Fingerlakes Construction Co., Inc. v. Fillmore Farms, LLC, No. 56-2-04 Bncv (Carroll, J., Aug.
3, 2005)


[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
                                 BENNINGTON COUNTY, ss.

       FINGERLAKES                           )
       CONSTRUCTION COMPANY,                 )
       INC.,                                 )
             Plaintiff,                      )
                                             )
                      v.                     ) BENNINGTON SUPERIOR COURT
                                             ) DOCKET NO. 56-2-04 Bncv
       FILLMORE FARMS, LLC,                  )
       THE E.H. HOLDEN                       )
       CORPORATION and                       )
       EDWARD HOLDEN,                        )
            Defendants.                      )

           ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT


       Plaintiff Fingerlakes Construction Company, Inc. (“Fingerlakes”) moves for summary

judgment on its claims seeking specific enforcement of an agreement between the parties.

Fingerlakes also seeks judgment on the counterclaims of Defendants Fillmore Farms, LLC, the

E.H. Holden Corporation, and Edward Holden (collectively “Fillmore”). For the reasons herein,

Plaintiff’s Motion for Summary Judgment is GRANTED IN PART.

                           STANDARD ON SUMMARY JUDGMENT

       Summary Judgment under V.R.C.P. 56 is appropriate when there is “no genuine issue as

to any material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)
(3). When reviewing a motion for summary judgment, the court will afford the non-moving

party “all reasonable doubts and inferences” based upon the facts presented. Samplid

Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996) (citing Pierce v. Riggs, 149 Vt.

136, 139 (1987)). In the event that the non-moving party opposes the moving party’s motion,

“[a]llegations to the contrary must be supported by specific facts sufficient to create a genuine

issue of material fact.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986)).

                                         BACKGROUND

       In July of 1999, Fingerlakes entered into a construction contract other parties to construct

a dairy barn. The original contract price was $393,000. The construction contract was signed by

an individual named Robert T. Holden, who is not a named party in this lawsuit, and stated that

the owner of the property was Holden Corporation. At the time of the facility’s substantial

completion in 2000, Fingerlakes had been paid $216,000, leaving an unpaid balance on the

original contract of $176,900. As a result of delays and deficiencies in the project, the parties

conducted extensive negotiations during 2000 and 2001 in an attempt to resolve their

disagreements.

       In October of 2001, Plaintiff and Edward Holden reached an agreement by which the

remaining balance on the contract was to be reduced from $176,000 to $129,000, with an initial

payment of $25,000, and following monthly payments of $1,261.81, to be paid in adjusted

amounts over a period of ten years.1 The agreed-upon payment plan provided for interest at a



       1
           Although there does not appear to be one written agreement containing both parties’



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rate of eight percent annually. The October, 2001 agreement was signed by Edward H. Holden,

as member and on behalf of Fillmore Farms, LLC.

       By check dated November 10, 2001, Fillmore paid Fingerlakes the initial payment of

$25,000. Between January 2002 and August 2002, Fillmore made eight payments of $1,261.81.

After August of 2002, payment from Fillmore ceased and no further payments were made to

Fingerlakes, leaving a balance owed of $99,344.64, plus interest beginning August 1, 2002.

Fingerlakes seeks a judgment of $99,344.64 plus interest in this suit, pursuant to the October,

2001 agreement between the parties. Fingerlakes does not sue on the original contract, as

indicated by its demand in the amount of the remaining balance of the October, 2001 agreement.

       In its answer, Fillmore denied its liability and countersued Fingerlakes, alleging breach of

the original contract’s implied warranty of workmanship, consequential damages resulting

therefrom, and gross negligence in the performance of the original contract. In their countersuit,

Fillmore seeks damages of approximately $200,000.

       Fingerlakes moves for summary judgment on its claims, and Fillmore’s counterclaims,

arguing that the October, 2001 agreement, made after the original contract, controls and that

Fillmore is estopped from bringing a counterclaim on the original contract, as the October, 2001

agreement operated as an accord and satisfaction, which Fillmore subsequently breached.

                                           DISCUSSION

       After reciting the agreed upon payment schedule, the October, 2001 agreement between

the parties, drafted by Fillmore, states as follows:


signatures, the parties have represented in their pleadings that each has signed an identical

agreement.


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       In summary, the total amount of the obligation is the $129,000.00. We will make
       a down payment of $25,000.00 and you will finance the balance of $104,000.00 at
       8% interest for a term of 10 years. I am enclosing an amortization schedule,
       which shows the projected, and tentative bullet payments.

       I would appreciate it if you would please sign and return one of the two originals
       and I will then forward to you the initial payment of $25,000.00.

       After much effort from both of us, this agreement resolves in full the outstanding
       issues between our firms. Bob, on a personal level I would like to thank you for
       the integrity and fairness you have brought to help resolve this problem.


(Fingerlakes’ Mot. for Summ. J., at Ex. C.)

       Fingerlakes contends that the October, 2001 agreement is an accord and satisfaction, and

in its answer to Fingerlakes’ complaint, Fillmore asserts an accord and satisfaction affirmative

defense. The parties, however, misconstrue the legal effect of their October, 2001 settlement

agreement. Before the un-executed October, 2001 agreement can operate as both an accord and

satisfaction, the payments from Fillmore to Fingerlakes must be fully executed, or in the

alternative, the parties must have intended the mere promises contained in their agreement to

discharge the underlying contract, such that the exchange of promises served as the satisfaction.

See Sargent v. Donahue, 94 Vt. 271 (1920) (citations omitted) (“It is a familiar rule that an

unexecuted accord is not a bar to an action on the original undertaking . . . [i]t is equally well

settled that, when a creditor accepts the mere promise of his debtor to perform some act in the

future in satisfaction of the debt, the mere promise itself, without performance, is sufficient to

extinguish the debt.”).

       Because Fillmore ceased payments under the October, 2001 agreement, the accord was

never fully executed, and thus if the parties did not intend the exchange of promises in their

October, 2001 agreement to satisfy the accord, the agreement could not have discharged the


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underlying contract. Therefore, the parties’ October, 2001 agreement was not an accord and

satisfaction, but rather an executory accord, or a compromise and settlement that has not been

fully executed.

        Vermont treats un-executed settlement agreements as executory accords, such that when

parties reach a compromise and settlement of a disputed claim, the original contract is merely

suspended, rather than discharged. See Spaulding v. Cahill, 146 Vt. 386, 388 (1985) (citing

Restatement (Second) of Contracts § 281(2) (1981)) (until the terms of a settlement agreement

are satisfied, the underlying contract is “suspended” such that the non-breaching party of the

settlement agreement may sue under the agreement or the underlying contract). The effect of a

breach by the debtor is that the creditor may sue either on the underlying contract, or the

compromise agreement. Id.; see also 15 Williston on Contracts § 1848, at 533-34 (1972) (where

performance of accord is required for satisfaction, in event of breach by debtor creditor may “sue

either on the original cause of action, or . . . on the contract of accord”) .

        Here, Fingerlakes, as creditor, sues for specific enforcement of the settlement agreement,

although it refers, and to some extent relies upon, the provisions of the original contract in

arguing its motion. Nevertheless, because Fingerlakes seeks satisfaction of the October, 2001

agreement, and not the amount owed under the original contract, Fingerlakes sues under the

October, 2001 agreement. See, e.g., Priem v. Shires, 697 S.W.2d 860, 864 n.3 (Tex. App. 1985)

(citing Alexander v. Handley, 123 S.W.2d 379 (Tex. Civ. App. 1938) aff’d, 146 S.W.2d 740

(Tex. 1941)) (noting that “[i]n contracts of settlement and compromise, if the executory

obligation is breached, the non-breaching party may elect to enforce either the contract of

settlement and compromise or the original disputed or unliquidated claim, but he may not claim



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the benefit of the former and also sue on the latter”); Coffeyville State Bank v. Lembeck, 610

P.2d 616, 619 (Kan. 1980) (citing Restatement of Contracts § 417 (1932)) (where creditor bank

entered executory accord with debtor, and debtor breached accord, bank elected its remedy and

obtained judgment on accord such that bank was “estop[ped] from suing on the original note”).

Here, both parties attempt to reach back into the original contract to gain the benefits of the terms

therein. Because Fingerlakes has elected the remedy of suing on the October, 2001 agreement, it

is limited to the terms of that agreement, as is Fillmore. This is true whether the October, 2001

agreement is deemed executory or is deemed to be a substituted contract, because Fingerlakes

has elected its remedy in the present suit.

       For a contract to be binding and valid, it requires a valid offer and acceptance by

authorized parties, consideration, and the mutual assent by the parties to the contract: a meeting

of the minds. A number of facts submitted by the parties demonstrate that the October, 2001

agreement was a valid and enforceable contract. The trial court construes a contract as a matter

of law, Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 6 (2002), and must do so here.

       The parties conducted lengthy negotiations through exchanged letters, covering numerous

issues in dispute. (See Fingerlakes’ Mot. for Summ. J., at Ex. A-D.) Consideration supports the

agreement because both parties reached a compromise of disputed claims at issue between them.

See Spaulding, 146 Vt. at 388 (citing Howard v. Howard, 122 Vt. 27, 32 (1960)) (“Compromise

of a doubtful claim is sufficient consideration to support [a settlement agreement], as long as the

claim is based on reasonable grounds honestly entertained.”). Here, Fingerlakes accepted a fifty

thousand dollar reduction in the contract price, and Fillmore agreed to pay the reduced balance

on the contract with the understanding that “this agreement resolves in full the outstanding issues



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between our firms.” (Fingerlakes’ Mot. for Summ. J., at Ex. C.) Therefore, the parties each

gave up something in relation to what was a disputed claim between them: the performance of

the original contract.

       Fillmore submitted its initial payment of $25,000 under the above agreement on

November 10, 2001, and made eight monthly payments before ceasing those payments. Fillmore

asserts that it discovered latent problems allegedly caused by Fingerlakes, which could not be, or

were not discovered prior to the October, 2001 agreement. To this end, Fillmore asserts a

counterclaim grounded on the terms of the original contract between the parties. In its

counterclaim, Fillmore asserts that Fingerlakes “breached its obligations to Defendants to

perform the work in a good, workmanlike, and timely manner.” (Def.’s Answer to Pl.’s Compl.,

at 3-4.) In its response to Fingerlakes’ summary judgment motion, Fillmore expands on the

allegations in its counterclaim, asserting Fingerlakes’ breach of implied warranties as well as

gross negligence in performing the construction of the dairy facility. However, because

Fingerlakes elected its remedy and sues on the October, 2001 agreement, the original contract

remains suspended and Fillmore, as breaching party, may not avail itself of the original contract

when Fingerlakes has elected not to sue on it. Priem, 697 S.W.2d at 864 n.3; Coffeyville State

Bank, 610 P.2d at 619.

       Vermont, like many jurisdictions, seeks to encourage extra-judicial settlement of

disputes. See, e.g., Dutch Hill Inn, Inc. v. Patten, 131 Vt. 187, 192 (1973) (“[p]ublic policy . . .

strongly favors settlement of disputed claims without litigation”). To this end, the Court will not

allow a party to a valid settlement agreement, supported by adequate consideration, to simply

decide it is not satisfied with a binding agreement, entered into voluntarily, and return to the



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original contract as if the settlement were never entered into. For the law to allow a party to

enter into, breach, and then disregard as nugatory a valid contract is squarely against the policy

of encouraging settlement among parties. Allowing a party to do so provides no incentive for

parties to bind themselves, and thus rely upon, a good faith compromise of a disputed claim.

Fillmore, at this stage, must abide by its agreement with Fingerlakes. Because there are no

material facts in dispute as to the validity or enforceability of the October, 2001 agreement, nor

the material facts relating to the amounts owed under this agreement, summary judgment is

appropriate, and the Court will order the enforcement of the October, 2001 agreement between

the parties.

        The undisputed material facts support summary judgment against Fillmore and Edward

Holden, as both were parties to the October, 2001 agreement. However, Plaintiff also seeks

summary judgment against Defendant EH Holden Corporation, as party to the original contract.

This issue does not appear to have been significant to the parties in their briefing and Plaintiff

has offered no legal basis from which the Court is authorized to grant judgment against EH

Holden, who was not a clear party to the October, 2001 order upon which Plaintiff brings suit.

Although Plaintiff’s affidavit, accompanying this motion, names all Defendants as “part of a

dairy family,” Defendant Fillmore and Holden’s statement of undisputed facts contests the fact

that EH Holden was a party to the October, 2001 agreement. Thus, the Court will not grant

summary judgment at this time as to EH Holden Corporation. Plaintiff may further supplement

his motion with factual or legal authority on this issue.

                                 CONCLUSION AND ORDER

        Because the October, 2001 agreement between the parties is a valid and enforceable



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contract, and because there are no material facts in dispute as to the agreement’s validity,

whether it was breached and the amounts outstanding, summary judgment is appropriate.

       For the foregoing reasons, Fingerlakes’ Motion for Summary Judgment is GRANTED

on Plaintiff’s claims and Defendants’ counterclaim, as to Defendants Fillmore Farms, LLC and

Edward Holden and DENIED as to EH Holden Corporation.



Dated this ____ day of August 2005, at Bennington, County of Bennington, Vermont.



                                              _________________________
                                              Karen R. Carroll
                                              Presiding Judge




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