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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-156

                                       OCTOBER TERM, 2016

 William Newton                                        }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Civil Division
                                                       }
 Gregory Mack, Casey Mack, Jon Templeton,              }
 Larkin Realty                                         }    DOCKET NO. 1194-11-13 Cncv

                                                            Trial Judge: Helen M. Toor

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

        Plaintiff appeals the trial court’s order denying a motion to set aside a summary judgment
ruling in favor of defendants. We affirm.

        Plaintiff buyer purchased a home from defendant sellers, Gregory and Casey Mack, in
September 2012. Defendant realtor, Jon Templeton, of defendant realty company, Larkin Realty,
represented sellers. Buyer did not use a realtor. In November 2013, buyer filed suit against
defendants alleging that eight months after the property was purchased, the septic system failed.
Buyer asserted claims of fraud, breach of the implied covenant of good faith and fair dealing, and
violation of the Vermont Consumer Fraud Act, claiming that defendants intentionally failed to
disclose facts about the property’s condition prior to sale. In particular, buyer alleged that while
sellers had disclosed that the septic tank was last pumped in March 2012 and that to the best of
their knowledge it did not require repair, there was a receipt from a septic service from March
2012 that stated an outlet pipe was broken and needed repair. Buyer also stated that sellers had
deceived buyer by stating that the roof had recently been replaced.

        Sellers and defendants, realtor and realty company, separately filed motions for summary
judgment. Both motions were accompanied by a statement of undisputed material facts, and those
statements contained citations to attached evidence, including documents, deposition testimony,
and affidavits. Among other things, defendant sellers stated they had no knowledge that the septic
system was failing or needed replacement prior to sale. Sellers stated they were not present when
the septic system was pumped in March 2012 and had not seen the septic company’s invoice,
which stated that an outlet break needed repair. Defendants, realtor and realty company, similarly
alleged they were not informed of any deficiency in the septic system. Defendants also stated that
the roof had indeed been replaced prior to sale. Defendants supported these assertions with
reference to evidence in the record, including depositions of Gregory and Casey Mack. Buyer did
not respond to these motions.

        The trial court granted defendants’ motions for summary judgment. The court explained
that the undisputed facts showed that the roof had been replaced a few months prior to sale and
that none of the defendants were aware that the septic system had failed. The court therefore
concluded that the facts did not support buyer’s claims.

        Buyer then filed a motion to vacate the summary judgment decision. 1 Buyer argued that
the defendants’ undisputed facts were supported by deposition testimony, which buyer alleged was
contradicted by answers to interrogatories. Buyer also claimed that because the deposition
testimony relied on by defendants was inherently not credible, the court could not accept it as an
undisputed fact for purposes of summary judgment. The trial court denied the motion to vacate,
explaining that there was no basis to disturb the summary judgment ruling because the facts were
properly accepted as true. Buyer appealed.

        This Court reviews a summary judgment decision using the same standard as the trial court.
Golden Key, LLC v. Harper, 170 Vt. 641, 641 (2000) (mem.). Summary judgment is appropriate
where there is no genuine issue of material fact and a party is entitled to judgment as a matter of
law. V.R.C.P. 56(a). To demonstrate that a fact cannot be disputed, a party must support the
allegation by filing a statement of undisputed facts with citation to materials in the record.
V.R.C.P. 56(c)(1)(A). If a party fails to address another party’s assertion, the court may “consider
the fact undisputed for purposes of the motion.” V.R.C.P. 56(e)(2).

         Here, defendants moved for summary judgment, arguing that the undisputed facts showed
that plaintiff had failed to establish a prima facie case because there was no evidence to show
defendants intentionally deceived plaintiff or made an intentional misrepresentation. Defendants
submitted facts to show that the roof had been recently replaced and that none of the defendants
had knowledge that the septic system was failing. The undisputed evidence in the summary
judgment record also showed that plaintiff’s own home inspector noted that there were no obvious
signs of failure of the septic system, plaintiff experienced no problems with the septic system
during his first seven or eight months after purchasing the house, the seller defendants did not at
any time experience septic problems while they lived at the property, and plaintiff’s own expert
testified that the broken outlet pipe that had been noted by the septic service was not the cause of
the failure of the septic system and there was no way to determine when the primary cause of the
accident—a rotted outlet baffle—arose. Plaintiff did not respond to the motion and did not
contradict these facts. Given plaintiff’s failure to contradict defendants’ asserted facts that were
supported by the record, the trial court was within its discretion in accepting defendants’ facts as
true. Based on these admitted facts, defendants were entitled to summary judgment.

        There is no merit to plaintiff’s argument that defendants’ evidence was insufficient to
establish the facts because defendants relied on deposition testimony. Rule 56 specifically allows
facts to be supported by reference to the record “including depositions.” V.R.C.P. 56(c)(1)(A). If
plaintiff wished to challenge the facts alleged, it was up to plaintiff to point to evidence in the

       1
         Buyer’s motion did not specify whether it was being filed as a motion to alter or amend
under Vermont Rule of Civil Procedure 59(e) or whether it was intended as a motion for relief
from judgment under Vermont Rule of Civil Procedure 60(b). Because it was filed within the ten-
day time period, we treat it as a Rule 59(e) motion. See Reporter’s Notes, V.R.C.P. 59 (explaining
that motion for reconsideration filed within ten days of judgment treated as motion under Rule
59(e)). Therefore, appeal from the denial of that motion is treated as an appeal from the judgment.
V.R.A.P. 3(a) (explaining that appeals taken from orders specified in Vermont Rule of Appellate
Procedure 4(b), including Rule 59(e) motions, are treated as appeals from judgment).

                                                 2
record that either contradicted the statements made by defendants or affected the credibility of the
statements. Plaintiff failed to do this.2

         Further, the court was not required to complete a full review of the evidence prior to
granting summary judgment. In evaluating a summary judgment motion, the court is required to
consider “only the materials cited in the required statements of facts.” V.R.C.P. 56(c)(3). It was
plaintiff’s responsibility to bring items in the record to the court’s attention to establish a genuine
issue of material fact. See Webb v. Leclair, 2007 VT 65, ¶ 6, 182 Vt. 559 (mem.) (explaining that
it is not the court’s responsibility to sift through the evidence “to find contested and uncontested
facts”); Travelers Ins. Co. v. Demarle, Inc., 2005 VT 53, ¶ 9, 178 Vt. 570 (mem.) (explaining that
in opposing summary judgment plaintiffs could not rely on comment that was unverified and not
brought to court’s attention). Therefore, there are no grounds to disturb the court’s summary
judgment ruling.

       Affirmed.

                                                  BY THE COURT:


                                                  _______________________________________
                                                  John A. Dooley, Associate Justice

                                                  _______________________________________
                                                  Beth Robinson, Associate Justice

                                                  _______________________________________
                                                  Harold E. Eaton, Jr., Associate Justice




       2
          In plaintiff’s motion, he alleged that the deposition testimony on which defendants relied
was inconsistent with the answer to an interrogatory. He did not, however, provide the
interrogatory response, and it was not otherwise in the trial court file. The trial court rejected that
argument. It has not been renewed in this Court.
                                                  3
