Mahoney v. Howe, No. S0890-02 CnC (Katz, J., May 4, 2004)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.]

STATE OF VERMONT

Chittenden County, ss. :

MAHONEY

v.

HOWE

ENTRY

This is an action for specific performance on a co ntract for land. In February 2002, plaintiff buyers and defendant selle rs signed an Agreement to Buy Land for “a three acre parcel of land locate d on Route 7 in Milton, Vermont.” (Def. Mot. for Summ. J., Ex. C, Aug. 19, 2003.) After sellers balked following the May 1, 2002 final approval by the Milton Development Review Board, buyers sought to enforce their agreement. Sellers now move for partial summary judgment. The y argue that thedescription of the three acre property is too vague to satisfy the Statute of

Frauds, which makes the agreement unenforceable.

The agreement which purchasers now seek to enforce was not

created at the start of the transaction between the two parties. (Pl. Stmnt. of Facts, ¶ 1, Oct. 22, 2003.) The deal actually bega n in November 2001 with an oral agreement. Id . At that time, sellers accepted the purchasers’ o ffer to buy a three acre lot that the parties would carv e from sellers’ fifteen acre parcel. Id . As this transaction required permits and zoning approval, purchasers and sellers agreed to split the responsi bilities. Id .; (Def. Mot. for Summ. J., Ex. C, Aug. 19, 2003.) As the Februa ry agreement explains:

Seller agrees to pay all costs incurred to subdivid e a fifteen acre parcel, more or less, into two lots. Lot one to be a three acre lot and Lot two to contain the remainder of th e property.

Purchaser agrees to submit all permit applications to the necessary boards including the Development Review B oard and Planning Commision. Purchaser will obtain nece ssary paperwork to obtain a septic permit, the services o f a Surveyor and Site Planning Commission and the State of Vermont in order to receive approval for the subdiv ision and a building permit.

(Def. Mot. for Summ. J., Ex. C, Aug. 19, 2003.) Following the November oral agreement, purchasers created a map illustrati ng where the three acre lot was to be located. (Def. Stmnt. of Undisp. Mat . Facts, ¶ 3, Aug. 19, 2003.) Sellers approved this map, and the two part ies submitted it as part of their joint, signed application to the Developme nt Review Board. Id . In January 2002, at a preliminary hearing, purchasers learned that the property, as delineated, violated a town ordinance and would require modifications. (Pl. Stmnt. of Facts, ¶ 1, Oct. 22, 2003.)By this time, sellers had taken up their winter re sidence in

Frostproof, Florida. (Def. Stmnt. of Undisp. Mat. Facts, ¶ 5, Aug. 19, 2003.) Purchasers called sellers and informed them of the zoning wrinkle. (Pl. Stmnt. of Facts, ¶ 7, Oct. 22, 2003.) Purchas ers proposed making some modifications that would satisfy the zoning regulat ions. (Pl. Stmnt. of Facts, ¶¶ 7–11, Oct. 22, 2003.) Soon after, the pu rchasers faxed the Agreement to Buy Land, which the sellers signed and returned. (Def. Mot. for Summ. J., Ex. C, Aug. 19, 2003.) On March 15, purchasers faxed the sellers a copy of the revised zoning application wi th a request to sign. (Def. Stmnt. of Undisp. Mat. Facts, ¶ 12, Aug. 19, 2003.) The sellers signed and returned the application, but they contend that the y did not see the entire application or any maps. Id . Purchasers claim, however, that they

informed the sellers about the details involved in revising the zoning application and received sellers approval for all c hanges before the plan was submitted. (Pl. Stmnt. of Facts, ¶¶ 3, 7–11, O ct. 22, 2003.) While sellers do not deny these conversations, they claim that they did not see a map until later. (See generally Def. Stmnt. of Und isp. Mat. Facts, Aug. 19, 2003.) On May 1, 2002, the Development Review Boar d approved the final plan for the three acre subdivision and gave notice of approval. (Def. Mot. for Summ. J., Ex. F, Aug. 19, 2003.) Soon aft er, sellers renounced the sale. (Def. Stmnt. of Undisp. Mat. Facts, ¶ 14, Au g. 19, 2003.)

As an agreement for land, this deal comes under th e Statute of Frauds, which requires that the agreement and its e ssential elements be in writing. 12 V.S.A. § 181(5). Long a part of Engli sh and American jurisprudence, the Statute dates back to a 1677 Bri tish Act of Parliament

entitled “An Act for the Prevention of Frauds and P erjuries.” J.Dukeminier & J. Krier, Property 561 (4th ed., 1998). The language of that act hasremained relatively untouched and has come down to each and every state

through legislative enactment or common law applica tion. 14 R. Powell & P. Rohan, Powell on Real Property ¶ 880, at 81-25 (1998). While some contracts no longer come under its purview, it cont inues to control in real

estate transactions. Id . The purpose of this law is two-fold. First, the Statute provides a certain amount of gravity to lan d transactions. Parties must deliberate, come to an agreement, and reduce t heir understanding to a writing. This promotes seriousness and certainty w hile providing objective evidence that the act was genuine. Chomicky v. But tolph , 147 Vt. 128, 130 (1986). Second, the Statute is an evidentiary law t hat functions to protect land transactions from oral and perhaps false testi mony. Mason v.

Anderson , 146 Vt. 242, 244 (1982). As such, the Statute fu nctions as a shield to block the admission of contracts that req uire oral testimony to provide essential elements. The contract does not have to enumerate every detail of the agreement in writing, but it must con tain a satisfactory enumeration of the basic elements including: signat ures, identification of the parties, a description of the property, and the price. Powell & Rohan, ¶ 880[1][d][i], at 81-35. In other words, the Statut e of Frauds is not asserted to prove or disprove the existence of an agreement or an understanding but to measure the resulting agreement against the stan dards for the required

elements.

As a counter-consideration, the Statute of Frauds is not a sword meant to strike down otherwise just obligations on their technical merits. 10 S. Williston & R. Lord, A Treatise on the Law of Contracts § 29:4, at 437–38 (4th ed., 1999). Its application depends on a full examination of the evidence available and the risk of fraud or perjury to the parties. Id . This premise is supported by Vermont law in two ways. F irst, the Statute of Frauds does not outlaw or void oral contracts per s e. Troy v. Hanifin , 132Vt. 76, 80 (1974). Rather, it restricts the method s parties may use to prove

the existence of an agreement. Couture v. Lowery , 122 Vt. 239, 244 (1961) (oral agreement to sell land at an auction held inv alid without written proof of the agreement); see also Evarts v. Forte , 135 Vt. 306, 310 (1977) (holding that writing failed to demonstrate that pa rties ever came to a “first understanding” over the property to be sold). Seco nd, the Statute is of limited application where there is evidence of an a greement. Meyer v. Furgat , 133 Vt. 265, 267 (1975) (“The seller cannot avoid his agreement by raising a question of identity that was not at issu e between the parties when the agreement was made.”).

In the present case, the question is what agreemen t should be analyzed under the Statute of Frauds. Sellers urge a strict interpretation of only the February agreement as the parties’ sole wr itten agreement. As purchasers admit, the agreement, by itself, does fa il the Statute of Frauds because it describes the lot at issue solely in ter ms of size rather than location, landmarks, or metes and bounds. W. Allen , Sufficiency of Description or Designation of Land in Contract or M emorandum of Sale,

under Statute of Frauds , 23 A.L.R.2d 63, § 21 (1952, Supp. 2004) (noting the uniformly negative view jurisdictions have abou t relying solely on size to describe land under the Statute of Frauds). The Statute of Frauds, however, does not necessarily lock the door to extr insic evidence to supplement the essential elements of a written agre ement. As other state courts have noted, the description of property “nee d not be perfectly stated; however, the contract must furnish the keys to the identification of the land intended to be conveyed.” White v. Plumbing Distri butors, Inc. , 585 S.E.2d 135, 137 (Ga. 2003). These keys must “open the door to extrinsic evidence which leads unerringly to the land in ques tion.” Wyatt v. Pezzin

, 589 S.E.2d 250, 251 (Ga. 2003).Sellers would argue that even so, the description of “three acres of

land on Route 7 in Milton, Vermont” does not, in an d of itself, provide any keys to another document, and that the agreement as a whole does not reference any maps or sufficient descriptions of th e property’s location. This argument, however, takes a very narrow view of what constitutes the final written agreement and what reference is neces sary to another document to bring it into the agreement. The Febru ary agreement must be examined in the totality of circumstances surroundi ng its formation and contained within the document. Williston & Lord, § 29:17, at 542 (quoting New England Dressed Meat & Wool Co. v. Standard Wor sted Co. , 43 N.E. 112 (Mass. 1896)). As part of an on-going process, the agreement was a snapshot of the parties’ current understanding. It put down in writing what the parties had already agreed to, price, size, and conditions, and what they had done, zoning and permit work. But, it left the exact description vague because, as the parties agree, at the time the exac t dimensions of the property had not been established. Thus, neither b uyer nor seller intended the agreement to be their final statement on the is sue. As the evidence further demonstrates, this indefinite quality was n ot the result of any lack of agreement between the parties but rather a function of the zoning process. By the time of the February agreement, they had alr eady submitted a detailed map of the property subdivision with the i ntent that it receive approval so that the lot could be sold to the purch asers. Only after learning that the zoning laws required modification did the purchasers move to change the location of the three acres, and only to the extent necessary to satisfy the regulations.

It is the zoning process, specifically mentioned i n the agreement, which directs us to a satisfactory description of t he property, namely thefinal application to the Development Review Board. Along with the

agreement, both applications to the Development Rev iew board carry the signatures and presumably the intent of both partie s. They further detail the intent of the parties to transfer land and the spec ifics of its subdivision. Whether we choose to look at these applications alo ngside the agreement as parts of an larger integrated agreement or as extri nsic evidence incorporated implicitly by the agreement’s zoning references is irrelevant. Either way, the applications and the agreement provide all of t he essential elements for an agreement under the Statute of Frauds. The sole missing piece from the February agreement, an exact description of the lan d, is fully provided by the maps and descriptions within the second zoning application.

To then reject the February agreement on the narro w grounds that it does not make explicit reference to the application documents would fly in the face of the purpose of the Statute of Frauds an d would “avoid [the] agreement by raising a question of identity that wa s not at issue between the parties when the agreement was made.” Meyer , 133 Vt. at 267. While there is danger in relying on a vague description w hen the property at issue is being carved out of a larger parcel, Evarts , 135 Vt. at 310; 23 A.L.R.2d 63, at § 13, that is not the case here. The docume nts, without parol evidence, are linked by reference, if not incorpora tion, and along with the circumstances, satisfy any purpose or concern of th e Statute of Frauds.

This brings us to sellers’ argument that, despite their signatures, they were not aware of the details of the second zoning application. The implication is that they did not agree to the final layout of the property and would not have agreed to it if they had seen the ma ps. Purchasers, however, allege that they informed the sellers of w hat they were signing and the details of the final application. While we will presume, short offraud, that a signor intends to be bound by her sig nature, it can be a factual

issue. See, e.g., Bixler v. Bullard , 172 Vt. 53, 58 (2001). At this point, we will not give an opinion on the merits of sellers’ argument. Instead, they will have to show evidence to support this contenti on and to contradict their signatures. Bacon v. Lascelles , 165 Vt. 214, 218 (1996) (“Summary judgment is appropriate only when the record clearl y shows that there is no genuine issue of material fact . . .”).

Based on the foregoing, defendants’ motion for sum mary judgment is denied. A hearing on the merits will be schedul ed.

Dated at Burlington, Vermont________________, 2004

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________________________ Judge