Volume 156 — Vermont Reports

<bold>1. Appeal and Error — Discretion of Lower Court — Abuse</bold> Discretionary rulings by trial court will not be disturbed unless an abuse of discretion is clearly shown. <bold>2. Appeal and Error — Discretion of Lower Court — Abuse</bold> Disturbance of trial court's rulings under abuse of discretion standard requires a showing that trial court has withheld its discretion entirely or that it was exercised for clearly untenable reasons or to a clearly untenable extent. <bold>3. Mortgages — Foreclosure — Appeal</bold> Although trial court's permission is required for review of judgments of foreclosure, the supreme court retains jurisdiction to review a trial court's denial of a mortgagor's motion for permission to appeal under an abuse of discretion standard. <cross_reference>12 V.S.A. § 4601</cross_reference>. <bold>4. Mortgages — Foreclosure — Defenses</bold> In mortgage foreclosure action, mortgagors could raise affirmative defense that bank wrongfully induced them into buying business which ultimately failed and triggered the foreclosure, notwithstanding that mortgagors had previously filed independent action based on claim of wrongful inducement.<page_number>Page 144</page_number> <bold>5. Mortgages — Foreclosure — Appeal</bold> Trial court abused its discretion in denying permission to appeal judgment of foreclosure; the denial was based on mistaken understanding, which was prejudicial to the defendants, that in foreclosure actions the law precluded assertion of affirmative defenses concerning mortgagee's conduct prior to the creation of the mortgage. <cross_reference>12 V.S.A. § 4601</cross_reference>.

<bold>1. Appeal and Error — Findings of Fact — Clearly Erroneous</bold> <bold>Standard</bold> On appeal the evidence must be viewed in the light most favorable to the prevailing party, excluding the effect of modifying evidence; only if a finding is clearly erroneous can it be overturned. <bold>2. Divorce — Property Settlement — Manner in Which Property Was</bold> <bold>Acquired</bold> In an action for divorce, where the evidence was contradictory as to whether plaintiff's mother-in-law had told plaintiff that the guest house and surrounding 200 acres were plaintiff's family home, it was not clearly erroneous for the trial court to find that there was an oral agreement concerning the property. <bold>3. Contracts — Statute of Frauds — Part Performance</bold> Under the doctrine of part performance, an oral agreement may be removed from the Statute of Frauds and enforced when the party claiming an agreement can show that, in reliance on the agreement, he or she suffered a substantial and irretrievable change in position. <bold>4. Divorce — Property Settlement — Manner in Which Property Was</bold> <bold>Acquired</bold> In determining whether plaintiff had partially performed on an oral agreement concerning the residence in which she and her husband resided during their marriage which was owned by plaintiff's mother-in-law, the actions of plaintiff's husband as well as her own could be considered in determining whether plaintiff suffered a substantial and irretrievable change in position. <bold>5. Contracts — Statute of Frauds — Part Performance</bold> Where plaintiff claimed that her mother-in-law had orally agreed that the home in which plaintiff lived with her husband before and during<page_number>Page 354</page_number> their marriage was plaintiff's, the actions of plaintiff and her husband in installing hot water heaters, insulation, new siding, new flooring, a new furnace, and new windows and window frames, excavating and grading a road to the house, removing a barn, building a deck, and draining and clearing the brush around a pond showed a substantial and irretrievable change in their position and supported the decision of the court; Statute of Frauds did not bar enforcement of agreement. <bold>6. Appeal and Error — Questions Considered on Appeal — Issues</bold> <bold>Not Before Court</bold> Where defendants never raised the argument before the trial court that a prerequisite to invoking the part-performance doctrine is the inadequacy of money damages, the issue was waived on appeal. <bold>7. Divorce — Antenuptial Agreement — Enforceability</bold> The enforceability of an antenuptial agreement is governed by consideration of whether (1) each spouse has made fair and reasonable disclosure to the other of his or her financial status; (2) each spouse has entered into the agreement voluntarily and freely; and (3) the substantive provisions of the agreement dividing the property upon divorce are fair to each spouse. <bold>8. Divorce — Antenuptial Agreement — Enforceability</bold> Public policy bars enforcement of an antenuptial agreement that is unconscionable at the time it is executed. <bold>9. Divorce — Antenuptial Agreement — Enforceability</bold> Where, at the time of divorce, an antenuptial agreement leaves one spouse a public charge, or close to it, the agreement may be unenforceable as against public policy. <bold>10. Divorce — Antenuptial Agreement — Enforceability</bold> Antenuptial agreement in which plaintiff waived all rights to property owned by her husband-to-be violated public policy as a matter of law and was not enforceable where, at the time of their divorce, plaintiff was receiving public assistance. <bold>11. Contracts — Parol Evidence Rule — Generally</bold> Evidence of unconscionability does not offend the parol evidence rule, because such evidence may be offered to disaffirm or avoid the binding force of the contract. <bold>12. Contracts — Parol Evidence Rule — Particular Cases</bold> Plaintiff's testimony, introduced to challenge the "binding force" of an antenuptial agreement, was properly admitted over a parol evidence objection since it did not serve to vary or add to the terms of the agreement. <bold>13. Divorce — Property Settlement — Discretion of Court</bold> Distribution of marital property will be upheld where court's findings reasonably support the judgment, and will not be disturbed absent a showing that it abused its wide discretion. <bold>14. Divorce — Property Settlement — Valuation of Property</bold> Evidence of a homeowner's insurance policy with a declared value for the house occupied by plaintiff and her husband and a substantial distribution<page_number>Page 355</page_number> of money to plaintiff's husband upon the sale of a business supported the divorce court's finding that plaintiff was entitled to $35,000 in satisfaction of any marital or other interest she had in her husband's or her mother-in-law's property.

<bold>1. Contracts — Offer and Acceptance — Withdrawal of Offer</bold> Seller's promise to keep offer to sell open, unsupported by consideration, was unenforceable and could be revoked at any time before plaintiffs accepted offer. <bold>2. Contracts — Consideration — Failure</bold> Costs which prospective purchasers incurred in obtaining financing did not constitute consideration for seller's promise to hold offer open, as purchasers began to seek financing even before seller made definite offer to sell property and purported consideration was not bargained for. <bold>3. Contracts — Offer and Acceptance — Acceptance</bold> Where offer to sell property could be accepted only by buyers showing up at bank on certain date with purchase price, buyers' verbal assurances that they would pay did not constitute acceptance.<page_number>Page 391</page_number> <bold>4. Estoppel — Equitable — Defenses Against</bold> Where offer to sell property could be accepted only by buyers showing up at bank on certain date with purchase price, provided that seller did not first sell property to someone else, seller was not equitably estopped from withdrawing his offer prior to performance since buyers understood that in obtaining financing they assumed the risk they would not be able to purchase the property and could have not relied on an understanding that defendant would definitely convey the property to them, and there were no facts known to seller of which buyers were unaware. <bold>5. Contracts — Promise To Perform in Future — Promissory</bold> <bold>Estoppel</bold> Principle of promissory estoppel is distinct from part performance since the action or forbearance required for promissory estoppel need not constitute part performance. <bold>6. Appeal and Error — Remand — Lack of Basis for Decision</bold> In action for specific performance against seller, remand was required to determine whether recovery could be based on promissory estoppel where the trial court had erroneously intertwined promissory estoppel and part performance theory.

<bold>1. Public Employees — Collective Bargaining — Generally</bold> The construction of collective bargaining agreements is governed by traditional principles of contract law. <bold>2. Contracts — Construction — Generally</bold> In construing an agreement, effect should, if possible, be given to every material provision as part of an integrated whole. <bold>3. Public Employees — Collective Bargaining — Interpretation of</bold> <bold>Agreement</bold> Where plaintiffs' positions were transferred by executive order from one state agency to a state department and were, after appropriate classification review was made, reallocated to lower classes and pay grades, but plaintiffs' were kept on at their current salary levels, the state's actions constituted a "reallocation" under terms of collective bargaining agreement and plaintiffs' demotions to lower pay scales were permissible. <bold>4. Public Employees — Labor Relations Board — Determinations</bold> Labor Relation Board's order that plaintiffs be restored to their former pay grade with back pay was reversed because the state's actions of transferring plaintiffs from one state agency to a state department, and reallocating the transferred positions to lower classes and pay grades,<page_number>Page 413</page_number> were permissible under collective bargaining agreement as a "reallocation" rather than a "demotion."

<bold>1. Mortgages — Foreclosure — Generally</bold> If a mortgagee holds the underlying note, he or she may proceed on either to collect the debt owed. <bold>2. Mortgages — Discharge — Satisfaction</bold> If a mortgagee holds the underlying note, and the debt is satisfied through the mortgage, in whole or in part, the obligation represented by the note is also satisfied unless a deficiency is owed; only the excess of the debt above the value gained from the mortgage satisfaction can be recovered from the obligor on the note. <bold>3. Mortgages — Discharge — Satisfaction</bold> Where plaintiff held the equity of redemption as a result of a foreclosure as well as an outstanding mortgage and underlying note, and the value of the mortgaged property far exceeded the amount owed on the underlying note, plaintiff could not collect on the note because there was no deficiency. <bold>4. Mortgages — Discharge — Satisfaction</bold> To the extent that <italic>Ryan v. Stearns,</italic> <cross_reference>135 Vt. 385</cross_reference>, <cross_reference>376 A.2d 728</cross_reference> (1977), is read allowing a mortgagee who holds the equity of redemption, as well as an outstanding mortgage, to recover on the underlying note where there is no deficiency, it is overruled. <bold>5. Mortgages — Discharge — Satisfaction</bold> Court's decision allowing plaintiff to recover on an unpaid note was reversed where plaintiff held the equity of redemption to the property as a result of a foreclosure, as well as an outstanding mortgage and underlying note on which she sought to collect; because the value of the mortgaged property far exceeded the amount owed on the underlying note, recovery on the note would result in unjust enrichment.

<bold>1. Kidnapping — Elements of Offense — Intent</bold> In kidnapping cases, the inquiry into defendant's intent is a subjective one, and whether a defendant acted knowingly depends on what his or her state of mind actually was, not what it should have been. <cross_reference>13 V.S.A. § 2401</cross_reference>. <bold>2. Criminal Law — Intent — Proof</bold> Within the Model Penal Code's hierarchy of degrees of culpability, only negligence is an objective inquiry. <bold>3. Trial — Instructions — Wording</bold> Where jury in kidnapping prosecution had been charged to find element of intent-to-confine if the state had proved the defendant knew or "should have known" that his actions would likely cause confinement, the "should have known" language provided an objective standard with regard to the defendant's intent, and argument was rejected that instructions meant that jury could infer from the facts and circumstances as to defendant's subjective knowledge. <cross_reference>13 V.S.A. § 2401</cross_reference>. <bold>4. Trial — Instructions — Error</bold> It was not harmless error in kidnapping trial for trial court to instruct jury that for the element of intent-to-confine the state needed to show defendant "should have known" his actions would likely cause confinement; there was not overwhelming evidence that defendant knowingly confined the victim since defendant had presented evidence that he did not know he was holding victim against her will, had intended at the time of his actions to seek help, and was mortified that he scared the victim. <cross_reference>13 V.S.A. § 2401</cross_reference>.<page_number>Page 464</page_number>

<bold>1. Trial — Instructions — Presumptions</bold> Direct instructions to the jury to presume that witnesses are truthtellers are disapproved. <bold>2. Trial — Instructions — Presumptions</bold> In prosecution for rape, although instruction that jury was "to reconcile conflicting testimonies" subtly perpetuated disapproved presumption that witnesses are truthtellers, no error was found in light of the entire instruction, and because the objectionable language did not apply since the victim was the only witness testifying. <bold>3. Constitutional Law — Identification of Accused — Rights of</bold> <bold>Accused</bold> Although nontestimonial identification order was executed the day it was issued, defendant waived his right to contest the time or place of his appearance where the order included a modification of time and place provision which was read to defendant, and defendant was cooperative and made no indication that he wished a postponement. V.R.Cr.P. 41.1. <bold>4. Evidence — Expert Evidence — Admissibility</bold> Expert testimony may be admitted if the expert is qualified and if the testimony will be helpful to the trier of fact. V.R.E. 702. <bold>5. Appeal and Error — Evidence — Burden of Proof</bold> Where trial court, in exercise of its discretion, excludes expert testimony proffered by criminal defendant, the burden of showing prejudicial error rests clearly on defendant. <bold>6. Appeal and Error — Evidence — Exclusion of Testimony</bold> Exclusion of expert witness proposed by defendant to discredit rape victim's ability to identify the attacker was not a clear abuse of discretion<page_number>Page 469</page_number> where the relevant factors pertaining to the accuracy of the identification were brought before jury during defense counsel's cross-examination and closing argument, there was some evidence corroborating the victim's identification, and the victim was able to observe her assailant before the attack from close proximity for a substantial period of time. <bold>7. Constitutional Law — Right To Present Evidence</bold> In prosecution for rape, trial court's exclusion of expert testimony, pertaining to accuracy of victim's identification of the attacker, did not violate defendant's constitutional rights to present evidence in his own defense. U.S. Const. amend. VI; Vt. Const. ch. I, art. 10. <bold>8. Jury — Challenge for Cause — Preservation of Denial for</bold> <bold>Appeal</bold> Claim of error in trial court's failure to dismiss a potential juror for cause was preserved for appeal where defendant exhausted all peremptory challenges and indicated there were additional jurors whom he would have challenged if he had been allowed to do so. <bold>9. Jury — Challenge for Cause — Review</bold> In appeal of rape trial in which judge refused to dismiss for cause a potential juror who believed police are more truthful than others and whose daughter had been raped, defendant failed to demonstrate the actual existence of opinion in the juror's mind as will raise presumption of partiality. <bold>10. Jury — Challenge for Cause — Bias</bold> In the absence of a statutory bar or implied bias, jurors should be dismissed if a fixed bias is shown. <bold>11. Jury — Challenge for Cause — Bias</bold> In prosecution for rape, where potential juror's daughter had been a victim of rape, trial court did not err in not dismissing juror for cause on ground of implied bias. <bold>12. Jury — Challenge for Cause — Court's Discretion</bold> Trial judge did not abuse his discretion in failing to dismiss for cause potential juror who indicated that he believed police officers are more truthful than others where defendant failed to inquire further into the matter, the juror never stated he automatically believed police, but, rather stressed he would judge the case on the evidence, obey instructions, and abide by the reasonable doubt standard. <bold>13. Criminal Law — Sentence — Presumptions</bold> <italic>Pearce</italic> presumption, that a rebuttable presumption of vindictiveness arises, when a defendant receives a higher sentence upon retrial, did not apply where defendant's second sentence was imposed by a different judge. <bold>14. Constitutional Law — Due Process — Sentence Review</bold> Imposition of higher sentence upon retrial by different judge did not violate defendant's due process rights where defendant did not allege actual vindictiveness and nothing in the record suggested that the second judge was motivated by vindictiveness. U.S. Const. amend. XIV.<page_number>Page 470</page_number>

<bold>1. Covenants — Restrictive Covenants — Enforcement</bold> In order to enforce a restrictive covenant against an owner other than the original covenantee, the covenant must run with the land. <bold>2. Covenants — Covenants Running With the Land — Elements</bold> In equity the requirements for a covenant to run with the land are relaxed in part: that the covenant must touch and concern the land is somewhat more easily met, and the privity requirement is replaced by one of notice. <bold>3. Covenants — Covenants Running With the Land — Elements</bold> For a covenant to run with the land, the requirement of intent can be implied as well as expressed, and can be shown by extraneous circumstances; in some instances, the promises are so intimately connected with the land as to require the conclusion that the necessary intention for the running of the benefit is present absent language clearly negating that intent. <bold>4. Covenants — Covenants Running With the Land — Elements</bold> A restrictive covenant prohibiting the placement of a mobile home is the sort of restriction so intimately connected with the land that the necessary intention for the covenant to run with the land is found absent language clearly negating that intent. <bold>5. Covenants — Covenants Running With the Land — Elements</bold> Where grantors retained adjoining or nearby land and included a mobile home restriction in most, if not all, conveyances, an intent was shown to create a common development scheme, even if it was implemented imperfectly, and trial court was correct in its conclusion that the burden of the restrictions ran with the land and could be enforced. <bold>6. Covenants — Construction — Particular Provisions</bold> Where restrictive covenant provided for exceptions if "prior approval in writing of the grantor herein or his heirs, executors, administrators or assigns" was given, argument was rejected that the real property went directly to the heirs after the grantor's death, since the heirs and not the executor had power to enforce the covenant.<page_number>Page 484</page_number> <bold>7. Administrative Law — Orders and Regulations — Construction</bold> Absent compelling indications of error, court must accept interpretation of administrative regulations by agency responsible for their implementation. <bold>8. Administrative Law — Orders and Regulations — Construction</bold> One of the primary concerns in construing a statute or regulation is to implement the intent of the adopting body. <bold>9. Administrative Law — Orders and Regulations — Construction</bold> Exemptions from general regulatory requirements are typically construed narrowly so they do not undermine the general rule. <bold>10. Environmental Law — Land Use and Planning — Judicial Review</bold> Agency properly applied a regulation necessitating a permit for construction or erection of a building requiring plumbing and sewer facilities to a mobile home being used without such facilities, since whether a building required plumbing and sewer facilities was an objective determination; otherwise, enforcement would place an impracticable burden on the agency and undermine the regulation generally. Environmental Protection Rule § 3-06. <bold>11. Administrative Law — Orders and Regulations — Validity</bold> The void-for-vagueness test is less strict where the regulation is economic and the persons affected can seek clarification of its meaning or resort to administrative processes. <bold>12. Administrative Law — Orders and Regulations — Validity</bold> The void-for-vagueness test is less strict where the regulation does not threaten to inhibit the exercise of constitutionally protected rights. <bold>13. Administrative Law — Orders and Regulations — Validity</bold> In applying the void-for-vagueness test, the regulatory scheme must be looked at in its entirety, and it is thus important if defendants had the opportunity to clarify their responsibilities and did not use it. <bold>14. Environmental Law — Land Use and Planning — Judicial Review</bold> Regulation necessitating the obtaining of a permit for construction or erection of a building requiring plumbing and sewer facilities, when applied to a mobile home being used without such facilities, was sufficiently precise that an ordinary person using the means available and ordinary common sense could understand its meaning and comply. Environmental Protection Rule § 3-06. <bold>15. Administrative Law — Delegated Authority — Ratification</bold> The effect of legislation providing that 1969 subdivision regulations "are ratified and given full force and effect as of that date" was to enact the regulations as if they were legislation. <cross_reference>18 V.S.A. § 1218</cross_reference>(a); Environmental Protection Rule § 3-06. <bold>16. Administrative Law — Delegated Authority — Ratification</bold> Board of Health had statutory authority to amend regulations that had been ratified by the Legislature. <cross_reference>18 V.S.A. § 1218</cross_reference>(b); Environmental Protection Rule § 3-06.<page_number>Page 485</page_number> <bold>17. Administrative Law — Delegated Authority — Limitations</bold> Although the Legislature may delegate power to administer a law to an administrative agency, the delegation may not be unrestrained and arbitrary. <bold>18. Administrative Law — Delegated Authority — Limitations</bold> A statute delegating power to administer a law must contain a basic standard — a definite and certain policy and rule of action for the guidance of the agency created to administer the law. <bold>19. Environmental Law — Pollution — Statutes</bold> Statutory authority giving Board of Health rulemaking authority "to prevent the pollution and to secure the sanitary protection of . . . waters" and for "all matters relating to the preservation of the public health" provided a sufficient standard or policy to guide the agency's actions. 18 V.S.A. §§ 102, 1203.

<bold>1. Evidence — Parol or Extrinsic — Generally</bold> Parol evidence rule is applicable to exclude evidence of a prior or contemporaneous oral agreement offered to vary or contradict terms of a written agreement.<page_number>Page 605</page_number> <bold>2. Evidence — Parol or Extrinsic — Generally</bold> A statement of consideration is not a term of any agreement; hence the parol evidence rule does not preclude evidence that the statement of consideration is inaccurate. <bold>3. Evidence — Parol or Extrinsic — Mortgages</bold> Although parole evidence rule is applicable to mortgage deeds and promissory notes, these instruments are employed for special purposes and seldom embody a complete statement of the agreement between the parties; in other words, they form only a partially integrated agreement. <bold>4. Evidence — Parol or Extrinsic — Particular Cases</bold> In determining enforceability of mortgage deed and note in foreclosure action, trial court could properly look beyond instruments to consider purchase and sale agreement relating to second property, as well as surrounding circumstances of parties, due to nature of instruments and to fact this evidence was not used to contradict or vary terms of the mortgage deed and note, but to determine these instruments could not be enforced because they were inequitable or unconscionable. <bold>5. Dismissal and Nonsuit — Generally</bold> As opposed to a directed verdict, court in ruling on motion for involuntary dismissal in nonjury action is not required to take evidence in light most favorable to nonmoving parties. V.R.C.P. 41(b)(2). <bold>6. Appeal and Error — Dismissal of Complaint — Standards for</bold> <bold>Review</bold> On appeal from involuntary dismissal in nonjury action, question is whether court's findings of fact are clearly erroneous, viewing evidence in light most favorable to prevailing party. V.R.C.P. 41(b)(2). <bold>7. Appeal and Error — Dismissal of Complaint — Particular Cases</bold> Court rejected argument of plaintiffs, whose foreclosure action was involuntarily dismissed, that various findings of fact made by trial court were clearly erroneous, where challenged statements were either not truly findings or were supported by the record. <bold>8. Mortgages — Foreclosure — Generally</bold> Because foreclosure actions are by their nature equitable actions, it is proper for court to weigh equities of circumstances in determining whether to grant foreclosure, and weighing equities necessarily involves judicial discretion in evaluating a broad range of relevant considerations. <bold>9. Mortgages — Foreclosure — Particular Cases</bold> Trial court's dismissal of foreclosure action was supported by weight of equities, where consideration recited in mortgage deed did not exist, and where enforcement of mortgage would mean either double recovery for plaintiffs or that price for thirty-day extension was so unfair as to be unconscionable. <bold>10. Damages — Liquidated Damages — Enforceability</bold> A liquidated damages clause must meet three criteria to be upheld: (1) because of nature or subject matter of agreement, damages arising from breach would be difficult to calculate accurately; (2) sum fixed as liquidated<page_number>Page 606</page_number> damages must reflect reasonable estimate of likely damages; and (3) provision must be intended solely to compensate nonbreaching party and not as penalty for breach or incentive to perform. <bold>11. Damages — Liquidated Damages — Particular Cases</bold> If mortgage deed and note in foreclosure action were intended to represent liquidated damages under purchase and sale agreement relating to second property, they were facially invalid as an illegal penalty; there was no evidence that security interest in mortgaged property was a reasonable estimate of plaintiffs' likely damages, and plaintiff testified arrangement was intended as incentive to secure buyer's performance under purchase and sale agreement, suggesting plaintiff saw arrangement as a penalty. <bold>12. Mortgages — Foreclosure — Particular Cases</bold> Balance of equities supported dismissal of foreclosure action where mortgage, viewed in light of accompanying note and purchase and sale agreement relating to second property, reflected an invalid, unconscionable arrangement, and where plaintiffs had received sufficient profit from subsequent sale of second property.