Birchwood Land Dev. Corp. v. Ormond Bushey & Sons, Inc., No. S0946-08 CnC (Tomasi, J., Oct. 7, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                             VERMONT SUPERIOR COURT



SUPERIOR COURT                                                                                                 CIVIL DIVISION
Chittenden Unit                                                                                                No. S0946-08 CnC

                                                                                  │
Birchwood Land Development Corp.,                                                 │
 Plaintiff,                                                                       │
                                                                                  │
  v.                                                                              │
                                                                                  │
Ormond Bushey & Sons, Inc.,                                                       │
 Defendant.                                                                       │
                                                                                  │


                         Findings Of Fact, Conclusions Of Law, And Order

        This matter came for trial before the Court on February 7; February 9; April 4;

and April 5, 2011. Both parties were represented by counsel and provided

testimonial and documentary evidence to the Court. The Court also conducted a

view of the development site at issue. Based on the foregoing, the Court makes the

following findings of fact and conclusions of law.

                        FINDINGS OF FACT AND OVERVIEW OF CLAIMS

I.      The Principal Dispute Between the Parties

        This matter arises out of a construction project undertaken in Essex, Vermont.

Birchwood Land Development Company (“Birchwood”) entered into two contracts

for the required work with Ormond Bushey & Sons, Inc. (“Bushey”). The first

contract was designated the Rosewood Contract or the Rosewood Contract. The
second was designated the Tanglewood Contract or the Tanglewood Project.1 Both

projects were designed to create roadways and building lots that might be sold by

Birchwood. As the area was essentially wild and overgrown, the projects involved

significant grading of the area, removal of trees and stumps, installation of sewers

and utilities, and the paving the newly created roadways, among other things.

      The main dispute between the parties centers around excavated sand that

Bushey removed from both projects. Bushey used or sold the sand and, through its

principal Dean Henry, claims it had a right to do so under the Contracts.

Birchwood, through its owner Owen Jenkins, insists that the sand was its property

and that Bushey removed it and expropriated it for its own gain in violation of the

Contracts. Birchwood refused to make final payments to Bushey under the

Contracts based on the sand issue. Both parties have sued for breach of contract

based on the above-described conduct. As discussed below, there are other minor

issues that divide the parties as well.

II.   Matters Resolved by Agreement or Prior Court Ruling

      During trial, the parties resolved a number of disputes between them by

agreement and submitted a Stipulation to the Court on those points. For example,

as noted, Birchwood refused to pay certain sums allegedly owing to Bushey under

the Tanglewood Contract. It did so based on its belief that Bushey actually owed

Birchwood money with regard to its claims for sand taken from the site. The parties


1In addition, there was a related third contract specifically concerning the
construction of a sewer line.
                                          2
stipulated that the amount owing to Bushey for work performed under the

Tanglewood Contract is $23,511.28. This sum is to be offset, in whole or in part,

based on the determination of this Court concerning whether Birchwood is owed

damages on its sand claim.

     In addition, at trial, the Court entered judgment as a matter of law in Bushey’s

favor concerning Birchwood’s claim regarding a sink hole at the site.

III. The History of Excess Sand

     The trial in this matter focused on whether Bushey was required under the

Contracts to keep excess sand generated by the projects at the site. While the Court

will assess the contractual provisions later, it makes the following factual

determinations with regard to the parties’ understandings and actions concerning

excess sand.

     On June 15, 2006, the parties met with the Zoning Administrator for the Town

of Essex. He reminded them that, unless they obtained a special permit, any excess

materials, including sand, would need to remain on site. The Town was concerned

about the generation of dirt and traffic from any removal operation. Ex. 74 (9/6/06).

     Soon thereafter, on June 18, Jenkins walked the site with Chase. They

discussed possible locations where excess sand could be deposited. They identified

some locations where the fill might be used in the future to help create an access to

adjacent property.

     In September 2006, Scott Myrick took over as Bushey’s superintendent for the

project. Jenkins met with Myrick on September 6 and confirmed that excess
                                           3
material was to be placed in designated fill sites. Ex. 74 (9/6/06). A second

conversation with Myrick later that month reiterated that excess material was to be

placed in the fill sites. Ex. 74 (9/28/06).

     In October 2006, Jenkins received a call from a person who lived near the

project inquiring whether she might purchase excess sand. Jenkins indicated to her

that she could have some of the sand, but she need the approval of the Town and

Bushey.

     In or about the same period, the Town received a complaint that sand was

being exported off site and that no silt fence had been erected. The Town

investigated, spoke with Myrick and told him to cease taking sand off site.

     As the Tanglewood Project was about to begin major activity, the parties held a

pre-construction meeting with the Town. The Town had received a complaint from

neighbors about truck traffic and dust generated in connection with moving sand.

The Town, again, informed the parties that the subdivision regulations did not

permit removal of sand from the site. Jenkins questioned whether it could be

removed for his own personal use, and the Town agreed. The Town indicated that

sand could be removed solely for non-commercial/personal uses. It also noted,

however, that if the Town received complaints about that process, Jenkins would

need to apply for a special permit. Ex. 74 (5/11/07); see Ex. 29 (noting Town’s view

that trucking sand off site is inconsistent with regulations).

     In 2007, Randy Maxfield replaced Myrick as superintendent at the project. On

or about May 14, 2007, he identified a pile of sand that was impeding some of the
                                              4
construction efforts. He asked Jenkins what Jenkins wished him to do with the

sand. Jenkins told Maxfield to either deposit it in the fill sites at the Tanglewood

project or take it to his Route 2A property. Ex. 74 (5/14/07).

     On May 14 or 15, 2007, Jenkins had similar telephone conversations with

Henry. Jenkins told Henry to put sand in fill sites at the project. Jenkins said that

any additional excess fill should be taken to Jenkins’ Route 2A property, and he

agreed to pay Bushey their normal rate -- $65.00 per hour -- to take the materials to

that location. Henry confirms this direction, although he adds that, in a prior call

Jenkins indicated he did not care what happened to the sand. Even accepting

Henry’s testimony, it is undisputed that Jenkins almost immediately called Henry

back and said to take any excess fill to Route 2A. That conversation and direction is

further confirmed by Jenkins’ May 15, 2007 letter to Henry in which he states:

“Lastly, this shall confirm that I have requested that you haul any and all excess

sand fill and topsoil to my property at 106 Colchester Road (Route 2A) in Essex and

that I have agreed to pay for such trucking at your normal hourly rate.” Ex. 13.

Indeed, Jenkins indicates that the May 15 letter shall be deemed a Change Order,

and thus part of the Tanglewood Contract.

     The last load of sand that Jenkins received from the project at either of his off-

site locations was on June 15, 2007. He assumed there was no additional excess

sand and heard nothing different from Bushey.

     On July 13, 2007, Jenkins visited the project and saw a truck leaving with a

load of sand. He followed the vehicle to the Albert D. Lawton School. Bushey was
                                           5
working on another project at the school at the time. The truck deposited the load

of sand from the Birchwood project at the Lawton project site.

     Jenkins immediately contacted Henry to discuss why excess sand was being

taken to another Bushey project. Henry indicated that the sand was inhibiting the

construction of Tanglewood, he needed to move it, and there was no more room at

the Route 2A site. Henry told Jenkins he was doing him a favor because he was not

charging for removing the sand. Jenkins told Henry not to remove any more sand

from the project. Ex. 13 (7/13/07). While Henry did not recall this conversation, the

Court credits Jenkins version of the event.

     Despite Jenkins’ direction, the evidence shows that some sand continued to be

removed from the Tanglewood project. Ex. 72 (pp. 83-84). Bushey stockpiled the

remaining excess sand at the end of Tanglewood Drive.

     At trial, the parties disputed whether there was sufficient room at the project

site to store all of the excess sand. Jenkins indicated he believed there was

sufficient area at the site for storage. Bushey contended that there was insufficient

room in the designated areas at the project sites to store the excess sand without

removing certain trees and that Jenkins had told Bushey not to remove the trees.

Bushey further contended that storing the sand at some of the designated locations

would have created some erosion problems and would not have been permitted

under applicable permits. Birchwood’s engineer supported that conclusion as well,

although he indicated that it may have been possible to amend those permits. The

Court visited the site along with the parties and their counsel.
                                          6
     Based on the view and the evidence at trial, the Court agrees that sand could

not have been lawfully placed at some of the points Jenkins and Chase had

originally designated for excess sand. It also concludes that there was still

sufficient room at the site for the excess sand but that storing it there likely would

have required a permit change and would have required removing certain trees and

undertaking a significant spreading and grading operation. The Court does not

credit Henry’s testimony, however, that Jenkins told Bushey not to remove trees to

allow storage of excess sand. The Court determines that Bushey never presented

Jenkins with the choice of removing trees for on-site storage versus taking the sand

to an off-site location. Nor did it present Jenkins with the decision of seeking a

permit amendment or taking the sand off site. Bushey made those choices

unilaterally.

IV. Determination of the Amount of Sand Removed from Rosewood and
    Tanglewood and Its Value

     After learning that sand had been removed from the site without his

permission, Jenkins sought to determine the precise amount that had been taken.

Despite repeated requests, Bushey was never forthcoming with a definitive figure as

to the amount of sand it had removed. Henry gave him an initial indication during

the July 13, 2007 discussion that 50-60 loads were removed from the Rosewood

project. Jenkins asked for a full accounting in that discussion and in a follow-up

letter. Ex. 14. He received no response from Henry. Jenkins spoke with Ms. Jill

Morway, a Bushey employee, in October 2007 and, again, asked for an accounting

                                           7
concerning the sand. She indicated that she would check on the matter and get

back to Jenkins. Ex. 74.

     The parties met to discuss the sand issue in January 2008. Henry said he had

a right to remove the sand to complete construction and that keeping the sand on

site would have required removal of a number of trees, which would have been very

expensive. Since Bushey had not charged Jenkins for the removal of the sand,

Henry indicated his belief that they had done Jenkins a favor. (Henry adhered to

that same view at trial)

     At the January 2008 meeting, Henry provided some details as to the amount of

sand that had been removed from the projects. He said that 700 cubic yards had

been taken from the Rosewood project; 1,458 cubic yards had been taken from the

Tanglewood project to Bushey’s property; 1,026 cubic yards had been sold to a

company called Bartlett Weaver; and 14 cubic yards had been taken to the Lawton

school.2




2 The Court acknowledges that the determination of the amount of sand removed
cannot be determined with exact specificity. The trial testimony, the daily reports,
the trucking invoices, and the Bushey Answers to Interrogatories all give varied
estimates of the amounts taken. Henry also admitted that Bushey may have
additional trucking records that it failed to produce. Further, the Court finds that
the efforts Bushey made to investigate and vet its Answers to Interrogatories and
Requests to Admit in this regard were less than sufficient. Based on those
considerations, and the fact that it was the most contemporaneous estimate, the
Court determines that Henry’s initial estimate is the most reliable.


                                          8
     At trial, Jenkins and Henry both provided information as to the commercial

value of sand at issue in this case. They confirmed that sand of the type taken from

the Birchwood projects could be replaced for $3.50 per cubic yard now, although it

may have been cheaper a couple of years ago. Based on the amount charged to

Jenkins by Bushey for trucking, the costs of trucking the sand would be

approximately $65.00 per hour. The parties disputed the amount of time necessary

to transport any replacement sand. Each suggested using a different sand pit and

each had different takes on the quickest routes to the project site and the amount of

time necessary to complete the task. Jenkins also estimated the costs of spreading

the sand would be once it was brought to the site. He felt it would take a bulldozer

114 hours to complete the work. Based on the amounts charged Birchwood by

Bushey for bulldozer work, Jenkins estimated the spreading cost would be $11,514..

Jenkins indicated that, if he were awarded monetary relief in this case he

“probably” would use it to obtain sand fill and would store it at the site for possible

use in developing a building lot. Jenkins offered no other evidence in support of the

above estimates.

     Henry further testified that Bushey did not remove the sand to profit from it,

and that Bushey mostly lost money on the sand when shipping and labor costs are

deducted from the sale/use value of the sand. The Court credits this testimony. The

Court does not find that Bushey set out to take Birchwood’s sand and benefit from

it. It viewed the sand as excess materials that needed to be disposed of in order for

construction to continue. As it did not charge Birchwood for removing it, Bushey
                                           9
attempted to cover part of its losses by selling or using the sand. While all that may

be true, it does not change the key question of this case: did Bushey have the right

or license to remove or sell the sand in the first place?

V.   The Lien and Its Aftermath

     The parties continued discuss their disagreements regarding the removal of the

sand and amounts owed on the contracts following the January 2008 meeting. They

agreed to meet again in February 2008. The parties failed to come to an agreement

at the February meeting. Three days later, Bushey placed a lien in the rough

amount of $29,000 on Birchwood’s property.

     The lien attached to all 60 acres of Birchwood’s property in the vicinity of the

Tanglewood and Rosewood Projects. This despite that fact that the subdivision

permit under which all work performed on both projects was performed only

encompassed about five acres.

     The lien had an impact on Birchwood. At this time, Birchwood was attempting

to sell lots within the subdivision. The lien inconvenienced a couple of sales.

Specifically, with regard to the sale of one lot, Jenkins was forced to enter into a

“hold harmless” agreement with the buyer securing the buyer from any future loss if

the lien was ultimately foreclosed. With regard to a second lot, the buyer’s attorney

required that the lien be released prior to closing.

     Birchwood requested that Bushey release the lien as it applied to this second

lot arguing that there was sufficient equity in the remaining parcels (over $300,000)

to cover the value of the lien. Bushey refused to release the lien unless Birchwood
                                           10
deposited $29,000 in an escrow account to secure payment of its contract claim.

Birchwood agreed to escrow the money, and it was able to consummate the sale of

the second lot. The attorney who represented the buyer in that transaction testified

at trial. He indicated that the delay, if any, in closing on the second lot was three

weeks, at most. Jenkins did not testify as to any financial impact on Birchwood

from the delay. But, he does claim that being required to place $29,000 in an

escrow account that bears only a .99% interest for a period of years has caused him

financial damage in the form of lost interest.

     The parties agreed at trial that, but for potential claims of offset for damages

incurred by Birchwood for the lost sand, Bushey was owed a significant sum under

the contracts. The Court finds that Bushey held an honest belief that it was owed

those monies and that it subjectively believed it had potential defenses to

Birchwood’s sand claim.

VI. Paving at the Rosewood Project

     As of March 2008, the Rosewood contract required Bushey to complete a second

coat of pavement on Rosewood Avenue. In light of the ongoing disputes over

payment and amounts owing, Henry testified that he feared Birchwood would

refuse to pay Bushey if it completed the job. So, Bushey did not do the work.

Jenkins credibly testified that he asked for an accounting concerning the sand he

believed Bushey had from the project. He wanted an accounting and to receive

credit for sand taken before paying additional sums under the contract.



                                          11
     Birchwood then hired another contractor to complete the paving. The second

paving contractor charged Birchwood $887.00 more than Bushey had agreed to in

the Rosewood contract. Bushey attempted to pay this amount to Birchwood by

check in satisfaction of all Rosewood claims. Jenkins testified that he rejected the

check because he felt it might compromise Birchwood’s ability to seek damages for

its claims concerning the sand. See Exhs. 45 & 50.

                                   LEGAL ANALYSIS

I.   Contractual Provisions Relating To Sand

     The parties dispute whether the contractual arrangement between them had

any provisions concerning sand. Bushey contends that, absent a specific, written

contract term expressly stating that sand was to remain on site, Bushey could sell

or use the sand for its own purposes. The Court disagrees. A builder is not free to

do as it wishes with an owner’s property that is moved during construction. An

implied term of a construction contract under such circumstances is that items of

value that are required to be moved during construction are either to be returned to

their location or addressed with the owner. To hold as Bushey suggests would

permit a contractor free reign to sell topsoil, minerals, or lumber harvested from a

building site with no remuneration to the owner of the property. That is not the

law. See Harsch Props., Inc. v. Nicholas, 

, ¶ 14, 

(noting that

the covenant of good faith and fair dealing is “implied in every contract” and that it

“protects against conduct which violates community standards of ‘decency, fairness

or reasonableness’” (citation omitted)).
                                           12
     In any event, even without implying such a term, the Court concludes that the

contract documents and the agreements of the parties contemplated that the sand

at issue in this case would remain on site. First, the Court concludes that the

parties’ actions and oral agreements indicated a shared understanding that excess

sand was intended to remain on site, except for taking it to Jenkins’ off-site

properties. Bushey’s lead representative during the bidding and initial contracting

phase of the project was James Chase. Jenkins testified that he and Chase

specifically discussed the issue of excess sand and came to an agreement as to the

on-site locations where it was to be deposited. The Court credits that testimony.

Further, Henry agreed at trial that the original understanding of the parties was

that this was not a project where sand would be trucked off site. Indeed, Henry

indicated that he relied upon Jenkins assertion that excess sand could remain on

the site.

     Second, the contract documents required Bushey to “comply with … laws,

ordinances, rules, regulations and lawful orders of public authorities bearing on

performance of the work.” Exs. 2 & 10 Articles 9.6. Here, the applicable Town of

Essex regulations did not permit the removal of excess sand. The Erosion and

Sediment Control Permit for the projects stated that: “There will be no excess soil

removed from the site.” Exs. 78 p.6 & 78 p.16. Bushey was aware of this condition

as Chase was designated as the “on-site coordinator” for the project. Ex. 78 p.10.

     Similarly, the Town of Essex subdivision regulations did not permit removal of

the sand. They provided: “No topsoil, sand or gravel shall be removed from the
                                          13
subdivision for any other purpose than to meet construction needs of that particular

subdivision unless special approval is obtained from the Zoning Board of Approval.”

Ex. 75 p.10. The regulations further permitted “extraction of earth resources” only

as a conditional use in certain zones. Ex. 76. The regulation defines “extraction of

earth resources” to include the “removal of … sand … except when incidental to or

in connection with the construction of a building on the same lot.” 

the projects involved the construction of a building. Henry acknowledged at trial

that he was aware of these permit conditions and that no approvals from the ZBA

were obtained.

     Henry contends, however, that this regulation gave it the right to remove sand

if it was necessary to “meet the construction needs” of the project. The Court

disagrees. For one thing, that view ignores the portions of the regulations that

further limit removal of earth resources. As described above, those provisions would

not permit the removal of sand for these projects without ZBA approval. Further, it

is undisputed that the Town of Essex believed its regulations precluded the removal

of excess sand. The Court credits the testimony that, during at least one meeting in

June 2006, the Town Zoning Administrator specifically told both Jenkins and

Bushey that sand could not be removed from the site without a special permit. Ex.

74. He reiterated that point at a May 2007 meeting. 

made an exception for some limited removal of sand for Jenkins’

personal use, he told both parties that no commercial removal of sand would be

permitted. Id.; see Ex. 29 (Town’s view of sand removal). In the face of the
                                         14
contractual provisions and the position of the Zoning Administrator, Bushey cannot

persuasively contend that the contracts at issue permitted it to remove the multiple

loads of sand that it admits were removed during this project.

      Finally, the May 15, 2007 letter from Jenkins to Henry sets to rest any

lingering doubt as to whether the contract at issue contained a term concerning

excess sand. That letter required Bushey to “haul any and all excess sand fill and

topsoil to [Jenkins’ off-site] property” at Jenkins’ expense. Ex. 13. The terms of the

letter were identified as Change Order No. 1, which became a part of the parties’

existing contract.

II.   Birchwood’s Breach of Contract Claim Regarding Lost Sand

      The Court has determined that the contractual arrangement between the

parties did not permit Bushey to remove sand from the projects and to appropriate

Birchwood’s sand for its own use. Accordingly, based on the evidence submitted at

trial, there can be no question but that Bushey breached the contracts between it

and Birchwood.

III. Damages for the Sand Removed by Bushey

       Having found a breach of contract, the Court now turns to the proper

measure of damages. Birchwood gives the court two possible formulas for

calculating its contract damages for sand: (1) the market value of a filled-in building




                                          15
lot at Tanglewood site minus the current value of that property,3 or (2) the

reasonable value of replacement sand, plus the cost of transporting the sand from

the nearest open pit, plus the cost of spreading the sand.

      Expectation damages are ordinarily awarded in breach-of-contract cases. 24

Williston on Contracts § 64:2 (4th ed., updated May 2011). “The purpose of

expectation damages is to put the non-breaching party in the same position it would

have been in had the contract been fully performed.” Tour Costa Rica v. Country

Walkers, Inc., 

, 124 (2000) (internal quotation marks and brackets

omitted).

     A.     Market-Value Calculation

      Birchwood has not shown that it is entitled to the market value of an

additional building lot at the Tanglewood site minus the current value of the land.

Birchwood devoted hardly any evidence to this theory at trial. The Court has little

evidence from which to determine, among other things: what efforts would be

necessary to create a buildable site, whether additional work – other than providing

sand for fill – would be necessary to improve the lot; what the market value of the

lot is now; or what it would be if improved. In the absence of such evidence any

attempt to calculate damages under such a theory would amount to speculation.

The Court refuses to engage in such an exercise. See Berlin Dev. Corp. v. Vt.



3 In its post-trial memorandum, Birchwood argues that its damages could be
measured simply by the market value of the lot. Utilizing this formula would be
flawed because it does not take into account that the property currently has value.

                                          16
Structural Steel Corp., 

, 372 (1968) (rejecting damages that did not meet

the “standard of reasonable certainty”).

      B.    Replacement-Sand Calculation

      Birchwood’s principal assertion is that it is entitled to damages equal to the

cost of replacing the sand taken, specifically the cost of replacement sand plus the

value of transporting it to the project site and spreading it.

      There is no question that Birchwood lost the value of the sand: Bushey

removed the sand, and Birchwood no longer has it.4 Jenkins and Henry testified

that the cost of replacement sand, i.e., the approximate market value of the sand

removed, is roughly $3.50 per cubic yard. As noted in the findings, the Court has

concluded that Bushey removed 3,184 cubic yards of sand from the two projects.

The total number of cubic yards multiplied by $3.50 equals $11,144.

      Birchwood also seeks the cost of transporting the sand from the nearest open

sand pit and the cost of spreading the sand at the project site. Birchwood presents

formulas for calculating these values. The formulas only work with the insertion of




4 Bushey argues that “the removal of the sand was neither foreseeable nor
contemplated by the parties at the time they entered the contract.” Def.’s Proposed
Findings of Fact & Conclusions of Law at 26. It cannot be said, however, that the
loss of the value of sand is a consequential damage of the breach of contract subject
to the limitations of foreseeability. It is inescapable that when Bushey breached the
contract by removing Birchwood’s sand, the loss of the value of the sand naturally
flowed from the breach. EBWS, LLC v. Britly Corp., 

, ¶ 8, 

.
As such, foreseeability is not a prerequisite to recovery. See 24 Williston on
Contracts § 64:12 (4th ed., updated May 2011). Even if it were, where property is
taken from the owner without permission, the owner’s loss of the value of that
property is a foreseeable consequence of that act.
                                             17
numbers that are fraught with layers of speculation. As detailed below, such

speculative evidence cannot be the basis for a damage award.

      “The universal rule for measuring damages for the breach of a contract is just

compensation for the loss or damage actually sustained.” Stewart v. Basey, 

, 486 (Tex. 1952). A fact-finder can award an estimation of prospective

damages only if there is evidence from which the estimate may be made with

reasonable certainty. Ferrisburgh Realty Investors v. Schumacher, 

,

¶¶22–23, 

; see also 22 Am. Jur. 2d Damages § 482 (WL, updated May

2011) (prospective damages are properly awarded only if the plaintiff proves them

with reasonable certainty). Failure to prove the existence of future damages with

reasonable certainty precludes recovery. Berlin Dev. 

; 24

Williston on Contracts § 64:9 (4th ed., updated May 2011); see also Johnson v. Rule,

, 253 (1933) (in a tort action, “future damages may be supported by

evidence showing that there is a reasonable certainty or a reasonable probability

that apprehended future consequences will ensue”).

      Here, damages beyond Birchwood’s actual loss of the value of the sand have

not been proven with reasonable certainty on a number of bases. First, Birchwood

has not spent any money on transporting or spreading replacement sand. Although

Jenkins testified that he “probably” would order replacement sand if Birchwood

prevailed in this case, the Court agrees with Bushey that Birchwood did not

establish that it will ever actually replace the missing sand. Under such facts,

Birchwood is not entitled to the cost of transporting and spreading the replacement
                                         18
sand because it has not shown with reasonable certainty (or even a reasonable

probability) that these damages will ever be incurred.

      Such a result is consistent with the law of “cover” damages in the context of

the Uniform Commercial Code. Under the Article 2 of the UCC, a buyer of goods

has two primary choices should the seller fail to make delivery of goods: to either

cover and recover damages therefor or to recover damages for nondelivery. 9A

V.S.A. § 2-711(1). A buyer “may ‘cover’ by making in good faith and without

unreasonable delay any reasonable purchase of or contract to purchase goods in

substitution for those due from the seller.” 9A V.S.A. § 2-712(1). If the buyer

covers, it may recover the difference between the cost of cover and the contract price

together with incidentals and consequential damages, minus the cost of not having

to perform. 9A V.S.A. § 2-712(2). Subsection 3 notes that “[f]ailure of the buyer to

effect cover within this section does not bar him from any other remedy.” 

712(3). It “expresses the policy that cover is not a mandatory remedy for the buyer.

The buyer is always free to choose between cover and damages for non-delivery

under [§ 2-713].” Official Comment—9A V.S.A. § 2-712. This means that Section

2-713 provides “a remedy which is completely alternative to cover.” Official

Comment—9A V.S.A. § 2-713.       If the buyer does not choose to cover, it would not

be entitled to “expenses or commissions in connection with effecting cover.” 9A

V.S.A. § 2-715(1).

      The same is true here. Future damages are recoverable only if the plaintiff

has proven that they will be incurred with substantial certainty. If the plaintiff
                                          19
fails to cover, it is not entitled to expenses in connection with effecting cover.

Birchwood has not shown that it will effect cover with substantial certainty.

Therefore, it is not entitled to cover damages. Instead, it is limited to recovering

that which it has actually lost—the value of the sand taken from it.

      The Court concludes that Birchwood has failed to establish its damages with

sufficient specificity on other grounds as well. In particular, Birchwood did not

establish with reliability the attendant costs associated with bringing such a large

amount of sand to the site. Specifically, it is likely that numerous trees would need

to be cut and removed. Birchwood supplied no evidence of the costs of such an

operation. In addition, Birchwood did not establish the costs of spreading the sand

on the site. Jenkins provided an estimate of 114 hours of bulldozer time, but he also

admitted that he is not a construction expert and has no experience in such work.

His estimate of the time and machinery needed to spread 3,184 cubic yards of sand

at the site amount to little more than a guess. Finally, the Court has visited the

site and heard testimony regarding the legal requirements for depositing sand at

the site. It has concluded that permit amendments likely would need to be obtained

to retain the sand at the site. Birchwood has failed to establish that it could obtain

such amendments or, if it could, what conditions or requirements those permits

might set for the placement/spreading of the sand. Accordingly, the Court finds that

it cannot award damages beyond the value of sand without engaging in improper

speculation.



                                           20
      Bushey takes this conclusion beyond its breaking point by contending that

Birchwood cannot prove that it is entitled to any damages because it would have

had to make significant expenditures to remove trees to make room on site for the

excess sand and to amend existing permits. It is true that, as a general principle of

damages, any loss in value sustained as a result of the breach is offset by “any cost

or other loss that [the injured party] has avoided by not having to perform.”

Restatement (Second) of Contracts § 347. Any attempt, however, to determine what

Birchwood might have done or estimate what expenses it might have incurred

would be an exercise in pure speculation because Bushey took the decision out of

Birchwood’s hands when it unilaterally removed the sand from the worksite.

Birchwood never had to make a decision concerning the sand because Bushey did

not allow it to. Had Birchwood been afforded that opportunity, it may have taken

various actions. For example, it may have argued that the cost of removing the

trees and amending the permits should have been borne by Bushey because it fell

within the reasonable scope of the work of the contract. In the end, Bushey is

simply not entitled to benefit in full from the uncertainty caused by its own breach.

See Wakeman v. Wheeler & Wilson Mfg. Co., 

, 266 (N.Y. 1886) (“A person

violating his contract should not be permitted entirely to escape liability because

the amount of the damage which he has caused is uncertain.”).

     It is certain that Birchwood lost the value of the sand that was taken from the

site by Bushey. That is the measure of Birchwood’s damages in this case. Based on

that determination and the Stipulation of the parties, the amount owed to Bushey
                                          21
on its counterclaim for damages under the Tanglewood Contract is to be offset by

$11,144.

IV. Birchwood’s Slander of Title Claim

     Birchwood next argues that, by statute, Bushey was entitled to a lien on

Birchwood’s land inside of the right-of-way of Tanglewood Drive and that by placing

a lien on all of Birchwood’s land, Bushey disparaged its title in lands located outside

of the right-of-way. Birchwood also argues that Bushey was obligated to narrow the

scope of its lien when Birchwood asked it to because Bushey would have remained

fully secured. Finally, Birchwood claims that Bushey falsely asserted the lien

“when it knew Plaintiff’s set-offs exceeded the value of the unpaid contract balance.”

Pl.’s Post-Trial Brief at 18. Bushey argues that its lien properly extended to the

entirety of Birchwood’s property and that Birchwood has not shown malice.

      “To prove slander of title, plaintiff must show that: (1) defendant published a

false statement concerning plaintiff’s title; (2) the statement caused special

damages; and (3) defendants acted with malice.” Sullivan v. Stear, 

, ¶8.

“The essence of the tort is the publication of an assertion that is derogatory to the

plaintiff’s title to property in an effort to prevent others from dealing with the

plaintiff.” Wharton v. Tri-State Drilling & Boring, 

, ¶ 14, 

(mem.). As is relevant here, the assertion of a false mechanic’s lien can form the

basis of a slander-of-title claim. See 

Vermont’s mechanic’s lien statute, a contractor who makes

improvements on real property “shall have a lien upon such improvements and the
                                           22
lot of land on which the same stand.” 9 V.S.A. § 1921(a). The phrase “lot of land”

“shall be deemed to be all of the land owned or held by the owner and used or

designated for use in connection with such improvements, but such lien shall not

extend to other adjacent lands used for purposes of profit.” 

      Bushey contends that the scope of the lien was proper because Tanglewood

Drive “benefitted all of the building lots in that those lots could not obtain building

permits without the paving work that [Bushey] performed.” Def.’s Proposed

Findings of Fact at 30. Birchwood admits that and more, stating that “the adjacent

lands were to be ‘used . . . in connection with’ the improvements constructed by

Defendant.” Pl.’s Post-Trial Brief at 18. But, Birchwood also relies on the language

of the statute and points out that the lands outside of the right-of-way were to be

“used for profit” and, therefore, were not part of the “’‘lot of land’ subject to the lien.”

of Section 1921(e) in this regard is a matter of first impression in

Vermont. The Court undertakes the task of discerning the meaning of this

provision, keeping in mind that the purpose of statutory interpretation “is to

effectuate the intent of the Legislature by first looking at the language of the

statute.” Ketchum v. Town of Dorset, 

, ¶10 (mem.) (internal quotation

marks omitted).

      The Court concludes that Birchwood has failed to show that Bushey published

a false statement concerning plaintiff’s title. The first clause of Section1921(e)

clearly states that the phrase “lot of land” includes “all of the land owned or held by
                                            23
the owner and used . . . in connection with such improvements.” The second

statutory clause—“but such lien shall not extend to other adjacent lands used for

purposes of profit”—does not modify the meaning of the first clause, but merely

defines its limits. Specifically, the lien shall not extend to other adjacent lands, i.e.,

those lands that are not used in connection with the improvements. Thus, because

the entirety of the real property covered by the lien was used in connection with the

improvements, as Birchwood clearly admits in its post-trial brief, the lien’s scope

was proper and not “overreaching.” Pl.’s Post-Trial Brief at 18; Purgess v. Sharrock,

, 144 (2d Cir. 1994) (“A court can appropriately treat statements in

briefs as binding judicial admissions of fact.”).

     In a similar vein, Birchwood incorrectly argues that Bushey’s refusal to reduce

the scope of its lien when it had “more than adequate security” is a breach of the

implied covenant of good faith and fair dealing.5 This has nothing to do with

Birchwood’s slander-of-title claim. As noted above, the implied covenant of good

faith and fair dealing is an implied-in-law promise between contract parties not to

undermine or destroy the other party’s rights to receive the benefit of the contract.

R&G Props., Inc. v. Column Fin., Inc., 

, ¶ 46, 

. The

covenant “does not obligate a [party] to take affirmative actions that the [party] is

clearly not required to take under [the contract].” E. Shore Mkts., Inc. v. J. D.




5Birchwood did not plead a claim a for violation of the implied covenant. For these
purposes, the Court assumes, arguendo, that such a claim was raised in this case.
                                        24
Assocs. Ltd. P’ship, 

, 182 (4th Cir. 2000); see Downtown Barre Dev. v. C

& S Wholesale Grocers, Inc., 

, ¶ 18, 

) (noting same).

      Here, the mechanic’s lien has nothing to do with Birchwood’s rights to the

benefits flowing from the contract. The contract does not require Bushey to take

any action with respect to mechanic’s liens. Furthermore, the lien in this case

properly extended to the entirety of Birchwood’s property. Birchwood has not

identified, nor is the court aware of, any legal or equitable obligation for a

contractor to reduce the scope of a legally permissible mechanic’s lien simply

because the landowner contends that the contractor will remain fully secured. Such

a duty would be contrary to the plain language of 9 V.S.A. § 1921(e), which defines

the scope of the lien without reference to monetary values.

      Finally, Birchwood argues that Bushey asserted its lien when it knew that

Plaintiff was entitled to a set-off greater than the unpaid contract balance. The

Court, however, concludes that Bushey did not believe that to be the case, and,

indeed, the Court’s ruling in this case supports that conclusion. At all events, even

if Birchwood were correct, the slander-of-title claim would still fail based on its

failure to establish malice.

      Malice is “conduct manifesting personal ill will, evidencing insult or

oppression, or showing a reckless or wanton disregard of plaintiff’s rights.”

Wharton, 

, ¶16. In this case, the Court cannot conclude that the filing of

the lien constituted malice. Both parties agree that Bushey was owed a significant

sum in connection with the projects, although Birchwood contends that amount
                                           25
must be offset by the damages owed to it for the lost sand. The Court has concluded

that Bushey held an honest belief that it was owed significant sums and that it had

a good faith defense to the sand claim. Under such facts, the Court cannot conclude

that the filing of the lien constituted malicious conduct on the part of Bushey.6 See

Annotation, Recording of Instrument Purporting to Affect Title as Slander of Title,

§ 4 (1955) (recordation “not actionable as slander of title if the

defendant acted in the reasonable belief that he had in fact a valid claim against the

property which he was entitled to record”). Birchwood’s slander-of-title claim fails.

V.   Birchwood’s Claim for Punitive Damages

      Birchwood also seeks punitive damages against Bushey. Exemplary damages

are properly awarded when the plaintiff shows reprehensible conduct plus malice.

See Fly Fish Vt., Inc. v. Chapin Hill Estates, Inc., 

, ¶19 & n.2, 

. They are available in contract actions “in certain extraordinary cases where

the breach has the character of a willful and wanton or fraudulent tort,” Ainsworth

v. Franklin Cnty. Cheese Corp., 

, 331 (1991) (quoting Glidden v. Skinner,

, 647 (1983)) -- but only if the wanton breach includes or is also

accompanied by malice, Fly Fish Vt., 

, ¶19 n.2.7




6 The Court holds that Birchwood has not shown the requisite malice with regard to
its remaining slander-of-title arguments as well.

7While Villeneuve v. Beane, 

, ¶10, 

(mem.) separates the two
elements of willful-tort-like breach and malice with the inclusive disjunction “or,”
Fly Fish Vt. clearly states that an award of punitive damages requires both.
                                          26
      As noted above malice is “conduct manifesting personal ill will, evidencing

insult or oppression, or showing a reckless or wanton disregard of plaintiff’s rights.”

Wharton, 

, ¶ 16. Recklessness can be the basis of malice if the evidence

shows “that the defendant acted . . . in conscious and deliberate disregard of a

known, substantial and intolerable risk of harm to the plaintiff, with the knowledge

that the acts . . . were substantially certain to result in the threatened harm.” Fly

Fish Vt., 

, ¶25.

      Here, the actions of Bushey have the hallmarks of the tort of conversion.8

Conversion “is an intentional exercise of dominion or control over a chattel which so

seriously interferes with the right of another to control it that the actor may justly

be required to pay the other the full value of the chattel.” Restatement (Second) of

Torts § 222A(1) (cited for the elements of conversion in P.F. Jurgs & Co. v. O’Brien,

, 300 (1993)). As colloquially stated by Professor Dobbs: “I take your

watch and sell it. I have converted it and I am liable to you for conversion.” D.

Dobbs, The Law of Torts § 61, at 126 (2001). The same can be said of Bushey’s

actions with regard to Birchwood’s sand.

      Birchwood has failed, however, to establish that Bushey engaged sufficiently

egregious conduct to warrant imposition of exemplary damages. On both prongs of




8Just prior to the start of trial, Birchwood sought to amend the Complaint to add a
conversion count and leave of court to conduct additional discovery on that claim.
Given the tardy nature of the request and the prejudice attendant upon Bushey in
conducting additional discovery so close to trial, the Court denied the motion.
Birchwood did not renew the motion to amend at trial.
                                           27
the analysis, the Supreme Court has indicated that extreme, reprehensible and

outrageous conduct is required in order to impose punitive damages. Fly Fish Vt.,

, ¶¶18-19 (citing cases). Wrongdoing, even knowing and willful

wrongdoing alone will not suffice. In this case, Bushey acted wrongfully in taking

the sand without first obtaining permission from Birchwood. It also failed to act

responsibly in providing a prompt accounting to Birchwood of the amount of sand

taken after Birchwood repeatedly requested such information. The Court has

found, though, that Bushey did not seek to obtain, nor did it profit from the sand

(with the possible exception of the Lawton load), and did not undertake the conduct

with any ill will toward Birchwood/Jenkins or for any malevolent purpose. The

breach in this case was no, doubt, wrongful, but it does not rise to the level that

would permit imposition of damages meant to punish Bushey.

VI. Birchwood’s Breach of Contract Claim for the Rosewood Paving

      Under the terms of the Rosewood contract, Bushey was required to complete

a topcoat of paving. It admits that it failed to complete the job and that Birchwood

hired another contractor to complete it for $887.00 more than Bushey had agreed to

in the Rosewood contract. Bushey makes no claim that the extra $887.00 was

exorbitantly high or that the work was not required under the contract. Instead, it

claims that it was not required to perform because Birchwood indicated that it

would not pay for the work until a proper accounting could be completed concerning

the sand that was removed from the project by Bushey. Bushey contends that



                                          28
Birchwood’s conduct constituted an anticipatory breach of the contract that

precludes an award of damages. The Court disagrees.

      The hallmark of an anticipatory breach – repudiation of the contract – is not

reflected in Birchwood’s actions. See Downtown Barre Dev. v. GU Markets of Barre,

LLC, 

, ¶14 (mem.). Birchwood did indicate that it wanted to have an

accounting and receive credit for sand removed from the project before paying

Bushey additional amounts due under the contract. That position shows not a

repudiation of the contract but an affirmance of it. As discussed below, the Prompt

Pay Act permits an owner to withhold payments based on a good faith dispute as to

the amounts owed. Birchwood did no more, and it is entitled to the difference

between the amount it contracted to pay Bushey for the paving and the amount it

ultimately paid another contractor to complete the job -- $887.00.9 See Van Velsor v.

Dzewaltowski, 

, 105-06 (1978).

VII. Claims for Attorneys’ Fees and Penalties Under the Prompt Pay Act

     Bushey seeks penalties and attorneys’ fees under the Prompt Pay Act (“PPA”).

Birchwood seeks its attorneys’ fees under the PPA as well. For the following

reasons, the Court denies both claims.

     The PPA requires that statutory penalties be imposed to the extent an owner’s

failure to make prompt payment to a contractor was not based on a good faith


9Indeed, Bushey conceded that, prior to this litigation, it sent a check to Birchwood
in the amount of $887.00 in an attempt to resolve this claim. Birchwood rejected it
at that time because it was concerned that, by accepting it, Birchwood might be
waiving its sand claims.
                                         29
dispute concerning the amounts owed. 9 V.S.A. § 4007(a). Indeed, the PPA states

that “[n]othing [in the PPA] shall prevent an owner, contractor or subcontractor

from withholding payment in whole or in part under a construction contract in an

amount equaling the value of any good faith claims against an invoicing

contractor . . . .” 9 V.S.A. § 4007(a). To the extent an owner withholds payment

based on a good faith dispute, the amount withheld must bear a “reasonable

relation” to the sums that are in dispute. 

     In the instant case, the Court concludes that Birchwood withheld the amounts

based on a good-faith dispute with Bushey and that the amount withheld bore a

reasonable relation to the sums claimed by Birchwood. Birchwood has prevailed in

its sand claim and had it established with specificity all of its damage claims, it

would have approximated the amounts owed to Bushey. Had it prevailed in its

claim for punitive damages, its recovery would have well exceeded the amounts

owed to Bushey. While it did not prevail on those claims, the Court finds they were

brought in good faith.

     The PPA also provides that “the substantially prevailing party in any

proceeding to recover any payment within the scope of this chapter shall be awarded

reasonable attorneys’ fees in an amount to be determined by the court . . . together

with expenses.” 9 V.S.A. § 4007(c). The issue of which party, if any, substantially

prevailed is a matter that falls within the discretion of the Court. Trombly

Plumbing & Heating v. Quinn, 

, ¶13 (mem.); Fletcher Hill, Inc. v.

Crosbie, 

, ¶12, 

.
                                          30
      Although Bushey might be viewed as the “net victor” in this action, that is

not necessarily determinative of whether that party substantially prevailed. See

Burton v. Jeremiah Beach Parker Restoration & Constr. Mgmt. Corp., 

,

¶¶ 8–10 (affirming trial court’s finding that the contractor substantially prevailed

even though the property owner received a net judgment of $566); Fletcher Hill,

Inc., 

, ¶¶ 3, 17 (affirming trial court’s finding that there was no

substantially prevailing party, even though jury verdict was a net award of $11,067

in the contractor’s favor); see also Trombly Plumbing & Heating, 

, ¶13.

Instead of looking at the net victor, a court must focus on “which side achieved a

‘comparative victory’ on the issues actually litigated or the greater award

‘proportionally’ to what was ‘actually sought.’” Burton, 

, ¶8. For

instance, in Burton, the trial court ruled against Burton, even with his net victory,

because he lost on a vast majority of his claims and did not receive even close to

what he was seeking monetarily. 

this matter, the Court concludes that Bushey did not substantially prevail.

Although it will receive more money than Birchwood in the Judgment, Bushey did

not prevail on the merits of the sand issue. The Court is guided in this

determination by the fact that nearly all of the evidence at trial concerned the sand

issue, the legal memoranda focus on that issue, and there was no major dispute at




                                          31
trial as to the amount Bushey was owed under the agreements.10 In other words,

Bushey lost the singular issue that was the focus of the trial of this action.

Moreover, Birchwood set out a good-faith defense to payment of the full amount

owed to Bushey based on the misappropriated sand. Trombly Plumbing & Heating,

, ¶ 9; Maint Mgmt. v. Pelino, No. 1345-01 CnC (Vt. Super. Ct. Sept. 25,

2003) (Katz, J.), available at http://vermontjudiciary.org/TCDecisionCvl/2005-10-6-

4.pdf (both refusing to apply PPA penalties when homeowners withhold money for

good-faith claims). Under such circumstances, the Court finds that Bushey did not

substantially prevail.

     Although Birchwood prevailed on the principal issue that was litigated at trial,

the Court also concludes that it did not substantially prevail. Birchwood sought

significant damages in this action, including punitive relief. The Court’s ruling

determined that it was entitled to far less than the damages it sought. That,

coupled with Bushey’s net victory, leads the Court to conclude that neither side

should be afforded substantially prevailing party status under the PPA.




10Indeed, the full amount of the sums allegedly owed to Bushey has remained in
escrow pending a determination in this case, and Birchwood has never contended
that Bushey should not receive credit for the work that is represented by those
monies.
                                          32
                                   CONCLUSION

     Based on the foregoing, the Court finds that Birchwood is entitled to judgment

in its favor on its claim concerning the Rosewood paving in the amount of $887.00

and on its claim concerning the lost sand in the amount of $11,144.00. Based on the

Stipulation of the parties, Bushey is entitled to judgment on its claim for contract

damages under the Tanglewood Contract in the amount of $23, 511.28.

     As the parties have entered into a number of other stipulations concerning

other amounts owed to them, the Court requests that counsel for Birchwood confer

with counsel to Bushey to develop a comprehensive Judgment Order for the Court’s

review. The Judgment Order should take account of the parties’ stipulations and

otherwise be consistent with the findings and conclusions set out in this ruling.

     Dated at Burlington, Vermont this __ day of October, 2011


                                               ____________________
                                               Timothy B. Tomasi
                                               Superior Court Judge

                                               ____________________
                                               Charles Delaney
                                               Assistant Judge

                                               _____________________
                                               Constance Ramsey
                                               Assistant Judge




                                          33