Beeman v. Nesbitt, No. 503-11-03 Wmcv (Carroll, J., Apr. 28, 2004)
[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.]
STATE OF VERMONT WINDHAM COUNTY, SS.
EMILY BEEMAN, Plaintiff, v. WINDHAM SUPERIOR COURT DOCKET NO. 503-11-03 Wmcv MEGHAN B. NESBITT, Defendant.
ORDERS ON DEFENDANT’S MOTION TO DISMISS COUNTS II & III and PLAINTIFF’S MOTION TO AMEND
After sharing their homes and lives for twenty years, the parties have now separated. In
this action, Plaintiff seeks partition of property in Vermont held jointly by the parties (Count I);
reimbursement of payments she made for the mortgage and maintenance of property in
Connecticut held by Defendant alone, under a quasi-contract theory of unjust enrichment (Count
II); and an equitable portion of the property in Connecticut held by Defendant alone, based on an
implied agreement between the parties to share their assets (Count III).
Currently pending is Defendant’s motion to dismiss Counts II and III for failure to state a
claim. See V.R.C.P. 12(b)(6). A motion to dismiss for failure to state a claim may only be
granted if it is beyond doubt that there exist no facts or circumstances that would entitle plaintiff
to the relief she seeks. Richards v. Town of Norwich, 169 Vt. 44, 48-49 (1999). Moreover, in reviewing the motion, the court assumes that all factual allegations in the complaint are true, and
accepts all reasonable inferences that may be derived therefrom. Id. Viewing the complaint in
this manner, the court cannot say that it is beyond doubt that there are no facts or circumstances
that could entitle Plaintiff to the reimbursement she seeks in Count II. With respect to Count III,
the court concludes that public policy would not preclude the enforcement of an otherwise
enforceable implied contract between unmarried cohabitants to share their assets. Plaintiff would
have to point to conduct and circumstances from which an actual, though unexpressed,
agreement to share can be implied; and this may not be easy to do. On the basis of the
complaint, however, the court cannot say that it is beyond doubt that she cannot do so.
Accordingly, Defendant’s motion to dismiss is DENIED.
Also pending is Plaintiff’s motion to add more allegations to her Count II if necessary to
withstand dismissal. Since it is not necessary, this motion to amend will be DISMISSED AS
MOOT.
Count II – Unjust Enrichment
“Under a quasi-contract theory of unjust enrichment, the law implies a promise to pay
when a party receives a benefit and retention of the benefit would be inequitable.” Brookside
Memorials, Inc. v. Barre City, 167 Vt. 558, 559 (1997). “[T]he inquiry is whether, in light of the
totality of the circumstances, equity and good conscience demand that the defendant return that
which the plaintiff seeks to recover. Legault v. Legault, 142 Vt. 525, 531 (1983) (whether there
has been unjust enrichment must be realistic determination based on broad view of human setting
involved).” Id. At 560. Here, Plaintiff alleges that during the last three years of the parties’ relationship, Plaintiff
and the children were living elsewhere while Defendant was living at her property in Connecticut
– property purchased during the relationship but deeded to Defendant alone. Defendant was
disabled due to alcoholism and unable to pay her bills during this period, and Plaintiff paid the
mortgage and other maintenance costs on Defendant’s Connecticut property out of her own
funds. Thus, Plaintiff conferred and Defendant accepted a benefit, and it not beyond doubt that
Plaintiff cannot show it would be inequitable for Defendant to retain that benefit.
According to Defendant, Plaintiff’s failure to allege facts showing that the parties
contemplated reimbursement when the payments were made is fatal to her claim. Defendant’s
position is without merit, however, because it confuses (understandably) two distinct types of
implied contracts – a distinction which can be clarified by comparing the claims in Count II and
Count III. Count II is based on an “implied in law” quasi-contract: In this count, Plaintiff is not
saying that there was an actual agreement that she would be repaid, but instead that the law
should impose an agreement to repay, as a fiction, to avoid inequity. See, e.g., Eddy v. Watson,
141 Vt. 577, 579 (1982). Count III, on the other hand, asserts a contract “implied in fact”: In
that count, Plaintiff is saying that there really was a meeting of the minds in which the parties
agreed to share their assets, even though that agreement was not expressed in words. See
Underhill v. Rutland R. Co., 90 Vt. 462, 475 (1916); Bliss v. Hoyt’s Estate, 70 Vt. 534, 536
(1898).
Thus, in an implied-in-law or quasi-contract cause of action like Count II, the parties’
intent or expectations at the time the benefit was conferred and accepted, though perhaps
relevant to the analysis of what equity demands in the situation, is not determinative. In
3 Brookside, for example, neither party expected the plaintiff would be repaid for the benefit
because they both, due to a mutual mistake of fact, thought Plaintiff owed Defendant the money.
Nonetheless, the Court looked at the totality of the circumstances, particularly the fact that the
defendant was in a better position to know of the mistake than the plaintiff, and ruled that equity
demanded repayment. 167 Vt. at 560.
The court therefore concludes that it is too soon to say that Plaintiff cannot present facts
and circumstances which, in light of the totality of the circumstances and based on a broad view
of the human setting involved, might convince the court that equity demands repayment.
Count III – Implied Contract to Share Assets
The Supreme Court of Connecticut has recognized that even though cohabitation alone
does not create any contractual rights, those who cohabit without legal sanction can contract,
explicitly or implicitly, to share assets. See Boland v. Catalano, 521 A.2d 142, 145 (1987)
(“Ordinary contract principles are not suspended . . . for unmarried persons living together.”)
Moreover, the Court in Boland went on to hold that if such a contract were found to exist, its
enforcement would not violate public policy. Id. at 146-47. The parties have not briefed
whether Connecticut or Vermont law would apply. The court does not believe Vermont law
would differ from that of Connecticut, however, for at least two reasons. First, Connecticut’s
decision reflects the “decided trend.” Id. at 146. And second, the decision in Boland is fully
consistent with the Vermont Supreme Court’s decision in Harmon v. Rogers, in which the Court
stated that the parties’ status as unmarried cohabitants would not preclude a contractual recovery
if it were otherwise warranted, but nonetheless denied the plaintiff’s implied contract claim after
4 trial because she did not sustain her burden of showing that there really had been an agreement.
See 147 Vt. 11, 15 n.1, 18 (1986).1
As noted above, Plaintiff will have to show, through the parties’ conduct and the
circumstances of the case, that the parties actually agreed to share their assets even though they
did not express their agreement in words.
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Beeman v. Nesbitt, No. 503-11-03 Wmcv (Carroll, J., Apr. 28, 2004)
[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.]
STATE OF VERMONT WINDHAM COUNTY, SS.
EMILY BEEMAN, Plaintiff, v. WINDHAM SUPERIOR COURT DOCKET NO. 503-11-03 Wmcv MEGHAN B. NESBITT, Defendant.
ORDERS ON DEFENDANT’S MOTION TO DISMISS COUNTS II & III and PLAINTIFF’S MOTION TO AMEND
After sharing their homes and lives for twenty years, the parties have now separated. In
this action, Plaintiff seeks partition of property in Vermont held jointly by the parties (Count I);
reimbursement of payments she made for the mortgage and maintenance of property in
Connecticut held by Defendant alone, under a quasi-contract theory of unjust enrichment (Count
II); and an equitable portion of the property in Connecticut held by Defendant alone, based on an
implied agreement between the parties to share their assets (Count III).
Currently pending is Defendant’s motion to dismiss Counts II and III for failure to state a
claim. See V.R.C.P. 12(b)(6). A motion to dismiss for failure to state a claim may only be
granted if it is beyond doubt that there exist no facts or circumstances that would entitle plaintiff
to the relief she seeks. Richards v. Town of Norwich, 169 Vt. 44, 48-49 (1999). Moreover, in reviewing the motion, the court assumes that all factual allegations in the complaint are true, and
accepts all reasonable inferences that may be derived therefrom. Id. Viewing the complaint in
this manner, the court cannot say that it is beyond doubt that there are no facts or circumstances
that could entitle Plaintiff to the reimbursement she seeks in Count II. With respect to Count III,
the court concludes that public policy would not preclude the enforcement of an otherwise
enforceable implied contract between unmarried cohabitants to share their assets. Plaintiff would
have to point to conduct and circumstances from which an actual, though unexpressed,
agreement to share can be implied; and this may not be easy to do. On the basis of the
complaint, however, the court cannot say that it is beyond doubt that she cannot do so.
Accordingly, Defendant’s motion to dismiss is DENIED.
Also pending is Plaintiff’s motion to add more allegations to her Count II if necessary to
withstand dismissal. Since it is not necessary, this motion to amend will be DISMISSED AS
MOOT.
Count II – Unjust Enrichment
“Under a quasi-contract theory of unjust enrichment, the law implies a promise to pay
when a party receives a benefit and retention of the benefit would be inequitable.” Brookside
Memorials, Inc. v. Barre City, 167 Vt. 558, 559 (1997). “[T]he inquiry is whether, in light of the
totality of the circumstances, equity and good conscience demand that the defendant return that
which the plaintiff seeks to recover. Legault v. Legault, 142 Vt. 525, 531 (1983) (whether there
has been unjust enrichment must be realistic determination based on broad view of human setting
involved).” Id. At 560. Here, Plaintiff alleges that during the last three years of the parties’ relationship, Plaintiff
and the children were living elsewhere while Defendant was living at her property in Connecticut
– property purchased during the relationship but deeded to Defendant alone. Defendant was
disabled due to alcoholism and unable to pay her bills during this period, and Plaintiff paid the
mortgage and other maintenance costs on Defendant’s Connecticut property out of her own
funds. Thus, Plaintiff conferred and Defendant accepted a benefit, and it not beyond doubt that
Plaintiff cannot show it would be inequitable for Defendant to retain that benefit.
According to Defendant, Plaintiff’s failure to allege facts showing that the parties
contemplated reimbursement when the payments were made is fatal to her claim. Defendant’s
position is without merit, however, because it confuses (understandably) two distinct types of
implied contracts – a distinction which can be clarified by comparing the claims in Count II and
Count III. Count II is based on an “implied in law” quasi-contract: In this count, Plaintiff is not
saying that there was an actual agreement that she would be repaid, but instead that the law
should impose an agreement to repay, as a fiction, to avoid inequity. See, e.g., Eddy v. Watson,
141 Vt. 577, 579 (1982). Count III, on the other hand, asserts a contract “implied in fact”: In
that count, Plaintiff is saying that there really was a meeting of the minds in which the parties
agreed to share their assets, even though that agreement was not expressed in words. See
Underhill v. Rutland R. Co., 90 Vt. 462, 475 (1916); Bliss v. Hoyt’s Estate, 70 Vt. 534, 536
(1898).
Thus, in an implied-in-law or quasi-contract cause of action like Count II, the parties’
intent or expectations at the time the benefit was conferred and accepted, though perhaps
relevant to the analysis of what equity demands in the situation, is not determinative. In
3 Brookside, for example, neither party expected the plaintiff would be repaid for the benefit
because they both, due to a mutual mistake of fact, thought Plaintiff owed Defendant the money.
Nonetheless, the Court looked at the totality of the circumstances, particularly the fact that the
defendant was in a better position to know of the mistake than the plaintiff, and ruled that equity
demanded repayment. 167 Vt. at 560.
The court therefore concludes that it is too soon to say that Plaintiff cannot present facts
and circumstances which, in light of the totality of the circumstances and based on a broad view
of the human setting involved, might convince the court that equity demands repayment.
Count III – Implied Contract to Share Assets
The Supreme Court of Connecticut has recognized that even though cohabitation alone
does not create any contractual rights, those who cohabit without legal sanction can contract,
explicitly or implicitly, to share assets. See Boland v. Catalano, 521 A.2d 142, 145 (1987)
(“Ordinary contract principles are not suspended . . . for unmarried persons living together.”)
Moreover, the Court in Boland went on to hold that if such a contract were found to exist, its
enforcement would not violate public policy. Id. at 146-47. The parties have not briefed
whether Connecticut or Vermont law would apply. The court does not believe Vermont law
would differ from that of Connecticut, however, for at least two reasons. First, Connecticut’s
decision reflects the “decided trend.” Id. at 146. And second, the decision in Boland is fully
consistent with the Vermont Supreme Court’s decision in Harmon v. Rogers, in which the Court
stated that the parties’ status as unmarried cohabitants would not preclude a contractual recovery
if it were otherwise warranted, but nonetheless denied the plaintiff’s implied contract claim after
4 trial because she did not sustain her burden of showing that there really had been an agreement.
See 147 Vt. 11, 15 n.1, 18 (1986).1
As noted above, Plaintiff will have to show, through the parties’ conduct and the
circumstances of the case, that the parties actually agreed to share their assets even though they
did not express their agreement in words. And this may not be easy to do. As the court cannot
say that it is beyond doubt that she cannot do so, however, the claim is not subject to dismissal
for failure to state a claim.2
Plaintiff’s Motion to Amend Count II
Also pending is Plaintiff’s motion to amend Count II. This motion was conditioned on its
need to prevent dismissal for failure to state a claim. As the court has ruled that Count II is
sufficient as it is, this motion need not be addressed.
ORDERS
Defendant’s motion to dismiss is DENIED.
Plaintiff’s motion to amend is DISMISSED AS MOOT.
1 Harman is not on all fours, since it involved an implied contract to pay a wage rather than an implied contract to share assets. Nonetheless, its indication that an implied contract between unmarried cohabitants is possible and enforceable if otherwise warranted is instructive. 2 Defendant also argues that dismissal is warranted because Plaintiff’s claims are mutually inconsistent. To the extent the claims are inconsistent, Plaintiff may have to chose between them at some point in the litigation, but at this stage there is no reason she should not be allowed to pursue inconsistent claims. See V.R.C.P. 8(e)(2) (party may state as many separate claims as she has, regardless of consistency).
5 Signed at __________, Vermont, this ____ day of __________, 2004.
_____________________________ Karen R. Carroll Presiding Judge