Lussier v. Truax

ENTRY_ORDER.93-187; 161 Vt. 611; 643 A.2d 843

[Filed 22-Dec-1993]

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 93-187

                            DECEMBER TERM, 1993


 Roger Lussier, et al              }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Chittenden Superior Court
                                   }
                                   }
 Paul W. & Colleen M. Truax, et al }
                                   }          DOCKET NO. S1078-91CnC
 
 
              In the above entitled cause the Clerk will enter:
 
      Defendants appeal from partial summary judgment entitling plaintiffs to
 possession of premises occupied by defendants as tenants.  Defendants sought
 to avoid eviction by claiming that the parties' most recent agreement was a
 financing arrangement requiring plaintiffs to proceed by foreclosure rather
 than eviction proceedings.  On appeal, defendants argue reversal is
 required because (1) the affidavits and documents they submitted were
 sufficient to create a genuine issue of material fact -- whether the
 parties' agreement was a financing arrangement that created a mortgagee-
 mortgagor relationship rather than a landlord-tenant relationship; (2) by
 granting summary judgment, the judge improperly reversed another superior
 court judge who had denied plaintiffs' first motion for summary judgment
 approximately a year earlier; and (3) the court failed to hold a hearing
 before granting plaintiffs' motion for summary judgment.  We affirm.

     In reviewing an order granting summary judgment, we apply the same
 standard of review as that applied by the trial court.  Morrisville Lumber
 Co. v. Okcuoglu, 148 Vt. 180, 182-83, 531 A.2d 887, 888-89 (1987).  We
 conclude, as did the trial court, that defendants' affidavits and documents,
 which for the most part consist of self-serving opinions as to the legal
 nature of the parties' transaction and of unrecorded or undelivered
 documents, are wholly insufficient to survive plaintiffs' motion for summary
 judgment.  See V.R.C.P. 56(e) (affidavits opposing motion must demonstrate
 that admissible evidence raises genuine issue of material fact); Cohen v.
 Ayers, 449 F. Supp. 298, 321 (N.D. Ill. 1978) (affidavit opposing summary
 judgment "may be disregarded if it contains conclusions of law or of
 ultimate fact"), aff'd, 596 F.2d 733 (7th Cir. 1979).

     In support of their motion, plaintiffs submitted unrefuted documents --
 the parties' agreements and court and land records -- demonstrating that
 title in the property resided solely with plaintiffs, that defendants had no
 ownership interest in the property, and that the parties' 1986 agreement was
 an unconsummated purchase and sale agreement.  Construction of the legal
 effect of the parties' agreements is a question of law appropriate for

  

 resolution by summary judgment.  See Vermont Nat'l Bank v. Chittenden Trust
 Co., 143 Vt. 257, 266, 465 A.2d 284, 290 (1983) ("It is hornbook law that
 construction of contract terms is a matter of law and not a factual
 determination."); Orkin Exterminating Co. v. Federal Trade Comm'n, 849 F.2d 1354, 1360 (11th Cir. 1988) (determination of ambiguity of contract and of
 legal effect of unambiguous contract are questions of law that may be
 resolved summarily), cert. denied, 488 U.S. 1041 (1989); Hadley v. Gerrie,
 124 B.R. 679, 683 (D.V.I.) (fundamental principle of contract law is that
 disputes involving interpretation of unambiguous contracts are appropriate
 cases for summary judgment), aff'd, 952 F.2d 1392 (3d Cir. 1991).  We agree
 with the trial court that the affidavits and documents submitted by the
 parties warrant summary judgment in favor of plaintiffs.

     The other two issues raised by defendants merit only a brief response.
 The court's grant of summary judgment was not a horizontal reversal of the
 first judge, considering that the first judge gave no indication of what
 genuine issues of material fact were in dispute, and plaintiffs had
 submitted relevant "additional materials" to the court.  See Morrisville
 Lumber Co., 148 Vt. at 182, 531 A.2d  at 888.  Further, no hearing was
 required.  Id.

     Affirmed.




                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice