Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-438

                                          MAY TERM, 2015

 Timothy S. Johnson                                    }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windsor Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Green Mountain Power Corporation                      }    DOCKET NO. 791-12-12 Wrcv

                                                            Trial Judge: Theresa S. DiMauro

                          In the above-entitled cause, the Clerk will enter:

        Plaintiff appeals pro se from the trial court’s order granting summary judgment to
defendant Green Mountain Power Corporation (GMP) on his breach-of-contract claim. We
affirm.

         Plaintiff filed his complaint against GMP on December 24, 2012. He alleged that on
December 18, 2012, GMP agreed to install an electrical line extension to benefit his home for a
certain sum, which he paid GMP, and that as of December 24, 2012, he remained without
electricity. In January 2013, plaintiff moved for a default judgment against GMP. He argued
that GMP failed to answer his complaint. GMP responded that, as court records showed, it had
in fact responded to plaintiff’s complaint by filing an answer and a notice of appearance with the
court via its electronic filing system on January 23, 2013. It also sent a copy of the answer to
plaintiff. Plaintiff subsequently filed a motion suggesting that GMP had “back-dated” its
answer to avoid default. The court denied plaintiff’s motions, finding that plaintiff’s request did
not comply with Vermont Rule of Civil Procedure 55 and that GMP had in fact filed an answer
to his complaint. Shortly thereafter, plaintiff moved for a default judgment again on the same
grounds, and the court denied his request, explaining that it had already ruled on this issue. In
June 2013, plaintiff filed a request for sanctions based on GMP’s alleged default. The court
denied this motion as well, explaining again that this issue already had been addressed.

        GMP subsequently moved for summary judgment. Plaintiff filed materials in response,
which the court construed as his response to GMP’s motion. In a November 2014 entry order,
the court granted summary judgment to GMP. It explained that GMP had submitted a statement
of undisputed facts under Civil Rule 56 along with supporting documents. Plaintiff did not file
“a separate and concise statement of undisputed material facts or a separate and concise
statement of disputed facts, consisting of numbered paragraphs with specific citations to
particular parts of materials in the record” as required by Civil Rule 56(c)(1)(A). Thus, GMP’s
facts were deemed admitted. Based on the undisputed facts, the court concluded that GMP was
entitled to judgment as a matter of law. It found that plaintiff failed to demonstrate either the
material terms of the contract with respect to the due date of the work to be performed, or that
GMP breached the contract. It thus granted judgment to GMP. This appeal followed.
        Plaintiff argues that the court should have granted his motion for default judgment. He
maintains that GMP submitted back-dated court documents to avoid default. Plaintiff also
asserts that he was entitled to judgment in his favor because GMP did not initiate installation of
electrical service until nine days after the contract was signed. Plaintiff maintains that GMP was
obligated to start the installation on the day the contract was signed.

        We find no error. We begin with plaintiff’s motion for a default judgment. Civil Rule
55(a) provides that “[w]hen a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules and that fact is made to appear by
affidavit or otherwise, the clerk shall enter the party’s default.” GMP did not fail to defend itself
here. The record shows that GMP was served with plaintiff’s complaint on January 4, 2013.
Pursuant to Civil Rule 12(a)(1)(A), its answer was due by January 24, 2013. On January 23,
2013, GMP filed its answer electronically. Under the Vermont Rules for Electronic Filing, “[a]
filing is considered submitted on a date if it is submitted prior to midnight on that date.”
V.R.E.F. 4(c). After a filing is submitted, it is reviewed for compliance with the rules and either
accepted or rejected. V.R.E.F. 4(e). If it is accepted, “the date and time of filing for all purposes
under the applicable rules of procedure are the date and time that the original filing was
submitted.” Id. The record shows that GMP’s answer was timely filed on January 23, 2013, and
it was processed and accepted on January 28, 2013. GMP filed its answer within the time
allowed, and plaintiff’s request for a default judgment was properly denied.

         GMP was also entitled to summary judgment in its favor. The contract between plaintiff
and GMP did not provide a date by which work must begin or a date by which it must be
completed. It is undisputed that GMP completed the work on December 31, 2012, thirteen days
after the contract was signed and twelve days after GMP deposited plaintiff’s check. Plaintiff
suggests that because GMP did not “refute” his assertion that GMP could not arbitrarily pick a
“start date” for its construction, plaintiff must prevail. Plaintiff appears to misunderstand that he
bears the burden of persuasion on his claim. Under Rule 56, when the burden of persuasion is on
the nonmoving party, the moving party may support its summary judgment motion (and satisfy
its burden of production) by indicating an absence of record evidence in support of a claim. To
survive summary judgment, the nonmoving party then must come forward with evidence of a
triable issue. Clayton v. Unsworth, 2010 VT 84, ¶ 16, 188 Vt. 432. It is not enough for plaintiff
to simply say that GMP failed to “disprove” his claim. Because plaintiff failed to show any
breach of the parties’ agreement, the court properly granted summary judgment to GMP.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice




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