Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-372

                                      FEBRUARY TERM, 2015

 Susan L. Moraska                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Albert F. Moraska                                     }    DOCKET NO. 279-3-11 Cncv

                                                            Trial Judge: Dennis R. Pearson

                          In the above-entitled cause, the Clerk will enter:

        Defendant Albert Moraska appeals a ruling of the superior court, civil division, that he
entered into a contract with his father, Dr. Albert Moraska, requiring him to relinquish his
interest in the family homestead to his sister, plaintiff Susan Moraska. We affirm.

        Dr. Moraska, who died in May 2010, had a large-animal veterinarian practice that he ran
from his home in Charlotte, Vermont, for many years. In July 1999, Dr. Moraska and his wife,
Betsy Moraska, executed reciprocal trust agreements that, in relevant part, conveyed a one-half
interest in the Charlotte homestead to their respective trusts. Susan and Albert were named as
remaindermen, each to receive one-half of each trust’s principal. Susan assisted her father in the
veterinary business and lived in the family home. Albert has lived and worked in Colorado since
1991.

        Betsy died in 2006, at which time her trust became irrevocable. Following Betsy’s death,
Dr. Moraska’s health began to fail. Susan became her father’s nurse, personal assistant, and
home companion. From 2007 until his death in 2010, Dr. Moraska consistently and repeatedly
expressed to numerous people, including his attorney and medical providers, his intent that
Susan obtain sole ownership of the Charlotte homestead. In April 2008, Dr. Moraska changed
the beneficiary designations on his Charles Schwab IRA account, which was not in his trust, to
give Albert seventy-five percent (rather than half) of the proceeds upon his death, and Susan the
remaining twenty-five percent. Five months later, in September 2008, Dr. Moraska amended his
trust to provide that Susan would receive the entire fifty percent of the Charlotte property
contained therein. At that point, Susan had a seventy-five-percent interest in the property—
twenty-five percent from Betsy’s trust and a contingent fifty percent from Dr. Moraska’s trust.

        In March 2010, Albert came to Vermont to visit his father, who was within two months
of his death. On March 18, Albert and Susan had a physical altercation that was upsetting to Dr.
Moraska. The next day, Dr. Moraska called both Susan and Albert to his bedside to discuss his
desires concerning the distribution of assets upon his death. The ensuing discussion between the
three of them is the subject of this lawsuit. Susan contends that Albert agreed to cede to Susan
his remaining twenty-five-percent interest in the Charlotte homestead in exchange for their father
agreeing to give Albert all of the value of the cash investment account. Albert contends that the
agreement related only to the disposition of personal property in the house, and not the real
estate.

        The next day, March 20, Susan left the homestead for an extended trip out of state to visit
relatives. Albert remained with his father in Vermont. On March 22, Albert drove his father to
the bank, where Dr. Moraska executed a first codicil to his will directing that his residence and
real estate be devised and transferred to his daughter upon his death. The next day, March 23,
Dr. Moraska received confirmation that Albert had been made the sole beneficiary of the Schwab
account. The account had a value of approximately $1,000,000 on the date of Dr. Moraska’s
death six weeks later. The entire proceeds of the account were transferred to Albert in June
2011. In connection with the estate proceedings, the Charlotte real estate was appraised at
approximately $765,000.

         Following Dr. Moraska’s death on May 2, 2010, Albert declined to agree to a transfer to
Susan of his twenty-five-percent interest in the Charlotte property stemming from Betsy’s trust,
which, as it turned out, was unaffected by the codicil that Dr. Moraska had attached to his will
six weeks before his death. Susan sued Albert in March 2011, contending that at the March 19
meeting Albert agreed to cede to her his interest in the homestead property in exchange for being
designated the sole beneficiary of the Schwab account, and asking the superior court to either
order the conveyance of Albert’s interest in the Charlotte property to her or order Albert to return
all of the funds he received from the Schwab account. The court later allowed Susan to amend
her complaint to include counts of breach of contract, estoppel, and unjust enrichment. In
December 2012, the court denied Albert’s motion for summary judgment, concluding that there
were triable issues of fact concerning Albert’s Statute of Frauds defense and Susan’s claim of an
exception to that defense.

        A bench trial was held on March 17, 2014. At the close of Susan’s evidence, the court
granted Albert’s motion for judgment as a matter of law as to Susan’s claim of unjust
enrichment. Following the bench trial, the superior court entered judgment in favor of Susan on
her breach-of-contract count and, in the alternative, on her quasi-contract count. Regarding the
breach-of-contract count, the court concluded that there was an agreement as to all essential
terms between Albert and his father at the March 19 meeting. The court did not find credible
Albert’s version of what he and his father had agreed to. Accordingly, the court ordered Albert
to relinquish to Susan any rights or interest he had in the Charlotte property within thirty days of
the judgment.

        On appeal, Albert argues that the record contains no credible evidence to support the trial
court’s findings and determination that he and his father entered into a contract during the March
19 meeting. He claims that Susan’s testimony as to what transpired during the March 19 meeting
was nothing more than Albert’s recognition of his father’s testamentary wishes. In contending
that there was no direct evidence of an agreement, Albert emphasizes Susan’s acknowledgement
of her belief that there was nothing for Albert or her to do as a result of the meeting because their
father would handle everything by changing the beneficiary on the Schwab account and adding
the codicil to his will. Albert asserts that there was no evidence that he agreed to anything—let
alone that he would give up property that he was entitled to through Betsy’s trust—and that the
circumstantial evidence was insufficient to support the court’s finding of a contract.



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        In making these arguments, Albert takes a different tack than he took at trial, where he
acknowledged that an agreement between him and his father had taken place at the March 19
meeting but contended that the agreement concerned only personal property in the house.
Specifically, he testified that his father gave him the remainder of the Schwab account in
exchange for Susan receiving more of the personal property. The court explicitly found,
however, that Albert’s version of the oral agreement between him and his father was not
credible. See Benson v. Hodgdon, 2010 VT 11, ¶ 10, 187 Vt. 607 (mem.) (stating that “review
of a trial court’s finding of fact is curbed by . . . deference to that tribunal’s unique position to
assess witness credibility and the weight of the evidence presented”). Moreover, Albert
acknowledged at trial that his father signed the codicil to his will—which directed that Susan
receive the entire homestead property—in direct response to the March 19 meeting three days
earlier. Despite the disconnect between what the codicil addressed and what he claimed the
March 19 agreement was about, Albert insisted that the agreement concerned only personal
property. Not only did the court find that testimony not credible, but it also found not credible
Albert’s claim that his father assured him that the codicil was not binding and that he could sell
his share of the homestead to Susan at whatever price he wanted.

        For her part, Susan testified that at the March 19 meeting her father told her and Albert
that he wanted Susan to have the house and Albert to have the Schwab account, each of which he
believed to be of approximately equal value. She specifically testified that “it was all agreed
on.” She further testified that her father stated that “[i]f we didn’t agree he wasn’t going to do
it.” Thus, notwithstanding Albert’s arguments to the contrary, there was direct evidence that
Albert agreed with his father that he would cede to Susan any claim he had on the house in
exchange for his father making him the sole beneficiary on the Schwab account. There is also
strong circumstantial evidence to support the direct evidence—namely, that: (1) three days after
the March 19 meeting, Albert took his ailing father to the bank to sign a codicil to his will,
though apparently ineffective, that purported to direct conveyance of the house solely to Susan;
and (2) four days after the March 19 meeting, while Albert was still with his father at the
Charlotte homestead, Dr. Moraska received confirmation that Albert was the sole beneficiary of
the Schwab account.

        Whether an agreement exists is a question of fact that “depends, in part, on the reasonable
inferences that may be drawn from the facts of the case.” Quenneville v. Buttolph, 2003 VT 82,
¶ 16, 175 Vt. 444; Bixler v. Bullard, 172 Vt. 53, 58 (2001) (“The question whether there was a
contract between the parties does not depend alone on the specified facts found but also upon
reasonable inferences to be drawn from them.” (quotation omitted)). “We will overturn a factual
finding of the trial court only where there is no credible evidence to support it, regardless of
whether there is substantial evidence to contradict it.” Quenneville, 2003 VT 82, ¶ 17. In this
case, there was sufficient evidence, both direct and circumstantial, to support the trial court’s
finding that Albert agreed to relinquish to Susan any remaining rights he had in the house in
exchange for being designated the sole beneficiary on his father’s Schwab account.

        Albert makes much of the fact that both his father and Susan, notwithstanding contrary
advice by his father’s attorney, believed that the codicil added to the will shortly after the March
19 meeting was sufficient to give Susan the house, and thus he was not required to do anything.
The fact that Dr. Moraska and his daughter may have believed that the codicil was sufficient in
that regard does not demonstrate that Albert did not promise to abide by his father’s wishes and
relinquish to Susan his interest in the house in exchange for being made the sole beneficiary of
the Schwab account. There was some evidence of uncertainty over whether the codicil would be
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sufficient to ensure that Susan would be the sole owner of the house, and thus Dr. Moraska may
have wanted to obtain Albert’s promise to ensure that that occurred.

        Because of our resolution of this issue, we need not address Albert’s argument that the
trial court erred by ruling that an agreement could be implied under a theory of quasi-contract.

        Albert’s final argument is that the trial court erred by ordering enforcement of a contract
involving real property without finding facts essential to the part-performance exception to the
Statute of Frauds defense he raised. We find this argument unavailing. In its December 2012
decision denying Albert’s motion for summary judgment, the superior court addressed Albert’s
Statute of Frauds defense. As the court noted, “[a] court may specifically enforce an oral
contract to convey land, despite the Statute of Frauds, where the plaintiff is equitably entitled to
the real estate.” In re Estate of Gorton, 167 Vt. 357, 361 (1997). As we stated in Gorton,
“[e]nforcement is justified on the ground that repudiation by one party after the other party has
fully performed amounts to a virtual fraud.” Id. Thus, an oral agreement for the transfer of land
is enforceable “where the plaintiffs can show (1) there was an oral agreement (2) upon which
they reasonably relied (3) by changing their position so that they cannot be returned to their
former position, and (4) the other party to the agreement knew of such reliance.” Id. at 362.

        As the superior court pointed out, the main issue in dispute in cases concerning the part-
performance exception to the Statute of Frauds “is whether appellants have alleged a substantial
and irretrievable change in position in reliance on the agreement.” Id.; see Quenneville, 2003
VT 82, ¶ 18 (stating that oral agreement involving transfer of land may be removed from Statute
of Frauds “if the proponent can show that, in reliance on the agreement, he or she suffered a
substantial and irretrievable change in position” (quotation omitted)). Although the court in its
summary judgment decision determined that there were triable issues on the elements of the
exception, it stated that the basis of Albert’s argument was not that there was no agreement but
rather that Susan would be unable to establish an irretrievable change of position based on the
alleged agreement she sought to enforce. More importantly, the court rejected Albert’s argument
that Susan could not show an irretrievable change in position, ruling that, as a third-party
beneficiary of the alleged agreement between Albert and his father, she did not need to show that
she changed her position, but rather that Dr. Moraska irretrievably changed his position as the
result of the agreement. In so ruling, the court reasoned that the purpose of the part-performance
exception to the Statute of Frauds is to avoid fraud, and that that purpose would be frustrated if
third-party beneficiaries could not argue that their contractual benefactors changed position in
reliance on an oral contract. The court then found that Dr. Moraska’s decision to make Albert
the sole beneficiary to the Schwab account as part of the alleged agreement “would qualify as a
substantial and irretrievable change in his position on reliance of his son’s alleged agreement to
release his interest in the house.” Albert has not challenged this finding.

       Following the bench trial, the trial court found that there was an agreement between
Albert and his father that Albert cede to Susan his interest in the house in exchange for Dr.
Moraska making Albert the sole beneficiary on the Schwab account. The court also found that
Dr. Moraska, in reliance upon the agreement, made Albert the sole beneficiary of the account
and attempted, via a codicil to his will, to convey the house solely to Susan. The court also
found that within days of the March 19 agreement, when Albert was with his father at the house,
Dr. Moraska received confirmation that Albert had been made the sole beneficiary of the Schwab
account, and Albert took his father to the bank to add a codicil to his will in an attempt to convey


                                                 4
the house solely to Susan upon his death. Based upon the court’s rulings and findings, each of
the elements of the part-performance exception to the Statute of Frauds was met.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Harold E. Eaton, Jr., Associate Justice




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