Johnson v. Harwood

• Decision Date: 25 January 2008
• Docket Number: No. 06-359.,06-359.
• Citation: 2008 VT 4,945 A.2d 875
• Parties: Henry JOHNSON v. Jennifer HARWOOD and Union Bank.
• Court: Vermont Supreme Court

945 A.2d 875

2008 VT 4

Henry JOHNSON v. Jennifer HARWOOD and Union Bank.

No. 06-359.

Supreme Court of Vermont.

January 25, 2008.

John Davis Buckley of Davis Buckley, P.L.L.C., Berlin, for Plaintiff-Appellant.

Sheldon M. Katz of Clark, Long, Werner & Flynn, Burlington, for Defendant-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

REIBER, C.J.

¶ 1. Plaintiff Henry Johnson appeals from the grant of defendant Jennifer Harwood's motion for summary judgment on his claims for breach of an express oral agreement, unjust enrichment, and constructive trust. We reverse.

¶ 2. Limited facts were developed before summary judgment was granted. Plaintiff and defendant had an intimate personal relationship from 1997 until July 2004. The parties lived together from 1999 until the end of their relationship. Beginning in June 2000, the parties had joint bank accounts into which both deposited earnings, and from which they paid bills. From 1999 until 2002 the parties lived together in a rented apartment, and thereafter in a house on land in Waterbury that defendant's parents gave her. During their relationship the parties incurred various debts, including multiple mortgages, a home equity loan, and shared credit-card debts. When the parties broke up in 2004, plaintiff continued living alone for approximately one month in the Waterbury house until plaintiff allowed defendant to return and defendant changed the locks and refused plaintiff entry to the property.

¶ 3. Plaintiff commenced suit in March 2005 by a verified foreclosure complaint.¹ In addition to the verified complaint, in which plaintiff made oath to the truth of the allegations in the pleading, plaintiff took the unusual step of signing and filing a separate affidavit in which plaintiff attested that he had read and reviewed the verified complaint and that the facts therein were "true and accurate to the best of [his] knowledge." The complaint alleged that the parties had express agreements to jointly pay their shared debts and to share the equity in the house if they broke up. Plaintiff also averred in the complaint that defendant had been unjustly enriched. The initial complaint also included claims for foreclosure, partition, and a deficiency judgment, but those claims were deemed waived by the trial court and plaintiff does not seek to pursue them on this appeal. After limited discovery, defendant filed a motion on March 23, 2006, for judgment on the pleadings, V.R.C.P. 12(c), and summary judgment, V.R.C.P. 56. The motion was accompanied by a statement of undisputed material facts, and was not supported by affidavit. See V.R.C.P. 56(b) (defending party may move for summary judgment "with or without supporting affidavits"). The "undisputed" facts set out in defendant's motion included the assertions that plaintiff contributed no collateral for the construction loan to build the Waterbury house, that plaintiff's work to construct the house was substandard, that the "parties did not execute any written agreement with each other regarding [the Waterbury house or land]," and that the Waterbury house "was not to be conveyed to Plaintiff as either a gift or as a purchase."

¶ 4. Plaintiff opposed the motion, arguing that questions of material fact remained in dispute, and that defendant was not entitled to judgment as a matter of law. Plaintiff also filed a statement of disputed facts, as required by Rule 56(c)(2), which referred to specific paragraphs from his verified complaint to rebut defendant's version of the facts. Although plaintiff did not support either his opposition or his statement of disputed facts with a new affidavit, his statement of disputed facts referred specifically to factual allegations in the detailed, verified complaint and the attached exhibits. The trial court—citing Rule 56 and two of our cases interpreting it—found that plaintiff's citation of his complaint was insufficient to rebut defendant's statement of facts.

¶ 5. We review the grant of summary judgment de novo, applying the same standard as the trial court. Hardwick Recycling & Salvage, Inc. v. Acadia Ins. Co., 2004 VT 124, ¶ 14, 177 Vt. 421, 869 A.2d 82. In evaluating the grant, we resolve all doubts and inferences in favor of the nonmoving party—here, plaintiff. Collins v. Thomas, 2007 VT 92, ¶ 6, ___ Vt. ___, 938 A.2d 1208. The substantive inquiry is twofold: whether there remain genuine issues of material fact and, if not, whether one party is entitled to judgment as a matter of law. Id.; V.R.C.P. 56(c)(3). Plaintiffs may not, of course, rest on bare allegations to demonstrate that disputed material facts remain. Webb v. Leclair, 2007 VT 65, ¶ 14, ___ Vt. ___, 933 A.2d 177 (mem.). Parties opposing summary judgment cannot create a genuine issue of material fact by contradicting—by affidavit or other evidence—their own unambiguous deposition testimony. Travelers Ins. Cos. v. Demarle, Inc., USA, 2005 VT 53, ¶ 9, 178 Vt. 570, 878 A.2d 267 (mem.). Because the trial court incorrectly construed Rule 56 and therefore erroneously found that no genuine issues of material fact remained, we reverse and remand without reaching the second step in the inquiry.

I.

¶ 6. Our inquiry begins with whether the trial court was correct to disregard plaintiff's verified complaint in evaluating his opposition to summary judgment.² The trial court offered several bases for this conclusion. First, it cited Rule 56(e) for the proposition that "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Second, the court noted our holding in Baldwin v. Upper Valley Services, Inc., that "[o]pposing allegations must have sufficient support in specific facts to create a genuine issue of material fact." 162 Vt. 51, 55, 644 A.2d 316, 318 (1994). Third, citing Alpstetten Ass'n v. Kelly, the trial court stated that the opposing party "must come forward with an opposing affidavit or other evidence that raises a dispute as to the fact or facts at issue." 137 Vt. 508, 514, 408 A.2d 644, 647 (1979). Finally, in a footnote, the trial court noted that plaintiff could not rely on his verified complaint as support for his opposition. See Spargo v. Governor's Comm'n on Admin. of Justice, 135 Vt. 333, 334, 376 A.2d 757, 758 (1977) (noting, in dicta, that "verification of a complaint is abolished by V.R.C.P. 11, except where specifically provided for by rule or statute. This being so, we do not consider [a verified complaint] an affidavit to support a summary judgment . . . .").

¶ 7. The trial court's reliance on Spargo was misplaced. In Spargo, we held that a nineteen-page verified complaint that was "substantially a jumble of unrelated facts" was insufficient to survive a motion to dismiss. Id. (quotations omitted). The complaint claimed that the plaintiff, Spargo, had been wrongfully discharged from his employment, but did not allege that the defendant was in any way responsible for the firing. The only wrongful conduct alleged to have been committed by the defendant was failing to give the plaintiff a letter of recommendation after he was fired. Further, we noted that even if we had treated the verified complaint as an affidavit, it would have been untimely filed under Rule 56. Id. at 335, 376 A.2d at 758. Spargo is a slender reed on which to hang a summary judgment.

¶ 8. We have cited Spargo only twice in the three decades since it was decided. Middlebury Am. Legion Post No. 27 v. Peck, 139 Vt. 628, 632, 432 A.2d 1183, 1184 (1981), and Fairchild v. W. Rutland Sch. Dist., 135 Vt. 282, 287, 376 A.2d 28, 31 (1977). Neither case is long on analysis. In Middlebury American Legion, we stated that the plaintiff's "complaint . . . not required to be verified, cannot be considered as an affidavit to support its motion for summary judgment." 139 Vt. at 632, 432 A.2d at 1184. It is unclear from that opinion whether the complaint, "not required to be verified," was in fact verified. In Fairchild, we stated explicitly that the plaintiff's summary judgment motion should have been denied regardless of the use or nonuse of his verified complaint. 135 Vt. at 283, 376 A.2d at 29-30 ("[T]he major question, the one determinative of this appeal, is whether the failure of the school board to renew the appellee's agreement for teaching . . . constituted a `grievance' as that term was defined in the controlling collective bargaining agreement."). We cited Spargo only in dicta. Id. at 287, 376 A.2d at 31. Finally, without citing Spargo, we stated in passing in a 1987 opinion that "a sworn pleading is the equivalent of an affidavit" when evaluating a motion for summary judgment. Pierce v. Riggs, 149 Vt. 136, 138-39, 540 A.2d 655, 657 (1987).

¶ 9. To the extent that our brief entry order in Spargo and our subsequent cursory citations of it support the trial court's reading, we take this opportunity to overrule them and join the many federal and state courts that allow verified complaints—when referred to specifically in a party's concise statement of disputed facts—to oppose Rule 56 motions. See, e.g., Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002) ("A verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist, provided that it meets the other requirements for an affidavit under Rule 56(e)."); King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (original complaint, which was "verified as true and correct under penalty of perjury," was competent summary-judgment evidence); Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir.1993); Neal v. Kelly, 963 F.2d 453, 457 (D.C.Cir.1992); Sammons v. Taylor, 967 F.2d 1533, 1544-45 n. 5 (11th Cir.1992); Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.1991) ("We...