Lamb v. Bloom, 92-508

• Citation: 622 A.2d 505,159 Vt. 633
• Decision Date: 12 January 1993
• Docket Number: No. 92-508,92-508
• Court: United States State Supreme Court of Vermont
• Parties: Lawrence LAMB, D.V.M. v. Colleen BLOOM, D.V.M., Steve Carey, D.V.M., Thomas Cihocki, D.V.M., and Lisa Geovjian, D.V.M.

Page 505

622 A.2d 505

159 Vt. 633

Lawrence LAMB, D.V.M. v. Colleen BLOOM, D.V.M., Steve Carey, D.V.M., Thomas Cihocki,

D.V.M., and Lisa Geovjian, D.V.M.

No. 92-508.

Supreme Court of Vermont.

Jan. 12, 1993.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ENTRY ORDER

This is the third renewal of a motion for reconsideration of an order dismissing a collateral order appeal. 615 A.2d 148. The appeal is from an order refusing to reconsider the denial of summary judgment. Defendant's point, made with increasing intensity in each renewed motion for reconsideration, is that we have absolutely no discretion to refuse to consider this appeal. This point is contrary to our case law. We offer an expanded explanation in the hope that it will finally terminate the continuing stream of paper.

Both plaintiff and defendant are veterinarians. Defendant is a member of the Vermont Veterinary Board. Plaintiff was disciplined by the Board. Plaintiff's complaint alleges defamation, negligent defamation and intentional interference with contractual relations. Because much of the complaint deals with defendant's role in the disciplinary action against plaintiff, defendant moved for summary judgment, claiming that all her actions were protected by qualified or prosecutorial immunity for her as a member of the Board.

The trial court granted the motion, but only in part. It found that one part of the complaint dealt with a transaction that came after the disciplinary action and was not related to it. Specifically, plaintiff alleged that defendant defamed him to prospective purchasers concerning an x-ray machine he wished to sell. As to this claim, defendant argued that plaintiff did not show the elements of defamation. The court concluded that plaintiff showed enough to get beyond the motion for summary judgment. It is important to note that defendant never claimed in the trial court that she had an immunity defense to this defamation claim.

The trial court also refused to grant defendant summary judgment on the interference with contractual relations claim. It noted that this claim was based on the entirety of the interaction between defendant and plaintiff and that defendant is in competition with plaintiff. It concluded that further factual development was necessary to resolve this claim.

Defendant requested reconsideration. She reargued her defamation points on the x-ray machine claim, disputed that she was in competition with plaintiff, and squarely argued immunity on the interference with contractual relations claim. On the latter point, plaintiff responded by pointing to evidence that defendant violated confidentiality rules in handling the complaints against plaintiff. The trial court reaffirmed its earlier ruling on the defamation claim. It also refused to change its ruling on the interference with contractual relations claim, relying on plaintiff's theory that defendant acted in concert with others who were enlisted to aid her through improper breaches of the confidentiality governing Board proceedings. The court stated that there were questions of fact on whether defendant breached confidentiality rules and acted in bad faith.

For her appellate jurisdiction position, defendant is relying almost exclusively on Murray v. White, 155 Vt. 621, 587 A.2d 975 (1991), which held that we have collateral order jurisdiction over an appeal of a denial of summary judgment rejecting a claim of qualified immunity. As defendant repeatedly emphasizes, the jurisdictional decision is based on the theory that immunity is from suit, rather than from liability. Id. at 627, 587 A.2d at 978.

There are two differences between this case and Murray. First, defendant has an argument for immunity for suit only with respect to one of the two remaining claims against her. As to the defamation claim, her position involves the reach of the tort, and there is no collateral order jurisdiction on this dispute. Her papers do not face up to this problem. Apparently, she is saying that Murray not only gives her a right to appeal the immunity ruling but also the ruling that plaintiff has made out a case of defamation. This is a substantial expansion of Murray, and not one we are prepared to endorse. It suggests that a litigant can add on to a weak immunity appeal all sorts of other interlocutory issues and force us to interrupt trial court deliberation to address them. For this reason, we might rule that defendant cannot appeal the defamation issue, but this would mean that defendant would not avoid suit, no matter how we ruled on the appeal, and the essential reason for collateral order jurisdiction would be eliminated.

We would attempt a more definitive ruling on the first difference if it were not for the second difference. In Murray, the question was whether we had jurisdiction or power to rule on the case on appeal. Here, we are acting before this case has...