Carter v. Gugliuzzi (97-094); 168 Vt. 48; 716 A.2d 17
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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
Diana Carter Supreme Court
On Appeal from
v. Chittenden Superior Court
Flavia Gugliuzzi, et al. December Term, 1997
Synergy Group, Inc.
Linda Levitt, J.
James A. Dumont of Keiner & Dumont, P.C., Middlebury, for
John D. Monahan, Jr., Shepleigh Smith, Jr., and Craig S. Nolan of
Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J. Defendant Synergy Group, Inc., doing business as Smith
Bell Real Estate, appeals from a superior court judgment in favor of
plaintiff Diana Carter. Carter's suit alleged that Smith Bell, through its
agents, had made a number of misrepresentations and omissions in connection
with her purchase of a house. Smith Bell contends the court erred in
ruling: (1) that the Vermont Consumer Fraud Act, 9 V.S.A. §§ 2451-2480g,
applied to deceptive acts or practices of real estate brokers with respect
to home buyers; and (2) that the knowledge of its agent concerning wind
conditions on the property could be imputed to Smith Bell. Carter also
appeals, contending that the court erred in determining damages. We affirm
the judgment imposing liability on Smith Bell, and reverse and remand on
the issue of damages.
The material facts are largely undisputed: In 1990, Flavia Gugliuzzi
and Ana Barreto (sellers) asked Ruth Bennett, a licensed real estate
salesperson, to list their house for sale. Sellers had owned the house
since 1987, and had originally purchased it through Bennett, who worked for
Smith Bell. Bennett worked under the supervision of David Crane, a
estate broker and an officer, director, and shareholder of the company. In
response to sellers' call, Bennett went to the house, located in the
Pleasant Valley area of Underhill, to fill out a sales authorization,
Multiple Listing Service (MLS) sheet, and a fact sheet highlighting special
features of the house. Sellers told Bennett that they had installed new
hardwood floors in the downstairs and had replaced some windows, and that
the window boxes would stay with the house. They pointed out the
boundaries of the property. Bennett measured the interior dimensions of
the rooms and the exterior dimensions of the house. She prepared an MLS
listing sheet and a fact sheet and showed them to sellers, who confirmed
that they were accurate. The listing sheet stated that the house contained
1880 square feet above grade, was heated by electric/wood, and was "in
pristine condition. New pegged floors throughout first floor." The Smith
Bell fact sheet, under the heading "Further Features," stated: "New
oak-pegged floors throughout first floor," "[w]indow quilts at all windows
with new valances," and "[c]ustom made flower boxes at all windows." Under
the heading "Location," the fact sheet stated, "400 to 600 planted pine
trees around borders of property" and "[v]acant beaver pond."
The sheets, in fact, contained a number of errors and omissions. The
downstairs hardwood floor did not run "throughout" the house but covered
only about half the downstairs and was a simulated rather than a real
pegged floor; the rest of the floor was carpeted. The wood floor was not
in "pristine" condition, but had buckled or "cupped" due to the lack of an
underlying vapor barrier. The listing sheet did not indicate that the den
and upstairs bathroom were unheated. The fact sheet stated that "all"
windows had quilts and valances, although only about half had these
features. In addition, the fact sheet failed to disclose that half of the
advertised "beaver pond" was on a neighbor's property, and misstated the
number of trees as 400 to 600 when, in fact, there were only about 250.
The court further found that Crane knew, but did not disclose to
Bennett or Carter, that the house was subject to frequent and severe winds,
that one of the windows in the house had blown in years earlier, and that
other houses in the area had suffered wind damage. Crane had
lived in the Pleasant Valley area for seven years, had sold a number of
nearby properties, and had been Underhill's zoning administrator. He was
aware that Pleasant Valley occasionally experienced winds of over 80
miles-per-hour and often had winds in the 40 to 50 mile-per-hour range, and
that many Valley residents, including Crane, had wind gauges on their homes
to measure and compare wind speeds with their neighbors.
Diana Carter, a lawyer living in California, had been looking for a
house to buy in Vermont since mid-1990. She contacted several realtors,
including Liz Merrill, an agent from Lang Associates, who provided her with
information on a number of houses, including the listing and fact sheets
relating to the Underhill property. Carter was attracted by the size of
the house, the acreage, and the fact that it was listed as being in
"pristine" condition. Merrill, acting as a sub-agent for the seller,
showed Carter the house twice. Carter did not note the lack of heat in the
upstairs rooms, the condition or extent of the wood floor downstairs, or
the number of trees on the property. She later asked Merrill to provide
additional information about the neighborhood and the condition of the
house. Bennett informed Merrill that a storm had washed out the beaver
pond since Carter's last visit, but that it could be reestablished with
minimal cost and effort. Apart from the pond, Bennett assured Carter and
Merrill that there had been full disclosure.
Carter's offer of $200,000 for the house was accepted in August 1990.
After moving in, Carter discovered that the den and bathroom were unheated,
the downstairs wood floor was in poor condition and covered only a portion
of the floor, several hundred tree, the window flower boxes, and cabinets
in the garage were missing, half of the beaver pond was on a neighbor's
property, and expensive engineering studies and permits would be required
to reestablish the pond. Several months later, a series of high winds
toppled several trees on the property, blew in a number of windows, tore
shingles off the house and garage, and blew gutters off the house.
Carter sued sellers and Smith Bell for fraud, negligent
misrepresentation, and breach of
contract, and Smith Bell for violation of the Consumer Fraud Act.
Following a court trial, the court ruled, inter alia, that Crane's
knowledge of the presence of high winds was imputable to Smith Bell, and
that the company, through its agents, was liable in tort for a number of
misrepresentations and omissions, and for violations of the Act. The court
found both Smith Bell and sellers liable for the wind damage, future
replacement of windows, the cost of additional trees to create a wind
break, additional window quilts, and replacement of the downstairs carpet
with an oak pegged floor. The total judgment was for $30,624 plus interest
and costs. The court found sellers additionally liable for the missing
window flower boxes, replacement of the cupped floors, and reestablishment
of the pond for an additional judgment of $19,700. The court declined to
impose liability on Smith Bell for misrepresenting the total above-grade
square footage of the house and the number of trees on the property,
failing to disclose that a portion of the house was unheated, repairing the
cupped flooring, reestablishing the pond, replacing the missing flower
boxes and garage cabinet, and certain prospective wind repairs.
Smith Bell first contends the court erred in ruling that the Consumer
Fraud Act applied to the deceptive acts of real estate brokers against home
buyers. The express statutory purpose of the Act is to "protect the
public" against "unfair or deceptive acts or practices." 9 V.S.A. § 2451.
Its purpose is remedial, and as such we apply the Act liberally to
accomplish its purposes. See State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993); Fancher v. Benson, 154 Vt. 583, 586, 580 A.2d 51, 53
(1990). In construing the Act, we look to the interpretations accorded
similar terms and provisions of the Federal Trade Commission Act and other
state consumer protection laws. See 9 V.S.A. § 2453(b); Bisson v. Ward,
160 Vt. 343, 350, 628 A.2d 1256, 1261 (1993); Fancher, 154 Vt. at 587, 580 A.2d at 53; Poulin v. Ford Motor Co., 147 Vt. 120, 124, 513 A.2d 1168, 1171
The Act provides a remedy for any consumer who contracts for goods or
in reliance upon false or fraudulent representations or promises, sustains
damages or injury at the hands of "the seller, solicitor or other
violator." 9 V.S.A. § 2461(b). Smith Bell contends that it fits within
none of these categories; it did not, it asserts, "sell" property to
Carter, but merely assisted the homeowners in the sale, nor did it directly
and actively "solicit" Carter to purchase the property. Furthermore, Smith
Bell notes that the Act prohibits only deceptive acts or practices "in
commerce," id. § 2453(a), and asserts that the sale of a home between non-
merchants is "strictly private in nature" (citing Lantner v. Carson, 373 N.E.2d 973, 977 (Mass. 1978)) and does not occur "in commerce."
We have not previously considered whether a real estate broker
constitutes a "seller, solicitor or other violator" within the meaning of
the Act. The Act defines a "seller" as one who is "regularly and
principally engaged in a business of selling goods or services to
consumers." 9 V.S.A. § 2451a(c). The Act does not, however, state what it
means to "sell" goods or services, nor does it define "solicitor or other
violator." We are not, however, lacking for guidance as to the Act's
meaning and intent. We note, initially, that the Act expressly includes
"real estate" within the meaning of goods and services, id. § 2451a(b), and
applies the prohibition against deceptive acts and practices specifically
to "real estate transactions." Id. § 2453(e). Furthermore, although Smith
Bell argues that only the title-holder can "sell" real estate, nothing in
the Act compels such a narrow construction. We have consistently held that
words in a statute which have not been specifically defined should be
accorded their plain and commonly accepted meaning. See State v. Yorkey,
163 Vt. 355, 359, 657 A.2d 1079, 1081 (1995); State v. Camolli, 156 Vt.
208, 213, 591 A.2d 53, 56 (1991). The ordinary meaning of "sell" includes
"to cause or further the sale of," "[t]o deal in an article of sale; as, to
sell groceries or insurance." Webster's New International Dictionary (2d
ed. 1953) 2272. Indeed, Smith Bell's exclusive listing agreement with
Carter used the term in precisely this fashion, granting Smith Bell
authority for the marketing and "sale" of the property.
Guidance is also available from related provisions of the Act. We
note, for example, that
it expressly exempts publications and radio and television stations in
which an "offer to sell appears." 9 V.S.A. § 2452. Where remedial
legislation contains an express limitation, we have generally declined to
expand the exception beyond its plain terms. See Grenafege v. Department
of Employment Sec., 134 Vt. 288, 290, 357 A.2d 118, 120 (1976). Obviously,
if the Act applied only to sellers who held title or were otherwise in
privity with buyers, such an exception would be superfluous. Moreover, to
expand this limited "media" exception to include real estate brokers would
plainly undermine the Act's remedial purpose, and contravene our stated
policy to construe the statute liberally.
Apart from the terms of the Act itself, guidance is also available in
the case law. Although the issue was not directly raised, we note that this
Court in Fancher upheld the liability under the Act of an agent who made
misrepresentations about the condition of a horse on behalf of its owner.
154 Vt. at 585-88, 580 A.2d at 52-54. We note, as well, the decisions of
the Federal Trade Commission and numerous state courts that apply the
Federal Trade Commission Act and similar state consumer protection laws to
real estate brokers who commit deceptive acts or practices in the sale of
real estate. See, e.g., In re Meredith Corp., 101 F.T.C. 390, 390 (1983);
Young v. Joyce, 351 A.2d 857, 859 (Del. 1975); Cieri v. Leticia Query
Realty, Inc., 905 P.2d 29, 39-40 (Haw. 1995); Riley v. Fair & Co. Realtors,
502 N.E.2d 45, 48 (Ill. App. Ct. 1986); Nei v. Burley, 446 N.E.2d 674, 680
(Mass. 1983); Attorney Gen. v. Diamond Mortgage Co., 327 N.W.2d 805, 811
(Mich. 1982); Durbin v. Ross, 916 P.2d 758, 766 (Mont. 1996); Forbes v. Par
Ten Group, Inc., 394 S.E.2d 643, 650-51 (N.C. Ct. App. 1990); Strawn v.
Canuso, 657 A.2d 420, 429 (N.J. 1995); Cameron v. Terrell & Garrett, Inc.,
618 S.W.2d 535, 540-41 (Tex. 1981); McRae v. Bolstad, 676 P.2d 496, 500
Considered in the light of these decisions, the remedial purposes of
the Act, and its plain and ordinary meaning, the trial court's conclusion
that "seller" includes real estate brokers engaged in residential real
estate transactions, was eminently sound.
Smith Bell's corollary claim that the transaction did not occur "in
commerce" is equally
without merit. Although "commerce" is not defined in the Act, its ordinary
meaning as an "interchange of goods and commodities, [especially] on a
large scale," Random House Unabridged Dictionary (2d ed. 1987) 1739,
obviously applies to Smith Bell, a company engaged, as the court found, in
the sale of real estate throughout Chittenden County. Decisions in other
jurisdictions are uniformly in accord. See, e.g., Cieri, 905 P.2d at 40
("[T]he broker's or salesperson's role in facilitating . . . real estate
transactions in which he or she participates necessarily involves `conduct
in any trade or commerce.'"); McRae, 676 P.2d at 499 (realtor acted "within
the sphere of trade or commerce" under consumer protection act). The
Massachusetts decision on which Smith Bell relies, Lantner, involved a suit
against a private vendor, not a realtor engaged in the business of selling
homes. 373 N.E.2d at 977. Indeed, in Nei, the Massachusetts Supreme
Judicial Court subsequently applied the state consumer protection act to
real estate brokers. 446 N.E.2d at 679. In the other decision cited by
Smith Bell, Wilder v. Aetna Life & Casualty Ins. Co., we held only that the
sale of an insurance policy was not a contract for "goods or services"
under the Act. 140 Vt. 16, 18, 433 A.2d 309, 310 (1981). Hence, the trial
court correctly concluded that Smith Bell was a "seller" involved "in
commerce" within the meaning of the Act.
Smith Bell additionally contends the court erred in ruling that
Crane's knowledge about the presence of high winds on the property could
be imputed to the company. Crane, to recall, had supervised and consulted
with the listing agent, Ms. Bennett, inspected the property, and conveyed
certain information concerning the house to Carter. Hence, the trial
court's threshold finding that Crane had operated as an agent of Smith Bell
was thus amply supported by the evidence. See Roy v. Mugford, 161 Vt. 501,
512, 642 A.2d 688, 694 (1994) (findings not clearly erroneous if supported
by reasonable and credible evidence).
A fundamental tenet of agency law holds that "the knowledge of an
agent acting within the scope of his or her authority is chargeable to the
principal, regardless of whether that
knowledge is actually communicated." Estate of Sawyer v. Crowell, 151 Vt.
287, 291, 559 A.2d 687, 690 (1989). Smith Bell argues that Crane's
knowledge about the high winds should not have been imputed to the company
because it was obtained outside the scope of his employment. Carter, in
response, asserts that the general rule has been abrogated by decisions
suggesting that information obtained outside the scope of employment may
nevertheless be imputed to the principal, at least where it appears that
the information "is actually in [the agent's] mind at the time he performs
the act in question." Simpson v. Central Vt. Ry., 95 Vt. 388, 395, 115 A. 299, 302 (1921).
The debate in this case is academic. For contrary to Smith Bell's
claim, the trial court did not find that Crane's knowledge was obtained
outside the scope of his employment. As noted earlier, the court found
that Crane "had lived in the area, had listed and sold many nearby
properties, and had been Underhill's zoning administrator. Mr. Crane was
aware that Pleasant Valley . . . had winds of over 80 m.p.h." The court
further noted that real estate licensees had a statutory duty to "fully
disclose to a buyer all material facts within the licensee's knowledge
concerning the property being sold." 26 V.S.A. § 2296(a)(10). Since the
statute governing a real estate agent's duty to disclose made "no
distinction as to the source of the knowledge," the court concluded that
such knowledge was similarly imputable to the agent's principal regardless
of the source.
The court's reasoning was sound. It is immaterial whether Crane's
information was derived from his residence in the area, his listing and
sale of other properties in the area, or his experience as the town's
zoning officer. A broker's statutory duty is to fully disclose all
material facts within his or her knowledge. See id.; see also Rules of the
Real Estate Commission, Rule 31(b) (1987) ("A licensee who is a seller's
agent must fully disclose to a prospective buyer all material facts within
his or her knowledge concerning the property being sold."). The rule
reflects the reality that a broker's business consists precisely of
acquiring and conveying information about the community, neighborhood
conditions, comparable properties,
and other local factors that may affect the value, marketing and sale of
property. See Strawn, 657 A.2d at 431-32 ("Location is the universal
benchmark of the value and desirability of property."). Such information
is always, in effect, acquired in the "scope of employment." It is thus
meaningless to attempt to parse a broker's knowledge about a given property
on the basis of the precise time, date, or circumstances in which it was
obtained. Crane's knowledge concerning the presence of high winds on the
property was properly imputed to Smith Bell.
Carter contends on appeal that the trial court misapplied the Consumer
Fraud Act and, as a result, erred in determining damages. As noted, the
Consumer Fraud Act prohibits "unfair or deceptive acts or practices in
commerce." 9 V.S.A. § 2453(a). To establish a "deceptive act or practice"
under the Act requires three elements: (1) there must be a representation,
omission, or practice likely to mislead consumers; (2) the consumer must be
interpreting the message reasonably under the circumstances; and (3) the
misleading effects must be material, that is, likely to affect the
consumer's conduct or decision regarding the product. See Peabody v.
P.J.'s Auto Village, Inc., 153 Vt. 55, 57, 569 A.2d 460, 462 (1989).
Deception is measured by an objective standard, looking to whether the
representation or omission had the "capacity or tendency to deceive" a
reasonable consumer; actual injury need not be shown. Bisson, 160 Vt. at
351, 628 A.2d at 1261; Peabody, 153 Vt. at 57, 569 A.2d at 462. To be
reasonable, moreover, the consumer's understanding need not be the only one
possible; "[i]f an ad conveys more than one meaning to reasonable consumers
and one of those meanings is false, that ad may be condemned." In re
Bristol-Myers Co., 102 F.T.C. 21, 320 (1983). Furthermore, the Act "does
not require a showing of intent to mislead, but only an intent to publish
the statement challenged." Winton v. Johnson & Dix Fuel Corp., 147 Vt.
236, 244, 515 A.2d 371, 376 (1986).
Materiality is also generally measured by an objective standard,
premised on what a reasonable person would regard as important in making a
decision; it may include a subjective
test, however, where the seller knows that the consumer, because of some
peculiarity, is particularly susceptible to an omission or
misrepresentation. See In re Cliffdale Assocs., 103 F.T.C. 110, 179
(1984); Restatement (Second) of Torts § 538(2)(b) (1976). The federal
courts and Trade Commission apply a general presumption of materiality.
"Where the seller knew, or should have known, that an ordinary consumer
would need omitted information to evaluate the product or service, or that
the claim was false, materiality will be presumed because the manufacturer
intended the information or omission to have an effect." Cliffdale, 103
F.T.C. at 182; see also Kraft, Inc. v. Federal Trade Comm'n, 970 F.2d 311,
322 (7th Cir. 1992) (presumption of materiality applies to broad category
Carter contends the court misapplied the Act in determining damages in
several areas. First, she claims that the listing sheet's representation
that the house contained 1880 square-feet above grade was deceptive because
a den and bathroom were unheated. The parties generally agreed that
square-footage represents the amount of finished living space. The court
found that the unheated rooms were "liveable," if "chilly," and that the
1880 measurement was accurate. The record evidence supported these
findings, and the findings supported the conclusion that the 1880 figure
was not false or deceptive.
In a related claim, Carter contends that the listing sheet's
representation that the house was heated by electricity and a wood stove,
omitting any mention that certain portions were unheated, was deceptive.
The court concluded that the omission was not "material" because
"[u]nheated rooms are common in Vermont where one source of heat for the
home is a wood burning stove." It is unclear, however, whether the court
was actually finding that the omission was not deceptive because it was
unlikely to mislead a reasonable consumer, or that even if misleading it
was not material because it would not have affected the decision of a
reasonable home buyer in Vermont. It is clear that the court did not
expressly consider the fact, known to Smith Bell's agents, that Carter was
moving from California and may not have been as familiar with Vermont
housing conditions as the typical in-state purchaser. A statement or
convey more than one reasonable meaning, and if one of those meanings is
deceptive, it violates the Act. See Bristol-Myers, 102 F.T.C. at 320.
Furthermore, an omission may be material to a particular consumer based
upon a subjective factor known to the seller. See Cliffdale, 103 F.T.C. at
182. The court simply did not address these pertinent issues of fact and
law. Therefore, the damage award must be reversed, and the case remanded to
the trial court to make additional findings and conclusions.
Carter also claimed that Smith Bell was liable for failing to disclose
that cabinets in the garage that appeared to be fixtures were not, and that
sellers planned to take them. The court found that the cabinets were not
fixtures, that sellers were entitled to take them, and that in any event
the non-disclosure was not material. In light of the undisputed evidence
that replacement of the cabinets would cost $2,000, we cannot agree that
the omission was immaterial; it plainly could have affected the parties'
negotiations or the purchase price. The court made no finding, however, on
the threshold question whether the omission was deceptive, that is, whether
a reasonable consumer would have found the non-disclosure concerning the
cabinets to be misleading. Hence, the court must address this issue on
Carter further claimed that Smith Bell was liable for misrepresenting
the number of trees on the property. The court found, in effect, that the
representation, although inaccurate, was not deceptive because it was not
reasonable for Carter to rely on the figure as representing the precise
number of trees, and that the 400 to 600 figure was a reasonable estimate.
The United States Supreme Court has observed that determining whether a
claim is deceptive under the Federal Trade Commission Act involves the
exercise of common sense and "pragmatic judgment." Federal Trade Comm'n v.
Colgate-Palmolive Co., 380 U.S. 374, 385 (1965). We cannot say that the
court, having heard all of the evidence and testimony concerning the nature
and extent of the property, erred in concluding that the representation was
not deceptive under the circumstances.
Carter next contends the court erred in concluding that Smith Bell
could not be held
liable for misrepresenting the condition of the oak floor. The court
reasoned that Smith Bell lacked the engineering expertise to be aware of
the floor's damaged condition. As noted, however, lack of intent to
deceive or good faith are not defenses under the Consumer Fraud Act. See
Winton, 147 Vt. at 243-44, 515 A.2d at 376 (liability for misrepresentation
under Act requires "only an intent to publish the statement challenged");
Federal Trade Comm'n v. World Travel Vacation Brokers, Inc, 861 F.2d 1020,
1029 (7th Cir. 1988) (neither good faith nor lack of intent to deceive
immunizes seller from responsibility for misrepresentations under Federal
Trade Commission Act). Smith Bell's reliance on our decision in Provost v.
Miller, 144 Vt. 67, 473 A.2d 1162 (1984) is misplaced, as that case
involved a negligent misrepresentation claim, not a claim under the
Consumer Fraud Act. Therefore, Smith Bell's liability for repair of the
oak floor must be reconsidered on remand.
The trial court also ruled that Smith Bell was not aware of, and
therefore not liable for, misrepresentions concerning the location of the
beaver pond, the expenses required to reestablish the pond, and the fact
that the window flower boxes would remain with the house. The absence of
intent based upon a lack of knowledge or expertise is not a defense to a
claim under the Act. See Winton, 147 Vt. at 243-44, 515 A.2d at 376.
Accordingly, these claims must be reconsidered on remand, as well.
Carter claims that the court erroneously calculated the wind damage
award. The court awarded Carter $9800 for the costs incurred in gluing
down roof shingles, replacing some windows, and replanting trees to create
a windbreak. The court awarded an additional $5,000 to install wind
resistant windows, and $5,000 to enhance the windbreak. Carter contends
the court erred in failing to award damages for certain additional repairs
recommended by her architectural expert, including approximately $17,000
for a special wind-resistant metal roof, and an additional $17,000 for
additional wind screening. It rests within the trial court's broad
discretion to determine the best measure of damages to compensate the
injured party. See Jensvold v. Town & Country Motors, Inc., 162 Vt. 580,
586, 649 A.2d 1037, 1041 (1994).
We will not disturb an award unless it is clearly excessive or
insufficient. See Grey v. Konrad, 133 Vt. 195, 196, 332 A.2d 797, 798-99
(1975). Here, the expert witness acknowledged that a metal roof was not
the only viable approach to combating high winds, and that roofing
manufacturers also recommended using either roof cement or a high-wind
nailing pattern. The evidence concerning the number and extent of trees
necessary for a windbreak also varied. Thus, we cannot conclude that the
damage award for wind repairs was clearly insufficient.
Finally, Carter contends the court applied an erroneous legal standard
in declining to award punitive damages. The court expressly found that
Smith Bell had not acted with malice, ill will, or wanton disregard of
Carter rights. This was the proper test. See Bisson, 160 Vt. at 351-52,
628 A.2d at 1262. Carter complains that the court went on to find that
Smith Bell's acts did not "evince a pattern of oppressive behavior." We
are not persuaded, however, that the court applied a substantively
different or more stringent standard by its subsequent use of this
That portion of the court's decision awarding damages is reversed and
the case is remanded to the Chittenden Superior Court for reconsideration
of the issue of damages consistent with the views expressed herein. In all
other respects the judgment is affirmed.
FOR THE COURT: