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White v. Quechee Lakes Landowners' Association9/24/1999
lied on a position not argued by Helo in its summary judgment motion -- that Quechee Lakes had acquiesced in any dangerous condition attributable to Helo -- it was deprived of a fair opportunity to contest that issue. We find no merit to this argument.
As the superior court noted in denying Quechee Lakes' motion for reconsideration, the thrust of Helo's summary judgment motion was that Quechee Lakes would not be able to prove its claim of implied indemnification, which is governed by § 95 of the Restatement of Restitution. Indeed, in their cross-motions for summary judgment, both parties cited Vermont case law that refers to and relies upon § 95. Thus, Quechee Lakes was plainly on notice that any of the elements set forth in § 95 might prove determinative in the court's summary judgment ruling. In any event, in resolving the parties' motions, the superior court was not restricted to the specific theories relied upon by the parties. See Nagler v. Admiral Corp., 248 F.2d 319, 328 (2d Cir. 1957) (court has duty to grant relief required by facts; parties' legal theories might prove helpful, but do not control court's decision). Further, Quechee Lakes had a full opportunity to address the issue of acquiescence in its motion for reconsideration and again on appeal here, where, as noted, our standard of review is the same as the trial court. In short, we are not persuaded that Quechee Lakes was deprived of an opportunity to demonstrate that it had not acquiesced in any dangerous condition present in the women's sauna.
Nor are we persuaded that acquiescence is an affirmative defense that must be proved by Helo. Under § 95, a person who incurs liability as the result of a dangerous condition of land or chattels attributable to the misconduct or negligence of another is entitled to restitution unless the person acquiesced in the continuation of the condition with the knowledge that it posed a danger. As the third-party plaintiff in this action, Quechee Lakes has the burden of establishing its right to equitable indemnification under § 95. Notwithstanding Quechee Lakes's arguments to the contrary, we find no indication that § 95's drafters intended the alleged indemnitor to be required to prove that the indemnitee acquiesced in the continuation of a dangerous condition allegedly caused by the indemnitor. Quechee Lakes has not cited any case law holding that acquiescence is an affirmative defense under § 95, and we decline its invitation to adopt that position here.
Quechee Lakes also faults the trial Judge, who presided over both the underlying trial and the summary judgment proceeding in the indemnity action, for relying on evidence from the underlying trial that was not submitted as undisputed facts by the parties in their summary judgment motions. Based on the same argument, Quechee Lakes asks this Court to strike portions of Helo's printed case and brief that refer to evidence from the underlying case not submitted to the trial court along with the parties' summary judgment motions.
Again, we find no merit to these arguments. Our review of the record indicates that both parties encouraged the superior court to review the entire body of evidence presented at the underlying trial before ruling on their summary judgment motions in the indemnity action. In a supplemental memorandum supporting its motion for summary judgment, Quechee Lakes raised the question of whether the evidence at trial proved its independent negligence, which had the effect of attaching the entire transcript of the underlying hearing as an exhibit to its motion. Time and time again, in both their memoranda of law and at oral argument, both parties referred to evidence presented at the underlying trial and urged
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