## Facts

- Sharon Gerety purchased a ranch home from J. Leo Poitras in Montpelier, Vermont, under a written agreement executed January 24, 1964; the closing occurred February 6, 1964.
- The agreement provided that, for two years from purchase, Poitras would “do what is necessary to make the cellar usable for general use” if a “major water problem” arose from a spring under the cellar floor.
- In October 1964, Gerety notified Poitras that a major water problem had arisen and supplied a contractor’s written description of the work needed to make the cellar usable.
- Poitras refused to perform the requested work.
- Gerety filed a chancery petition seeking specific performance and alleged she lacked an adequate remedy at law.
- Poitras moved to dismiss, arguing money damages were adequate and, therefore, equity lacked a basis to proceed.

## Issues

1. Whether the petition’s allegation that the buyer lacked an adequate remedy at law was sufficient, at the pleading stage, to support equitable jurisdiction for specific performance of the seller’s promise to remedy a major cellar water problem.
2. Whether an argument that equity categorically will not specifically enforce construction or repair obligations was properly before the Court on an interlocutory appeal from denial of a motion to dismiss.

## Decision

- The Vermont Supreme Court affirmed the order denying the motion to dismiss.
- Treating the motion as demurrer-like, the Court accepted the petition’s well-pleaded facts as true and evaluated only whether the petition stated a basis for equitable relief.
- The petition’s allegation of no adequate legal remedy, together with the pleaded contractual undertaking tied to a defined two-year period and a specific residential defect, was enough to allow the case to proceed in equity.
- The Court declined to consider the categorical “no specific performance for construction/repair” argument because it was not raised in the motion to dismiss and therefore was not preserved.

## Legal Principles

- A motion to dismiss that challenges the sufficiency of an equitable petition is assessed on the pleaded facts alone, taken as true.
- Specific performance may be available where damages are not an adequate remedy and judicial supervision is not unduly difficult; adequacy of damages is generally fact-dependent.
- A complaint is not subject to dismissal merely because specific performance might later be denied on the merits after factual development.
- Appellate review is limited to issues raised in the trial court; arguments not included in the motion under review are not considered on interlocutory appeal.

## Conclusion

The Court held that the buyer’s petition sufficiently invoked equity by alleging lack of an adequate legal remedy for enforcement of a seller’s two-year promise to correct a major cellar water problem, and it affirmed denial of dismissal while refusing to address an unpreserved categorical objection to enforcing repair obligations.


Gerety v. Poitras, 224 A.2d 919 (Vt. 1966)