Forster v. West Dakota Veterinary Clinic, 20040061.

CourtUnited States State Supreme Court of North Dakota
Citation2004 ND 207,689 N.W.2d 366
Docket NumberNo. 20040061.,20040061.
PartiesAlissa FORSTER, VMD, Plaintiff, Appellee and Cross-Appellant v. WEST DAKOTA VETERINARY CLINIC, INC., and Kim Brummond, D.V.M., Defendants, Appellants and Cross-Appellees.
Decision Date04 November 2004

689 N.W.2d 366
2004 ND 207

Alissa FORSTER, VMD, Plaintiff, Appellee and Cross-Appellant
WEST DAKOTA VETERINARY CLINIC, INC., and Kim Brummond, D.V.M., Defendants, Appellants and Cross-Appellees

No. 20040061.

Supreme Court of North Dakota.

November 4, 2004.

689 N.W.2d 373
Rebecca S. Thiem (argued) and Tracy Lynn Vigness Kolb (appeared), Zuger Kirmis & Smith, Bismarck, N.D., for plaintiff, appellee and cross-appellant

J. Matthew Berner (argued), Katherine C. Bloomquist (appeared), Bloomquist & Berner, LLC, Edina, MN and Todd D. Kranda (appeared), Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for defendants, appellants and cross-appellees.


[¶ 1] West Dakota Veterinary Clinic, Inc. ("Clinic"), and Kim Brummond appealed from a judgment entered on a jury verdict awarding Alissa Forster $264,884.57 in damages, attorney fees, costs, and disbursements in Forster's defamation action against them. The Clinic and Brummond also appealed from orders denying their motions for judgment notwithstanding the verdict and for a new trial. Forster appealed from a judgment dismissing her employment contract claim against the Clinic and from an order denying her motion to alter or amend that judgment. We conclude there is sufficient evidence to support the jury's verdict in the defamation action, and the district court did not commit reversible error in its instructions to the jury or in its evidentiary rulings during trial. We also conclude the district court's implied finding that Forster and the Clinic did not reach an agreement for employment for a definite term, and that Forster was therefore an at-will employee, is not clearly erroneous. We affirm.


[¶ 2] Brummond received her veterinary medicine degree in 1984, and in 1986, she established the Clinic in Dickinson. Forster received her veterinary medicine doctorate in 1994 and became licensed to practice in North Dakota in 1995. In 1997, while Forster was working in Glen Ullin, Brummond contacted Forster and asked whether she would be interested in working at the Clinic. Forster and the Clinic eventually entered into a written two-year employment contract for Forster to work as an associate veterinarian beginning April 1, 1998, and ending April 1, 2000. Under the terms of the employment contract, Forster was to receive an annual salary of $36,000 plus benefits, including payment of her annual licensing fee, annual dues, malpractice insurance, and group health and life insurance.

[¶ 3] Shortly before the written agreement expired, in March 2000, Brummond asked Forster whether she intended to continue working at the Clinic. According to Forster, the parties agreed to renew the previous contract for an additional year and she would continue to receive the benefits listed in the written contract. According to Brummond, the parties did not agree to an additional year of employment, and Forster was intended to work as an at-will employee. Although Forster continued to work for the Clinic beyond the initial contract expiration date of April 1, 2000, the parties did not enter into another written employment agreement.

[¶ 4] During September 2000, Brummond's friend, Bonnie Orvedahl, reported to the State Veterinarian's Office that Forster was abusing a horse, boarded at Orvedahl's property, by riding the horse too hard for its health and age. The State Veterinarian contacted Forster on September

689 N.W.2d 374
28, 2000, and Forster told him the horse had a nerve injury and was not being ridden. No formal abuse charges were brought against Forster

[¶ 5] On October 2, 2000, Brummond presented Forster with a "Probation Agreement" setting forth a list of conditions Forster was required to comply with to remain employed at the Clinic. The document contained provisions addressing "improvement of client relations," "treatment of support staff," and "improvement of employer/employee relationship." The document provided, "Failure to sign this agreement within 48 hours of its presentation will be construed by the employer as the employee exercising her option to terminate employment." Forster refused to sign the agreement, removed her belongings from the Clinic, and returned her key to the Clinic. Forster then applied for unemployment benefits. Brummond disputed the application for benefits, claiming Forster had resigned, Forster had been the subject of an animal abuse complaint, and Forster had sold prescription medication across state lines without Brummond's knowledge or consent while employed at the Clinic. Forster claimed she had received permission from Brummond to ship the medication and the purchaser sent a check for payment in Forster's name to the Clinic. Forster offered to endorse the $45 check to the Clinic, but Brummond did not present the check to Forster for her signature. Forster was awarded unemployment benefits.

[¶ 6] On November 17, 2000, Brummond reported to the Dickinson police that the Clinic had been burglarized and that although there were no signs of forced entry and no money was missing from the Clinic, two bottles of medication had been taken. Brummond told police she suspected Forster had entered the Clinic because Forster had a horse that needed to be euthanized and Forster did not have a license that would allow her to purchase or possess the euthanasia medication. Brummond also told the police she had previously suspected Forster of illegal activities, she had a check showing Forster had illegally shipped prescription medication to a friend in Utah, there was a constant flow of those shipments, Forster had a key to the Clinic, and medications disappeared from other places Forster had worked. Dickinson police contacted the man who was boarding Forster's horse, and he told them the horse was fine. Police also contacted Forster, who explained that her horse did not have to be euthanized and that she had the necessary license to purchase and dispense the medications. When police reported back to Brummond, Brummond claimed Forster lied and was possibly having an affair with the man boarding the horse. The police found no evidence Forster had burglarized the Clinic, and did not interview Forster again.

[¶ 7] In April 2001, Forster sued the Clinic, alleging it breached an oral one-year employment agreement by prematurely terminating her contract.

[¶ 8] In July 2001, an agent of the Bureau of Criminal Investigation, who was investigating a break-in at the Bowman Veterinary Clinic, was informed by the Bowman County Sheriff's Department that Forster was viewed as a suspect on the basis of information Brummond had given the Bowman Veterinary Clinic. The investigator contacted Brummond, who told him Forster had no license to purchase or sell medications. After the investigator verified that Forster had the necessary license, he advised Brummond that because of the manner in which the crime occurred, Forster was not a suspect in the break-in at the Bowman Veterinary Clinic.

[¶ 9] After the conversation with the investigator, Brummond continued to inform

689 N.W.2d 375
her employees and friends, including the assistant State Veterinarian, that the Bureau of Criminal Investigation was investigating Forster in connection with the break-ins at her Clinic and at the Bowman Veterinary Clinic. On August 8, 2001, Brummond reported to Dickinson police that another break-in had occurred at her Clinic. The locks at the Clinic had been changed, but a key was missing from Brummond's home, and she reported several bottles of medication were missing. Brummond informed police that Forster was the only person she thought might have stolen the key and broken into the Clinic. The police did not interview Forster about the second break-in at the Clinic. Two weeks later, Brummond contacted the Stark County Sheriff's Department and reported her horse had been poisoned the day after the second break-in and she suspected Forster was responsible for the poisoning. Brummond told an employee the stolen medication can be used to treat schizophrenia or a bipolar condition, and suggested that Forster had those conditions. Forster was not questioned about the second break-in or the horse-poisoning incident

[¶ 10] During August 2001, Forster attended the veterinary state convention and talked about potential employment with veterinarians in attendance. Some veterinarian offices eventually had contact with Brummond regarding Forster's job applications. Brummond told the veterinarians she believed Forster had broken into her Clinic, stolen drugs, and poisoned her horse. The veterinarians did not hire Forster. The State Veterinarian Office occasionally provided job referrals to prospective employers, and Forster had previously received job references through the office. At the time of trial, Forster had been unsuccessful in obtaining employment.

[¶ 11] In January 2002, Forster moved to amend her complaint to add a defamation claim and to add Brummond as a defendant on the basis of Brummond's deposition testimony. Forster claimed that Brummond had told several individuals, including law enforcement officers, other veterinarians, the assistant State Veterinarian, and her employees, friends, and family that Forster was dangerous and had broken into Brummond's Clinic, stolen and sold drugs, poisoned Brummond's horse, and abused animals. The district court granted the motion.

[¶ 12] The court ordered separate trials of the contract and tort claims under N.D.R.Civ.P. 42(b). The defamation claim was tried before a jury. In October 2003, the jury found Brummond and the Clinic had defamed Forster and awarded Forster $50,000 in past noneconomic damages, $10,000 in future noneconomic damages, and $100,000 in past economic damages. The jury also found Forster was entitled to an award of attorney fees. The district court denied Brummond and the Clinic's motions for judgment notwithstanding the verdict and for a new trial, and a judgment was entered awarding Forster...

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