Kelly v. Lord

Kelly v. Lord (99-496); 173 Vt. 21; 783 A.2d 974

[Filed 21-Sep-2001]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 99-496


Daniel J. and Jodi C. Kelly	                 Supreme Court

                                                 On Appeal from
     v.	                                         Orange Superior Court


Edwin P. Lord, Helen Lord, IngaBritt 	         May Term, 2001
Lillbask, Morris Teig, Robert Ziccardi, 
Carl Roof and Department of Corrections


Shireen Avis Fisher, J.

William J. Donahue, White River Junction, for Plaintiffs-Appellees.

Christopher Dye, Bradford, for Defendant-Appellant, Edwin P. Lord.


PRESENT: Dooley, Morse and Johnson, JJ., and Katz, Supr. J. and 
         Gibson, J. (Ret.), Specially Assigned


       JOHNSON, J.   Seller Edwin P. Lord appeals from several superior court
  orders, which   address the claim of buyers Daniel and Jodi Kelly to
  enforce a contract to purchase Stonecliff Farm  from seller.  In various
  orders, the court ruled that (1) the parties' original installment contract
  was  assigned by seller to a trust and subsequently modified by the
  trustees; (2) under the terms of the  modified contract, seller must
  deliver the deed to the farm to buyers' attorney pending negotiations  with
  the Agency of Natural Resources (ANR) concerning the solid waste that
  seller had illegally  dumped on the property; and (3) the modified contract
  cancelled the installments buyers owed under 

 

  the original contract.  The court entered partial final judgments under
  V.R.C.P. 54(b) on these rulings  and subsequently granted buyers' motion to
  enforce the order requiring seller to deliver the deed to  buyers'
  attorney.  Seller appeals from all of these orders.  We affirm.

       Following a trial by court on buyers' claim for specific performance
  of the contract, the court  made twenty-five pages of findings, which we
  summarize here.  In 1983, seller Edwin P. Lord  acquired title to
  Stonecliff Farm in Bradford, Vermont.  On April 26, 1990, the State of
  Vermont  filed a criminal action, charging seller with operating a solid
  waste facility on the property without a  certificate in violation of 10
  V.S.A. § 6605(a), claiming that investigators had found more than sixty 
  tractor-trailer truckloads of debris in a ravine about 200 yards behind the
  farmhouse.  In the spring of  1991, buyers Daniel and Jodi Kelly drove by
  the property, liked it and stopped to talk to seller about  buying it. 
  Buyers inspected the property, observed the debris, and learned from town
  officials that  the debris had been illegally dumped.  Although buyers knew
  that a criminal action was pending,  they took possession of the farm and
  then, a few days later, on June 28, 1991, entered into an  installment land
  contract to purchase it.  

       The installment contract provided in relevant part as follows:

         (1) Buyers agreed to buy Stonecliff Farm for $300,000, of 
    which $20,000 was paid on or before June 28, 1991, and the 
    remaining $280,000 was to be paid in monthly installments of 
    $3,111.00 - $1,555.50 of each payment being applied to principal
    and  the same amount applied to interest - for a term of fifteen
    years.  

         (2) Seller agreed to pay two notes secured by mortgages on
    the  property.  In the event that buyers paid any amount on these
    notes,  they were entitled to deduct an equal amount from their
    monthly  installments due to seller.

         (3) Seller agreed to pay all expenses for the proper removal 
    and disposal of the debris as required by law.  In the event that
    buyers 


 

    paid any of these expenses, they were entitled to deduct an equal 
    amount from their monthly installments to seller.

         (4) Buyers agreed to pay all real estate taxes starting in
    1991.

         (5) Upon receiving payment of the entire principal and any 
    accrued interest, seller agreed to execute a warranty deed
    conveying  the property to buyers free of any liens.

       On August 7, 1991, a jury convicted seller on four counts of operating
  an illegal solid waste  facility.  Later that month, seller was sentenced
  to zero-to-six months on each count, consecutive, for  a total maximum of
  twenty-four months incarceration and a $100,000 fine.  The court set an
  appeal  bond in the amount of $100,000.  Seller's mother, Helen Lord, paid
  $70,000 for the bail, seller paid  the remaining $30,000, and seller was
  released.  Seller filed a pro se notice of appeal.

       On October 21, 1991, seller created the Edwin P. Lord Irrevocable
  Trust, appointed Helen  Lord, his mother, and IngaBritt Lillbask as
  trustees, and assigned "all of his interest, right and title in  and to
  said Installment Land Contract to Helen Lord and IngaBritt Lillbask,
  Trustees of the Edwin P.  Lord Irrevocable trust u/a/t dated October 21,
  1991."  Seller remained the record owner of the farm  but buyers were given
  to understand that seller had deeded the farm to the trust.  In late 1991,
  seller  hired attorney Peter Hall to represent him in his criminal case on
  appeal.  Attorney Hall also  incorrectly believed that seller had deeded
  the farm to the trust and made this erroneous  representation to the
  assistant attorney general in the criminal case, the attorney for ANR,
  attorney  Donahue representing buyers, and Judge Cashman.  In January 1992,
  attorney Hall began to  represent Helen Lord and IngaBritt Lillbask as
  trustees of the trust also.

       In early January 1992, seller suffered a traumatic brain injury at the
  home of IngaBritt  Lillbask in Connecticut.  On February 17, 1992, attorney
  Hall entered his appearance as counsel for 

 

  seller in his criminal appeal and requested a stay, alleging that seller
  had hired him to appeal the  conviction but had since suffered a traumatic
  brain injury and therefore could not consult with him.   This Court stayed
  the criminal appeal until April 20, 1992, and upon further motion, until
  July 6,  1992.  On March 5, 1992, the Connecticut probate court appointed
  Camilla Lillbask as conservator  of seller's estate and person. 

       In the spring of 1992, buyers sought a bank loan to pay off the
  installment contract, but the  bank wanted assurance from ANR that no
  clean-up of the debris would be required.  At this point,  buyers contacted
  ANR, learned that clean-up would be required, and became concerned that the
  cost  of removing the debris would exceed what they owed in principal. On
  August 20, 1993, ANR sent  buyers and attorney Hall a draft administrative
  order for the clean-up, which found buyers and seller  guilty of running a
  solid waste landfill and ordered buyers and seller to provide an engineer's
  report  evaluating the impact of the disposal site and the cost of debris
  removal or capping.  Attorney Hall  responded to ANR, maintaining that
  seller had brain damage and could not make decisions on his  own but that
  Hall was authorized to represent seller in the administrative proceedings
  and that a  court-appointed conservator would act for seller on any
  agreements.  On October 28, 1993, the  Connecticut probate court accepted
  the resignation of Camilla Lillbask as seller's conservator and  appointed
  Morris Teig as successor.  Attorney Hall wrote this Court indicating that
  he was  attempting to work out a global resolution of the criminal case and
  the debris removal and that Teig  had been appointed seller's new
  conservator.

       On November 24, 1993, attorney Donahue sent a letter to attorney Hall
  confirming their  telephone conversation of that day.  The letter stated
  that he and Hall were working toward an  agreement wherein buyers would
  take title to the property and assume the mortgages and remediation 

 

  costs, provided that seller's $30,000 bail money could be contributed. 
  Donahue told Hall that buyers  would make no further payments under the
  installment contract but were willing to make the  mortgage payments
  directly to the bank.  On December 10, 1993, Hall wrote Donahue, indicating 
  that he thought the State would agree that the $30,000 in bail money could
  be used for the clean-up,  that Teig agreed with the November 24 proposal,
  that buyers would have to give a third mortgage to  seller/the trustees to
  secure buyers' obligation to complete the clean-up, and that this mortgage
  would  not be necessary if ANR relieved seller of clean-up
  responsibilities.  Finally, Hall agreed that buyers  would receive a deed
  to the property from the trust when an agreement was reached with ANR. 

       On December 17, 1993, the State and Hall stipulated to dismissal of
  seller's criminal appeal,  and subsequently, this Court dismissed the
  appeal.  On February 4, 1994, Hall moved before the  district court for
  reduction of the sentence, alleging that seller was not able to take
  responsibility for  himself and that Teig had been appointed his
  conservator.  Hall indicated that seller was negotiating  with ANR to clean
  up the property contingent on the court resentencing seller. 

       On March 14, 1994, the district court granted the motion for reduction
  of sentence, imposing  a sentence as follows: (a) zero-to-six months on
  each of the four counts of operating an illegal solid  waste facility, to
  run concurrently, all suspended upon conditions of probation; (b) all fines
  reduced  to zero; and (c) probation conditions in the attached probation
  order, plus the additional conditions,  summarized as follows:

    (1)	Defendant shall transfer $30,000 in bail funds to William 
    Donahue as trustee to be disbursed to pay for costs of the clean-
    up of Stonecliff Farm, "to be accomplished under an agreement 
    negotiated 


 

    with the Agency of Natural Resources, Daniel and Jodi Kelly,      
    present occupants of the Farm, defendant and the "Helen Lord     
    Trust." (FN1)  

    (2) To effect the clean-up of the farm under the ANR agreement,        
    defendant shall release to the Kellys all interests in the farm
    held by defendant or the Helen Lord Trust, subject only to the
    two bank mortgages and any security given by the Kellys
    for their agreement to clean up the property.

    (3) Upon transfer of the $30,000 to Donahue and conveyance of all     
    interests in the farm to the Kellys, the court will discharge            
    defendant from probation.

  The court issued a probation order under which (1) condition 10 required
  restitution of $30,000 as  provided in the sentence-reduction order, and
  (2) condition 14 required seller "to transfer any  remaining legal or
  equitable right in subject real estate to Daniel and Jodi Kelly provided
  said  grantee clean up property in accordance with agreement with State of
  Vermont."  Attorney Hall sent  the probation order to Helen Lord, who
  returned it bearing both her signature and a purported  signature of
  seller.  Teig and probation officer Robert Ziccaradi also signed the order.

       On March 28, 1994, buyers hired the engineering firm Caswell, Eichler
  & Hill (CEH) to  prepare a report on the clean-up.  Attorney Donahue then
  wrote attorney Hall that he understood that  seller would not be released
  from probation until he gave a deed to buyers and that buyers would not 
  accept a deed until they were satisfied they could afford the clean-up. 
  Attorney Hall replied, sending  attorney Donahue an agreement entitled
  "Agreement Regarding Engineering Services and Clean Up"  (the engineering
  agreement).  The agreement was signed by buyers, Helen Lord and IngaBritt 
  Lillbask, as trustees, and Teig, as seller's conservator, by May 5, 1994.  

 

       The engineering agreement states that (1) buyers are acquiring the
  farm under an installment  contract, (2) seller is required as a condition
  of probation to pay $30,000 in restitution to clean up the  farm, (3)
  buyers and ANR have agreed that buyers will do the clean-up provided there
  is no  significant amount of hazardous waste at the site, (4) engineering
  assessments are necessary for ANR  to determine the method of clean-up
  appropriate, (5) seller is required as another condition of  probation to
  relinquish title in the Stonecliff Farm to buyers provided they undertake
  the clean-up  under the agreement to be negotiated with ANR.  The parties
  agreed: (1) if the engineering studies  showed no significant hazardous
  waste, buyers would enter into an agreement with ANR to take 
  responsibility for the clean-up and relieve seller and the trust of any
  responsibility; (2) seller and the  trust "shall provide to the Kellys a
  Quit Claim Deed of all their interests in the Stone Cliff Farm  property,
  such deed to be held in trust by William Donahue, Trustee, until such time
  as the Kellys  enter into their assurance of discontinuance agreement with
  the State, as required by  2 above, to  undertake the clean-up of the Stone
  Cliff Farm property site;" and (3) buyers shall be responsible for  paying
  the notes secured by mortgages; seller and the trust authorize buyers to
  enter into negotiations  with the bank necessary to finance the clean-up
  under the assurance of discontinuance.

       In August 1994, CEH produced a report finding no hazardous materials. 
  It estimated the cost  of removal at $596,000, and the cost of capping at
  $218,100, consisting of $132,700 for capping and  $85,400 for water
  monitoring for the next twenty years. Based on the CEH report, ANR agreed
  on  December 13, 1994, that buyers could remediate the farm by capping and
  monitoring.

       In January 1995, a New Hampshire probate court appointed Helen Lord as
  guardian for  seller.  On February 17, 1995, the Department of Corrections
  petitioned the district court in the  criminal case to discharge seller
  from probation, stating: (1) defendant has made full restitution in 

 

  the amount of $30,000, (2) defendant has significant mental limitations and
  legal proceedings are  pending for defendant's mother to obtain
  guardianship of him, (3) defendant has no permanent  residence but stays
  with friends in Connecticut, Vermont and New Hampshire, (4) defendant is a 
  "handicapped wanderer" who cannot be properly supervised on probation, and
  (5) defendant has not  met condition # 14 - requiring transfer of the farm
  to buyers; however, his ability to comply with  condition # 14 lies in the
  hands of the buyers.  On February 28, 1995, the court granted the motion 
  and released seller from probation.  Neither ANR nor buyers were notified
  prior to seller's release  from probation.

       Throughout the summer and fall of 1994 buyers attempted to renegotiate
  seller's mortgages  with the bank.  In the spring of 1995, the bank
  accepted buyers' last offer of $65,000.  Buyers then  approached the
  Woodsville Guaranty Savings Bank to borrow $165,000 to purchase the
  mortgages  and to begin the clean-up.  The loan was scheduled to close on
  July 10, 1995, and the trustees were  expected to be present and to deliver
  a quitclaim deed for Stonecliff Farm to buyers.  On June 28,  1995,
  attorney Hall wrote attorney Donahue informing Donahue that he would no
  longer be  representing the two trustees, and he doubted whether he could
  continue to represent seller.  Three  days later, seller petitioned the
  Connecticut probate court for dismissal of his conservatorship, and on 
  July 8, an unidentified woman informed the bank that seller owned
  Stonecliff Farm and would not  give the deed to buyers or anyone else.  The
  closing was cancelled.

       On July 12, 1995, attorney Colin Robinson wrote to attorneys Hall and
  Donahue informing  them that the New Hampshire probate court had vacated
  its decree of January 22, 1995, which had  appointed Helen Lord seller's
  guardian, and that seller intended to discharge Hall, to disavow the 
  engineering agreement and to try to rescind the irrevocable trust.  On
  September 6, 1995, the 

 

  Connecticut probate court found seller capable of managing his affairs, and
  the court terminated  conservatorship over his person and his estate.  

       This case began on January 10, 1996, when buyers filed a foreclosure
  action against seller in  superior court.  In response, seller alleged that
  buyers were in default of the installment  contract. (FN2) In May 1996,
  buyers moved to amend their complaint to add a claim for specific 
  performance of the installment contract as modified by the engineering
  agreement and to add as  defendants the trustees, Teig, Ziccardi,
  Ziccardi's supervisor Carl Roof and the Department of  Corrections.  The
  motion was granted.  Seller counterclaimed for the money owed under the 
  installment contract, plus interest and attorneys' fees.  Two years later,
  on April 15, 1998, the court  set the specific-performance claim for
  immediate trial by court, and bifurcated seller's claim for  damages
  because seller did not waive his right to jury trial.  The court dismissed
  the foreclosure  claim on agreement by the parties, and ordered that
  buyers' motion for summary judgment on seller's  claim for money damages be
  heard at the bench trial on the claim for specific performance.  The trial 
  was held on July 1 and 2, 1998.  	

       On January 14, 1999, the court issued findings, conclusions and an
  order, ruling that buyers  were entitled to specific performance of the
  installment contract as modified by the engineering  agreement - in other
  words, that they were entitled to delivery of the deed to their attorney,
  and that  seller was not entitled to any money from buyers.  On January 20,
  1999, buyers filed a motion for 

 

  partial final judgment on the deed-delivery decision, which the court
  granted on February 23, 1999.   Seller then filed a series of post-judgment
  motions and an appeal to this Court.

       On May 6, 1999, the court ruled on the parties' cross-motions for
  partial summary judgment  on seller's claim for money due under the
  installment contract.  The court ruled that buyers did not  owe seller any
  money under the installment contract because that contract had been
  modified by the  engineering agreement, cancelling the monthly installment
  payments.  Buyers moved the court to  enter partial final judgment on the
  no-pay decision; seller moved for reconsideration of the court's  decision.  

       In the meantime, this Court issued a show cause order why seller's
  appeal should not be  dismissed for failure to appeal from a final judgment
  or seek permission to appeal from an  interlocutory order, and
  subsequently, dismissed the appeal, ruling: "Appellant not opposing 
  dismissal for lack of a final appealable judgment, in his response to the
  Court's show cause order of  5-6-99, appeal dismissed.  V.R.C.P. 54(b)." 
  Two days later, the superior court denied seller's motion  to reconsider
  its summary judgment decision on his money claim, and entered partial final
  judgment  on the no-pay judgment.

       On July 19, 1999, buyers filed a motion to enforce the deed-delivery
  judgment, which the  court granted on October 27, 1999, ordering seller to
  deliver the deed to attorney Donahue.  In the  interval, the court had
  denied seller's V.R.C.P. 59 motion to amend the deed-delivery judgment, and 
  seller's motion to reconsider the V.R.C.P. 59 denial, as well as seller's
  V.R.C.P. 60 motion for relief  from the no-pay judgment.  On November 2,
  1999, seller appealed to this Court from the deed-delivery judgment, the
  no-pay judgment and the order of enforcement.  On November 30, 1999, 

 

  seller filed in this Court a motion to stay enforcement of the
  deed-delivery judgment, which was  denied on January 28, 2000.

       Despite the superior court's order to deliver the deed to attorney
  Donahue, the order to  enforce the deed-delivery order, the order denying
  seller's V.R.C.P. 59 motion, the order denying  reconsideration, the order
  denying seller's V.R.C.P. 60 motion, and this Court's order denying
  seller's  motion to stay the deed-delivery order, seller has not delivered
  the quitclaim deed to attorney  Donahue.  Seller contends that he will not
  deliver the deed until buyers secure an agreement from  ANR relieving
  seller of any obligation for the clean-up.  Buyers seek to enforce the
  terms of the  engineering agreement requiring seller to deliver the deed to
  their attorney to be held in trust until  they have an agreement with ANR
  relieving seller of any obligation for clean-up.  Because seller has 
  refused to deliver the deed to buyers' attorney, the case remains at a
  standstill. The court noted that  throughout discussions on the clean-up,
  ANR has regarded buyers as well-motivated, cooperative  and acting in good
  faith, but that the Agency has not so regarded seller.  

       With this lengthy history before us, we turn first to the
  jurisdictional issues raised.

                               I. Jurisdiction

       The first issue is whether the two partial final judgments - the
  deed-delivery judgment and  the no-pay judgment - issued under V.R.C.P.
  54(b), are final judgments for purposes of appeal to  this Court.  Buyers
  contend that they are final orders and that the thirty-day period to appeal
  both  decisions expired before seller filed his notice of appeal here, and
  thus, only the decision to enforce  the deed-delivery judgment is properly
  here on appeal.  We disagree.

       Under V.R.C.P. 54(b),

 

    When more than one claim for relief is presented in an action, 
    whether as a claim, counterclaim, cross-claim, or third-party
    claim, or  when multiple parties are involved, the court may
    direct the entry of a  final judgment as to one or more but fewer
    than all of the claims or  parties only upon an express
    determination that there is no just reason  for delay and upon an
    express direction for the entry of judgment.

  Thus, there are three prerequisites to directing an entry of judgment under
  V.R.C.P. 54(b): (1) there  must be multiple parties or multiple claims for
  relief, (2) at least one claim or the rights and  liabilities of at least
  one party must be finally decided, and (3) the court must find that there
  is no just  cause for delaying the appeal.  See C. Wright, A. Miller & M.
  Kane, 10 Federal Practice and  Procedure § 2656, at 48-60 (3d ed. 1998). 
  There is no contention that any of the V.R.C.P.54(b)  judgments disposed of
  any of the claims finally.  Thus, for V.R.C.P. 54(b) to apply, there must
  be  multiple claims and at least one claim must have been finally
  adjudicated.

       In this case, after dismissal of the claim for foreclosure, there was
  only one claim or cause of  action, which was for breach of a contract to
  purchase real property.  See Liberty Mutual Ins. Co. v.  Wetzel, 424 U.S. 737, 743 n.4 (1976) ("a complaint asserting only one legal right, even if
  seeking  multiple remedies for the alleged violation of that right, states
  a single claim for relief" under  F.R.C.P. 54(b)).  Buyers requested
  several remedies - specific enforcement of a contract to purchase  real
  property, a declaration that no further sums were due from them to seller
  or the trustees under  the contract, compensatory and punitive damages, and
  attorney's fees and costs - but all remedies  arose from a single claim for
  breach of a contract.  See Wright et. al., supra, § 2657, at 79-81 ("when 
  plaintiff is suing to vindicate one legal right and alleges several
  elements of damage, only one claim  is presented and subdivision (b) [of
  Rule 54]does not apply"); e.g. Sussex Drug Prods. v. Kanasco,  Ltd., 920 F.2d 1150, 1155 (3d Cir. 1990) (when liability rests on same transaction, a
  count for 

 

  punitive damages, although different from compensatory damages, is not a
  separate claim under Rule  54(b)); Reyher v. Champion Int'l Corp., 975 F.2d 483, 487 (8th Cir. 1992) (multiple remedies  available under Age
  Discrimination in Employment Act cases do not transform single claim for
  age  discrimination into multiple claims for Rule 54(b) purposes).

       Neither the deed-delivery judgment nor the no-pay judgment was a final
  decision on this  contract claim because each decision left issues on the
  same contract claim to be decided,  specifically liability for property
  taxes on the farm, and compensatory and punitive damages  requested by
  buyers.  "[T]he rule requires that the entirety of at least one of th[e]
  claims be decided  with finality."  Wright, et. al., supra, § 2657, at 68;
  cf. State Street Bank & Trust Co. v. Brockrim,  Inc., 87 F.3d 1487, 1490
  (1st Cir. 1996) (order approving judicial sale of receivership assets was
  not  final appealable order under F.R.C.P. 54(b) because court would have
  to resolve disputed issues -  including tax matters, receivership costs and
  the actual amount realized by the sale - before sale  would be binding). 
  Accordingly, we conclude that the court erred in granting partial final
  judgments  under V.R.C.P. 54(b).

       Buyers contend that, even if the deed-delivery judgment was not a
  proper V.R.C.P. 54(b)  final partial order, it was a final decision under
  the United States Supreme Court's rule in Forgay v.  Conrad, 47 U.S. (6
  How.) 201 (1848), a rule that we adopted in Hospitality Inns v. South
  Burlington  R.I., 149 Vt. 653, 657, 547 A.2d 1355, 1358 (1988). At first
  glance, this argument is persuasive:  Forgay "holds that an order -
  otherwise interlocutory - will be treated as a final appealable order if it 
  calls for the immediate transfer of real or otherwise unique property." 
  Id.. at 656, 547 A.2d  at 1357.   Applied in a single-claim case, "its
  effect is to treat the order requiring the immediate transfer

 

  of the property - although not disposing of the entire case - as final so
  as to permit immediate review."  Id.,  547 A.2d  at 1358.  

       The Forgay rule is not, however, applicable to every order for
  immediate transfer of property.  As we noted in Hospitality Inns, "[t]he
  purpose of the rule is to protect a litigant from the undue  hardship and
  irreparable harm that could inevitably result from a strict application of
  the finality  requirement."  Id., 547 A.2d  at 1357-58  In Forgay, the rule
  was applied to allow the record  titleholders to appeal a decision setting
  aside their deeds as fraudulently conveyed to them during a  bankruptcy,
  directing the property to be delivered and sold, and ordering the proceeds
  to be  distributed among the bankrupt's creditors.  47 U.S.  at 204.  Had
  the appellants been required to wait  until all accounts had been settled
  and confirmed by the Court, the property would have been  irredeemable and
  appellants would have been "subjected to irreparable injury."  Id.  Thus,
  the United  States Supreme Court noted, "[t]his rule, of course, does not
  extend to cases where money is directed  to be paid into court, or property
  to be delivered to a receiver, or property held in trust to be delivered 
  to a new trustee appointed by the court, or to cases of a like
  description."  Id. 

       This is one such case: seller will not suffer irreparable injury by
  delivering a quitclaim deed  for Stonecliff Farm to attorney Donahue to
  hold in trust for buyers.  See In re F.D.R. Hickory House,  Inc., 60 F.3d 724, 727 (11th Cir. 1995) (Forgay rule allows immediate review when order
  directs  immediate delivery of property and subjects losing party to
  irreparable harm); 19 Moore's Federal  Practice § 202.08 (3d ed. 2000)
  (Forgay doctrine limited to cases where appealing party would be 
  irreparably harmed if appellate review were delayed until conclusion of
  action).  Indeed, even if the  order called for delivery of the deed
  directly to buyers, the record does not show that seller would be 
  irreparably harmed; the more likely scenario is that buyers would begin the
  clean-up to the benefit 

 

  of all.  Because seller has not shown that he or the property would be
  irreparably harmed if appeal  were delayed until conclusion of this action,
  the Forgay rule is not applicable.

       Although the deed-delivery judgment and the no-pay judgment are not
  final decisions and  although seller has not requested permission to appeal
  from an interlocutory order, see V.R.A.P.  5(b), seller urges this Court to
  act under V.R.A.P. 2, suspend the rule requiring such a request, assert 
  jurisdiction and address the substantive issues that have been briefed. 
  For two reasons, we take this  case under V.R.A.P. 2.

       First, "allowing an appeal at this stage will most likely expedite the
  ultimate termination of  the litigation consistent with maintenance of the
  value of the asset involved."  Hospitality Inns, 149  Vt. at 657, 547 A.2d 
  at 1358.  On the other hand, if we do not take this appeal, it appears that
  this  case will remain in stalemate as it has now for several years, to the
  detriment of the parties, the  property and the general public.  It has
  been eight years since ANR first notified buyers and seller  that clean-up
  of the debris was required, yet, aside from the engineering report obtained
  by buyers,  no steps have been taken in that direction.  Buyers are willing
  to clean up the farm, but reasonably  will not do so unless they get a deed
  to the farm.  The deed may well be necessary for buyers to  obtain the
  financing necessary for the clean-up.  Seller has taken no steps to clean
  up the farm, but  ANR has not proceeded against him, apparently awaiting
  the outcome of this litigation.  It is clear  that this case will not
  progress - and the farm will not be cleaned up - until some of the issues
  before  this Court are decided finally.

       Second, this is already the second appeal from the deed-delivery
  judgment, the first appeal  having already been dismissed because seller
  failed to show that it was a final judgment.  We have  no doubt that the
  judgment would be appealed at least one more time if this case were
  dismissed 

 

  now.  Moreover, despite two orders to seller to deliver the quitclaim deed
  to attorney Donahue, and  the numerous other orders denying motions to
  amend, reconsider or stay these orders, seller has not  delivered the deed. 
  Seller repeatedly refuses to comply with orders of the superior court,
  again  resulting in a stalemate affecting buyers, the farm, ANR, and the
  welfare of the general public.  As  the issues have been briefed and argued
  and the Court has spent valuable time preparing for the case,  dismissal
  would not serve the interests of judicial economy or any of the persons or
  entities involved.  See Perry v. Medical Practice Bd., 169 Vt. 399, 402,
  737 A.2d 900, 902 (1999) (although  procedures for perfecting interlocutory
  appeal were not followed, dismissal of appeal would likely  result in
  another appeal after final judgment, merits had been fully briefed and
  Court had reviewed  case; therefore, Court exercised discretion to suspend
  rules and reach merits).

                                 II.  Merits

                                A. Assignment

       On the merits, the trial court relied upon an assignment theory to
  conclude that the trustees'  agreement with the buyers modified the
  installment contract.  The court held that seller had  specifically
  authorized the trustees of the Edwin P. Lord Irrevocable Trust to act on
  behalf of the  trust, that seller had assigned all his interest in the
  installment contract to the trustees, and that the  trustees had full
  authority to accept the benefits of the contract or modify the benefits by
  negotiating  with buyers.  The trial court rejected buyers' contention that
  seller's attorney, conservator or guardian  - who all exercised authority
  on seller's behalf at various times - had the authority to act on his 
  behalf concerning Stonecliff Farm.  

       Seller contends that the court erred in relying on a theory of
  assignment for two reasons.   First, seller contends that the court denied
  him due process because he had no notice of the 

 

  assignment theory.  We disagree.  V.R.C.P. 8(a) requires that "[a] pleading
  which sets forth a claim  for relief . . . shall contain (1) a short and
  plain statement of the claim showing that the pleader is  entitled to
  relief, and (2) a demand for judgment for the relief the pleader seeks." 
  The rule does not  require a specific or detailed statement of the facts
  establishing the cause of action, but simply a  statement clear enough to
  give a defendant fair notice of the pleader's claim and the grounds upon 
  which it rests.  Reporter's Notes to V.R.C.P. 8; see Molleur v. Leriche,
  142 Vt. 620, 622, 458 A.2d 1139, 1140 (1983).  In addition, V.R.C.P.
  8(e)(1) provides that "[e]ach averment of a pleading shall  be simple,
  concise, and direct.  No technical forms of pleading . . . are required."

       In their amended complaint filed on May 23, 1996, buyers alleged that
  (1) on October 21,  1991, seller assigned the installment contract to the
  trustees of the Edwin P. Lord Irrevocable Trust,  (2) subsequently,
  attorney Hall - while representing the trustees and seller - drafted the
  "Agreement  regarding Engineering Services and Clean-Up," which modified
  the installment contract, and (3) this  contract modification was signed by
  buyers, the trustees and seller's conservator by May 5, 1994.   Further,
  buyers alleged that the trustees and the conservator failed to provide
  buyers with a quitclaim  deed as provided in the modified agreement.  
  Although seller contends that buyers relied upon the  theory that attorney
  Hall and the conservator had authority to act on seller's behalf, the
  complaint  also clearly alleged that the installment contract was assigned
  to the trustees and that the trustees  authorized the contract
  modification.

       Seller also maintains that V.R.C.P. 8 requires a complaint to state
  "all of the facts material to  a particular claim or theory," and in his
  reply brief seller points to numerous facts he contends are  material but
  not alleged.  V.R.C.P. 8, however, omits the former requirement that the
  facts relied  upon be pleaded, and requires instead a short, plain
  statement of the claim showing the pleader is 

 

  entitled to relief.  Reporter's Note to V.R.C.P. 8.  Having alleged that
  the contract was assigned by  seller, that the assignees modified the
  contract, that buyers complied with the modified contract, that  seller/the
  trustees breached the modified contract, and that buyers are entitled to
  specific  performance of transfer of the deed to Stonecliff Farm, buyers
  provided fair notice to seller that the  assignment theory was before the
  court.  Nothing more is required.  V.R.C.P. 8(f) (pleadings shall be 
  construed as to do substantial justice).

       Second, seller contends that the court's reliance on the assignment
  theory was wrong as a  matter of law because the language of the assignment
  did not support the court's conclusion that the  assignment passed all
  seller's rights in the installment contract to the trustees, nor the
  conclusion that  seller's only remaining role was to convey a deed to
  buyers upon their satisfaction of the conditions.   Moreover, there was no
  evidence to show that seller intended to delegate any duties to the
  trustees by  the assignment. Thus, seller challenges the court's conclusion
  that the trustees had authority to  modify the installment contract with
  buyers.  

       Seller's assignment states that Edwin P. Lord "hereby conveys,
  transfers, and assigns all of  his interest, right and title in and to said
  Installment Land Contract to Helen Lord and IngaBritt  Lillbask, Trustees
  of the Edwin P. Lord Irrevocable Trust u/a/t dated October 21, 1991."  The  
  language of this assignment - "assigns all of his interest, right and title
  in and to said Installment  Land Contract" - is ambiguous to the extent
  that it makes no mention of delegating seller's  obligations under the
  contract.  See Cedar Point Apartments, Ltd. v. Cedar Point Inv. Corp., 693 F.2d 748, 753 (8th Cir. 1982) (phrase "assignment of the contract" is
  ambiguous, creating difficulty in  determining whether it was used to
  assign rights, delegate duties or both); see also 4 A. Corbin,  Corbin on
  Contracts § 906, at 628 (1951) (difficulty arises when assignment does not
  differentiate 

 

  between rights and duties but simply assigns "the contract" or "all right
  and title to the contract"); 3  W. Jaeger, Williston on Contracts § 407, at
  13, (3d ed. 1960) (there has been much confusion  concerning assignments of
  bilateral contracts while both sides are still executory unless the 
  assignment specifically addresses both rights and duties).  

       Assignments of bilateral contracts often cause difficulties and
  confusion when they do not  specifically address assignment of rights and
  delegation of duties.  Thus, "[i]f the contract is still  bilateral in
  character, so that the assignor has a duty to perform as well as a right to
  a performance by  the third party, interpretation must depend chiefly upon
  the context and the surrounding  circumstances."  Corbin, supra, at 628-29.
  (FN3)

       In this case, we agree with buyers that the trustees' assumption of
  seller's obligations in the  installment contract is implied by the conduct
  of the parties.  The trustees negotiated with buyers an  agreement under
  which buyers would assume the mortgages and the remediation costs, both 
  obligations of seller under the installment contract, in exchange for
  $30,000 toward the remediation  costs and cancellation of buyers' payments
  due under the installment contract.   Moreover, the  negotiations were
  undertaken and the new agreement drafted by the attorney for the trustees,
  who  simultaneously represented seller in related criminal proceedings, and
  the attorney told buyers and 

 

  the court that the trustees had the deed to Stonecliff Farm and would
  deliver a deed to buyers  pursuant to the contract modification.  Further,
  seller's attorney used the new agreement to obtain a  reduction in seller's
  criminal sentence.  

       All of the evidence indicates that the trustees had assumed all of the
  obligations under the  installment contract, except the fact that seller
  retained the deed to Stonecliff Farm, a fact that was  concealed from
  buyers, the court, and the attorney representing both the trustees and the
  seller.   Under these circumstances, we conclude that the conduct of the
  parties implied a delegation of the  contractual duties by seller and an
  assumption of these duties by the trustees of all seller's obligations 
  under the installment contract.  Cf. Twitchel v. Robertson Paper Co., 94
  Vt. 473, 483, 111 A. 570,  574 (1920) (conduct of parties, including
  correspondence, showed acceptance of obligations by  assignee).  Although
  the trustees had the obligation to deliver the deed, and represented to
  buyers  that they would do so, seller retained the deed and consequently
  the obligation to deliver it.  Thus, we  agree with the trial court that
  the trustees had the authority to negotiate and modify the bilateral 
  obligations in the installment contract. 

       Seller relies on Cedar Point in his contention that the trustees had
  no right to modify the  contract.  Cedar Point is distinguishable for
  numerous reasons, but primarily because it involves  construction of a
  contract provision attempting to limit assignability of the contract.  To
  the extent  that Cedar Point is at all relevant to this case, it tends to
  support our conclusion because it concludes  that the promise of the
  assignee to assume the assignor's duties can be implied by the assignee's 
  conduct.  693 F.2d  at 755.  Here, the conduct of the trustees clearly
  implies that they assumed the  duties of the installment contract.  See
  also Shepard v. Commercial Credit Corp., 123 Vt. 106, 110,  183 A.2d 525,
  527-28 (1962) ("The assignee of a contract is usually not liable to the
  other 

 

  contracting party to the contract assigned unless such liability has been
  expressly or impliedly  assumed by the assignee.").  

       Seller argues that the trial court relied solely upon the language of
  the assignment, however,  and did not draw any conclusions from the conduct
  of the parties.  Seller is correct.  We disagree  with the trial court,
  however, because the language of the assignment is simply general language 
  assigning "all interest, right and title in and to said Installment Land
  Contract."  Because the  language of the contract does not specifically
  address a delegation of duties, the language is  ambiguous, and we cannot
  conclude from the language alone that the trustees assumed seller's duties 
  under the installment contract.  The parties' conduct and correspondence
  is, however, clear.  Thus,  we conclude on grounds differing from those of
  the trial court that the trustees did assume seller's  duties under the
  installment contract.  See Gochey v. Bombardier, Inc., 153 Vt. 607, 613,
  572 A.2d 921, 925 (1990) (we may affirm correct judgment although ground
  stated in support of it is  erroneous).  No other conclusion could be drawn
  from the court's findings on the conduct of the  parties.  

       Finally, seller relies upon the Restatement (Second) of Contracts §
  338(2), which states that  notwithstanding notification to the obligor of
  the assignment, "any modification of or substitution for  the contract made
  by the assignor and obligor in good faith and in accordance with reasonable 
  commercial standards is effective against the assignee," who acquires
  corresponding rights under the  modified or substituted contract.  Seller
  contends that, although he assigned the installment payments  to the trust,
  under § 338(2), he retained the right to modify the contract with buyers,
  and thus, the  trustees could not have also had authority to modify the
  contract with buyers.  We reject seller's   argument.  Even assuming that §
  338(2) applies to a land installment contract in Vermont