SCOVT denies summary judgment - even though non-movant failed to file statement of disputed fact - because moving party’s statement itself showed material facts were in dispute.

Stone v. Irasburg, Town of 2014 VT 43 (25-Apr-2014)

CRAWFORD, J. Plaintiff sued the Town of Irasburg alleging that the selectboard had acted unlawfully in ordering her, as town treasurer, to raise her bond to $1,000,000. She sought monetary damages based on common law defamation, tortious interference with office, violation of the Vermont Constitution, and deprivation of due process. In several different orders, the trial court granted the Town summary judgment on all counts. Plaintiff appealed. We affirm in part, and reverse and remand in part.

Like the rules concerning default judgment, the procedure of Rule 56 “should be liberally construed in favor . . . of resolving litigation on the merits, to the end that fairness and justice are served.”

The court based its decision largely on procedural grounds, concluding that plaintiff had failed to adequately oppose summary judgment. In effect, the court sanctioned plaintiff with dismissal of the case for failing to appropriately reference the record in her response to summary judgment even though the record in this case, clearly demonstrates the presence of contested facts. We conclude that the procedural grounds for granting the motion were inadequate.

Vermont Rule of Civil Procedure 56(c), as amended effective January 23, 2012, sets out a mandatory procedure for demonstrating that “a fact cannot be or is genuinely disputed.” V.R.C.P. 56(c)(1). The party asserting that a fact is not disputed must file “a separate and concise statement of undisputed material facts” with citations to the record. V.R.C.P. 56(c)(1)(A). The rule allows an adverse party to file an opposition and statement of disputed facts, and requires a party asserting a fact is genuinely disputed to support the assertion by filing a statement of disputed facts supported by citation to record. V.R.C.P. 56(b), (c)(1) (a).

The Town was the moving party. Its Rule 56(c) statement of undisputed facts was very brief. The Town attached plaintiff’s affidavit and her July 1, 2010 letter. There is no concise statement of the undisputed facts which would support the Town’s argument that plaintiff was neither defamed nor forced unlawfully out of office.

Plaintiff did not file a statement of disputed facts with reference to the record or in some other way show that the materials cited by the Town did not establish the absence of a factual dispute.

The court ruled that plaintiff as the nonmoving party had failed to properly demonstrate issues of material fact because her response to summary judgment was not supported by affidavit, deposition or other sworn testimony.

Grant of summary judgment to the Town based solely on plaintiff’s failure to adequately respond was error for two main reasons. First, because the Town failed to provide a proper statement of undisputed facts with citations to the record demonstrating an absence of any controverted material fact, the burden did not shift to plaintiff to show the existence of disputed facts. See Pierce v. Riggs, 149 Vt. 136, 138, 540 A.2d 655, 656-57 (1987) (explaining burden does not shift to nonmoving party until moving party meets its burden of showing absence of dispute over material fact).

Second, plaintiff was not required to submit new evidence in support of her opposition where evidence already in the record supported her position. See V.R.C.P. 56(c)(3) (allowing court to consider material in record even if not cited in required statement of facts). Since plaintiff’s critical evidence—the July 1, 2010 letter and plaintiff’s affidavit—were both attached to the Town’s motion for summary judgment, it was readily apparent that disputed issues of fact existed between the parties.

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Note. Decades ago the Court held "the failure to respond does not require an automatic summary judgment; rather, two requirements must be met: (1) the supporting materials must be both formally and substantively sufficient to show the absence of a fact question, and (2) summary judgment must be appropriate in the sense that the moving party is entitled to judgment as a matter of law." Miller v. Merchants Bank, 138 Vt. 235, 238, 415 A.2d 196, 198 (1980). The new Rule 56 now gives several options when a party fails to properly support or address a fact:

(e) Failing to Properly Support or Address a Fact. -- If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or

         (4) issue any other appropriate order.

V.R.C.P.56(e).