zipp v. mount snow

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Windham Unit Docket No. 21-CV-00322
THOMAS ZIPP,

Plaintiff

Vv.

MOUNT SNOW, LTD.,
Defendant

DECISION ON PENDING MOTIONS, and ORDER

The parties have each filed Motions for Summary Judgment, and Defendant has filed a
Motion to Strike filings made by Plaintiff. The Motion to Strike is considered first.

Motion to Strike, filed by Defendant January 10, 2023 (Motion # 9)

Defendant moves to strike two documents filed by Plaintiff's counsel: Plaintiff's
“Response to Defendant’s Opposition to Plaintiff's Motion for Summary Judgment” and
Plaintiff's “Response to Defendant’s Statement of Undisputed Material Facts.”

Defendant filed a Motion for Summary Judgment on November 9, 2022, including a
Statement of Undisputed Material Facts.

V.R.C.P. 56 prescribes the requirements for a response in order to dispute a claimed
undisputed fact:

A nonmoving party responding to a statement of undisputed material facts and
asserting that a fact is genuinely disputed, that the materials cited do not establish
the absence of a genuine dispute, or that the moving party cannot produce
admissible evidence to support the fact, must file a paragraph-by-paragraph
response, with specific citations to particular parts of materials in the record that
the responding party asserts demonstrate a dispute, including depositions,
documents, electronically stored information, affidavits, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers,
or other admissible materials. The responding party must reproduce each
numbered paragraph of the moving party's statement before including the
response thereto.

V.R.C. P. 56 (c)(2).

Such a response is due 30 days after the filing of the motion. V.R.C. P. 56 (b).
Plaintiff did not file a response to the Defendant’s Statement of Undisputed Facts within
the time and in the manner set forth by the rule, but did file an Opposition in the form of a legal
memorandum on November 23, 2022. Defendant filed a Reply memorandum to Plaintiff's
Opposition on December 21, 2022.

Then on December 28, 2022, Plaintiff filed two documents. One is a “Response to
Defendant’s Statement of Undisputed Material Facts.” A few of the numbered paragraphs are
indicated to be “disputed” and are accompanied by representations of different or additional facts
but without any citations to the record. The other is labeled “Plaintiff's Response to Defendant’s
Opposition to Plaintiff's Motion for Summary Judgment.” It states in part, “with the leave of the
Court, Plaintiff submits its stand alone pleading responding verbatim to those of Defendant’s
Undisputed Material Facts which are in dispute.”

Defendant filed a Motion to Strike both documents on the grounds that they are responses
to Defendant’s Statement of Undisputed Facts that were filed too late. Defendant also argued that
they constitute an unpermitted surreply, and furthermore that the response to Defendant’s
Statement of Undisputed Facts is not in compliance with the Rule provisions quoted above.

During the same period, Plaintiff had filed his own Motion for Partial Summary
Judgment accompanied by Plaintiff's Statement of Undisputed Facts. Defendant filed a response
to Plaintiff's Statement of Undisputed Facts and a memorandum in Opposition to Plaintiff's
Motion.

Plaintiff filed his Response to Defendant’s Statement of Undisputed Facts out of time,
and inadequately. Such a response was due by December 9, 2022. It was filed on December 28,
after the filings on Defendant’s Motion for Summary Judgment—motion, response, reply—had.
all been filed. The motion was ripe for decision. Plaintiff did not file a motion seeking
permission to extend the time as required by V.R.C.P. 6 (b)(1). This rule requires a showing of
excusable neglect if the motion is filed beyond the deadline. No such showing was made, and
there was no attempt to seek permission or explain why it was late.’ There was also no motion to
file a surreply.

Such action is prejudicial to Defendant, as it puts a party in Defendant’s shoes in the
predicament of not knowing whether or not to respond to the filing; such action simply ignores
the rules of filing. It can also delay the case, as it has here, and increase the opponent’s fees in
having to file a response or objection. Moreover, the “stand alone pleading” has some
characteristics of a response to a statement of undisputed facts, but does not comply with the
Rule 56 (c)(2) requirement that alleged disputes of fact must be supported with citations to the
record.

The rules provide for orderly and efficient filings in the interest of clarity and efficiency
in the administration of cases. The court declines to simply ignore the requirements of the rules,
and therefore grants the Motion to Strike. The court has disregarded Plaintiff's two documents
filed December 28, 2022.

1 The language in the simultaneously filed response, “with the leave of the court,” is not a motion,

2
Cross Motions for Summary Judgment

Even excluding consideration of Plaintiff's Response filed December 28", and reviewing
only:

--Defendant’s Statement of Undisputed Facts in support of its Motion,

--Plaintiff's Statement of Undisputed Facts in support of its Motion, and

--Defendant’s Response to the Plaintiff's Statement of Undisputed Facts,
it is clear that there is no factual dispute as to the history of the parties’ Purchase and Sale
Contract and the communications that took place following its execution. The court finds it
unnecessary to reproduce all of those facts here, as they are set forth clearly in the statements just
referenced.

To the extent that Defendant represents that there is a dispute over facts set forth by
Plaintiff, some objections are based on a claim that details are missing or there is an objection to
words of description (e.g., Defendant disputes that a series of undisputed communications
represent a “collaborative effort” but does not dispute the accuracy of the communications), and
some describe the reason for dispute is that the statement sets forth a legal conclusion (e.g., the
contract expired by its own terms). The court is able to disregard descriptive characterizations
and legal conclusions in assessing whether there is a true dispute of material fact.

In short, Plaintiff and Defendant entered into a formal contract for purchase by Plaintiff
of a small parcel of land (not less than .3 acre) that did not yet exist but was to be carved out of
Defendant’s larger neighboring parcel with boundary lines to be agreed upon. A deposit was
paid, the price was fixed, a closing date was set with the right of each party to extend it for three
months, and there were several obligations specified for both parties. One of the terms was that
Plaintiff agreed not to raise any objection to the discontinuation of Carinthia Road in connection
with Defendant’s Carinthia project, to which Plaintiff was otherwise opposed. Defendant
undertook the responsibility to have the parcel surveyed, to obtain all necessary subdivision
permits, and to release its reservation of various rights in a property previously conveyed to
Plaintiff.

Pursuant to the contract, Plaintiff extended the closing date for three months. That date
passed. It is apparent that the obligations of Defendant to accomplish tasks needed for the closing
were not yet done, and there was a series of communications between the parties or their agents
over a period of years concerning plans for modifying the parcel boundaries and completing
prerequisites for closing, including satisfying subdivision requirements and obtaining a survey
and releases. There was no written amendment to the contract to enlarge or specify a new date
for closing. While the efforts to prepare for closing were underway, Defendant Mt. Snow, Ltd.
was purchased by another entity, Vail. Plaintiff sought to close on the transaction. Defendant,
now under different ownership, declined, declaring that the contract had expired. This is a short
summary only; specifics are set forth in more detail in the respective Statements of Undisputed
Facts submitted for the cross motions.
Defendant’s Motion for Summary Judgment, filed November 9, 2022 (Motion #6)

Plaintiff's complaint sought relief on three grounds: Breach of Contract, Vermont
Consumer Protection Act, and Promissory Estoppel. Defendant seeks summary judgment on the
bases that it is not bound by the contract because it had expired by its own terms, and that there
was no consumer transaction.

Consumer Protection Claim. The parties dispute whether the transaction falls within the
class of transactions subject to Vermont’s Consumer Protection Act. Defendant argues that this
was not a consumer transaction. Plaiatiff argues that “land” can be the subject of a consumer
protection claim. It is undisputed that the subject parcel was never placed on any market for sale,
and in fact was not actually created as a separate parcel to be sold. No offer to sell was ever
extended to anyone. It was Plaintiff who contacted Defendant about acquiring a small piece from
Defendant’s larger parcel. The court concludes that no act or practice occurred “in commerce”
within the meaning of the CFA. Foti Fuels, Inc. v. Kurrle Corp., 2013 VT 111.921. Defendant
is entitled to summary judgment on this claim.

Breach of Contract. Defendant argues simply that the contract had expired because there
was no written agreement to an extended closing date, which it claims was required by the
contract itself and the Statute of Frauds. Defendant does not address facts or law pertinent to
Plaintiff's claim of estoppel.

Plaintiff included in his initial complaint a claim for promissory estoppel in which he
alleged that one of the provisions of the contract was that Plaintiff would not oppose permits for
development projects that Defendant proposed to undertake on its land that would impact other
property in which Plaintiff owned an interest. Plaintiff intended to oppose the granting of permits
for the project. Plaintiff alleged that he relied on the contract in not opposing those projects, and
thus Defendant should be estopped from denying the contractual obligation.

Promissory estoppel can be a separate cause of action and can also be raised in
conjunction with a contract claim. See North v. Simonini, 142 Vt. 482, 485 (1983) and analysis
below. It has specific elements that must be proved. Defendant does not address the elements of
estoppel, and thus he has not shown by undisputed facts that Plaintiff cannot prove entitlement to
contract rights on the basis of estoppel.

Promissory Estoppel. Defendant appears to assume that the ruling it seeks, specifically
that the contract had expired, obviates addressing the Plaintiff's estoppel claim. As stated,
Defendant has not shown that Plaintiff has no facts to support his claim of estoppel. Therefore,
Defendant is not entitled to summary judgment on either the breach of contract claim or the
promissory estoppel claim.

In sum, Defendant’s motion cannot be granted in full because the facts and arguments
presented are limited to invoking consumer protection and contract principles of law without
consideration of Plaintiff's claim of estoppel. Therefore, Defendant’s Motion for Summary
Judgment is granted as to Plaintiffs claim of consumer protection, and otherwise denied.

Plaintiff's Motion for Partial Summary Judgment, filed November 15, 2022 (Motion #7)

Plaintiff seeks partial summary judgment entitling him to enforcement of the contract,
and to specific performance.

Defendant’s counsel acknowledges that the facts relevant to resolving the parties’
motions are not in dispute.* Defendant claims that the contract is no longer enforceable against it
because it expired by its own terms.’ Defendant relies on the Statute of Frauds and the
requirement in paragraph 22 of the Purchase and Sale Contract that required any modification to
be in writing and signed by all parties. The contract was signed on August 20, 2015 and called
for a closing by March 31, 2016. It also provided that either party could extend the closing date
for up to three months (paragraph 11). There is no dispute that Plaintiff's counsel invoked the
three month extension, which meant that under the terms of the written contract, closing was to
have taken place by June 30, 2016. Closing did not take place by that date.

Plaintiff alleges that Defendant is estopped from claiming it is no longer required
to perform based on its conduct in continuing to work with Plaintiff's counsel after June
30, 2016 to prepare for and bring about the closing even though there was no written
agreement for an extended closing date.

Generally, changes in contracts covered by the Statute of Frauds are governed by
the same formal requirements as the original contract. Evarts v. Forte, 135 Vt.
306, 311, 376 A.2d 766, 769 (1977). However, where the parties waive, by their
words and conduct, the time limitations of the contract, the nonwritten
modification does not violate the Statute of Frauds since waiver and estoppel
operate independently of the statute. 6 Williston on Contracts § 856, at 232 Gd
ed. 1962).

North v. Simonini, 142 Vt. 482, 485 (1983).

In this case, Plaintiff specifically pled a claim for estoppel in addition to breach of
contract, and relies on Hayes v. Mountain View Ests. Homeowners Ass'n, 2018 VT 41 as
providing an exception to the Statute of Frauds requirement that any alterations to the contract be
in writing. In that case, the Vermont Supreme Court enforced an oral agreement, and set forth the
legal requirements for enforcement of agreements for conveyance of interests in land in the

? Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment, page 2.

3 Defendant asserts as a “fact” that the contract expired. However, that is not a “fact” but a legal conclusion.
Defendant’s counsel acknowledges this in stating Defendant’s position in the last line of the Opposition: the
“contract expired as a matter of law.” Id. at page 7. (Emphasis added.)
absence of a writing that would comply with the Statute of Frauds. These are the requirements
for a claim of estoppel:

A court may enforce an agreement regarding an interest in land if the party
seeking enforcement shows “that (1) there was an oral agreement (2) upon which
they reasonably relied (3) by changing their position so that they cannot be
returned to their former position, and (4) the other party to the agreement knew of
such reliance.” Id. Enforcement in these circumstances “is justified on the ground
that repudiation by one party after the other has fully performed amounts to a
virtual fraud.” Id. at 361, 706 A.2d at 950 (citing Restatement (Second) of
Contracts § 129 emt. a (1981) ).

Hayes v. Mountain View Ests. Homeowners Ass'n, 2018 VT 41, { 12.

Defendant argues that the first element is not met because there was no oral agreement.
The facts are clear, however, that the terms and conditions of the parties’ agreement were set
forth fully in writing in the August 2015 Purchase and Sale Contract. The facts are also clear that
following the properly extended closing date of June 30, 2016, Defendant’s agent and attorney
continued to engage in the multiple steps needed to prepare for a closing and kept Plaintiff's
counsel informed of the progress of those steps in numerous emails on specific details beginning
on July 5, 2016 and continuing through October 23, 2019.4 These emails unmistakably signify
agreement to not only an extension of the time for closing but also to modification of the
boundaries to a parcel size of .36 acres. They also induced Plaintiffs counsel to undertake tasks
required to prepare for a closing. The emails also show representations by Defendant to the
zoning administrator concerning the intent to close on the transaction. The responses from
Plaintiffs counsel demonstrate agreement with the plans and terms set forth in the emails.

The email communications signified agreement to modified terms, including parcel
boundaries and extension of time for closing, and are certainly the equivalent of an oral
agreement to modify the original written contract. They are actually superior to an oral
agreement because terms and dates are clearly preserved. Thus, the undisputed facts support
satisfaction of not only the first element necessary for estoppel, but the second as well:
reasonable reliance by Plaintiff, who undertook his responsibilities for preparation for closing
throughout the entire period, signifying reliance on the emails from Defendant’s counsel.

In the six weeks between September 10, 2019 and October 23, 2019, there were five
emails related to finalizing preparations for closing. Then, in an email dated October 30, 2019,
one week later, Defendant’s counsel notified Plaintiff's counsel that Defendant Mt. Snow, LTD.
had been sold to Vail, and in a subsequent email approximately one more week later, on
November 7, 2019, he notified Plaintiff's counsel that the file had been transferred to Vail’s
attorney (Exhibit 20). It was only thereafter that Vail’s attorney took the position that the
contract had expired. All emails prior to that date demonstrated ongoing agreement to extension
of the closing date based on undertaking all of the tasks necessary to close (i.e., marking
proposed boundaries on the ground, satisfactory survey, subdivision authority including

4 See the string of emails in the following Exhibits to Plaintiff’s motion: Exhibits 3, 4, 5, 6, 7, 9, 10 (which also
reflects agreement to enlarge the parcel from .3 to .36 acres), 11, 13, 14, 15, 17, 18, and 27.

6
exploration of boundary adjustment to prior conveyance, releases from multiple mortgage
holders, and deed preparation). The court concludes that both the first and second elements of
estoppel are shown by undisputed facts: there was an agreement, made through email
communications, to extend the closing date until all preparations were complete and Plaintiff
reasonably relied on it as shown by Plaintiff participating fully in such preparations.

It is undisputed that the third element is also met: Plaintiff changed his position in
reliance on the agreement by withdrawing opposition to the Defendant’s Carinthia project and
refraining from objecting to land use applications related to that project. Due to the passage of
time resulting from Defendant’s conduct in taking extended time to prepare for closing, Plaintiff
cannot be returned to his former position on this issue.

The fourth element is fully demonstrated in the series of email communications identified
in footnote 4 between the parties’ attorneys: Defendant’s attorney and agent knew from
Plaintiff's emails that Plaintiff was relying on Defendant’s implicit agreement to extend the
closing date until all prerequisites for closing had been accomplished,

Based on the undisputed facts, the court concludes that Plaintiff is entitled to enforce the
2015 Purchase and Sale Contract as modified by email agreements that satisfy the requirements
for the estoppel exception to the Statute of Frauds.

Plaintiff seeks an order for specific performance.

In Colony Park Assocs. v. Gall, 154 Vt. 1(1990), the Vermont Supreme Court quoted
Johnson v. Johnson, 125 Vt. 470 (1966) in setting forth several factors bearing on whether a
request for specific performance may be granted:

“Although specific performance of a contractual obligation follows almost as a
matter of course from proof of its existence, there is provision for the exercise of a
judicial discretion, based on considerations proper for equity's concern. The
sufficiency of the consideration, the mutuality, certainty, and clarity,
completeness, and fairness of the contract, its capability of proper enforcement by
decree, and the presence or absence of any showing that it is tainted or
impeachable, or that its enforcement would be unconscionable are elements
relevant to the exercise of that discretion. If the chancellor has granted or denied
relief by the exercise of discretion based on such equitable considerations, the
result is reviewable only upon a clear and affirmative showing of abuse.

125 Vt. at 472~—73, 218 A.2d at 45 (citations omitted).”

Because specific performance is the usual remedy for the seller's breach of a real
estate contract, the trial court should look to the factors listed in deciding whether
to deny that remedy. “Unless some countervailing equitable consideration exists,
the relief sought is usually granted as a matter of course.” Villeneuve, 128 Vt. at
346, 262 A.2d at 925.

Colony Park Assocs. v. Gall, 154 Vt. 1, 6-7 (1990).
In this case, the Purchase and Sales Contract, modified by the email agreements to adjust
the boundaries and parcel size and extend the time for closing, is clear and complete and satisfies
all of the factors identified in Colony Park.

For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment is granted.
Plaintiff is entitled to specific performance of the Purchase and Sale Contract modified by the
email agreements regarding determination of the boundaries and parcel size.

Order
Based on the foregoing, it is hereby ordered;
Defendant’s Motion to Strike (#9) is granted;

Defendant’s Motion for Summary Judgment (#6) is granted as to the consumer protection
claim and otherwise denied;

Plaintiff’s Motion for Partial Summary Judgment (#7) is granted. Plaintiff's counsel
shall prepare a proposed form of Partial Judgment for review by Defendant’s counsel pursuant to
V.R.C.P. 58 (d).

The Judicial Assistant shall schedule a pretrial status conference in preparation for a jury
trial on Plaintiffs remaining claims pursuant to Defendant’s jury demand.

Electronically signed April 28, 2023 pursuant to V.R.E.F. 9 (d).

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