Shaclumis v. McCarty, No. 358-8-13 Wmcv (Wesley, J. Apr. 17, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                                     STATE OF VERMONT
SUPERIOR COURT                                                                                                 CIVIL DIVISION
Windham Unit                                                                                        Docket No. 358-8-13 Wmcv

                              Gwendolyn Shaclumis vs. William McCarty, Jr.

                                             ENTRY REGARDING MOTION

Count 1, Declaratory Judgment (358-8-13 Wmcv)

Title:                Motion for Summary Judgment (Motion 4)
Filer:                Gwendolyn W. Shaclumis
Attorney:             Pro Se
Filed Date:           January 2, 2014

Response filed on 01/31/2014 by William M. McCarty, Defendant
Title:        Motion to Dismiss and for Summary Judgment (Motion 5)

Response filed on 02/04/2014 by Gwendolyn W. Shaclumis, Plaintiff

Each motion is DENIED.

                                             OPINION & ORDER
                              DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT

       On August 2, 2013, the Plaintiff brought this action, seeking declaratory judgment
regarding the respective rights of the parties in a garage associated with the property at 16
Forest Street, Brattleboro (“the property”). On January 2, 2014, Plaintiff filed a motion for
summary judgment. On the same date, Defendant filed a motion to dismiss and a cross-motion
for summary judgment. On January 31, 2014, Defendant filed a reply to Plaintiff’s summary
judgment motion. On February 4, 2014, Plaintiff filed her opposition to Defendant’s motion to
dismiss and for summary judgment.

           Both Plaintiff and Defendant are representing themselves in this matter.

Discussion

           The summary judgment record reveals the following:

       In 2005, Defendant sold Plaintiff the property at 16 Forest Street. As part of the
purchase and sale agreement, the parties included a provision at paragraph twenty, which
provided, in full:

                   In addition to the above, it is agreed that the premises have, adjacent to
           it, a two-story, one car garage, situated on Upper Forest Street. SELLERS may
        continue to have exclusive use of the garage, with reasonable access to the area
        immediately surrounding the garage for no consideration. SELLERS shall be
        entitled to use the garage premises as his own, so long as the SELLER, William M.
        McCarty, or his spouse, Carlene C. McCarty is the owner of their home place
        situated at 43 Chestnut Hill in Brattleboro. SELLER, while utilizing and using said
        garage, shall be responsible for the maintenance of the garage property and
        shall keep it in reasonable repair. If SELLER and/or Carlene McCarty is still using
        said garage premises, and BUYER herein sells 16 Forest Street, then the licensees
        McCarty shall pay to the new buyers (BUYER’S herein successors) a payment of
        Five Dollars ($5.00) per month for the electric hookup that now serves the
        property. However, SELLER will not be responsible, during the use of this license
        to pay any electric use to BUYER herein.”

This provision was not included in the warranty deed by which Defendant conveyed the
property to Plaintiff, nor was it ever recorded in the Brattleboro land records.

         Subsequent to the sale, Defendant used the garage in the manner described in
paragraph twenty of the purchase and sale agreement. That arrangement continued until the
filing of this suit. On or about October 15, 2012, after learning the Plaintiff had listed the
property for sale, Defendant notified Plaintiff that he anticipated his use of the garage would
continue beyond her then-intended sale of the property. In support, Defendant cited the
language of paragraph twenty. Plaintiff responded with this action, seeking a declaration that
Defendant’s interest in the garage is a mere license and freely revocable at any time, and that
she has properly revoked such license.

        In support of her argument, Plaintiff notes the language employed in paragraph twenty,
including the use of the terms “license” and “licensee.” Plaintiff argues then that the plain
language of the contract resolves the question, as it embodies the parties’ intent. Defendant
counters that there is a clear intent for the privilege he enjoys to run with the land, based on
the language of paragraph twenty taken in total.

        The document at the heart of the dispute is ambiguous. Thus, the parties’ intent in
entering upon the agreement reflected by the document is a disputed matter of material fact,
and this is not a case in which summary judgment is appropriate.1 See Madowitz v. Woods at
Killington Owners’ Ass’n, 2010 VT 37, ¶ 9, 188 Vt. 197, quoting Bacon v. Lascelles, 165 Vt. 214,
218 (1996) (“summary judgment is appropriate only when the record clearly shows that there is
no genuine issue of material fact”).

         The language of paragraph twenty is inherently contradictory. It uses the terms
“license” and “licensee”, which Plaintiff argues denote rights which are revocable. See, State v.
Kreth, 150 Vt. 406 (1988); see, also, Black’s Law Dictionary 830 (5th Ed, 1979). However, the
agreement also clearly contemplates Defendant’s rights to use the garage extending beyond
Plaintiff’s ownership, expressed in terms more typical of an easement. See Prue v. Royer, 2013
VT 12, ¶ 20, 193 Vt. 267 (“[T]he ambiguity in this contract begins with the multiple titles on the
top of the instrument …. No matter which of the titles could be said to be more authoritative,

1
 The Court notes that Defendant both argues that there are disputes of material fact that defeat summary judgment
and argues for summary judgment in his favor. However, the dispute over what was intended by the parties makes
summary judgment inappropriate as to either party’s claims.
the title of an instrument is not necessarily determinative … So, we must look beyond the title
to the terms of the agreement to determine the intent of the parties”). See also Hunsdon v.
Farrar, 128 Vt. 410, 414 (1970) (“The intention of the parties, not the language used, is the
dominating factor, and the circumstances existing at the time of the execution of the deed, the
situation of the parties and the subject matter are to be considered”).

        Yet, resort solely to the language of the agreement yields no clarity as to the parties’
intentions. For example, Defendant’s insistence that the language clearly expresses an
agreement to create a binding and enforceable easement that runs with the land is not only at
odds with the use of the words “license” and “licensee” to refer to the rights described. Rather,
that construction is also contradicted by the tacit agreement that the rights denominated as a
license would not be included in the deed, nor recorded in the land records. But see, 27 V.S.A.
§ 341.2

       As a result, there is conflicting evidence as to the parties’ intent in affording use of the
garage to Defendant, and the Court cannot, on summary judgment, determine what rights
were intended. Cf. Fassler v. Okemo Mountain, Inc., 148 Vt. 538, 540 (1987). While the Court’s
mandate is to effectuate the parties’ intent, Prue, ¶ 18, it cannot do so without considering
further evidence where that intent is unclear from the language of the agreement, and the
circumstances surrounding its making. In particular, each party’s expectations as expressed by
his and her testimony as trial may be critical to a determination of the interpretation of
paragraph twenty.

         Since a trial will be necessary, absent some other resolution fashioned by the parties,
the Court is constrained to take note of legal issues which were not explicitly addressed in the
summary judgment pleadings, but which may play a role in the Court’s analysis after
consideration of all the evidence. For example, the Court will likely have to resolve whether the
agreement embodied in paragraph twenty survived the execution of the deed regarding the
property. In general, agreements regarding a property are extinguished by the execution of a
deed under the doctrine of merger by deed. Vt. Marble Co. v. Eastman, 91 Vt. 425 (1917)
(quoting Slocum v. Bracy, 56 N.W. 826 (Minn.) (“[W]here a deed has been executed and
accepted as performance of an executory contract to convey real estate, the contract is functus
officio, and the rights of the parties rest thereafter solely on the deed”). However, “[t]he
doctrine of merger by deed does not bar the enforcement of ... independent or collateral
undertakings simply because they are expressed in a writing containing terms of sale which
merge into the deed.” Wyatt v. Palmer, 165 Vt. 600, 601-02 (1996) (quoting Worthey v. Holmes,
287 S.E.2d 9, 10 (Ga. 1982)). Collateral provisions are provisions that do not alter or impair the
use of the deed. See Murphy v. Stowe Club Highlands, 171 Vt. 144, 151 (2000). The question
then becomes whether the agreement is collateral or part of the function of the deed. Based on
the current record, and the absence of any analysis by the parties in the summary judgment
proceedings, the Court must reserve this determination for trial.

       Even if the purchase-and-sale agreement afforded Defendant rights that survived the
execution of the deed, it cannot be determined based upon the record whether Defendant’s

2
 “Deeds and other conveyance of lands, or of an estate or interest therein, shall be signed by the party granting the
same and acknowledged by the grantor before a town clerk, notary public, master, county clerk, or judge or register
of probate and recorded at length in the clerk’s office of the town in which such lands lie.” Id. See, also, 27 V.S.A.
§ 342 making conveyances in fee, or for life, or consisting of a lease for longer than one year ineffective against
subsequent purchasers unless acknowledged and recorded with the formalities required of deeds.
rights are revocable by Plaintiff or whether they are enforceable against a subsequent
purchaser. Whether the use of the garage which Defendant has enjoyed is freely revocable will
depend at least in part upon the nature of the interest he has enjoyed. Compare Hunsdon, 128
Vt. at 415 (“easement across the land lying between the parallel stonewalls as an appurtenant
to the woodlot which the grantors retained … was subject to grant or devise with and for the
benefit of the land to which it appertained”) and Carbonneau v. Lague, Inc., 134 Vt. 175, 176‒
177 (1976) (licenses exist in revocable and irrevocable forms). This is a question which, as
discussed above, requires further exposition.

        Finally, there are concerns regarding the ripeness of the Plaintiff’s request for a
declaration as to the enforceability against subsequent purchasers of the parties’ agreement
about the use of the garage. While clearly there is a case or controversy regarding the present
revocability of whatever privilege Defendant has enjoyed regarding the garage, the status of
the question regarding Defendant’s rights against a future owner is less clear.
        Vermont has adopted the case-or-controversy requirement of the federal courts,
        and this requirement ‘incorporates the doctrines of standing, mootness,
        ripeness, and political question.’… In a declaratory judgment action, “[t]he
        availability of declaratory relief turns on whether the plaintiff is suffering the
        threat of actual injury to a protected legal interest.”… The case-or-controversy
        requirement does not disappear because of the case's declaratory nature….
Dernier v. Mortgage Network, Inc., 2013 VT 96, ¶ 38 (citations omitted). While Plaintiff has
listed the property for sale, the circumstances surrounding any such sale remain speculative at
present.

       Depending on the resolution of the question of whether the Defendant’s use of the
garage may be terminated at the present time, the ripeness issue may or may not arise.
However, the parties are encouraged to supply additional briefing as to the existence of a
present case or controversy, as distinguished from a request for an advisory opinion.

      WHEREFORE, it is hereby ORDERED : Plaintiff’s motion for summary judgment, and
Defendant’s Motion to Dismiss or for Summary Judgment are DENIED. The case will be
scheduled for a ½ day trial as soon as the docket allows.

Electronically signed on April 16, 2014 at 04:58 PM pursuant to V.R.E.F. 7(d).


______________________________________
John P. Wesley
Superior Court Judge

Notifications:
Plaintiff Gwendolyn W. Shaclumis
Defendant William M. McCarty

wesley
