Cobb v. Parker

"ermont Supe ior Court
Filed 07/0 /24
Windham nit

STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Windham Unit Docket No. 21-CV-4001

SALINA COBB AND JUSTIN COBB,
Plaintiffs
Vv.

LINDA PARKER, MYRNA WILKINS,
MELBOURNE WILLIAMS, AND
BETSEY FOSTER,
Defendants

DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
The fundamental dispute between the parties is whether there is an enforceable contract
between them for the sale of a residence. Both parties have filed motions for summary judgment
on this issue. The outcome of related claims depends largely on the resolution of this issue.! The
respective Statements of Undisputed Material Facts and responses to those statements show that
while there are disagreements as to details and collateral matters, the material facts related to this
primary issue are undisputed.

Undisputed Material Facts
In 2015, Salina and Justin Cobb rented a house in Londonderry that was owned by
Defendants Linda Parker, Myrna Wilkins, Melbourne Williams, and Betsey Foster. It had been
acquired by the Defendants as joint tenants with right of survivorship by deed of 1995. The lease
to the Cobbs was signed only by Myrna Wilkins, but the first paragraph identified all four
owners. The initial rent was $800 per month but later increased to $900 per month.

During the course of the tenancy, some repairs to the premises were required to maintain
it in a condition to rent. Based on comments from Myrna Wilkins, the Cobbs were concerned that
they might lose the ability to continue to rent the property if the owners decided to not make
repairs and to stop renting, and they started participating in repairs themselves. Justin Cobb is a
carpenter and worked on the building himself. He also arranged for and supervised other
contractors. Defendants paid for some materials and contractors. They also paid Mr. Cobb for at
least some of his work. There was no specific agreement, and the Cobbs did not present any
invoices for labor or repairs. Rather, Mr. Cobb orally advised Ms. Wilkins of his hours and
charges and was paid. The Cobbs also paid for some repairs themselves without repayment.
In 2020 Myrna Wilkins discussed the possibility of selling the property to the Cobbs but
Salina Cobb did not believe that she was serious. In March of2021, Ms. Wilkins offered to sell

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There is also an eviction case, 22-CV-314, that has been consolidated with this case as well as a damages claim.

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the property to the Cobbs for $130,000. The Cobbs moved forward to secure financing. Salina
Cobb first tried a local bank but could not obtain a loan due to a mobile home on the property
belonging to the Defendants' niece. She then pursued financing on-line with Rocket Mortgage.
No realtors or lawyers were involved.

On May 27, 2021 the Cobbs signed a preprinted form contract entitled "Simple Real
Estate Contract" to purchase the property for $130,000. It provided for a financing condition.
Myrna Wilkins was identified on the third line from the top as Seller. No other sellers were
named. The contract was signed by Myrna Wilkins on June 20, 2021 and only by her. Someone
from Rocket Mortgage advised the Cobbs that a single signature was enough to move forward.
The closing was originally planned to take place in June of2021. Plaintiffs understood that their
security deposit would be used to cover rent until the closing actually occurred.
The Cobbs obtained an appraisal in connection with their pursuit of financing. It showed
property value of $170,000. To obtain an FHA loan through Rocket Mortgage, they were
required to sign an FHA Purchase Agreement Addendum and to obtain the signatures of the
sellers on it. The top of the document reads as follows:

"This addendum dated 6/21/21 is an addendum to a purchase agreement dated [blank space]
between Salina Cobb and Justin Cobb {Purchaser(s)} and Linda A. Williams AKA Linda Parker

Linda A.
Williams AKA Melbourne Myrna Y. Betsey U.
Linda Parker Williams Wilkins Foster {Seller(s)} for the property
located at 28 Pine Tree H1, Londonderry, VT 05148-9645."

Paragraph 2 of the document is as follows:
"Real Estate Certification. The seller, the purchaser, and the real estate agent or broker hereby
certify that the terms of the sales contract are true to the best of their knowledge and belief and it
is agreed that any other agreement entered into by any of the parties is fully disclosed and
attached to the sales contract."

The document was DocuSigned by Linda A. Williams aka Linda Parker on 8/23/21 and
the initials "MW" appear as DocuSigned on 8/23/21 over the words 'Linda Parker' but above the
printed name of Melbourne Williams. The document was signed in person on 8/26/21 by Salina
Cobb, Justin Cobb, Myrna Wilkins, and Betsey U. Foster. Comparable signatures of the same
dates appear on a one-page disclosure form concerning lead-based paint.

In September or October of2021, the Plaintiffs were notified that not all Defendants
wanted to sell the property. In particular, Linda Parker wanted to back out.

Salina Cobb wrote to Linda Parker seeking reimbursement for costs and expenses, less
unpaid rent to date, in the amount of $3,823.75 and she represented that ongoing rent would be
deducted first from this amount.

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Ms. Wilkins is now deceased. The Cobbs seek specific performance to purchase the
property and assert a claim for money damages. Defendants deny a contractual obligation and
have filed a case for eviction which has been consolidated with this case.

Analysis
Plaintiffs' Amended Complaint includes four counts: Breach of Contract, Unjust
Enrichment, Monetary Damages, and Specific Performance. Defendants seek summary judgment
on all four counts. Plaintiffs seek partial summary judgment of specific performance of the
contract. They recognize that the original 'Simple Contract' document was not signed by all
owners but they claim that three documents (the Simple Real Estate Contract, the FHA Purchase
Agreement Addendum, and the Lead Paint Disclosure) together make up a single contract that
binds the Defendants. The primary issue is thus whether Defendants have a binding contractual
obligation to sell the property to the Plaintiffs.
Plaintiffs rely on the combination of the three documents as constituting a single contract
that satisfies the Statute of Frauds, 12 V.S.A. § 181 (5), which requires a signed writing to bind a
seller of land. They argue that the Restatement provides that a "memorandum" of a contract may
consist of several documents even though not all of them are signed and even though no one of
them is a sufficient memorandum. "At least one must be signed by the party to be charged, and
the documents and circumstances must be such that the documents can be read together as 'some
memorandum or note' of the agreement." Restatement (Second) of Contracts, § 132 (1981).
Plaintiffs argue that the documents should be linked together as part of one unified contract since
each party has signed at least one of the documents.

There are problems with this proposed interpretation. First, the Statute of Frauds requires
that a contract for the sale of land must be signed by the "party to be charged." Three of the
owners did not sign the "Simple Real Estate Contract" agreement at any time. The "Addendum"
document they signed in August could possibly be construed as an addendum to an enforceable
contract if it cross referenced an accurate document with specific obligations, but it does not. It
begins by referring to an unidentified and nonexistent purchase agreement between the Cobbs
and four named persons as sellers. Not only is there no identifying date of a contract but three of
those named persons never signed any purchase and sales agreement. Even in the paragraph 2
certification, the signers of the "Addendum" do not certify that they are obligated to sell the
property pursuant to the document; they merely certify that terms in a document signed by
Myrna Wilkins alone are the terms in that document. Those terms show that only Ms. Wilkins
agreed to sell the property.

A real estate closing, particularly one with financing, can involve multiple documents that
call for signatures of various parties. The fact that all sellers may sign one of the many
documents, which may be for a purpose collateral to obligations specified in the contract
document, does not automatically mean that in every closing all the documents that are signed
over time are linked together into a single unified contract between the buyers and sellers such
that every party is obligated to all the terms in the various documents. This would significantly
dilute the requirement in the State of Frauds. In this case, the Addendum and lead paint

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disclosure are simply outside the contract document that purported to create buy-sell obligations.
They do not modify or add to the obligations set forth in the preprinted contract form for either
the sellers or the buyers. They fulfill separate purposes that are related to the closing but do not
affect contract terms.

The Statute of Frauds imposes a clear requirement that a contract for the sale of an
interest in real estate is not enforceable unless the seller has agreed in writing to sell. 12 V.S.A. §
181 (5). This applies to each person with an ownership interest in the property and inherently
includes the policy that a prospective seller of real estate must make explicit, in a writing, his or
her undertaking to sell on specific terms. Plaintiffs have provided no authority for the proposition
that the signatures of multiple owners on an addendum that relates to the prospective buyers'
financing application is sufficient to satisfy the Statute of Frauds where only one of the multiple
owners signed the original purchase and sales contract document, which itself is not identified
accurately. The situation would be different if the Addendum had stated something along the
lines of 'All four undersigned sellers incorporate and affirm the obligations of Sellers set forth in
the "Simple Real Estate Contract" signed by Myrna Wilkins on June 20, 2021.' It did not.

In the case relied on by Plaintiffs, Prue v. Royer, 2013 VT 12, although there were
separate attached pages to a preprinted contract for sale and an original addendum as well as an
additional later addendum, there is no indication that the original document was not signed by
both parties. The various addenda modified the obligations of the parties. The issue in the case
was the interpretation of the terms of the parties' agreement, not whether or not there was a
contract at all. Thus the case does not provide authority for Plaintiffs' position in this case.

Plaintiffs argue that Myrna Wilkins acted with apparent authority as the agent of her
siblings in connection with the real estate, and that when all four Defendants ultimately signed
the Addendum, they ratified Ms. Wilkins's prior action of signing the Simple Contract on their
behalf. This theory would constitute a significant modification or exception to the requirement of
the Statute of Frauds. Plaintiffs have presented no authority showing that it has been adopted by
any court. The terms of sale that Plaintiffs seek to enforce against Defendants are not set forth in
either document that all four Defendants signed, either the Addendum or lead paint disclosure. It
is not clear that they had even read them. The purpose of the Statute of Frauds requirement is to
assure that the "party to be charged" has explicitly undertaken the obligation at issue and has
affirmed doing so in writing."

For these reasons, the court cannot conclude that the Statute of Frauds was satisfied in
this case. Thus Plaintiffs do not have a legally enforceable right to purchase the property. Their
request for specific performance must be denied, and Defendants are entitled to judgment on
Plaintiffs' claims for breach of contract and specific performance.

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Plaintiffs also argue that Melbourne Williams and Betsey Foster were legally competent to sign the Addendum and
lead paint disclosure when they did. Because the above analysis rests on other grounds, there is no need for the court
to address the issue. Plaintiffs also argue in their Opposition that, in connection with the eviction claim in 22-CV-
314, the notice to terminate the tenancy was defective. This is an issue separate from the legal issues framed by the
parties in their respective Motions for Summary Judgment, and thus is not addressed here but may be raised at a
court trial in which the eviction case is litigated.

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Plaintiffs also seek compensation for unjust enrichment (Count 2) as well as "money
damages" (Count 3). This appears to be a single claim rather than two separate ones, as "money
damages" are a remedy and not a distinct cause of action. Plaintiffs sought compensation for
some repair costs and also claim that the Defendants' signatures on the Addendum and lead paint
disclosure caused them to expect a closing with a favorable mortgage interest rate shortly after
the documents were signed, and that the delay and failure to honor the Simple Contract caused
them to suffer financial harm. The facts are insufficient for a ruling on this claim as a matter of
summary judgment. Plaintiffs are entitled to a trial on this claim to present evidence to show
whether facts satisfy all the elements of unjust enrichment. Defendants are denied summary
judgment on this claim.
Defendants have a claim against Plaintiffs for eviction that is consolidated with this case
and has yet to be resolved.

A pretrial status conference will be set to plan for an evidentiary hearing on the remaining
claims for unjust enrichment and eviction. The parties are reminded that mediation must be
completed prior to a court trial on these issues if that has not already occurred. See ADR Order
of December 21, 2023.
Orders
Defendants' Motion for Summary Judgment (Motion #8) is granted in part as set forth
-above, and otherwise denied.

Plaintiffs' Motion for Partial Summary Judgment (Motion #9) is denied.

A pretrial conference will be scheduled to plan for a court trial on remaining issues,
including the claim in the eviction case, Docket # 22-CV-314. The parties shall have engaged in
mediation prior to the court trial.

Electronically signed July 2, 2024 pursuant to V.R.E.F. 9 (d).

Mary Miles Teachout
Superior Judge (Ret.), Specially Assigned

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