric Nye seeks to evict Defendant Boissoneault Family Farm, Inc. (“BFFI”)from farm

premises, at least some of which BFFI has occupied since 2007. Initially, BFFI occupied the property

pursuant

to written lease. The parties now dispute the extent to which that lease now governs. Mr. Nye contends that, pursuant

to the lease’s holdover provision, it became month-to-month lease,

terrninable on thirty days’ notice, at the end of the initial one-yearterm. In response, BFFI contends

that by mutual agreement of the parties, the lease became an annual lease, terminable only on six months’ notice. Mr. Nye has moved for partial summary judgment on this question. The court denies

the motion.

The parties’ papers establish the following narrative ofundisputed facts. In 2007, the parties

executed written lease. The lease was for term of “one year, commencing on Oct 23, 2007, and

ending on Oct 23 2008 renewable yearly.” Notably, “renewable yearly”

is handwritten addition to what appears

to be stock form oflease. It is perhaps unsurprising, then, that the lease nowhere

specifies how renewal is to occur. Further on in the document, however, it provides,

15.6 Holding Over. If Tenant remains in possession of the Premises or any part thereof after the expiration of the term hereof without the express written consent of Landlord, such occupancy shall be tenancy from month to month at rental

in amount of the last monthly rental, and upon all the terms hereof applicable to month-to-month tenancy, with either party having the right

to terminate Within

thirty (30) days prior written notice.

BFFI has remained in possession of the leased premises since 2007. During that time, the

parties have not executed any written modifications or extensions ofthe lease. Rather, all oftheir

dealings have been oral. On November 11, 2022, Mr. Nye sent notice oftermination to BFFI. The notice purported to

terminate BFFI’s tenancy “effective thirty daysfrom receipt of this letter or December 16, 2022

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whichever occurs first.” Mr. Nye’s Wife hand-delivered the notice to BFFI’s President on November

12, 2022. On November 14, 2022, BFFI’s President acknowledged receipt of the copy ofthe notice

that had been sent by certified mail. BFFI remains in possession of the premisesto this day. Mr. Nye

argues

that on these facts, his notice of termination was effective, and so he is entitled to judgment

for possession as matter of law. While BFFI does not dispute the facts above, it argues

that there are other material facts that

preclude summary judgment. Specifically,

it asserts that from 2008, it and Mr. Nye operated on

handshake basis. It asserts that by oral agreement, the parties modified the lease arrangementto be an

annual lease, with rent paid annually in October, just before taxes on the property were due. It notes

also that beginning in the early years of the relationship, the parties orally increased the scope of the

lease to include additional acreage, which acreage, and the amount payable, varied from yearto year.

Finally,

it notes that as result of these and other conversations, it made substantial capital

improvements, which it would not have made absent agreement

to longerlease term than month-to- month. Mr. Nye has not attempted to disprove these facts; instead, he argues

that they are not material. Of course, it is his initial burden to show an absence of dispute of material fact. E.g, Couture v.

Trainer, 2017 VT 73, 1] 9, 205 Vt. 319 (citing V.R.C.P. 56(a)). Thus, if he is wrong, and BFFI’s

suggested facts are material, Mr. Nye’s motion fails.1 At the heart of this dispute is the question of whether, at the end of the original

lease term, BFFI’s tenancy became month-to-month or remained year-to-year. This is critical question; the

answer dictates how much notice was required to terminate BFFI’s tenancy. The written lease is far

from unambiguous on this point. It makes no provision for termination for no cause, except

in the case of holdover tenancy;

in such case, only thirty days’ notice is required. It also contemplates

termination in the event of sale of the property;in that event, six months’ notice is required. And most importantly, while it provides for renewal, how renewal occurs, and whether and how that is

different from “holding over,” are left completely to the imagination ofthe reader. Moreover, the

circumstances surrounding the making of the agreement cast doubt on the interpretation of the lease.

See Kipp v. Est. ofChips, 169 Vt. 102, 107 (1999) (court may consider limited extrinsic circumstances

surrounding the making of agreement

to determine ambiguity). Thus, reasonable people could differ as

The court notes that even had Mr. Nye met his initial burden on this issue, BFFI has alluded to competent evidence that, viewed in the light most favorable to BFFI,

is sufficient to meet any burden it then might bear. See Carr v. Peerless Ins. Ca, 168 Vt. 465, 476 (1998); see also Gates v. MackMolding C0,, 2022 VT 24, 1] l3, 216 Vt. 379 (“In determining the existence of genuine issues of material fact, courts must accept as true the allegations made in opposition to the motion for

summary judgment, so long as they are supported by affidavits or other evidentiary material”) (quotation omitted). Decision on Motion for Partial Summary Judgment Page of 22—CV—00547 Eric Nye, II et a1 v. Boissonneault Family Farm, Inc.
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to the interpretation of the lease on this important question. In short, the lease is ambiguous on the

point

that is central to this case.

The determination, as matter oflaw, that the lease is ambiguous does not end the inquiry;it means only that interpretation of the lease is question offact. See, e.g, Constr. Drilling, Inc. v.

Eng'rs Constr., Inc., 2020 VT 38, 11 12, 212 Vt. 323. Thus, it remains open to Mr. Nye to show that on

the undisputed facts, no reasonable person could conclude that the lease arrangement was anything other than month-to-month after the end of the original one-year

lease term. He has made no effort in

this regard, however. Thus, he has failed in his initial burden on this motion. See Couture v. Trainer,

2017 VT 73, 11 9, 205 Vt. 319 (quoting V.R.C.P. 56(a)) (A party moving for summary judgment has the

burden of showing “that there is no genuine dispute as to any material fact.”). This failure relieves BFFI of any obligation to come forward with any evidence at this time.

See Gross v. Turner, 2018 VT 80, 11 8, 208 Vt. 112 (“Once claim is challenged by properly

supported motion for summary judgment, the nonmoving party must come forward with admissible

evidence to raise dispute regarding the facts”). Nevertheless, BFFI has sufficiently shown that there

is at least genuine dispute on this issue. As noted above, the circumstances surrounding the making of the agreement cast doubt on the parties’ intentions concerning the manner ofrenewal, the lease term

in such event, and the amount of notice required. Moreover, their subsequent course of performance at

suggests

that both parties understood that the lease arrangement remained year-to-year after the

expiration of the original term. See Mgmt. VL, Inc. v. John, 2015 VT 61, 11 13, 199 Vt. 202

(court may consider evidence of parties’ performance under ambiguous contract as extrinsic evidence ofintent).

This, of course, is critical question. Our Court has held that “the agreement

to pay annual

rent, the payments made pursuant

to that agreement and the character of the lease agreement converted

the estate to year-to-year tenancy, entitling both partiesto six month notice priorto termination.”

Prescott v. Smits, 146 Vt. 430, 433 (1985). Significantly,

in that case, the Court observed that “the

year-to-year tenancy doctrine is more readily applicable in an agricultural

lease setting.”Id. Here, even

though not properly challenged by Mr. Nye’s papers

to do so, BFFI has come forward with evidence

sufficient to support findings that would bring this case squarely within those teachings. Clearly, Mr. Nye did not provide six months’ notice; nor did the notice that he did give look to the end of the lease

year. See Maniatty v. Carroll, 114 Vt. 168, 169 (1945) (“In order to terminate tenancy from year

to

year, so as to entitle the lessor to possession, six months' notice of the termination of the tenancy,

and looking to the end of the year, is necessary”). Thus, there is at the very least genuine dispute as

Decision on Motion for Partial Summary Judgment Page of 22—CV—00547 Eric Nye, II et a1 v. Boissonneault Family Farm, Inc.
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to Whether the notice he did give was sufficient to support his claim for eviction. See Vermont Small Business Devel. Corp. v. Fifth Son Corp, 2013 VT 7, 11 15, 193 Vt. 85 (requirement of“punctilious

compliance” with notice provisions applies

in nonresidential context). ORDER

The court denies the motion. While the facts on which Plaintiffrelies are undisputed, they are

not all the facts material to the determination of this question. The lease is ambiguous; whether and

how it may be renewed, as distinguished from “holding over,” does not appear on the face of the

document. The parties’ course of dealing injects greater uncertainty, suggesting either that the parties

intended that what occurred here was renewal rather than “holding over” or that the parties may have agreed orally to modify the lease. As result, there is at least genuine dispute as to whether,

after the expiration of the originallease term, the lease was year-to-year or month-to-month; if the

former, then Plaintiff’ notice oftermination was defective, and will not support eviction, While if the

latter, the notice was effective, and Plaintiff is entitled judgment

for possession. These are questions

that must be resolved by the jury. The clerk will schedule pretrial conference.

Electronically signed pursuant

to V.R.E.F. 9(d): 1/30/2024 3:38 PM

muel ar

311?) Court Judge

Decision on Motion for Partial Summary Judgment Page of 22—CV—00547 Eric Nye, II et al v. Boissonneault Family Farm, Inc.