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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-296

                                      FEBRUARY TERM, 2014

 David Berrie d/b/a David Berrie Real Estate           }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Robin O’Neill                                         }    DOCKET NO. 464-10-11 Wmcv

                                                            Trial Judge: Karen R. Carroll

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

        Defendant in this broker’s-commission dispute appeals pro se from a judgment in favor
of plaintiff realtor. Defendant contends the evidence fails to support the judgment. We affirm.

        The material facts are largely undisputed, and may be summarized as follows. In June
2011, the parties signed a marketing agreement for the sale of defendant’s home in Townshend.
The agreement listed the sale price of the property as $179,000, and provided, in relevant part,
for the payment of a six percent commission to realtor “if, during the term of this
Agreement, . . . Owner enters into an agreement for the sale or exchange of the [p]roperty and all
closing contingencies to be performed by the purchaser under such agreement are satisfied.”
Realtor secured a buyer for the property in short order, and the parties signed a purchase and sale
agreement on June 15, 2011. The purchase price was $177,000. Although realtor would have
been entitled to a commission of $10,620, he agreed to reduce his commission to $9,000 because
plaintiff wanted to “net” a certain amount from the sale.

        The purchase and sale agreement contained a financing contingency which provided, in
relevant part, that “Purchaser shall provide Seller and the real estate broker(s) . . . with written
notice that this Financing Contingency has or has not been satisfied not later than August 26,
2011.” The provision further stated that, in the event that the purchasers failed to provide seller
“with written notice that a commitment for the necessary financing has been obtained,” seller
had the right to terminate the agreement.

         On August 25, 2011, the day before the financing-contingency due date, realtor informed
defendant’s attorney that the purchasers would probably not secure financing until August 29.
2011. The next day, defendant’s attorney faxed a letter to realtor and the purchasers’ attorney
stating that defendant was terminating the agreement due to purchasers’ noncompliance with the
financing contingency. The fax shows that it was received at 3:05 p.m. The purchasers’ attorney
testified that on the same day, August 26, 2011, he was informed by the purchasers’ bank that it
had committed to the loan. Accordingly, he faxed a letter to defendant’s attorney stating that it
was intended to provide “[n]otice under . . . the Purchase and Sale Contract that [purchasers]
have satisfied their financing contingency and will proceed with the closing scheduled for
September 14, 2011.” Defendant testified that the fax was received at 5:04 p.m. on August 26,
though the trial court expressly declined to make a finding as to the time the fax arrived. The
bank issued a formal commitment letter on August 31, 2011.

        Defendant thereafter maintained that the purchase and sale agreement was terminated.
She failed to appear at the closing, and the sale fell through. Realtor subsequently filed this
breach-of-contract action against defendant to recover his commission. Following a bench trial,
the court issued a written decision and judgment in favor of realtor. The court concluded that
defendant had breached the listing agreement when she refused to proceed to closing under the
terms of the purchase and sale agreement. In the trial court’s view, the purchasers had fulfilled
the financing contingency when they provided fax notice of their lender’s commitment on
August 26, 2011. In this regard, the court observed that the purchase and sale agreement did not
specify any particular form of “written notice” to defendant that the financing contingency had
been satisfied or any outside timeframe for notice on the due date, August 26, 2011, nor did it
specifically require a commitment letter from the lender. Although defendant had also raised an
issue concerning realtor’s prior relationship with purchasers, the trial court found that this was
not relevant to the essential question before it. Accordingly, the court concluded that the
financing contingency had been satisfied, that realtor was therefore entitled to a commission, and
that defendant had breached the contract and was liable for payment of $9000 to realtor. This
pro se appeal followed.1

        Defendant appears to raise a number of arguments which we address in turn. She
suggests that the financing contingency was not satisfied absent a commitment letter from the
bank. As the trial court observed, however, the purchase and sale agreement expressly required
only “written notice that a commitment for the necessary financing has been obtained”; the
agreement did not require that the commitment be in writing. Thus, the testimony of the
purchasers’ attorney that the bank had approved the loan on August 26, 2011, and the faxed letter
of the same date to defendant, were sufficient to satisfy the contract. See Milton Bd. of Sch.
Dirs. v. Milton Staff Ass’n, 163 Vt. 240, 244 (1995) (“We will not supply terms or embrace a
construction that would alter the rights of the parties as expressed in the original agreement.”).

       Defendant argues that buyer did not have an unequivocal commitment for financing
because the bank required, prior to closing, a right of way and road maintenance agreement
concerning the shared drive, and the capping of plumbing in an illegal accessory unit in the
basement. The trial court expressly found that these issues with the lender were resolved prior to
the faxed notice that the necessary financing had been obtained. Although this finding is
inconsistent with the terms of the subsequently issued commitment letter from the bank upon
which defendant relies, it is supported by buyer’s counsel’s testimony that these issues were
resolved before he faxed the notice.

       Defendant further suggests that the notice was invalid because it was received after the
close of business at 5:04 p.m. Even if the trial court had made a finding supporting defendant’s
claim that the fax arrived at 5:04, its analysis would not have been erroneous. As the trial court
observed, the purchase and sale agreement stated only that the purchasers must provide notice
“not later than August 26, 2011.” It set no outside time limit for notice on the 26th. The
agreement did not, for example, specify that notice must be received by the “close of business”

          1
              Although defendant was represented by counsel at trial, she is self-represented on
appeal.
                                                 2
or by “5:00 p.m,” nor indeed did defendant adduce any evidence showing what the normal “close
of business” is considered for realtors. As noted, the parties to an agreement are “bound by the
plain and ordinary meaning of the language used,” In re Vt. State Employees Ass’n, Inc., 2005
VT 135, ¶ 14, 179 Vt. 578 (mem.), and courts are not at liberty to supply terms which the parties
have left out. Milton Bd. of Sch. Dirs., 163 Vt. at 244. We thus find no basis to reverse the trial
court’s conclusion that the notice was timely.

        Defendant further maintains that the court erroneously admitted a report by the Real
Estate Commission issued in response to defendant’s complaint that realtor had acted as a dual
agent in the transaction, and similarly asserts that the trial court erroneously ignored evidence of
realtor’s prior relationship with purchasers. As the trial court correctly concluded, however, the
report—which found no evidence of misconduct by realtor—was irrelevant to the case, and there
is no showing that its admission—erroneous or not—in any way affected the outcome. See
Trudell v. State, 2013 VT 18, ¶ 28 (noting that the “[e]rroneous admission of evidence is
harmless, unless a party’s substantial right is affected,” and that the burden is on the appellant “to
show that the error resulted in prejudice”).

        Defendant also contends that the trial court erroneously evaluated the witness’s
credibility and demeanor, and made a number of findings unsupported by the evidence, including
its description of defendant’s former occupation as a mortgage lender and real estate appraiser,
its finding that “[d]efendant became difficult for [p]laintiff to work with,” and its finding that
defendant had informed plaintiff that a smaller inheritance than she expected might prevent her
from moving and therefore that she wanted to terminate the contract. The trial court is in the
best position to assess the credibility of witnesses and weigh the evidence, and we will not
disturb its factual findings unless, viewing the evidence in the light most favorable to the
prevailing party and excluding the effect of modifying evidence, there is no credible evidence to
support them. Kasser v. Kasser, 2006 VT 2, ¶ 16, 179 Vt. 259; Begins v. Begins, 168 Vt. 298,
301 (1998). Defendant here has not shown the court’s findings to be clearly erroneous.
Moreover, none of the findings are material to the court’s interpretation of the purchase and sale
agreement and its conclusion that realtor had satisfied the requirements of the agreement and was
entitled to a commission. See Mills v. Mills, 167 Vt. 567, 569 (1997) (mem.) (holding that
erroneous finding that was not essential to decision was harmless and did not require reversal).
Accordingly, we find no basis to disturb the judgment.

       Affirmed.



                                                 BY THE COURT:

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Geoffrey W. Crawford, Associate Justice


                                                  3
