Carter v. Gugliuzzi

Carter v. Gugliuzzi  (97-094); 168 Vt. 48; 716 A.2d 17

[Filed 22-May-1998]



       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
  to press.


                            No. 97-094


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
  Plaintiffs-Appellant.

       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
  licensed real

 

  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.

                                     I.

       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
  (1986).

       The Act provides a remedy for any consumer who contracts for goods or
  services and,

 

  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
  (Wash. 1984).

       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.

                                     II.

       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.

                                    III.

       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
  of claims).

       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
  omission may

 

  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
  remand.

       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
  alternative phrasing.

       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:



                              _______________________________________
                              Associate Justice