Davison v. Caleidoscope Communication Co., No. S0436-04 CnC (Norton, J., Nov. 8, 

2004) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the 

original. The accuracy of the text and the accompanying data included in the Vermont trial court 

opinion database is not guaranteed.]

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. S0436-04 CnC 

ROBERT DAVISON 

 

v. 

CALEIDOSCOPE COMMUNICATION 

COMPANY 

ENTRY 

 This matter concerns the plaintiff Robert Davison’s motion for summary judgment 

regarding counterclaims by the defendant, Caleidoscope Communication Company. 

Caleidoscope provides a number of material facts that are in dispute and argues that 

summary judgment is premature at this stage of discovery. The court agrees. 

Accordingly, Mr. Davison’s motion is denied. 

 Caleidoscope provides telecommunications consulting services throughout 

northern New England and New York. Mr. Davison has sued Caleidoscope, his former 

employer, for payment of commissions he allegedly earned as an account manager. 

Caleidoscope counterclaimed that Mr. Davison has violated several provisions of his 

employment agreement by soliciting Caleidoscope clients for his new employer, 

disclosing proprietary information, and retaining proprietary Caleidoscope documents. 
Caleidoscope also counterclaimed that Mr. Davison breached the covenant of good faith 

and fair dealing and that his new employment places him in a position where he will 

inevitably disclose proprietary Caleidoscope information in violation of the Vermont 

Trade Secrets Act and his employment agreement with Caleidoscope. 

 Mr. Davison fails to provide a statement of undisputed facts, as required by 

V.R.C.P. 56(c)(2). Rather, Mr. Davison fashions his motion as a challenge that 

Caleidoscope, as the party with the burden of proof, must provide adequate evidence to 

demonstrate that material issues of fact exist with respect to its counterclaims. Rule 

56(c)(2) of the Vermont Rules of Civil Procedure states that a party moving for summary 

judgment shall “annex[] to the motion a separate, short, and concise statement of material 

facts as to which the moving party contends there is no genuine issue to be tried.” The 

Reporter’s Notes explain that moving parties “must include in their Rule 56(c)(2) 

statements all of the facts that they have relied on in support of or in opposition to 

summary judgment, and that facts that are omitted from their statements will not be 

considered by the court in ruling on the motion.” Reporter’s Notes—2003 Amendment, 

V.R.C.P. 56. By omitting this statement, Mr. Davison essentially brings this motion in the 

form of a motion to dismiss under V.R.C.P. 12(b)(6) or a motion for judgment on the 

pleadings under V.R.C.P. 12(c). See Reporter’s Notes, V.R.C.P. 56 (stating that summary 

motions solely regarding legal sufficiency of claims are the equivalent of Rule 12(b)(6) 

or Rule 12(c) motions). 

 Under the posture of either a Rule 12(b)(6) or a Rule 12(c) motion, the court must 

accept all of Caleidoscope’s claims in its pleadings as true. See Richards v. Town of 

Norwich, 169 Vt. 44, 48–49 (1999). Under this standard, Caleidoscope overwhelmingly 

meets its burden to demonstrate valid counterclaims. First, by providing the employment 

agreement—which spells out restrictions on solicitation, disclosure of confidential 

information, and misuse of company documentation—and by providing allegations that 

Mr. Davison has violated the agreement’s terms, Caleidoscope has made a prima facie 

case for breach of contract. 

 Second, every contract contains an implied covenant of good faith and fair dealing 

that ensures the “parties act with ‘faithfulness to an agreed common purpose and 

consistency with the justified expectations of the other party.’” Southface Condo. Owners 

Ass’n v. Southface Condo. Ass’n, 169 Vt. 243, 246 (1999) (quoting Carmichael v. 

Adirondack Bottled Gas Corp. of Vt., 161 Vt. 200, 208 (1993)). Caleidoscope’s 

allegations that Mr. Davison breached his agreement in a willful, knowing, and malicious 

manner suffice to demonstrate a prima facie case for a breach of the implied covenant of 

good faith and fair dealing, because a breach in this manner shows Mr. Davison’s failure 

to act according to Caleidoscope’s justified expectations. 

 Finally, Caleidoscope’s “inevitable disclosure” claim is a novel theory under 
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Vermont law. In essence, Caleidoscope argues that Mr. Davison’s current job more-orless requires him to rely upon confidential information that is protected by his former 

employment agreement and the Vermont Trade Secrets Act. See PepsiCo, Inc. v. 

Redmond, 54 F.3d 1262, 1269–70 (7th Cir. 1995) (holding that former employee’s near 

certain reliance on trade secrets in new job supports injunctive relief). Not all states have 

accepted the inevitable disclosure doctrine. See, e.g., Whyte v. Schlage Lock Co., 125 

Cal. App. 4th 1443, 1458–64, 125 Cal. Rptr. 2d 277, 290–94 (Cal. Ct. App. 2002) 

(holding that doctrine unjustly converts a confidentiality agreement into noncompete 

agreement); LeJeune v. Coin Acceptors, Inc., 849 A.2d 451, 469–71 (Md. 2004) (holding 

that doctrine would compromise state policy in favor of employee mobility). The 

Vermont Supreme Court has expressed reservations about implicit proscriptions on 

individuals to freely engage in commercial activity, see, e.g., Roy’s Orthopedic, Inc. v. 

Lavigne, 142 Vt. 347, 350 (1982), but the Court has not explicitly ruled on whether the 

inevitable disclosure doctrine is available in Vermont. The Court has cautioned against 

dismissing a cause of action on pleadings where the theory of liability is novel. In re 

A.G., 151 Vt. 167, 169 (1989). Hence, Caleidoscope has a valid counterclaim on this 

theory, and the court shall permit Caleidoscope to bring its counterclaim with further 

development of the evidence. 

 Even if the court were to make a more searching inquiry into Caleidoscope’s 

counterclaims akin to a summary judgment ruling, Caleidoscope still meets its burden to 

defeat Mr. Davison’s motion. On a summary judgment motion, the court must provide 

the nonmoving party all benefit of doubt, resolving all factual disputes in the nonmoving 

party’s favor as long as the party has provided admissible evidence, on personal 

knowledge, in support of its factual disputes. Gendreau v. Gorczyk, 161 Vt. 595, 596 

(1993) (mem). 

 Caleidoscope has met its burden here by providing an affidavit from Zoltan Keve, 

a company representative. Mr. Keve not only detailed aspects of Mr. Davison’s 

employment with Caleidoscope, but he also provided personal knowledge of Mr. 

Davison’s recent activities in breach of his agreement with Caleidoscope. Mr. Keve 

included specific clients that Mr. Davison has solicited, and he stated that he knew of 

these activities because he had seen Mr. Davison’s proposals to these clients. Although 

Mr. Keve’s affidavit was not as specific as it could have been with regard to what he 

actually knows about Mr. Davison’s activities, it satisfies Caleidoscope’s burden at this 

stage. Specific details are not essential at this point because one can expect them to 

emerge only after more complete discovery, including depositions that the parties have 

not yet started. See Doe v. Doe, 172 Vt. 533, 534 (2002) (“A party opposing summary 

judgment must be afforded ‘an adequate opportunity to engage in discovery before being 

required to respond to the motion.’” (quoting Al Baraka Bancorp (Chicago), Inc. v. 

Hilweh, 163 Vt. 148, 156 (1994))). 
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ORDER 

 For the foregoing reasons, Mr. Davison’s motion is DENIED. 

 Dated at Burlington, Vermont, November 8, 2004. 

_____________/s/___________ 

Richard W. Norton Judge