Douglas v. Middlebury College

7ermont Superior Court
Filed 04/09/25
Addison mit

VERMONT SUPERIOR COURT CIVIL DIVISION
Addison Unit Case No. 23-CV-01214
7 Mahady Court

Middlebury VT 05753
802-388-7741
www.vermontjudiciary.org

Hon. James H. Douglas, Special Administrator of the Estate ofJohn Abner Mead v. The President and
Fellows of Middlebury College

Ruling on Middlebury's Second Motion for Summary Judgment and
Governor Douglas's Rule 56(d) Motion

This case arises out of Defendant Middlebury College's decision in 2021 to remove
the Mead family name from the Mead Memorial Chapel. Former Governor Mead, a
Middlebury graduate himself, contributed most of the money used to construct the chapel
on Middlebury's campus in the early 1900s. Following the name change, Gov. Mead's
estate was reopened by the Rutland Probate Court, and former Governor Douglas was
appointed special administrator, in which capacity he filed this suit claiming that the
name change violates enforceable rights of the estate. Following a motion to dismiss,
first summary judgment motion and renewed motion to dismiss, and amendment of the
complaint, Middlebury now has filed a second summary judgment motion seeking to end
this case, while Gov. Douglas argues (both in his opposition to summary judgment and in
a later, separately filed Rule 56(d) "motion") that judgment would be premature, he
should be permitted to engage in more discovery, and in any event the claims remaining
at this point are viable.

Procedural history

In his original March 24, 2023, complaint, Gov. Douglas asserted in substance four
claims, as follows: (1) breach of contract; (2) beach of the implied covenant of good faith
and fair dealing; (8) breach of conditional gift; and (4) unjust enrichment. The thrust of
these claims was that Gov. Mead's substantial contribution of funds for the construction
of the chapel came with strings attached, and Middlebury ran afoul of them by changing
the name. On balance, Gov. Douglas wanted Middlebury's mind changed as to the name

1
To be clear, Middlebury's summary judgment motion is the only one pending. In Gov. Douglas's
opposition filing, in the opening paragraph, he confusingly asks the court to "DENY Defendants' motion
and grant judgment as a matter of law as follows." That sentence implies that he is both opposing
Middlebury's motion and requesting summary judgment in his own favor. However, the filing concludes:
"WHEREFORE, Plaintiff respectfully requests that the Court Deny Defendant's Second Motion for
Summary Judgment and allow Plaintiff to proceed with Discovery with regard to the claim for breach of
the covenant of good faith and fair dealing and damages, which were bifurcated by the Court's prior ruling,
so that Plaintiff may resume preparation for trial." No filings by anyone after this one exhibited any
confusion as to whether Gov. Douglas actually intended to file a cross-motion for summary judgment. He
did not.
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23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate ofJohn Abner Mead v. The President and Fellows
of Middlebury College
of the chapel or, if it could not be compelled to do so, many millions of dollars as
compensation.

Middlebury filed a motion to dismiss on April 28, 2023. Based on the extensive
allegations of the complaint and the many documents incorporated by reference into it,
Middlebury argued that there had never been any contract—the money was a gift, and
the gift was not burdened by any perpetual condition as to the chapel’s name. Because
there was no contract, it argued, there could be no breach of the covenant of good faith in
that contract. See Carmichael v. Adirondack Bottled Gas Corp. of Vermont, 161 Vt. 200,
208 (1993) (The covenant is an “underlying principle implied in every contract . . . that
each party promises not to do anything to undermine or destroy the other’s rights to
receive the benefits of the agreement.”). It also argued that Gov. Douglas, as special
administrator, lacked “standing” to enforce any perceived restriction on the gift as only
the Attorney General would have been empowered to do so. The motion did not address
the unjust enrichment claim.

The court denied Middlebury’s motion to dismiss on August 4, 2023. See Douglas
v. The President and Fellows of Middlebury College, No. 23-CV-1214, 2023 WL 11877867
(Vt. Super. Ct. Aug. 4, 2023), available at https://tinyurl.com/mr2sk5ne. It declined to
resolve at that time whether the circumstances properly fall under gift or contract law,
but it analyzed the issues in depth and concluded: “Whether framed under contract or
gift law, proof that a perpetual naming right was intended ultimately will have to satisfy
an elevated standard of clarity to be enforceable.” The case then proceeded to document
discovery.

On April 29, 2024, Middlebury filed its first motion for summary judgment, and it
renewed its motion to dismiss on the “standing” issue. On June 3, 2024, it filed a motion
for a protective order to stay depositions pending the outcome of the summary judgment
motion. At this point, document discovery was complete. On July 3, 2024, the court
stayed depositions on the condition that Middlebury would make its then-President (who
at the time was soon to leave the College for employment elsewhere) available for a
deposition if or when that time should come. See Douglas v. The President and Fellows
of Middlebury College, No. 23-CV-1214, 2024 WL 3489548 (Vt. Super. Ct. July 3, 2024),
available at https://tinyurl.com/yy2zbhtw. Middlebury readily agreed, and depositions
were stayed.

In its October 3, 2024, summary judgment decision, the court again declined to
decide the preliminary question of whether Gov. Mead’s contribution should be analyzed
under gift or contract law. See Douglas v. The President and Fellows of Middlebury
College, No. 23-CV-1214, 2024 WL 4480091 (Vt. Super. Ct. Oct. 3, 2024), available at
https://tinyurl.com/2hpjsmmv. However, the court rejected the gift law claim, explaining
that, even if the transaction were treated as a gift with a perpetual condition as to the
chapel’s name, there would have had to be a reversionary interest expressly reserved to
be enforceable now, and Gov. Douglas had not unearthed any. Middlebury’s “standing”
argument was premised on the transaction being a gift, so the court rejected that
argument as moot. As for the principal contract claim, the court also rejected it, noting
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23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate of John Abner Mead v. The President and Fellows
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that there was no evidence of any perpetual naming condition at all. It did conclude that
there was a naming condition of undefined duration. However, it also determined that
the condition was satisfied as a matter of law by the extreme passage of time. So, there
could be no breach of any contract now. The court discussed the good faith and fair
dealing claim, but did not rule on it because Middlebury had not argued the substance of
that claim. The court considered the unjust enrichment claim withdrawn. The court
ordered the stay on depositions to continue until further order of the court.

Following this decision, there remained three issues in the case: (1) was the
transaction a gift or a contract; (2) if a contract, did Middlebury breach the covenant of
good faith and fair dealing; and (3) if so, what damages, if any, could Gov. Douglas be
entitled to recover if there was such a breach. The court requested further briefing on
the damages question.

On October 17, 2024, Gov. Douglas filed a motion to amend the complaint, by
which he proposed to withdraw the gift and unjust enrichment claims with prejudice and
to add claims based on promissory estoppel and equitable estoppel. The court granted
that motion on November 21, 2024. See Douglas v. the President and Fellows of
Middlebury College, No. 23-CV-1214, 2024 WL 5104327 (Vt. Super. Ct. Nov. 21, 2024),
available at https://tinyurl.com/2whkvr4y.

In the amended complaint, Gov. Douglas describes the covenant claim as follows:

193. Defendant has breached the covenant of good faith and fair dealing by
removing the name “Mead” from the Chapel in direct defiance of its
covenant and the expectation that the College will act honestly and
reasonably in the faithful pursuit of the agreed common purpose of the
contract.

194. Defendant has acted in bad faith with improper motive and with
wanton disregard for the rights of the Plaintiff, scapegoating a man for the
college’s public relations purposes and destroying the Mead family name
while erasing John Mead’s lifetime of accomplishments and philanthropy
that benefitted the State of Vermont and its people as well as generations of
Middlebury College students. 2

The promissory and equitable estoppel claims are asserted in a conclusory fashion. The
thrust of the former appears to be that Middlebury promised that the chapel would be

2 The “improper motive,” as alleged by Gov. Douglas, is that Middlebury removed the Mead name from the

chapel to distract attention from its historical involvement in the eugenics movement in favor drawing
unwarranted attention to Gov. Mead’s involvement in it, which was quite limited. Middlebury deeply
disagrees with Gov. Douglas’s characterizations of such facts. In prior decisions, the court has not needed
to enter the fray as to that matter, and this decision is no different. Nor is there any need for the court to
join any broader debate about the propriety of judging historical figures by contemporary standards. Those
are weighty matters about which many people reasonably feel passionately. The court takes no position in
this case.
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23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate of John Abner Mead v. The President and Fellows
of Middlebury College
named the Mead Memorial Chapel in perpetuity and Gov. Mead relied on that. The
equitable estoppel claim appears to be the same.

Gov. Douglas submitted his further briefing as to damages on the covenant claim
on November 4, 2024; Middlebury filed its on December 2, 2024. In his filing, Gov.
Douglas asserts: “Plaintiff claims Compensatory Damages including, but not limited to,
diminution in value of benefit of his bargained-for consideration, lost time and
opportunities, litigation costs and expenses, and attorneys’ fees under the ‘bad faith’
exception to the American Rule.” See DJ Painting, Inc. v. Baraw Enterprises, Inc., 172
Vt. 239, 246 (2001) (The “American Rule,” which has exceptions, is that the “parties must
bear their own attorneys’ fees.”). He then says he also seeks punitive damages. The
filing does little to explain how a breach of the covenant, if one were found, would
properly lead to any of these damages.

Middlebury’s pending summary judgment motion

On December 2, 2024, Middlebury filed its second motion for summary judgment,
which addresses all remaining claims. As to the covenant claim, Middlebury suggests
that Gov. Douglas is claiming as breaches of the covenant (1) that the name of the chapel
was changed, and (2) that it disparaged the Mead family name in the course of changing
the chapel’s name (causing reputational harm). It argues that the first alleged breach is
not viable because the covenant has to depend on facts that are not strictly a breach of
the contract, and the asserted contract here was to maintain the Mead name on the
chapel.

As to the second asserted breach, Middlebury argues that, as a general matter,
there can be no recovery for defaming a dead person. Moreover, the parties never agreed
to any sort of anti-disparagement agreement, and any voluntary waiver of First
Amendment rights would have had to be clear and unequivocal, contentions that Gov.
Douglas does not dispute.

More generally, Middlebury notes that the purpose of the covenant is to ensure
that the parties to the contract do not “undermine or destroy the other’s rights to receive
the benefits of the agreement,” rather than to impose new terms on the contract.
Middlebury objects that the court already has ruled that by the time the name was
removed from the building, Middlebury had satisfied any contractual obligations it had.
There were no benefits of the agreement remaining that any perceived disparagement
could have undermined. In sum, Middlebury argues that the covenant claim is
inappropriately untethered to the agreement the parties allegedly actually had. Finally,
to the extent that the breach is premised on “improper motivations,” Middlebury argues
that motivations alone are insufficient to establish a breach.

As to the promissory estoppel claim, Middlebury argues that the record that did
not reveal evidence of a perpetual promise as to the name of the chapel for contract law
purposes does not for promissory estoppel purposes either. Even if it somehow did, it
argues, there would be no injustice in not enforcing it well over 100 years later. Finally,
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23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate of John Abner Mead v. The President and Fellows
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it argues that promissory estoppel cannot be asserted in the context of a bargained-for
gift or exchange.

As to equitable estoppel, Middlebury argues that Gov. Douglas is asserting it in an
identical manner as his promissory estoppel claim. It further notes that equitable
estoppel can only be asserted defensively and must refer to reliance on a past or present
representation, not a promise as to something in the future.

In response to all this, Gov. Douglas argues in support of all the remaining claims.
He also says this:

As the Court will recall, it has bifurcated Discovery in this case such
that no Discovery has been conducted on the claim for breach of good faith
and fair dealing. Consequently, Plaintiff is completely “in the dark” with
regard to the actions and decision of the Defendant to strip the Mead name
from the Mead Memorial Chapel. Absurdly, Defense Counsel makes the
argument that Plaintiff has no factual basis to allege bad faith conduct by
the Defendant. That is because we have not had the opportunity to
discovery [sic] those facts nor to ask the Defendant the most basic questions
such as what information was gathered, considered, or discussed, and what
information was not. How was the decision made and by whom. Was Mead
blatantly and intentionally used as a scape goat to divert attention away
from Middlebury College, which was “all in” on teaching Eugenics for the
first half of the 20th century.

All of these questions remain; thus, it would be patently unfair and a
deprivation of due process for the Court to rule on a Summary Judgment
motion on the claim of breach of good faith and fair dealing, when Plaintiff
has been prevented from gathering any facts or evidence, from which to
establish Defendant’s bad faith conduct. Instead, Plaintiff is left to make
inferences and hypothesize at the Defendant’s actions and motivations,
including ill will and bad motive, based upon one press release and the
discovery of Middlebury College’s shocking half-century of Eugenics
teaching, before, during, and after the Holocaust. Therefore, Defendant’s
motion is premature and Plaintiff requests that the Court defer judgment
on the Breach of Good Faith and Fair Dealing claim, until Plaintiff has a
full and fair opportunity to conduct Discovery.

In other words, he is seeking to conduct more discovery—depositions, the only form of
discovery that ever was stayed—before the court rules Middlebury’s motion. 3

Gov. Douglas does further articulate the nature of the covenant claim as follows:

The ultimate issue regarding the breach of the covenant of good faith

3 The stay never extended to interrogatories.

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and fair dealing is whether, in light of all of the facts and circumstances,
Middlebury College acted in bad faith when it erroneously proclaimed that
the Mead Memorial Chapel was named in honor of John Abner Mead and
then engaged in its hypocritical public relations smear campaign to
scapegoat Governor Mead and use him as a subterfuge to conceal the fact
that Middlebury College was literally, a Eugenicist factory, for over 50
years, “espous[ing] inhumane policies that are uniformly condemned today,”
and teaching Eugenics principles until years after the atrocities of the
Holocaust were fully known.

Regardless of whether there was a breach of the express terms of the
contract, Defendant breached the Covenant of Good Faith and Fair Dealing
implicit in that contract, because Middlebury College’s smear campaign
against Governor Mead interfered with, completely frustrated, and caused
the cancelation of Mead’s essential purpose in erecting the Chapel: to
memorialize his ancestors and honor them for their devotion to their
Christian faith and as a symbol of the simplicity and strength of character
of Vermonters. And furthermore, Defendant’s breach was effectuated for a
bad motive: to serve the selfish ends of the College’s marketing team who
used Governor Mead as a scapegoat, overemphasizing his role, and using
him to create a smokescreen to obscure the vile history of Middlebury
College as a racist and antisemitic institution.

He also now characterizes the contract as an agreement “to honor and symbolize the
Mead ancestors who settled and brought Christianity to the valley.”

As to promissory estoppel, Gov. Douglas appears to argue that this claim is
supported by the same “promise” that gave rise to the contract claim, but then generally
asserts that if the duration has been too long for contract law purposes, no such limit
applies to the equitable formulation of the claim because the name was intended to be on
the building “forever,” and the court can use its equitable powers to make it so.

As to equitable estoppel, Gov. Douglas argues that it can be asserted affirmatively
as a legal claim. He does not, however, clearly distinguish this claim from his promissory
estoppel claim.

Middlebury then filed a reply, Gov. Douglas filed a sur-reply, and then he filed a
“motion” pursuant to Rule 56(d), more formally requesting that the court resist ruling on
Middlebury’s summary judgment motion until he can conduct more discovery. In his sur-
reply, he for the first time asserts clearly that his covenant claim is not based on
reputational harm:

Contrary to Defendant’s repeated false assertions and “spin” which
seeks to mischaracterize Plaintiff’s claims, Plaintiff’s Good Faith and Fair
Dealing claim is premised not upon harm to John Abner Mead’s reputation,
but upon the Defendant’s actions in unfairly, dishonestly, or without
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23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate of John Abner Mead v. The President and Fellows
of Middlebury College
reasonable grounds, removing the Mead name under false pretenses,
thereby interfering with the essential purpose of the Mead Memorial Chapel
contract: to symbolize, honor and MEMORIALIZE the Mead ancestors.
Plaintiff is alleging that Defendant’s actions were unfair, dishonest, or
without reasonable grounds, and that such actions effectively destroyed
and/or voided Defendant’s performance of the Contract and adherence to
Defendant’s Good Faith and Fair Dealing obligations.

Gov. Douglas’s request for relief under Rule 56(d)

Rule 56(d) provides as follows: “If [the party opposing summary judgment] shows
by affidavit that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or to take discovery; or (3) issue any other appropriate order.” This rule
is a safety valve if, for example, the motion is filed before crucial discovery has been
undertaken. Gov. Douglas argued that is exactly the case here in his opposition filing,
though he filed no affidavit documenting the need for more discovery. Once briefing was
complete, he then filed a motion requesting the same relief and supported it with an
affidavit.

The court declines to defer a ruling on Middlebury’s motion in favor of more
discovery. The Court never “bifurcated” discovery such that “no Discovery has been
conducted on the claim for breach of good faith and fair dealing.” The court stayed
depositions only; document discovery long has been complete. For there to be any
covenant claim, there first must be a contract, the terms of which inform the viability
and breadth of any covenant claim. Establishing those contract terms is foundational to
any covenant claim. If there is a contract in this case, all evidence of it would appear in
records around the time of its formation over 100 years ago. There are no witnesses left
to testify about the matter. As articulated by Gov. Douglas, his primary intention for
depositions now is to explore the private motivations of those who may have been
involved in some way in the decision to change the chapel’s name or who made
statements about it. He does little to explain how those private motivations, whatever
they may be, are essential to any viable covenant claim, and as set forth below, the court
concludes that they are not. A covenant claim cannot be predicated on bad faith in the
abstract; it must be grounded in the terms of the contract from which it springs.

Procedural standard

Summary judgment procedure is “an integral part of the . . . Rules as a whole,
which are designed ‘to secure the just, speedy and inexpensive determination of every
action.’” Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (citation omitted). Summary
judgment is appropriate if the evidence in the record shows that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.
V.R.C.P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994) (summary judgment will
be granted if, after adequate time for discovery, a party fails to make a showing sufficient
to establish an essential element of the case on which the party will bear the burden of
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of Middlebury College
proof at trial). A party opposing summary judgment may not simply rely on allegations
in the pleadings to establish a genuine issue of material fact. Instead, it must come
forward with evidence to establish such a dispute. Murray v. White, 155 Vt. 621, 628
(1991). Speculation is insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10, 210 Vt. 375.

The facts material to Middlebury’s motion are undisputed. As the court put it in
the first summary judgment decision: “The parties take issue with certain of each other’s
characterizations of facts, and they draw different inferences, but the record is purely
documentary, historical, and undisputed in all material respects.” Douglas v. The
President and Fellows of Middlebury College, No. 23-CV-1214, 2024 WL 4480091, at *2
(Vt. Super. Ct. Oct. 3, 2024), available at https://tinyurl.com/2hpjsmmv. The material
facts are fundamentally the same now as they were for purposes of the first summary
judgment decision. In that decision, the court exhaustively presented the core narrative
leading to the controversy between the parties. There is no need to duplicate that
narrative here. The reader is referred to the October 3 decision for a more specific
description of the facts.

The covenant claim

The Vermont Supreme Court very recently summarized the covenant of good faith
and fair dealing in Vermont as follows:

“An underlying principle implied in every contract is that each party
promises not to do anything to undermine or destroy the other’s rights to
receive the benefits of the agreement.” The implied covenant extends to
“actions taken in fulfillment of a contract” and “actions taken in terminating
a contract and winding up the contractual relationship between the parties.”
Good faith and fair dealing is “[c]ontextual and fact-specific,” and
accordingly “is ordinarily a question of fact.”

To the extent that [Plaintiff’s] claim for breach of the implied
covenant is duplicative of his breach-of-contract claim, it cannot be
sustained as a matter of law. “Where a party alleges both breach of contract
and breach of the implied covenant of good faith and fair dealing, dual
causes of action are permitted only where the different actions are premised
on different conduct.” . . . Although [Plaintiff] adds that the negotiations
were for a higher price, simply providing the motivations for [Defendant’s]
alleged breach [of contract] is insufficient to establish that the two causes of
action are premised on different conduct.

Beldock v. VWSD, LLC, 2023 VT 35, ¶¶ 52–53, 218 Vt. 144 (citations omitted).
“Generally, an implied duty of good faith and fair dealing ‘is not understood to interpose
new obligations about which the contract is silent, even if inclusion of the obligation is
thought to be logical and wise.’” Downtown Barre Development v. C & S Wholesale
Grocers, Inc., 2004 VT 47, ¶ 18, 177 Vt. 70; see also 17A C.J.S. Contracts § 454 (“The
implied covenant of good and fair dealing cannot contradict, modify, negate, or override
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23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate of John Abner Mead v. The President and Fellows
of Middlebury College
the express terms of a contract. Furthermore, the implied covenant or duty of good faith
and fair dealing does not create rights or duties beyond those agreed to by the parties,
does not supply terms to the contract the parties were free to negotiate, but did not, or
interpose new obligations about which the contract is silent, even if the inclusion of the
obligation is thought to be logical and wise.” (footnotes omitted)).

The covenant claim is premised on removing the Mead name from the chapel and
the alleged motivations behind doing that, along with any related statements that may
be perceived to have “smeared” the Mead name. Assuming that this could be a viable
claim, Gov. Douglas has failed to demonstrate that he could be entitled to any remedy for
it. He mainly appears to seek impermissible compensation for reputational injuries, yet
he expressly denies any such characterization of his claim. Otherwise, he seeks litigation
costs to “right the wrong” (which would have to be something other than disparagement)
perpetrated by Middlebury, damages for the “diminution in value of [the] benefit of his
bargained-for consideration,” and attorney fees either as damages for the covenant claim
or to penalize Middlebury’s asserted bad faith litigation conduct.

Other than disparagement—i.e., reputational harm—the only evident harm would
appear to be the removal of the Mead name itself. It is entirely unclear how the removal
of the name, at a point in time when the contract, if there was one, no longer required
Middlebury to maintain it, could possibly lead to an award of litigation costs or other
compensatory damages to “right the wrong.” Damages for diminution in value of the
benefit provided by the contract would appear to be a remedy for the breach of the
contract, not the covenant. And, Gov. Douglas’s claim for damages for “lost time and
opportunities” goes completely unexplained.

As to attorney fees, though there can be exceptional circumstances, they generally
are not awarded as part of a recovery for breach of the covenant of good faith and fair
dealing absent an exception to the American Rule. See Monahan v. GMAC Mortg. Corp.,
2005 VT 110, ¶ 82, 179 Vt. 167; see also Dahua Tech. USA, Inc. v. Feng Zhang, No. CV
18-11147-RWZ, 2020 WL 829918, at *1 (D. Mass. Feb. 19, 2020); In re New York Skyline,
Inc., 471 B.R. 69, 89, 56 Bankr. Ct. Dec. 138, 2012 WL 1658355 (Bankr. S.D.N.Y. 2012);
TE Prods. Pipeline Co., LLC v. Rockford Homes, Inc., No. 2:07-CV-00673, 2009 WL
10679677, at *4 (S.D. Ohio Oct. 19, 2009); Maestas v. Cardinal Health PTS, LLC, No. CV
05-242 JH/ACT, 2005 WL 8163865, at *3 n.1 (D.N.M. July 18, 2005).

One exception to the American Rule applies to bad faith litigation conduct, which
Gov. Douglas also relies on as a basis for an award of fees. As the Vermont Supreme
Court has explained, a “court may use its equitable powers to award attorney’s fees ‘in
exceptional cases based on the bad-faith conduct of litigants.’ ‘This power must be
exercised with cautious restraint, however—only in those exceptional cases where justice
demands an award of attorney’s fees, such as where a party is unjustly forced to endure a
second round of litigation.’” O’Rourke v. Lunde, 2014 VT 88, ¶ 33, 197 Vt. 360 (citation
omitted). It is unclear what Gov. Douglas classifies as bad faith litigation conduct in this
case as there is no indication of any whatsoever in the record. There is no viable path to
an award of attorney fees in this case.
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of Middlebury College
Apart from the failure to identify a viable remedy, the covenant claim lacks merit
in substance. If there was a contract in this case, the asserted bargain struck was that
Governor Mead would provide the funds used to construct the chapel in exchange for the
right to have the chapel named the Mead Memorial Chapel for an indeterminate length
of time. The court already has ruled that, if there was such a contract, Middlebury
satisfied the naming condition at some point well before 2021, when the name was
removed from the building. That is the law of the case.

To the extent that Gov. Douglas is claiming that removing the name in 2021 itself
breached the covenant, that claim is duplicative of the breach of contract claim, and thus
has no merit. See Beldock v. VWSD, LLC, 2023 VT 35, ¶ 53, 218 Vt. 144 (2023) (“To the
extent that Beldock’s claim for breach of the implied covenant is duplicative of his
breach-of-contract claim, it cannot be sustained as a matter of law. ‘Where a party
alleges both breach of contract and breach of the implied covenant of good faith and fair
dealing, dual causes of action are permitted only where the different actions are
premised on different conduct.’” (citation omitted)).

To the extent that he claims that the contract was breached with bad motivations,
bad motivations alone are insufficient to demonstrate a separate covenant claim. See id.
(“Although he adds that the negotiations were for a higher price, simply providing the
motivations for VWSD’s alleged breach [of contract] is insufficient to establish that the
two causes of action [breach of contract and the covenant] are premised on different
conduct.”); Ferrisburgh Realty Invs. v. Schumacher, 2010 VT 6, ¶ 26, 187 Vt. 309 (“FRI
identifies no conduct distinct from that supporting the breach of contract claim; it focuses
solely on Schumacher’s motivation for the breach [for purposes of the covenant claim].”).

More importantly, to have a viable covenant claim, Gov. Douglas first must
establish that Gov. Mead’s estate remained entitled in 2021 to some benefit from the
contract that Middlebury’s conduct in 2021 undermined. That he cannot do because Gov.
Mead (or his estate) had by then received all the benefit that he could have been entitled
to—naming rights for an indeterminate but by then expired duration—before the name
was removed. There was no benefit left to receive. To the extent that Middlebury
retained the Mead name on the chapel longer than the alleged contract required, it did so
gratuitously. Perceived disparagement at some later date could not have undermined
any benefit of the bargain. As such, it is clear that Gov. Douglas is using the covenant
claim argue bad faith purely in the abstract or to “interpose new obligations about which
the contract is silent.” There was no non-disparagement agreement. There was no
agreement to waive free speech rights.

Gov. Douglas also appears to be treating the fact that the chapel was conceived as
a “memorial” to double as an affirmative duty on Middlebury’s part to never disparage
the family name (or to always honor it, as he puts it). If that were the case, then
Middlebury would have breached the covenant by disparaging the Mead name even if the
name of the chapel had never been changed. It also would have breached the covenant
by disparaging the Mead name even if everyone agreed that Gov. Mead truly deserved it.
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This extrapolation has no basis in the record.

Regardless how one views removing the Mead name from the chapel or judgments
about historical figures based on contemporary standards, the restriction on free speech
at the heart of Gov. Douglas’s covenant claim should have been agreed to by the parties if
that in any way was the goal of the agreement. See SKI, Ltd. v. Mountainside Properties,
Inc., 2015 VT 33, ¶ 26, 198 Vt. 384 (“We will not rewrite the contract, nor graft conditions
onto an unambiguous contractual provision merely because the passage of time and the
course of development have led the parties to positions they had not anticipated.”); see
also Kantor v. Kantor, 379 P.3d 1080, 1090 (Idaho 2016) (“[C]ourts do not possess the
roving power to rewrite contracts in order to make them more equitable.” (citation
omitted)); Nationwide Emerging Managers, LLC v. Northpointe Holdings, LLC, 112 A.3d
878, 897 (Del. 2015) (“An interpreting court cannot use an implied covenant to re-write
the agreement between the parties, and ‘should be most chary about implying a
contractual protection when the contract could easily have been drafted to expressly
provide for it.’” (citations omitted)). There is no evidence of any such agreement in the
record.

As the court remarked earlier in the litigation, it remains highly likely that
neither Gov. Mead nor Middlebury’s representatives, leading up to the construction of
the chapel, ever harbored any expectation whatsoever that the day might come 100 years
later in which the College would decide to remove the Mead name from the chapel. No
doubt, at the June 1914 ceremony—“Breaking Ground for the Mead Memorial Chapel
and Presentation of the Corner Stone”— Gov. Mead’s 3-year-old grandson placed his
Bible and the family tree dating to the original settler Colonel James Mead into a box
inside the Cornerstone. There can be little doubt that, apart from merely the name of
the chapel, all involved closely identified the chapel with the Meads.

Nevertheless, the record contains no evidence that the parties ever agreed to any
perpetual naming condition, any sort of non-disparagement agreement, or any contract
at all that possibly could have remained in force in 2021 such that its implied covenant of
good faith and fair dealing could then have been breached. Middlebury is entitled to
summary judgment on this claim.

Promissory estoppel

Gov. Douglas’s promissory and equitable estoppel claims are offered as
alternatives to his contract and covenant claims. The promissory estoppel claim appears
to be that—if there is no contract—there at least was a promise to keep the name on the
building forever or as long as the building exists, and Gov. Mead relied on that promise to
his detriment. “Establishment of promissory estoppel requires (1) a promise on which
the promisor reasonably expects the promisee to take action or forbearance of a
substantial character; (2) the promise induced a definite and substantial action or
forbearance; and (3) injustice can be avoided only through the enforcement of the
promise.” Green Mountain Inv. Corp. v. Flaim, 174 Vt. 495, 497 (2002); see also Dillon v.
Champion Jogbra, Inc., 175 Vt. 1, 10 (2002) (noting that the claim requires “a promise of
Order Page 11 of 13
23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate of John Abner Mead v. The President and Fellows
of Middlebury College
a specific and definite nature.”); accord State Bank of Standish v. Curry, 500 N.W.2d 104,
108 (Mich. 1993) (“[T]he sine qua non of the theory of promissory estoppel is that the
promise be clear and definite.”). “The doctrine of promissory estoppel applies ‘where
there is no contract, where the promise is gratuitous, and there is unbargained-for
reliance.’” Hayes v. Town of Manchester Water & Sewer Boards, 2014 VT 126, ¶ 37, 198
Vt. 92 (2014).

The court already has ruled that if there was a promise binding Middlebury, it was
for an unspecified duration, not forever or as long as the building exists, and that period
expired prior to 2021. Gov. Douglas offers no cogent reason why reframing that claim
under the rubric of promissory estoppel could lead to any different conclusion. The lack
of any evidence of such a promise is determinative. This claim lacks merit. It is
unnecessary to address the other elements.

Equitable estoppel

The court is unable to distinguish Gov. Douglas’s equitable estoppel claim from his
promissory estoppel claim; it appears to be entirely duplicative. Historically, the doctrine
of promissory estoppel emerged out of the older doctrine of equitable estoppel.
Promissory estoppel is equitable estoppel premised on a promise rather than on a past or
present representation. 4 Williston on Contracts § 8:4 (4th ed.). One court has
distinguished the doctrines as follows:

Equitable estoppel is essentially a doctrine of waiver. . . . Promissory
estoppel, in contrast with equitable estoppel, does not establish waiver but,
rather, substitutes for consideration in a case where there are no mutual
promises, enabling the promisee to assert a separate claim against the
promisor, independent of any other claim he may have against the promisor
(e. g., subrogation or misrepresentation) or another person (e. g., negligence)
and, therefore, makes applicable the statute of limitations governing the
time for bringing an action for breach of contract.

Huhtala v. Travelers Ins. Co., 257 N.W.2d 640, 647 (Mich. 1977) (footnote omitted).
Another court explains:

Equitable estoppel involves, generally speaking, an affirmative
misrepresentation of a present fact or state of facts and detrimental reliance
by another thereon.

Promissory estoppel, on the other hand, generally does not involve a
misrepresentation but a promise by one party upon which another relies to
his detriment and which the promisor should reasonably have foreseen
would cause the promisee to so rely. . . . . It operates not in regard to a past
or presently existing state of facts, but rather to a situation which one party
promises will be true in the future.

Order Page 12 of 13
23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate of John Abner Mead v. The President and Fellows
of Middlebury College
Tiffany Inc. v. W. M. K. Transit Mix, Inc., 493 P.2d 1220, 1224 (Ariz. Ct. App. 1972)
(citations omitted). By asserting an equitable estoppel claim premised on a promise,
Gov. Douglas has simply re-asserted promissory estoppel. Gov. Douglas’s promissory
estoppel claim, as set forth above, lacks merit.

Middlebury also argues that equitable estoppel, as a form of waiver, is not a legal
claim; it is properly asserted defensively only. Gov. Douglas concedes that the doctrine
normally is defensive in nature, but he cites one Vermont case in support of his
argument that it can be asserted affirmatively as a claim: In re Langlois/Novicki
Variance Denial, 2017 VT 76, 205 Vt. 340. In that case, a town zoning administrator told
a landowner that specific development proposed by the landowner did not need a permit,
the landowner relied on that representation, and the town later brought an enforcement
action against the landowner for not having a permit in response to which the landowner
asserted equitable estoppel based on the zoning administrator’s representation that no
permit was needed for his new pergola. That is the traditional defensive assertion of
equitable estoppel, not an assertion of equitable estoppel itself as a legal claim for relief.

Order

For the foregoing reasons, Gov. Douglas’s Rule 56(d) motion is denied, and
Middlebury’s motion for summary judgment is granted.

SO ORDERED this 9th day of April, 2025,

_____________________
Robert A. Mello
Superior Judge

Order Page 13 of 13
23-CV-01214 Hon. James H. Douglas, Special Administrator of the Estate of John Abner Mead v. The President and Fellows
of Middlebury College