Economou v. Economou, 235-74

• Decision Date: 03 June 1975
• Docket Number: No. 235-74,235-74
• Citation: 133 Vt. 418,340 A.2d 86
• Court: Vermont Supreme Court
• Parties: Nicholas ECONOMOU and Lorraine Economou v. Costas ECONOMOU a/k/a Costa Economou, et al.

Page 86

340 A.2d 86

133 Vt. 418

Nicholas ECONOMOU and Lorraine Economou v. Costas ECONOMOU a/k/a Costa Economou, et al.

No. 235-74.

Supreme Court of Vermont.

June 3, 1975.

Motion for Reargument Denied June 23, 1975.

Gilbert Myers, Essex Junction, for plaintiffs.

Saul Lee Agel, Michael W. Wool, Burlington, for defendants.

Before BARNEY, C. J., SMITH, KEYSER and DALEY, JJ., and SHANGRAW, C. J. (Ret.), Assigned.

SMITH, Justice.

Procedural rulings by three different presiding judges must be considered on this appeal by the plaintiffs from the third judge's October 1, 1974, grant of a motion for judgment on the pleadings in favor of the defendants.

The plaintiffs commenced this action in early 1971 with a declaratory judgment petition. The basic theme of this petition was that the defendant's original promises and representations outstripped their subsequent performances with respect to a verbal employment contract and certain conveyances of land between the parties. The defendants answered and filed a motion for summary judgment, relying, among other things, on the statute of frauds and executed releases. The first judge denied the summary judgment motion in a January, 1973, order, ruling that there was 'a genuine issue of fact concerning, among other things, the scope, meaning and validity of the releases executed in 1960 and 1962 and also an issue of fact as to whether or not the Statute of Frauds is applicable in this cause. . . .'

One of the plaintiffs' main arguments here is that the October, 1974, order in favor of the defendants was based on the statute of limitations which, as an affirmative defense under V.R.C.P. 8(c), was waived because not earlier pleaded by the defendants. The record refutes this contention. In both their original answer and motion for summary judgment the defendants asserted the following:

That any and all of the claims, demands, damages, costs, expenses, actions and causes of action asserted and alleged in the Plaintiffs' Petition for Declaratory Judgment and other Equitable Relief arose from actions, occurrences, transactions, relationships or matters occurring and having their basis prior to the 30th day of April, 1960.

In the answer the above is the second full paragraph in a section clearly labeled 'Affirmative Defenses'.

Such language is sufficiently 'simple, concise, and direct.' V.R.C.P. 8(e) (1). We cannot accept the argument that the statute of limitations was not brought to the court's attention until September, 1974, when a motion by the defendants specifically cited 12 V.S.A. § 511. For omission of the statute did not prejudice the plaintiffs nor deny them sufficient notice of defendants' claim, thereby hindering their trial preparation. Cf. Riblet Tramway Co. v. Monte Verde Corp., 453 F.2d 313, 318-19 (10th Cir. 1972). Further the court could take judicial notice of the omitted statute. Blood v. Morrill, 17 Vt. 598, 605-06 (1845); cf. United States v. Provident National Bank, 259 F.Supp. 373, 376 (E.D.Pa.1966).

While 'summary judgment may be granted to a moving party where the opposing party asserts a claim which is barred by the Statute of Limitations,' Tierney v. Tierney, 131 Vt. 48, 52, 300 A.2d 544, 547 (1972), the correctness of the denial of the summary judgment motion is not now before us. The issue is whether it can be reconciled with the October, 1974 order.

On February 17, 1973, approximately one month after the defendants' motion for summary judgment was denied, the plaintiffs moved to amend their original petition. On May 7, 1974, a hearing was held before a second presiding judge on this and several other motions then pending. The resulting order of that same date, reduced to writing on June 21, 1974, provided:

Plaintiffs' motion filed February 17, 1973 to amend petition; ruling withheld. Plaintiff to file new petition NUNC PRO TUNC within ten days of May 7, 1974. Defendant permitted to respond within time provided by rules; all record as of May 7, 1974 to be construed as supplementary to new petition and no motions or pleadings now of record to be duplicated by future action.

The plaintiffs' amended petition is their original petition with the deletions and additions sought in the February 17, 1973, motion. This amended petition was countered by an answer and various motions to dismiss by the defendants. As mentioned, the motions were treated as a motion...