This is particularly so since even the total absence of a notice of decision is not necessarily fatal. Brower v. Hill, 133 Vt. 599, 603, 349 A.2d 901, 904-05 (1975). If the trial court's action in this case is no more than a notice of decision under V.R.C.P. 52(a), that rule provides that findings, if desired by the parties, must be generated by a request made in writing within five days after the notice of the decision.
The essence of defendant's procedural claim is that defendant was not given sufficient time to prepare and present its defense. It first argues that an action for specific performance is "outside the bounds" of an action for an injunction brought under V.R.C.P. 65, and more properly subject to V.R.C.P. 12(a), which provides a defendant with at least twenty days to file an answer to a complaint. In Brower v. Hill, 133 Vt. 599, 604, 349 A.2d 901, 905 (1975), this Court noted that an order for specific performance is "in effect" a mandatory injunction. Specific performance by injunction is appropriate "`if this is the only practical mode of enforcement which its terms permit.'"
Finally, we are asked whether the superior court has discretion to grant a de novo hearing in this case, either under its general powers, or under the advisory jury provisions of V.R.C.P. 39(c). See generally, Nugent v. Shambor, 138 Vt. 194, 196, 413 A.2d 1210, 1211 (1980); Brower v. Hill, 133 Vt. 599, 602, 349 A.2d 901, 903-04 (1975). Section 5887(a) of Title 32, however, states that ยง 5885 is the exclusive appeal remedy for a case of this nature.
Thus, to protect against judicial excess, V.R.C.P. 65(d) requires the court to specify with detail in its order granting an injunction the reasons for issuance and the acts restrained. Brower v. Hill, 133 Vt. 599, 604, 349 A.2d 901, 905 (1975). There was no such specificity of the order below, nor does there appear to be any evidence tending to suggest that the appellants were engaged or likely to engage in any conduct which would interfere with the appellee's construction except their pursuit of the legal process prescribed by 24 V.S.A. ch. 117.
It may also in its discretion refuse. Brower v. Hill, 133 Vt. 599, 600, 602, 349 A.2d 901, 903, 904 (1975). To say that the parties might agree to a binding jury trial by their silence would be to deny the trial court the opportunity to exercise its discretion on the question.
However, there are grounds for denying specific performance, even in the presence of a written contract, in that the granting of this particular kind of relief may produce an unsupportably inequitable result. Brower v. Hill, 133 Vt. 599, 602, 349 A.2d 901 (1975). Where, as here, there is no such writing, the proponent of specific performance has a double burden.