Perry v. Medical Practice Bd., No. 98-270.

Docket NºNo. 98-270.
Citation737 A.2d 900
Case DateJuly 16, 1999
CourtUnited States State Supreme Court of Vermont

737 A.2d 900

Robert PERRY, M.D.

No. 98-270.

Supreme Court of Vermont.

July 16, 1999.

737 A.2d 901
Ritchie E. Berger and Shapleigh Smith, Jr. of Dinse, Knapp & McAndrew, P.C., Burlington, for Plaintiff-Appellant

William H. Sorrell, Attorney General, and James S. Arisman, Special Assistant Attorney General, Montpelier, and Geoffrey A. Yudien, Assistant Attorney General, Waterbury, for Defendant-Appellee.

Present DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ, and GIBSON, J. (Ret.), Specially Assigned.


Robert Perry appeals from a superior court judgment upholding the authority of

737 A.2d 902
the Board of Medical Practice to deny Perry's motion to withdraw his medical-license application. Perry contends that: (1) his appeal of the Board's decision was timely; and (2) the court misconstrued the Board's statutory authority. We affirm


The material facts are undisputed. In August 1993, following his graduation from the University of Vermont Medical School, Perry applied to the Board for a medical license. The application was held in abeyance until Perry completed his first year of postgraduate medical training, as required for license eligibility. In June 1994, Perry notified the Board that he was prepared to have it review his application. In May 1995, Perry sent a letter to the Board requesting to withdraw his application because he had moved out of state and no longer wished to practice in Vermont. The Board denied the request, as well as a follow-up request sent by Perry's attorney. Thereafter, the Board continued the investigation it had begun, focusing on certain apparent misrepresentations in Perry's application. In December 1995, Perry submitted a formal motion to dismiss, arguing that the Board lacked the statutory authority to deny his withdrawal request. The following January, the Board issued a written decision denying the motion, and also preliminarily denying the license application subject to further review at Perry's request. Perry subsequently appealed the preliminary denial of his license application, which remains pending.

In response to the Board's decision, Perry filed appeals of the Board's interlocutory ruling denying his withdrawal request with both this Court and the Washington Superior Court. On April 2, 1996, this Court granted the State's motion to dismiss, ruling that interlocutory appeals from Board decisions were subject to the requirements of 3 V.S.A. § 130a, which establishes a procedure for appeals from Board decisions to an administrative appellate officer, followed by an appeal to the Washington Superior Court. See In re Perry, 165 Vt. 638, 678 A.2d 460 (1996) (mem.). Perry thereupon pursued an administrative appeal, and the State moved to dismiss on the ground that it was untimely. Following a hearing, the appellate officer denied the State's motion to dismiss, and granted Perry's motion to withdraw his application, ruling that the Board lacked either express or implied statutory authority to deny the request. The State appealed. In a written opinion, the superior court affirmed the appellate officer's conclusion that Perry's appeal was timely, but reversed the officer's decision concerning the Board's statutory authority. The court ruled that the Board's authority to deny the request was "simply a logical extension" of its express power to deny an application in the first instance, and therefore within the scope of its statutory mandate. This appeal followed.


We address two procedural issues at the threshold. First, although not raised by either of the parties, we note that the judgment remains interlocutory in nature, and that none of the procedures for perfecting an interlocutory appeal was followed in this case. See V.R.A.P. 5, 5.1. Nevertheless, the court's ruling resolves an important issue separate from the merits, a dismissal of the appeal would most likely result in another appeal after final judgment, the merits have been fully briefed, and the Court has reviewed the case. Therefore, we exercise our discretion to suspend the rules and reach the merits. See Huddleston v. University of Vermont, 168 Vt. 249, 252, 719 A.2d 415, 417 (1998); V.R.A.P.2.

The State initially contends that Perry failed to file a timely notice of appeal from the Board's decision. As noted, Perry attempted to appeal from the Board's decision of January 3, 1996, by filing notices of appeal on January 12, 1996 with both the superior court and the Supreme

737 A.2d 903
Court. Copies of the notice of appeal were served on the executive director of the Board. Following this Court's dismissal, Perry appealed to the Director of the Office of Professional Regulation, who assigned the case to an appellate officer pursuant to 3 V.S.A. § 130a(a), which provides: "A party aggrieved by a final decision of a board may, within 30 days of the decision, appeal that decision by filing a notice of appeal with the director who shall assign the case to an appellate officer."

Because of his mistaken appeal to this Court, Perry failed to file an appeal with the director until May 28, 1996, well beyond the thirty-day filing requirement of § 130a(a). Accordingly, the State requested that the administrative appeal be dismissed as untimely. The appellate officer denied the request. The superior court affirmed that portion of the appellate officer's ruling. The State renews the argument here.

Perry responds that the State's failure to raise the timeliness issue by cross-appeal divests this Court of jurisdiction to consider the claim. See Union Bank v. Jones, 138 Vt. 115, 125, 411 A.2d 1338, 1344 (1980) (appellee seeking to challenge aspects of trial court decision must file timely cross-appeal). The State counters that the cross-appeal requirement does not apply because it was "content with the final order below, leaving it nothing to appeal." Huddleston, 168 Vt. at 255, 719 A.2d at 419. The State may or may not be "content" with a ruling on the merits, but by raising the timeliness argument it is seeking a dismissal of the appeal on the jurisdictional ground that it was untimely under 3 V.S.A. § 130a(a), and not an affirmance of the decision below. Indeed, the State is vigorously...

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