malone 118 main st v hugos restaurant, No. 23-cv-1881 (Vt. Super. Ct. 2026)

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pay the utility providers directly. Town of Lyndon v. Burnett’s Contracting Co., Inc., 138 Vt.
102, 107 (1980).10
In coming to this conclusion, the Court relies on the following.
First, the preliminary discussions and drafts focus on Defendants being responsible for
the utility costs. There is less detail on how payments would be made—either directly to the
providers or through Plaintiff. The discussions and negotiations do not go into such detail. As
the Court has found, under either interpretation of Section 12(b), Defendants were responsible
for the utilities. In this respect, there is nothing inconsistent or latently ambiguous in having
payment go through the CAM costs, rather than direct payments.
Second, Plaintiff cites certain inconsistent statements made by Defendant Thomas
Greene in his deposition, but the more telling circumstance in this respect is how Defendants
behaved at the start of the lease. The depositions indicate that Defendants did not move to put
any utilities in their name at the start of the lease, in contrast to the other actions that Defendants
took to fulfill their lease obligations.
Third, by Plaintiff’s own admission, the assignment of these utilities to Defendants
would not have been uniform or consistent along Plaintiff’s preferred interpretive lines. For
example, there is some evidence to suggest that the Defendants could have put the electricity into
their name with little or no adjustment necessary. The district heat, however, like the water and
sewer, could not have been put in Defendants’ name. Plaintiff’s contention that it could have
provided those invoices to Defendants and had Defendants make the payments directly to the
City does not cure this problem. In fact, it further complicates Plaintiff’s preferred interpretation
to effectively require a third implied payment method between the CAM costs process of Section
5 and creating an independent account. Again, while such methods are reasonable and could
have been required, the plain language and meaning of Section 12(b) does not support this
interpretation that Defendants were expected to pay utilities through multiple payment methods,
despite the fact that there is only one verb “to pay” and one adverbial phrase modifying that verb.
For these reasons, the Court finds no latent ambiguity or support for Plaintiff’s
interpretation in the circumstances of formation.