Gore v. Green Mountain Lakes, Inc., 391-80

Citation438 A.2d 373,140 Vt. 262
Decision Date23 September 1981
Docket NumberNo. 391-80,391-80
PartiesJane P. GORE v. GREEN MOUNTAIN LAKES, INC., Charles Merlini, Leigh Merlini, David Fjeldstad, and Laurie Fjeldstad.
CourtUnited States State Supreme Court of Vermont

John S. Burgess and James W. Stevens (on the brief), Brattleboro, for plaintiff.

Fitts, Olson, Carnahan, Anderson & Bump, Brattleboro, for Green Mountain Lakes, Inc.

Kenneth V. Fisher, Jr., Brattleboro, for Merlinis and Fjeldstads.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.

HILL, Justice.

Jane Gore, the plaintiff, appeals from an order of the Windham Superior Court granting the defendants' motion for summary judgment. She contends that material issues of fact existed between the parties, thereby precluding summary judgment under V.R.C.P. 56. We affirm.

On December 10, 1971, Green Mountain Lakes, Inc. purchased from the plaintiff a tract of land containing more than 300 acres. The purchase was secured by a mortgage agreement that provided for semi-annual payments (due on December 10 and June 10) until December 10, 1982. The agreement also provided that the plaintiff would release sections of land from her mortgage as Green Mountain Lakes tendered certain payments.

Green Mountain Lakes made its last payment on December 5, 1975. Before the date of the next scheduled payment, Green Mountain Lakes sold various parcels of land to the individual defendants. On September 19, 1978, the plaintiff filed suit. Count I of the complaint alleged that Green Mountain Lakes had defaulted on the mortgage note. The trial court entered judgment for the plaintiff on the mortgage note against Green Mountain Lakes, which does not appeal that portion of the judgment. In Count II of her complaint, the plaintiff alleged that the conveyances from Green Mountain Lakes to the Fjeldstads and Merlinis should be set aside because they were made without consideration and with the intent of defrauding Jane Gore, Green Mountain Lakes' principal creditor. Both parties moved for summary judgment under V.R.C.P. 56. The trial court denied the plaintiff's motion but granted the motion of the defendants.

Rule 56 provides a mechanism for the disposition of issues, claims, and defenses which do not merit a full trial. The rule requires the moving party to satisfy a two-part test. First, the movant must demonstrate that there are no material fact issues between the parties. Second, the movant must present a valid legal position, one that entitles the movant to judgment "as a matter of law." V.R.C.P. 56(c); see Alpstetten Association, Inc. v. Kelly, 137 Vt. 508, 514-16, 408 A.2d 644, 647-48 (1979); Sykas v. Kearns, 135 Vt. 610, 612, 383 A.2d 621, 623 (1978). Consequently, we must turn to the respective parties' factual submissions and theories of the case before we can properly evaluate the grant of summary judgment.

The plaintiff's attorney filed two affidavits in support of her motion. He stated that he was the agent for the receipt of payments from Green Mountain Lakes; that Green Mountain Lakes had defaulted on the note before the conveyances to the individual defendants; and that Leigh Merlini and Laurie Fjeldstad were the daughters of Richard Ross, President of Green Mountain Lakes. The defendants' cross motion for summary judgment was supported by an affidavit and documents filed at various stages of the proceedings. In his affidavit, the defendants' attorney stated "on information and belief" that the premises had been released from the plaintiff's mortgage. The defendants' documentary evidence consisted of releases signed by the plaintiff for the conveyed property; the deeds for the property; copies of the Vermont property transfer tax returns that reported the purchase prices; and correspondence with the plaintiff's attorney accompanied by a copy of a check for the December 5, 1975, mortgage payment.

The plaintiff's complaint roughly sketches a theory of recovery under our law of fraudulent conveyances. See 9 V.S.A. § 2281. Becker v. Becker, 138 Vt. 372, 416 A.2d 156 (1980), reviewed our case law on fraudulent conveyances, and outlined a four-part test for cases, such as the plaintiff's, which allege that transfers of property were made without consideration.

The plaintiff must establish (1) that there existed a right, debt or duty owed to her by the defendant, which debt, in this case, arose before or near the time of the defendant's conveyance; (2) that the defendant conveyed property which was subject to execution in satisfaction of the defendant's debt; (3) that the conveyance here was without adequate consideration, and (4) if the conveyance was without adequate consideration, as here alleged, that the defendant acted fraudulently to the hindrance of the plaintiff's rights against him.

Id. at 375, 416 A.2d at 159.

Becker also sets forth the proof requirement where consideration supports the challenged sale. "Where the transfer is for consideration, the creditor must show that the grantor-debtor and the grantee knowingly participated in the fraudulent conveyance," Id. at 376, 416 A.2d at 160 (citing Rose v. Morrell, 128 Vt. 110, 259 A.2d 8 (1969)) (emphasis added). However, the plaintiff's complaint here did not allege that the individual defendants knowingly participated in a fraudulent conveyance. Nor is there any evidence in the record to indicate such knowledge by the individual defendants. Consequently, this alternative is not before us, and we must examine this case on the basis of the theory presented in the plaintiff's complaint. See 10 C. Wright...

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  • Robertson v. Mylan Laboratories, Inc.
    • United States
    • United States State Supreme Court of Vermont
    • February 6, 2004
    ...simply rely on mere allegations in the pleadings to rebut credible documentary evidence or affidavits, Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266, 438 A.2d 373, 375 (1981), but must respond with specific facts that would justify submitting her claims to a factfinder. V.R.C.P. 56(e......
  • Watson v. Vill. at Northshore I Ass'n, Inc.
    • United States
    • United States State Supreme Court of Vermont
    • February 9, 2018
    ...and second, the movant must be "entitled to judgment as a matter of law." V.R.C.P. 56(a) ; see also Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264, 438 A.2d 373, 374 (1981). Additionally, once one party has filed a motion for summary judgment, Rule 56(f), "Judgment Independent of the ......
  • In re Kelton Motors, Inc.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court —District of Vermont
    • March 26, 1991
    ...to the hindrance of the claimant's rights against him. Becker, supra, at 138 Vt. at 375, 416 A.2d 156; Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 438 A.2d 373 (1981). Additionally, under 9 Vt.Stat.Ann. § 2281, the word "void" means voidable19 and vests legal title in the grantee, subj......
  • Watson v. Vill. At Northshore I Ass'n, Inc.
    • United States
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    • February 9, 2018
    ...and second, the movant must be "entitled to judgment as a matter of law." V.R.C.P. 56(a); see also Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264, 438 A.2d 373, 374 (1981). Additionally, once one party has filed a motion for summary judgment, Rule 56(f), "Judgment Independent of the M......
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