Motion for Reargument Denied January 23, 2014
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Washington Unit, Civil Division. Michael S. Kupersmith, J.
Kimberly B. Cheney of Cheney Saudek & Grayck PC, Montpelier, for Plaintiff-Appellant.
Thomas F. Heilmann and David D. Aman of Heilmann, Ekman & Associates, Inc., Burlington, for Defendant-Appellee Vermont Association of Realtors, Inc.
Present: Dooley, Skoglund and Burgess, JJ., and Howard and Bent, Supr., JJ., Specially Assigned.
[¶1] Plaintiff Janet Knutsen appeals the decision of the superior court denying her motion for summary judgment and granting defendant Vermont Association of Realtors, Inc.'s (VAR) motion for summary judgment on her consumer fraud claim arising out of her purchase of a home in Moretown. Plaintiff argues that VAR's form purchase and sale agreement, which was used in her real estate purchase -- to which VAR was not a party -- violates the Vermont Consumer Fraud Act (CFA) in that two provisions of the form are unfair and deceptive, and that she is therefore entitled to damages under § 2461(b) of the CFA. We affirm.
[¶2] On May 20, 2007, plaintiff entered into a purchase and sales contract with Lorraine and Leonard Sweetser (sellers) for the purchase of their home. Sheila Jacobs, plaintiff's broker, prepared the contract. The contract contained the following limitation of liability:
Limitation of Liability : Seller and Purchaser each agree that the real estate brokers identified in Section 31 hereof have provided both Seller and Purchaser with benefits, services, assistance and value in bringing about this Contract. In consideration thereof, and in recognition of the relative risks, rewards, compensation and benefits arising from this transaction to said real estate brokers, Seller and Purchaser each agree that such brokers, their agents, associates or affiliates, shall in no event be liable to either Purchaser, Seller or both, either jointly, severally or individually, in an aggregate amount exceeding the total compensation to be paid to such brokers on account of this transaction or $5,000, whichever is greater, by reason of any act or omission, including negligence, misrepresentation, errors and omissions, or breach of any undertaking whatsoever, except for intentional or willful acts . This limitation shall apply regardless of the cause of action or legal theory asserted against the real estate brokers unless the claim is for an intentional or willful act. This limitation of liability shall apply to all claims, losses, costs, damages or claimed expenses of any nature whatsoever from any cause or causes, except intentional or willful acts, so that the total aggregate liability of all real estate brokers identified in Section 31 hereof shall not exceed the amount set forth herein. Seller and Purchaser each agree that there is valid and sufficient consideration for this limitation of liability and that the real estate brokers are the intended third-party beneficiaries of this provision .
(bolding and emphasis in original). Plaintiff initialed and dated the page containing the limiting language and signed the contract. The above section provided a liability limitation to " real estate brokers identified in section 31" of the contract. The brokers identified in section 31 are the firms for which sellers' and buyer's agents worked.
[¶3] The contract also contained a clause calling for presuit mediation of disputes related to the contract. The mediation provision stated:
Mediation of Disputes: In the event of any dispute or claim arising out of or relating to this Contract, to the Property, or to the services provided to either Seller or Purchaser by any ...