Elnicki v. People’s United Bank, No. 33-1-13 Bncv (Carroll, J., July 10, 2013)

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                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Bennington Unit                                                                                        Docket No. 33-1-13 Bncv

Kevin Elnicki,
   Plaintiff

v.

People’s United Bank, Successor in interest
by merger to Chittenden Trust Company
d/b/a Chittenden Bank,
   Defendant.

                     ENTRY ORDER ON MOTION FOR SUMMARY JUDGMENT

        Plaintiff sues Defendant for converting his property, wrongfully placing $35,000 in his
account on hold, and breaching the covenant of good faith. The underlying facts all relate to a
failed deal between two corporations owned by Plaintiff and a Tennessee corporation.1
Defendant held liens on the assets of the Tennessee corporation. After receiving approval from
the Court, Defendant sold the assets of the Tennessee corporation at auction. Plaintiff alleges
Defendant sold some of his property in the process.

        Prior to the sale, Plaintiff and Defendant negotiated over the ownership of the disputed
property. In May of 2012, Plaintiff opened an account with $35,000 with Defendant. Plaintiff
used one of his corporations, New England Quality Service, Inc., to open account the account for
his other corporation, Burgess Brothers Land Company, LLC. Defendant then placed these funds
on hold while the parties negotiated and agreed not to sell the disputed property during the
negotiations. The negotiations failed and Defendant sold the property. Plaintiff withdrew the
$35,000 in March of 2013.

        On April 11, 2013, Defendant moved for summary judgment. Defendant argued Plaintiff
cannot prevail on the merits and Plaintiff is not the real party in interest under V.R.C.P. 17.
Defendant cited to the record throughout its motion but did not attach a statement of undisputed
material facts. On April 29, 2013, Defendant filed a supplemental memorandum arguing it did
not need to attach a separate statement of undisputed material facts. On June 11, 2013, Plaintiff
opposed Defendant’s motion for summary judgment. Plaintiff objected to Defendant’s failure to
attach a statement of undisputed material facts, argued he is the correct party, and argued
Defendant is not entitled to summary judgment on the merits. On June 27, 2013, Defendant
responded to Plaintiff’s opposition.


1
  The Court takes these facts from the complaint and the filings and exhibits attached to the motion for summary
judgment. As the Court will discuss, Defendant failed to file a statement of undisputed material facts. The facts
recited in this motion merely give context to the order and are not findings.
        The first issue in this motion is whether Defendant must attach a statement of undisputed
material facts to its motion for summary judgment. According to V.R.C.P. 56(c)(1): “A party
asserting that a fact cannot be… genuinely disputed must support the assertion by: filing a
separate and concise statement of undisputed material facts...” The Court may deny summary
judgment because of a failure to attach a statement of undisputed material facts. See Clayton v.
Unsworth, 2010 VT 84, ¶ 28, 188 Vt. 432 (noting the Court need not consider any facts not
contained in a statement of undisputed material facts).

        Defendant argues it does not need a statement of material facts because it cited to the
record throughout its memorandum and drew the facts from the complaint, answer, and exhibits.
In essence, its motion for summary judgment is a motion for judgment on the pleadings with a
few extra facts. Further, its formatting is sufficient under V.R.C.P. 12(c) and 56(c)(1). Although
Defendant cites several cases to support its position none of these cases excuse Defendant from
including a statement of undisputed material facts.

        First, Defendant argues Leuders v. Leuders allows it to proceed because its summary
judgment motion is the same as a motion for judgment on the pleadings with a few additional
facts. See 152 Vt. 171, 172 (1989). Although it is possible to covert a motion for judgment on the
pleadings to a motion for summary judgment under V.R.C.P. 12(c ), Leuders does not excuse
Defendant from filing a statement of undisputed facts.

        Second, Defendant argues Johnson v. Harwood indicates “verified pleadings may be used
in lieu of an affidavit to support a summary judgment motion.” Defendant’s Supplemental
Memorandum in Support of Motion for Summary Judgment (Apr. 29, 2013); see Johnson v.
Harwood, 2008 VT 4, ¶ 9, 183 Vt. 157. Johnson holds a complaint may be used to oppose a
motion for summary judgment, not that it may be used instead of a statement of material facts.

        Third, Defendant states it does not need a statement of undisputed facts because
Defendant was aware of the facts all along. See State v. Great Northeast Prods. Inc., 2008 VT
13, ¶ 6, 183 Vt. 579 (mem.). Great Northeast Productions merely holds the Court may grant a
cross-motion for summary judgment where the moving party failed to attach a statement of
undisputed facts. See id. Defendant fails to consider that a statement of undisputed material facts
is useful to the Court. Moreover, the Supreme Court decided “not to disturb a trial court’s
reliance on a nonconforming summary judgment-motion absent an objection.” Id. In this case,
the non-moving party objected to the failure to include a statement of facts.

       Finally, Defendant argues it can satisfy its burden by showing the Court there is no
evidence that supports the Plaintiff’s claim. See Ross v. Times Mirror, Inc., 164 Vt. 13, 18
(1995). Although Defendant’s assertion is true, Times Mirror does not indicate a statement of
undisputed facts is unnecessary. See id. A statement of undisputed material facts helps the
Court in determining what facts exist and if those facts are sufficient to support a claim.

        In this case, the Court requests a statement of undisputed material facts. The Court finds
the facts of the case confusing. In particular, the Court has difficulty following which entities had
rights over which assets, and when those entities had those rights. Although the emails attached
as exhibits give the Court some idea of negotiations that occurred in May of 2013, the Court

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would also like a concrete statement of what occurred in these negotiations to it can determine if
a contract existed. Moreover, a statement of which entity controlled the $35,000 account would
help the Court decide if Plaintiff is the real party in interest. Finally, the Court seeks a statement
of undisputed facts to give Plaintiff a chance to highlight which facts might be disputed.

        The Court will hold this motion for summary judgment to give Defendant a chance to
submit a statement of undisputed material facts. Defendant has twenty-one days to submit the
statement, or the Court may deny the motion for summary judgment. The Court will also allow
Plaintiff fifteen days to respond Defendant’s statement with a statement of disputed material
facts. The fifteen days will start once the Court receives Defendant’s statement of facts.

        To facilitate resolving the procedural issues in this case, the Court notes Plaintiff may not
be the real party in interest under V.R.C.P. 17. From Defendant’s exhibits, it appears that New
England Quality Service, Inc. paid Defendant the $35,000 and the account existed in the name of
Burgess Brothers Land Company, LLC. Moreover, it appears Burgess Brothers Land Company,
LLC had the claim for the assets of the Tennessee corporation. If this is the case, then the
corporations would likely be the real party in interest rather than Plaintiff.2 The Court declines
to decide this issue without a statement of undisputed material facts. Nevertheless, the Court will
grant summary judgment to Defendant if it determines Plaintiff is not the real party interest. See
U.S. Bank Nat’l Ass’n v. Kimball, 2011 VT 81, ¶¶ 19–20, 190 Vt. 210 (affirming dismissal of
foreclosure where bank was not the real party in interest).

                                                      ORDER

        The Court will hold the motion for summary judgment for twenty-one days to allow
Defendant to submit a statement of undisputed material facts. Plaintiff will have fifteen days,
after the Court receives Defendant’s statement, to submit a statement of disputed material facts.

Dated at Bennington, Vermont on July 3, 2013


                                                                          Karen R. Carroll
                                                                          Superior Court Judges




2
  Vermont law does not specify the details of when a shareholder may enforce a corporation’s rights against third
parties. Most cases discussing shareholder derivative suits relate to suits against the corporation, its managers, or
other shareholders of the same corporation. Nevertheless, “Vermont’s Rule 17 is, in pertinent part, identical to the
federal rule.” Smedberg v. Detlef’s Custodial Serv., Inc., 2007 VT 99, ¶ 30, 182 Vt. 349. Under federal law, the
shareholder standing “rule holds that a shareholder generally cannot sue for indirect harm he suffers as a result of an
injury to the corporation.” Rawoof v. Texor Petroleum Co., 521 F.3d 750, 757 (7th Cir. 2008); see also Franchise
Tax Bd. of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990) (“Related to this principle we think is the so-
called shareholder standing rule. As the Seventh Circuit observed, the rule is a longstanding equitable restriction that
generally prohibits shareholders from initiating actions to enforce the rights of the corporation unless the
corporation's management has refused to pursue the same action for reasons other than good-faith business
judgment.”).


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