Hawk Resort International, LLC v. Salt Ash Owners Association, Inc.

VERMONT SUPREME COURT Case No. 25-AP-390
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
AUGUST TERM, 2026
Hawk Resort International, LLC v. Salt Ash
Owners Association, Inc.*
}
}
APPEALED FROM:
} Superior Court, Windsor Unit, Civil Division
} CASE NO. 23-CV-01767
Trial Judge: H. Dickson Corbett
In the above-entitled cause, the Clerk will enter:
Defendant Salt Ash Owners Association, Inc. (SAOA) appeals from the trial court’s order
in this contract dispute. The parties are involved in a development in Plymouth, Vermont. They
dispute whether plaintiff Hawk Resort International (HRI) owes assessments to SAOA for HRI’s
undeveloped lots. The trial court determined that HRI did not presently owe any assessments.
We affirm.
I. Procedural History
A. Overview
We begin with an overview of the development project as found by the trial court. In the
late 1970s, the Salt Ash Mountain Corporation began developing land on both sides of Vermont
Route 100 in Plymouth, Vermont. It planned to establish a common-interest community in three
separate development phases and develop various infrastructure systems, including roads, a
water system, a wastewater system, and various common resources including a resort hotel,
restaurant, and various amenities. Salt Ash Mountain Corporation began developing and selling
lots. Individual owners formed the Salt Ash Owners’ Association.
The corporation experienced financial difficulties, and a small group of owners
eventually acquired the development rights from the corporation. This owners’ group, which
became HRI, created various business entities (referred to as the Hawk entities) to operate the
resort amenities and develop and sell the remaining lots. These entities operated the resort and
sold most of the developed-but-unsold lots but did little to develop the rest of the community.
The further build-out of the resort essentially stalled.
The resort’s finances worsened due to various events. Between 2017 and 2020, SAOA
became dissatisfied with the business entities that were managing the resort and acting as

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developers. Litigation ensued, and the parties eventually reached a comprehensive settlement
agreement in December 2019, which closed in December 2020. Pursuant to the agreement,
SAOA assumed responsibility for collecting assessments and providing services within the
community, while HRI was to find a new resort operator to manage the amenities and a new
developer to develop and sell the remaining lots. The preparation and recording of covenants in
the land records (the “HRI Covenants”) was one of the “matters subsequent to closing” that
occurred as part of the implementation of the settlement agreement.
In 2021, SAOA sought to collect assessments from HRI for its undeveloped lots. HRI
then filed this suit, seeking a declaration that it was not currently required to pay such
assessments. SAOA filed a counterclaim, seeking an award for assessments on HRI’s
undeveloped lots from January 2021 forward.
B. Partial Summary Judgment
The parties filed cross-motions for summary judgment. In a July 2024 order, the court
granted HRI’s motion in part and denied SAOA’s motion. The court concluded as a matter of
law that HRI’s undeveloped lots were not voting members of SAOA or subject to assessments
unless: (1) the lot had frontage on and reasonable ability to connect a driveway to a common
roadway, and (2) a reasonable ability to connect a building sewer to a resort sewer main.
In reaching this conclusion, the court cited the following undisputed facts. In the
settlement agreement referenced above, HRI transferred to SAOA its interest in certain common
lands and resort infrastructure, including the resort sewer and water systems. HRI retained
certain development rights, including with respect to its “undeveloped lots,” which were
described in the settlement agreement as previously created lots “that ha[d] not been developed
nor had any building or structures constructed or erected thereon.”
HRI and third parties owned undeveloped lots. Pursuant to the agreement, third-party
owners of undeveloped lots and third-party purchasers of undeveloped lots would become
members of the SAOA. As to HRI’s undeveloped lots, however, “no membership” in the SAOA
would attach and “no assessments” would be due “until such time as a common roadway is
extended so that it provides reasonable driveway access to the lot and until such time as a resort
sewer main has been extended so that it provides a reasonable opportunity for connection of such
lot to the resort sewer main through the common areas.” The agreement further provided that
“[a]n undeveloped lot that has frontage on and reasonable ability to connect a driveway to a
common roadway and a reasonable ability to connect a building sewer to a resort sewer main
shall be assessed by the SAOA for common area charges, road maintenance charges, and sewer
charges to the same extent as any other undeveloped lot, and shall be entitled to vote as a
member of the SAOA.” In other words, the court explained, the settlement agreement
unambiguously provided that undeveloped lots owned by third parties would be voting members
of SAOA and pay assessments, but undeveloped lots still owned by HRI would not be voting
members of SAOA or pay assessments unless and until the lot had (1) frontage on and
reasonable ability to connect a driveway to a common roadway, and (2) a reasonable ability to
connect a building sewer to a resort sewer main.
The court found that a very similar set of agreements were then documented in the HRI
Covenants, which were recorded in the land records. In these covenants, the parties agreed that
third-party purchasers of lots from HRI would become members of the SAOA, but undeveloped
lots still owned by HRI would not be assessed for common area charges, road maintenance
charges, or common sewer charges, and could not vote as a member of the SAOA “until such

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time as a common roadway is extended so that it provides reasonable driveway access to the lot
and until such time as a resort sewer main has been extended so that it provides a reasonable
opportunity for connection of such lot to the resort sewer main through the common areas.” The
parties further agreed that HRI lots would be assessed for common area charges, road
maintenance charges, sewer charges, and “such other SAOA assessments as may, from time to
time, be made against all [other lot owners]” if the lot had “frontage on and reasonable ability to
connect a driveway to a common roadway and a reasonable ability to connect a builder sewer to
a resort sewer main.” The court found this language consistent with the settlement agreement.
The parties conceded at oral argument that HRI’s undeveloped lots were not voting
members of SAOA or subject to assessments unless the lots had (1) frontage on and reasonable
ability to connect a driveway to a common roadway, and (2) a reasonable ability to connect a
building sewer to a resort sewer main. Even without the parties’ concession, the court found that
this was the parties’ clear intent as expressed in the plain and unambiguous language of the
agreements.
The parties fundamentally disagreed about how the settlement documents should be
interpreted to decide which of HRI’s undeveloped lots, if any, met the requirements above. They
agreed that HRI had not undertaken any development work since the date of the settlement and
the HRI Covenants. The court concluded as a matter of law that the settlement documents were
ambiguous as to whether any of the undeveloped lots currently met the required conditions, and a
trial was required to resolve this disputed question of fact or mixed question of fact and law.
The court explained that the settlement agreement referred to “Attachment C” as a list of
“[t]he undeveloped lots that do not currently have frontage on or the ability to connect a
driveway to a common roadway or the ability to connect to a resort sewer main.” The
attachment contained a list of lots owned by HRI, and each lot was associated with three
columns of information for “common road assessment,” “common land assessment, and
“common sewer assessment.” The meaning of these columns was not obvious from the face of
the document.
In the HRI Covenants, the parties referred to “Schedule A-1” as listing the HRI lots “that
do not currently have frontage on or the ability to connect a driveway to a common roadway or
the ability to connect to a resort sewer main.” Schedule A-1 contained a different list of lots
owned by HRI than Attachment C, and each lot was associated with different information. This
list contained two columns of information for “common road access” and “common sewer
access.” Again, the court did not find it obvious from the face of the document what these
columns meant.
SAOA argued that the lists represented the parties’ agreement as to which of the
undeveloped lots currently met the criteria for assessment as having reasonable access to
common roads and common sewers. The court found this to be one straightforward reading of
Schedule A-1, but it did not explain how Attachment C should be interpreted, and it did not
explain some of the inconsistencies between the two documents, including the different
information and lots identified in each list. While there might have been an explanation for the
differences, the court concluded that full consideration of these explanations required rules of
construction and extrinsic evidence regarding the subject matter and purposes of the agreements,
the parties’ situations, and the parties’ subsequent conduct in performing the contracts.
HRI argued that the lists identified undeveloped lots that did not currently have
reasonable road or sewer access, and that the additional information on the lists did not relate to

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the assessment conditions but instead tracked what assessments a third-party purchaser would
have to pay when they purchased the lots. The court found that this too was another possible
reading of the lists, but it also failed to explain some of the inconsistencies, and a full
consideration of HRI’s explanation required extrinsic evidence. At minimum, the court
considered the documents ambiguous, and a trial was needed to ascertain the parties’ intent.
SAOA moved for reconsideration. It argued that the December 2019 settlement
agreement was not the final expression of the parties’ agreement but was instead subject to
various conditions that led to the filing of an addendum in March 2020. It maintained that
language in the addendum supported its position that HRI would owe some assessments on
undeveloped lots immediately. SAOA also asserted that the discrepancies between Attachment
C to the Settlement Agreement and Schedule A-1 to the HRI Covenants did not create ambiguity.
According to SAOA, these lists merely reflected the parties’ refinement over time of which HRI
lots would be subject to which SAOA assessments. SAOA argued that the settlement agreement
and the HRI Covenants were not two drafts of the same instrument. They were instead
successive agreements, and in the event of any discrepancies, the latter document controlled.
SAOA maintained that the instruments on their faces reflected that Schedule A-1 superseded and
replaced Attachment C. SAOA further argued that HRI’s interpretation was unreasonable.
The court denied the motion. It reiterated the conclusions from its summary-judgment
decision. It emphasized that there were several possible reasonable interpretations of Schedule
A-1 and SAOA now advanced another interpretation. As before, the court concluded that a
merits hearing was needed to resolve conflicting interpretations of the schedule. It thus denied
the motion for reconsideration.
B. Merits Decision
The court then held a hearing over three days and issued a merits decision in October
2025. As indicated above, the court found that the parties’ settlement allowed SAOA to assume
responsibility for collecting assessments and providing services within the community, while
HRI found a new resort operator to manage the amenities and a new developer to develop and
sell the remaining lots. The settlement agreement accomplished these goals by transferring the
resort infrastructure, common land, resort sewer system, and resort water system to SAOA, and
reserving to HRI the ownership of the resort amenities within the “Valley Floor” area of the
community and the right to develop the “undeveloped lots” owned by HRI “that have not been
developed nor had any buildings or structures constructed or erected thereon.” The recorded
covenants further provided the means by which HRI (or a successor developer) could develop
the “undeveloped lots.” The developer would need to obtain permission from SAOA to connect
the lots to the resort sewer system and water system; extend the common roadways as needed to
provide access to the undeveloped lots; and extend utility services to serve the undeveloped lots.
To the extent the developer built out any of these infrastructure extensions, the developer needed
to transfer ownership of the infrastructure extensions to SAOA.
The recorded covenants also discussed the relationship between the undeveloped lots and
SAOA. Any third-party purchaser of a lot from HRI or a successor developer would become a
member of SAOA with the right to vote at association meetings and the obligation to pay
assessments. In the meantime, HRI or a successive developer would not be entitled to vote at
association meetings or obligated to pay assessments on the undeveloped lots “until such time”
as a common roadway was extended to provide reasonable driveway access to the lot and “until

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such time” as a resort sewer main was extended to provide “a reasonable opportunity” for
connecting the lot to the resort sewer main.
The court explained that SAOA initially sent assessments to HRI on more than sixty of
its undeveloped lots. In connection with the merits hearing, SAOA hired an engineer and
conceded that perhaps only seventeen of the undeveloped lots had both reasonable driveway
access and a reasonable ability to connect to the resort sewer main. HRI maintained that the
parties’ contractual intent was that no undeveloped lot would meet the criteria for assessments
“until such time” as further development was undertaken. The court agreed with HRI.
The court explained that no development had occurred since the time of the settlement
agreement and the covenants and, thus, whatever understanding existed at that time remained the
controlling interpretation. The covenant language strongly indicated that, at the time of the
agreement, the parties understood that HRI would not pay assessments of the undeveloped lots or
vote at association meetings “until such time” as common roadways were extended to the lot and
sewer mains were extended to provide a reasonable opportunity to connect the lot to the resort
wastewater system. This meant, in the court’s view, that the obligation to pay assessments and
the eligibility to vote did not exist at the time of the agreements and would not exist “until such
time” as further development occurred. A similar understanding was reflected in the settlement
agreement, which provided with respect to undeveloped lots that “no membership in SAOA yet
attaches, and no assessments are yet due.”
SAOA disputed the significance of the statement above from the settlement agreement,
noting that the covenants did not include a similar statement about membership not yet attaching
and assessments not yet being due. The court was unpersuaded. It explained that no
development occurred between the time of the covenants and the settlement agreement and thus
the documents did not reflect any change of circumstances that occurred. The court concluded
that the statement did not need to be repeated in the covenants to be effective. The settlement
agreement and the covenants were not identical, and they performed different functions. The
preparation and recording of the covenants constituted merely one of the “matters subsequent to
closing” that occurred as part of the implementation of the settlement agreement. The court
considered it appropriate to view the statement in the settlement agreement as indicative of the
parties’ intent.
The court also found it significant that SAOA had never extended to HRI the right to vote
at association meetings with respect to any of the undeveloped lots. It considered this a strong
indicator that the parties understood the agreement in a way consistent with that outlined above.
The court found that the obligation to pay and the right to vote were inextricably linked and
requiring HRI to pay without being able to vote would be inconsistent with the parties’ intent.
Additionally, the parties did not distinguish between “developed but unsold” lots and
“entirely undeveloped” lots in their agreement. Both the settlement agreement and the covenants
described the lots as simply “undeveloped.” Both documents thus lent support for the conclusion
that the parties did not intend HRI to pay assessments or vote with respect to these lots “until
such time” as further development occurred.
The court further found that Attachment C to the settlement agreement contained a list of
lots owned by HRI. The notations on Attachment C were not relevant to the issues in this case.
The person who prepared the attachment testified that he was compiling data for different
purposes related to the eventual sale of the lots. The court therefore did not consider this
information useful in determining the question before it. The court further found that SAOA did

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not specifically negotiate with HRI about Attachment C or intend for it to have a different
meaning. The question of whether HRI would pay assessments on undeveloped lots was one of
many moving pieces in the settlement negotiations. The court credited the testimony of various
witnesses that the question was not specifically discussed at the time that Attachment C was
prepared. The primary purpose of this attachment was to identify the lots that HRI owned.
The covenants likewise contained a list of the lots HRI owned, labeled Schedule A-1.
This list consisted of a row for each lot (which differed somewhat from the list in Attachment C)
and a column for “common road access” and “common sewer access.” The individuals who
made the list did not testify that they specifically understood or agreed that they were preparing a
list of what “undeveloped lots” would be assessed and eligible for voting rights. While one
witness thought the list could be used that way, he did not credibly testify that he and the other
preparer shared an intention in that respect.
The court found that the parties’ overall situation at the time of the settlement agreement
and the covenants lent further support to the interpretation that the parties did not intend for HRI
to pay assessments “until such time” as further development occurred. There was no historical
precedent for HRI paying assessments, and one would expect any present-tense obligation to be
spelled out in detail rather than left to implication. Additionally, the Hawk entities were out of
cash at the time of the settlement and had no resources available to undertake new development
or pay assessments. It would not make sense to agree to a comprehensive settlement that created
a new obligation for them to pay significant sums while they tried to sell the development rights
to a new developer. Finally, the court explained, one goal of the settlement agreement was
facilitating the sale of the resort amenities and the undeveloped lots to someone who would
assume the operation of the amenities and facilitate the buildout of the undeveloped lots. This
would in turn increase revenues for SAOA and increase enjoyment of the resort by individual
owners. It would not make sense for the parties to have created a new liability that would make
the sale more difficult or otherwise burden a successor developer. The court also credited
testimony that the parties did not expressly discuss during their negotiations whether HRI would
be responsible for paying assessments immediately on some or all of the undeveloped lots.
The court acknowledged an engineering report submitted by SAOA, which indicated that
there were seventeen undeveloped lots that currently had reasonable driveway access and a
reasonable ability to connect to the resort sewer main, at least from an engineering perspective.
But the court concluded that the parties did not intend for the questions of assessments and
voting to be controlled by factual engineering determinations. The conditions stated in the
agreement related to ways of measuring further development progress and not differentiating
between different existing undeveloped lots. The court ultimately granted declaratory relief to
HRI, holding that HRI’s undeveloped lots were neither voting members of the owners’
association nor subject to assessments “until such time” as (1) the lot has frontage on and
reasonable ability to connect a driveway to a common roadway, and (2) a reasonable ability to
connect a building sewer to a resort sewer main. None of HRI’s undeveloped lots “yet” met
these conditions. The court issued a final judgment order to this effect, and this appeal followed.
II. Arguments on Appeal
SAOA first argues that the court erred in granting partial summary judgment to HRI and
in finding an ambiguity in the parties’ agreement. It maintains that this case involves successive
agreements covering the same subject matter, and to the extent the two agreements are
inconsistent, the earlier version is merged into the later agreement, with the latter controlling. It

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cites Prue v. Royer, 2013 VT 12, ¶ 37, 193 Vt. 267, and other cases in support of its position.
SAOA contends that the court “failed to recognize” that certain language found in the settlement
agreement was not carried forward into the covenants and contends that such language is
inconsistent with the covenants.1 SAOA further argues that the court erred in finding ambiguity
based on inconsistencies between the lists of HRI lots attached to the settlement agreement and
later covenants. According to SAOA, the court “failed to recognize that any inconsistency
resulted in the later listing of HRI lots superseding the earlier one.”
We review de novo the question of whether ambiguity exists, John A. Russell Corp. v.
Bohlig, 170 Vt. 12, 16 (1999), and we conclude that there was no error. We apply well-
established rules in reaching this conclusion. As we have explained:
1 In support of this argument, SAOA cites § 3.1.2 of the settlement agreement, entitled
“Undeveloped Lots,” which provides:
“Undeveloped Lots” are Hawk Properties that have not been developed nor had
any buildings or structures constructed or erected thereon. Undeveloped Lots are
currently owned by HRI and Hawk Property Owners other than HRI (“Third Party
Owners”) that purchased Undeveloped Lots over the years but have not yet
developed them. The Lot numbers of those Undeveloped Lots that are currently
owned by HRI and by Third Party Owners are listed on Attachment C to this
Agreement. With respect to Undeveloped Lots owned by HRI, no membership in
SAOA yet attaches, and no assessments are yet due.
SAOA contends that this language is inconsistent with § 4.11.2 of the covenants. Section 4.11 is
entitled “Assessment of HRI Lots” and provides:
4.11.1. The HRI Lots that do not currently have frontage on or the ability to
connect a driveway to a Common Roadway or the ability to connect to a resort
sewer main are listed in Schedule A-1 of the deed of the Common Lands from
HRI to the SAOA dated of even date. Such HRI Lots shall not be assessed by the
SAOA for Common Area Charges, Road Maintenance Charges, or Common
Sewer Charges, and shall not be entitled to vote as a member of the SAOA until
such time as a Common Roadway is extended so that it provides reasonable
driveway access to the Lot and until such time as a resort sewer main has been
extended so that it provides a reasonable opportunity for connection of such Lot
to the resort sewer main through the Common Areas.
4.11.2. An HRI Lot that has frontage on and reasonable ability to connect a
driveway to a common roadway and a reasonable ability to connect a building
sewer to a resort sewer main shall be assessed by the SAOA for Common Area
Charges, Road Maintenance Charges and Sewer Charges, and such other SAOA
assessments as may, from time to time, be made against all Hawk Lot Owners to
the same extent as any other undeveloped Salt Ash Lot, and shall be entitled to
vote as a member of the SAOA. The foregoing notwithstanding, no Sewer
Charges shall be assessed or due until such time as the Undeveloped HRI Lot is
improved with a dwelling that is connected to the Resort Sewer System.
It is not apparent that these provisions are inconsistent, as SAOA argues.

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In construing a contract, the court seeks to implement the parties’
intent. In doing so, we must consider the contract as a whole and
give effect to every part contained therein to arrive at a consistent,
harmonious meaning, if possible. When the language of the
contract is clear on its face, we will assume that the intent of the
parties is embedded in its terms. An ambiguity exists, however,
when a writing in and of itself supports a different interpretation
from that which appears when it is read in light of the surrounding
circumstances, and both interpretations are reasonable. If an
ambiguity exists, the question of what the parties intended
becomes a question of fact for the factfinder to resolve.
Dep’t of Corr. v. Matrix Health Sys., P.C., 2008 VT 32, ¶ 12, 183 Vt. 348 (quotations, citations,
and alterations omitted). The court may consider limited extrinsic evidence in determining if an
ambiguity exists, but “those circumstances may not be used to vary the terms of an unambiguous
writing.” O’Brien Bros.’ P’ship, LLP v. Plociennik, 2007 VT 105, ¶ 9, 182 Vt. 409 (quotations
omitted).
SAOA cites Prue, where we stated:
Where two contracts are made at different times, but where the
later is not intended to entirely supersede the first, but only modify
it in certain particulars, the two are to be construed as parts of one
contract, the later superseding the earlier one wherever it is
inconsistent therewith. Courts around the country accept written
modifications even if they relate only to certain terms, as long as it
is clear which terms of the contract are being modified.
2013 VT 12, ¶ 37 (quotations, citations, and alterations omitted).
The settlement agreement and the HRI Covenants are largely consistent. The “lists” of
HRI lots are different, as the trial court recognized. Looking solely at the HRI Covenants, there
is an ambiguity as to which HRI lots, if any, meet the agreed-upon criteria. In the HRI
Covenants, the parties referenced “Schedule A-1” as listing the HRI lots “that do not currently
have frontage on or the ability to connect a driveway to a common roadway or the ability to
connect to a resort sewer main.” Schedule A-1 does not answer this question on its face. It
contains a list of lots with two columns for “common road access” and “common sewer access”
with various notations on the document. As the trial court found, it is not obvious from the face
of the document what these columns mean, and the document does not plainly establish what
HRI lots, if any, are subject to assessment. Reasonable minds could disagree on the meaning of
Schedule A-1, and the court acted appropriately in holding a trial to ascertain the parties’ intent
as a question of fact.
The court did not revisit the threshold question of ambiguity in its merits decision. The
court resolved the question of the parties’ intent as a matter of fact, and our review of its decision
is deferential. See Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82, ¶ 17, 211 Vt.
204 (stating that court’s findings will stand unless appellant shows that “no credible evidence”
supports them, and its “conclusions will be affirmed where they are reasonably drawn from the
evidence presented” (quotations omitted)). The court explained why it concluded that the parties
did not intend to distinguish between different types of “undeveloped lots,” an interpretation that

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SAOA urges us to reject on appeal. While SAOA disagrees with the trial court’s conclusions, it
fails to show that the court’s findings are clearly erroneous or that its findings do not support its
conclusions. It also fails to show that the court relied on inappropriate information in reaching
its merits decision, including whether HRI had been afforded voting rights. See Bissonnette v.
Wylie, 166 Vt. 364, 371-72 (1997) (explaining that parties’ understanding of agreement as
reflected in their actions is relevant to interpreting ambiguous agreement). We have considered
all the arguments in SAOA’s brief and do not deem them persuasive.
Because we affirm the trial court’s decision that no HRI lots are yet subject to
assessment, we reject SAOA’s remaining arguments that certain HRI lots are unambiguously
subject to assessments and that, contrary to the trial court’s finding, this Court should hold that
the list of lots identified by SAOA’s engineer are subject to assessment.
Affirmed.
BY THE COURT:
Paul L. Reiber, Chief Justice
Harold E. Eaton, Jr., Associate Justice
Nancy J. Waples, Associate Justice