Middlebury American Legion Post No. 27 v. Peck

• Decision Date: 02 June 1981
• Docket Number: No. 348-80,348-80
• Citation: 139 Vt. 628,432 A.2d 1183
• Parties: MIDDLEBURY AMERICAN LEGION POST NO. 27 v. Floyd C. PECK and Beverly Peck.
• Court: Vermont Supreme Court

Page 1183

432 A.2d 1183

139 Vt. 628

MIDDLEBURY AMERICAN LEGION POST NO. 27 v. Floyd C. PECK and Beverly Peck.

No. 348-80.

Supreme Court of Vermont.

June 2, 1981.

Susan F. Eaton of Langrock, Sperry, Parker & Stahl, Middlebury, for plaintiff.

Tepper & Dardeck, Rutland, for defendants.

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

UNDERWOOD, Justice.

Middlebury American Legion Post No. 27 (the Legion), the plaintiff below, on October 12, 1978, filed a complaint for a declaratory judgment. It alleged, in substance, that it owned a parcel of land in Middlebury abutting lands owned by Floyd C. and Beverly Peck (the Pecks), the defendants below. On April 27, 1978, a portion of its land was purportedly conveyed by warranty deed to the Pecks pursuant to alleged corporate authority granted to its commander, Paul Ringey, by a corporate resolution dated April 27, 1978.

The Legion further alleged in its complaint that the commander did not have the authority to convey its property to the Pecks; that the sale was not in conformity with either 27 V.S.A. § 702, or the bylaws of the Legion; and that it was without consideration.

For those reasons, the Legion contended that the deed to the Pecks was illegal and void. It therefore requested the trial court either (1) to declare the property to be the sole property of the Legion, and cancel the deed, or (2) to rescind the deed and declare the property to be the sole property of the Legion, or (3) to order the Pecks, pursuant to V.R.C.P. 70, to execute a quitclaim deed of the property to the Legion.

The Legion attached to its complaint, and incorporated by reference, a copy of the purported deed from the Legion to the Pecks, a copy of the purported corporate resolution authorizing the sale of the land to the Pecks and authorizing the commander to sign the deed, a copy of the Legion's bylaws, and a copy of an instrument entitled "notice of claim."

Although the docket entries attached to the printed case reflect that Floyd Peck filed a pro se appearance, answer and motion to dismiss, a copy of Peck's answer is not before us.

On July 30, 1980, the Legion filed a motion for summary judgment together with supporting affidavits, and on August 6, 1980, the Pecks, through their attorney, filed opposing affidavits.

The parties agreed to submit the case to the trial court on the Legion's motion for summary judgment, together with the supporting and opposing affidavits, and without a hearing. The court granted the Legion's motion for summary judgment on September 12, 1980, and on October 6, 1980, entered a judgment order decreeing title to the subject property to the Legion and divesting the Pecks of any title to or possession of the same. It is from this judgment order that the Pecks appeal.

The question presented is whether, based upon the pleadings and the supporting affidavits, the trial court correctly ruled that there was no genuine issue as to any material fact and that the Legion was therefore entitled to a judgment as a matter of law.

A plaintiff seeking to obtain a declaratory judgment may, at any time after the expiration of twenty days from the commencement of the action, or after service of a motion for summary judgment by the defendant, move with or without supporting affidavits for a summary judgment in his favor. V.R.C.P. 56(a). The defendant, prior to the day of the hearing on the motion, may serve opposing affidavits on the plaintiff. V.R.C.P. 56(c). Judgment shall be rendered forthwith for the plaintiff if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the plaintiff is entitled to a judgment as a matter of law. Id.

The procedure under V.R.C.P. 56 is not a trial of the underlying merits of the case on written affidavits. Rather, it resolves the question of whether the party opposed to the motion can demonstrate that he has evidence sufficient to create an issue at the time of trial. If he cannot, and the moving party has shown that his position is supported by the evidence, then judgment should be entered without the time and expense of going to trial. See Reporter's Notes, V.R.C.P. 56(c); Miller v. Merchants Bank, 138 Vt. 235, 237, 415 A.2d 196, 198 (1980); Sykas v. Kearns, 135 Vt. 610, 612, 383 A.2d 621, 623 (1978).

The moving party, in this case the Legion, has the burden of establishing that there exist no disputed issues. Id. at 612, 383 A.2d at 623. The Legion's complaint for declaratory judgment, not required to be verified, cannot be considered as an affidavit to support its motion for summary judgment. Spargo v. Governor's Commission on the Administration of Justice, 135 Vt. 333, 334, 376 A.2d 757, 758 (1977). The fact that the Legion's complaint may state a cause of action is not determinative of the issue before us on an appeal from the granting of a motion for summary judgment. The affidavits in support of and in opposition to the motion for summary judgment must control.

The burden on the Legion in connection with its motion is twofold: the supporting materials offered by it must be both formally and substantively sufficient to show the absence of a fact question, and summary judgment must be appropriate in the sense that the moving party is entitled to judgment as a matter of law....