Arnold v. Cantini

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 88-457
 
 
Andrew and Joanne Arnold                     Supreme Court
 
     v.                                      On Appeal from
                                                      Bennington Superior Court
Gerald P. Cantini and
Trask & Waite Realtors, Inc.                 May Term, 1989
 
 
Theodore S. Mandeville, Jr., J.
 
William J. Bloomer of Bloomer & Bloomer, P.C., Rutland, for plaintiffs-
   appellants
 
Harold E. Eaton, Jr., of Miller, Cleary & Faignant, Ltd., Rutland, for
   defendant-appellee
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
     PECK, J.  Plaintiffs appeal from a jury verdict in favor of defendant
listing broker in an action brought to recover an earnest money deposit of
$10,000.  We reverse and remand.
     On October 10, 1982, plaintiffs Joanne and Andrew Arnold signed a
purchase and sale agreement for a parcel of land in Winhall, Vermont.
Hickory Hills, Inc. owned the property, and the agreement provided that
Hickory Hills would build a house on the lot according to specifications
attached to the agreement.  The Arnolds gave a $10,000 earnest money deposit
to Trask & Waite Realtors, Inc. for deposit in a client's trust account.
John Waite, the realtor, signed for Trask & Waite.  The agreement provided
that the deposit was to be released at the closing, set for October 22.
     The closing did not take place on October 22.  The Arnolds retained a
local attorney, Gerald Cantini, and on October 25, executed a power of
attorney giving Cantini authority to act for them in transactions relating
to the property.  Andrew Arnold mailed a check for $20,000 to John Waite so
that work could begin, enclosing a note saying that "[p]er our verbal
agreement, you will wait for Mr. Cantini's permission to use the funds."
There was conflicting testimony about a telephone conversation between
Cantini and Waite, in which Cantini purportedly authorized the release of
both the $20,000 and the $10,000 held in escrow.  It is undisputed that
$30,000 of the fund was ultimately released to Hickory Hills, and that
Hickory Hills paid Trask & Waite $10,000 in connection with the deal.
     Building commenced on the house, but no closing ever took place.  In
January of 1983, the Arnolds occupied the house.  Plaintiffs had made a
number of progress payments, and had withheld only $2,000 of the $130,000
price agreed upon.  Green Mountain Bank held a mortgage on the property,
and when Hickory Hills failed to pay, the Bank foreclosed.  The Arnolds
bought the property from the Bank, and paid off delinquent taxes and other
liens.
     Plaintiffs sued Gerald Cantini and Trask & Waite to recover the $10,000
deposit.  By this time, Hickory Hills had gone out of business, and its
owner, Steven Bruehl, could not be located.  Plaintiffs settled with
Cantini.  The case was tried against Trask & Waite, and the jury returned a
verdict for defendants.  This appeal ensued.
     Plaintiffs raise three issues on appeal.  The first two concern the
content of the trial judge's charge to the jury.  Plaintiffs assert that
the jury instructions mischaracterized the transaction in question, because
specific contractual language was not mentioned, and because the judge
removed the issue of the propriety of the payment of a broker's commission
from the jury's consideration.  Plaintiffs also claim that the trial court
erred in refusing to permit plaintiffs' attorneys to split the closing
argument between them.
     First, plaintiffs assert that the court's charge to the jury concerning
Trask & Waite's obligations with respect to the deposit did not emphasize
the details of the particular purchase and sale agreement.  The court's
charge was as follows:
            Although a real estate broker is ordinarily considered
          the agent of the seller, he has a contractual duty to
          the buyer and that is not to disburse the purchaser's
          earnest money or down payment if the contract is broken
          by the seller.
 
            In order to find the defendant liable under this
          theory of recovery, you must be convinced by a
          preponderance of the evidence of the following:  First,
          that the contract was broken by the seller; second, that
          the defendant knew that the contract had been broken by
          the seller; third, having known of the seller's breach
          of contract or inability to perform, the defendant
          nevertheless paid the earnest money or down payment over
          to the seller without the buyer's permission; fourth,
          that because of the defendant's breach of the
          contractual duty, the plaintiffs occasioned a financial
          loss; fifth, you must find by a preponderance of the
          evidence the amount of any financial loss sustained by
          the plaintiffs. . . .
 
          The defendant alleges in defense to the plaintiffs'
          cause of action that it was directed by the plaintiffs
          or their agent to disburse the earnest money deposit to
          Hickory Hills.  If you find that the plaintiffs or their
          duly authorized agent directed or permitted the
          disbursement of the earnest money, that is a defense to
          the plaintiffs' claim under this cause of action.
          (Emphasis added.)
 
Plaintiffs made prompt objection to the charge.
     An appellant challenging the trial court's instruction has the burden
of showing that the charge was both erroneous and prejudicial.  Sachse v.
Lumley, 147 Vt. 584, 588, 524 A.2d 599, 601 (l987).  The trial court must
advise the jury thoroughly and accurately on each evidentiary point that is
significant and necessary to an informed decision.  Id.  The court is
obliged "to charge on every issue essential to resolution of the contro-
versy."  Allen v. Uni-First Corp.,     Vt.    , ___, 558 A.2d 961, 963
(l988).
     The trial court's charge to the jury was inaccurate, and mischarac-
terized plaintiffs' claim.  The instructions properly discussed the con-
tractual elements basic to the case, as well as the defense of permission.
In addition, however, The court told the jury that even if it found that
permission had not been given to release the funds, the plaintiffs still
would have to prove that the purchase and sale agreement was "broken by the
seller" and that the defendant realtor "knew that the contract had been
broken by the seller."  These additional requirements are irrelevant because
of the specific terms of the written agreement.  That document provided
unambiguously that the funds could be disbursed only at the closing, or in
the event that purchasers breached the contract.
     Where contractual language is clear, parties to a contract are bound by
the manifest meaning of their words.  Roy's Orthopedic, Inc. v. Lavigne, 145
Vt. 324, 326, 487 A.2d 173, 175 (l985).  Extraneous circumstances do not
alter that meaning.   Allen Engineering, Inc. v. Summit Realty Corp., 137
Vt. 535, 536, 409 A.2d 559, 559 (l979) (per curiam).  Courts must give
effect to the written words of an agreement.  Sullivan v. Lochearn, 143 Vt.
150, 153, 464 A.2d 745, 747 (1983).  Here, the trial court omitted the
specific terms of the contract from the jury charge; that omission
constitutes reversible error when coupled with the additional "elements" the
court included in the charge.  The court instructed the jury that unless the
plaintiffs could prove all the elements set forth in the charge, plaintiffs
could not prevail.  All plaintiffs had to prove, however, was that the
realtor paid out the escrowed deposit without their permission (express or
implied), because the realtor contractually agreed not to do so prior to a
closing or a breach by the buyer.  No closing took place, and the evidence
on "permission" was ambiguous.
     Next, plaintiffs argue that the trial court erred in its charge to the
jury concerning the absence of a listing agreement and the payment of a
commission to Trask & Waite.  The court instructed:
            Now, ladies and gentlemen, there has been testimony
          about whether the defendant was entitled to a broker's
          commission under the contract.  This is not a matter for
          your consideration.  The only issue for your resolution
          is whether the plaintiffs are entitled to a refund of
          their earnest money plus interest.
 
            The absence of a listing agreement between Hickory
          Hills, Inc. and the defendant Trask & Waite Realtors,
          Inc. is of no consequence to the plaintiffs' cause of
          action.
 
     Trask & Waite's commission was paid out of the funds released by John
Waite.  Because the defense of permission was a question for the jury, and
because the charge on the contractual elements in the case called the jury's
verdict into question, we cannot say that the trial court was correct in
stating that the jury should not consider the matter in its deliberations.
The lack of a listing agreement was relevant at least on the question of
whether defendant acted properly in releasing the funds, since his
commission was paid out of those funds.
     Plaintiffs' final claim concerns the trial court's refusal to permit
plaintiffs' attorneys to split the closing and rebuttal arguments between
them.  In Drown v. Oderkirk, 89 Vt. 484, 489, 96 A. 11, 13 (1915), we held
that the trial court has discretion in controlling arguments of counsel and
this discretion is not reviewable, absent abuse.  Of course, it would have
been perfectly proper for the court to allow plaintiffs' counsel to divide
the argument between them, as requested, but we are unable to find an abuse
of discretion herein.  Furthermore, any error was harmless.  The party
claiming error has the burden of showing prejudice, and plaintiffs have
failed to show any harm resulting from the trial court's refusal to permit a
dual argument.  The record does not indicate that the closing argument
suffered because of single, rather than joint, delivery.
     Reversed and remanded.
 
 
 
                                        FOR THE COURT:
 
 
 
                                        ___________________________________
                                        Louis P. Peck, Associate Justice