Lynn Book, Administratrix of the Estate of Reginald Book v. Book Brothers, Inc.

VERMONT SUPREME COURT Case No. 24-AP-354
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

APRIL TERM, 2025

Lynn Book, Administratrix of the Estate of } APPEALED FROM:
Reginald Book* v. Book Brothers, Inc. }
} Superior Court, Rutland Unit,
} Civil Division
} CASE NO. 23-CV-04300
Trial Judge: Alexander N. Burke

In the above-entitled cause, the Clerk will enter:

Plaintiff appeals the trial court’s decisions awarding partial and final summary judgment
to defendant. We affirm.

The following facts were undisputed for purposes of summary judgment. Defendant
Book Brothers, Inc. is a family farm in West Haven, Vermont. In 1983, the corporation was
jointly owned by Frances Book and her four sons Reginald, Harold, Charles, and Brian. In April
of that year, the shareholders entered into a stock retirement agreement, which provided that
upon the death of any of the sons, the decedent’s estate would sell the decedent’s shares back to
the corporation. Provision 4 of the agreement stated that the purchase price for the shares would
be based on the net book value of the corporation. Provision 11 of the agreement stated that
“[t]his writing contains the entire agreement of the parties with respect to stock retirement and
the same may not be altered or amended except by another writing executed by all of the
shareholders in the corporation.”

At the shareholders’ annual meeting in 2005, Harold, Charles, Brian, and Frances Book
signed a new agreement that would have amended the valuation method from net book value to
fair market value. Reginald Book was present at the meeting but did not sign the agreement.
There were no other written agreements amending the valuation provision in the stock retirement
agreement.

Reginald Book died in 2022. At the time of his death, he owned 250 shares of the
corporation. His estate filed a complaint in 2023, asserting that defendant was required to buy
back his shares at fair market value.
Defendant moved for partial summary judgment, arguing that provision 4 of the
agreement required it to use net book value to calculate the purchase price of Reginald’s shares.
The court agreed, concluding that because all five shareholders did not sign the 2005 amendment
and there were no other written amendments, the original version of provision 4 governed. It
granted partial summary judgment to defendant on this issue.

Defendant then moved for summary judgment on the net book value of the corporation.
Based on the undisputed evidence, the court concluded that defendant’s net book value was
negative $885.00. It therefore granted final summary judgment to defendant.

On appeal, plaintiff first argues that the court erred in granting summary judgment to
defendant on the issue of how to calculate the share purchase price because there was a genuine
factual dispute regarding whether the parties amended the stock retirement agreement. We
review a decision granting summary judgment without deference. Progressive N. Ins. Co. v.
Muller, 2020 VT 76, ¶ 9, 213 Vt. 145. “The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” V.R.C.P. 56(a).

Plaintiff argues that even though provision 11 of the original agreement required
amendments to be in writing and signed unanimously and Reginald never signed the proposed
amendment, the shareholders had effectively modified the agreement’s share valuation method
through their conduct. “It is well established that parties can modify contractual agreements with
one another through the course of performance or dealings.” Est. of Kuhling by Kuhling v.
Glaze, 2018 VT 75, ¶ 38, 208 Vt. 273. However, plaintiff failed to provide evidence sufficient
for a reasonable jury to find that the parties modified the provision regarding the valuation
method.

Plaintiff asserts that shareholder meeting minutes from January 2006 indicate the
proposed amendment had been adopted despite Reginald’s missing signature. Plaintiff’s
characterization of these minutes is inaccurate. The 2006 minutes state:

Discussion regarding the current status of the agreement to amend
the calculation of a shareholder’s interest under the Stock
Retirement Agreement. Explained by counsel that it had been
signed by everyone, [sic] except Reginald Book and therefore was
not yet effective. Brian Book expressed his assumption that issue
had been resolved already and expressed concern about the delay.
General discussion followed regarding Agreement and efforts to
date to agree on a buy-out agreement for Reginald Book. The
issue of the shale pit was discussed with Reginald indicating he
wanted it as a part of the buy-out. Frances Book, [sic] noted that
although she was not engaged in the operation of the farm, the
farm had operated in the past without the shale from the pit and
could probably do so again in the future. Discussion did not result
in any agreement or decision on the Stock Retirement Agreement
or buy-out.

There is no indication in the record that the shareholders ever unanimously approved the
amendment, orally or otherwise. Plaintiff points to no evidence that Reginald, the holdout, ever
agreed to modify the stock valuation provision. Plaintiff cites other evidence involving unrelated
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farm business and shareholder negotiations, but this evidence cannot fairly be construed as
demonstrating that the parties acted inconsistently with provision 4. The only reasonable
interpretation of the record presented to us is that the shareholders repeatedly discussed an
amendment and an amendment was proposed, but Reginald never signed it and the shareholders
therefore understood it to have not taken effect. Because plaintiff failed to demonstrate the
existence of a genuine dispute on this issue, the trial court properly concluded that the original
agreement provision governed and awarded summary judgment to defendant. See Spinette v.
Univ. of Vt., 2023 VT 12, ¶ 22, 217 Vt. 550 (“Although the party opposing summary judgment
is given the benefit of all reasonable doubts and inferences in determining whether there are
disputed genuine issues of material fact, the moving party may not rely on bare allegations alone
to meet the burden of demonstrating a disputed issue of fact.” (quotation omitted)).

Plaintiff appears to claim that defendant was estopped from denying the existence of an
amendment based on the shareholders’ conduct. Again, plaintiff has failed to put forward
evidence that would support such a claim. To recover under a theory of equitable estoppel,
plaintiff would have to demonstrate, among other things, that defendant acted in such a way as to
make Reginald believe the original agreement had been amended and that Reginald was ignorant
of the truth. See Greenmoss Builders, Inc. v. King, 155 Vt. 1, 7 (1990) (listing elements of
equitable estoppel). As discussed above, there was insufficient evidence for a jury to find that
the shareholders acted in a way that suggested the share valuation method had been amended.
See Bernasconi v. City of Barre, 2019 VT 6, ¶ 11, 209 Vt. 419 (“[W]here the jury could only
find for the plaintiff by relying on speculation, the defendant is entitled to judgment.”). Nor has
plaintiff shown that Reginald was unaware the agreement had not been amended. The court
therefore did not err in granting summary judgment on the share valuation method.

Plaintiff further argues that the trial court improperly granted defendant’s second motion
for summary judgment because there remained factual disputes regarding plaintiff’s equitable
claims. The trial court held that plaintiff had not pleaded any equitable claims in its complaint,
leaving nothing to decide other than the net book value. We agree. Vermont Rule of Civil
Procedure 8(a) requires that the complaint contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” “The test of whether a particular pleading is
sufficient under Rule 8(a) is whether it gives fair notice of the claim and the grounds upon which
it rests.” Molleur v. Leriche, 142 Vt. 620, 622 (1983). We have reviewed plaintiff’s complaint
and it contains no statement that would alert defendant that plaintiff was pursuing anything other
than a breach-of-contract claim. Nor did plaintiff seek to amend its complaint to add unjust
enrichment or any other equitable theory of recovery. The trial court therefore properly refused
to address these claims, which were raised for the first time in plaintiff’s opposition to
defendant’s motion for summary judgment. See Limoge v. People’s Tr. Co., 168 Vt. 265, 274
(1998) (holding trial court was correct to refuse to address claim raised for first time in plaintiffs’
motion for summary judgment); see also In re Waitsfield-Fayston Tel. Co., Inc., 2007 VT 55,
¶ 12, 182 Vt. 79 (“Failure to plead a claim means that the claim is not in the case, and the court
may not grant relief on it unless the claim subsequently comes before the court.”). Because
plaintiff does not challenge the trial court’s determination of defendant’s book value, we affirm
the trial court’s final judgment in favor of defendant.

Finally, plaintiff claims that the trial court erred in awarding defendant the costs of
obtaining copies of transcripts of depositions taken by plaintiff. As we have explained, “[t]he
trial court has broad discretion to award the prevailing party the costs of obtaining copies of the
transcripts provided that the depositions were ‘reasonably necessary’ to prepare for the
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litigation.” Lasek v. Vt. Vapor, Inc., 2014 VT 33, ¶ 28, 196 Vt. 243; V.R.C.P. 54(g). The
depositions for which defendant requested costs were of two of the shareholders and Barry Book,
who was the administrator of Reginald’s estate. The trial court found that these depositions were
reasonably necessary to prepare for the summary judgment motion. Plaintiff has failed to
demonstrate that the court acted outside of its broad discretion in so concluding.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

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