Lamb v. Bloom

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-508

                             DECEMBER TERM, 1992


 Lawrence Lamb, D.V.M.             }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Washington Superior Court
                                   }
                                   }
 Colleen Bloom, D.V.M., Steve      }
 Carey, D.V.M., Thomas Cihocki,    }          DOCKET NO. S547-88WnC
 D.V.M., and Lisa Geovjian, D.V.M. }

              In the above entitled cause the Clerk will enter:


      This is the third renewal of a motion for reconsideration of an order
 dismissing a collateral order appeal.  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 inten-
 tional interference with contractual relations.  Because much of the com-
 plaint 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, defend-
 ant 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 jurisdic-
 tion on this dispute.  Her papers do not face up to this problem.  Appar-
 ently, 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 act-
 ing before this case has progressed at all in this Court and are addressing
 whether we should exercise that power.  Defendant argues that we must always
 take a collateral order case when the jurisdictional prerequisites are met.
 Our cases are directly to the contrary on this position.  In In re Maple
 Tree Place Assoc., 151 Vt. 331, 333, 560 A.2d 382, 383 (1989), we emphasized
 that there is no entitlement to an appeal even if the three prerequisites
 for collateral order jurisdiction are met.  We stated that we would take
 collateral order appeals "when strong need is demonstrated."  Id.  We
 reemphasized that position in In re C.K., 156 Vt. 194, 196, 591 A.2d 57, 59
 (1991).  The applicable appellate rule was amended to make clear that the
 trial courts and this Court have discretion to determine whether to allow a
 collateral order appeal.  See V.R.A.P. 5.1(a).

      We fail to see how there is something about official immunity claims
 that creates a nondiscretionary right of review.  Defendant's claim of
 immunity has been heard by one court and rejected, at least with respect to
 summary judgment.  Defendant may be immune from suit but that position does
 not carry with it a right to obtain an appellate opinion when the trial
 court decides otherwise.  We seriously doubt that a person's willingness to
 serve on the state veterinary board depends on whether he or she is entitled
 to interlocutory review of immunity claims.

      This Court takes far fewer interlocutory appeals than it did in the
 past.  We learned that interlocutory review holds out the promise of
 reaching the proper result more expeditiously but more often creates
 injustice through extensive delay.  Accepting this case now will interrupt
 trial court processing for one to two years.  If the case is tried, it will
 be more challenging to marshall the evidence as time passes.  The events in
 issue stretch back to 1984 and will become more difficult to reconstruct.

      Obviously, there are strong and weak claims of immunity.  We should
 take into account the consequences lawsuits will have on the willingness of
 citizens to serve on professional licensing boards and not needlessly expose
 board members to litigation.  On the other hand, persons whose personal and
 professional standing and means of livelihood have been impaired by miscon-
 duct of others are entitled to redress in our courts and should not be held
 up by groundless claims of immunity asserted for tactical advantage.  This
 need for balancing is exactly why we must have discretion to determine when
 interlocutory appellate review will serve the ends of justice, and when it
 will not.

      When we exercise our discretion, we do not see this case as a strong
 candidate for interlocutory review.  As in Murray, the immunity issue will
 come down to whether defendant acted in good faith.  Murray holds that good
 faith exists "where an official's acts did not violate clearly established
 rights of which the official reasonably should have known."  155 Vt. at 630,
 587 A.2d  at 980.  Unlike Murray, plaintiff here has focused on a clear right
 (the right to confidentiality of disciplinary proceedings), its alleged vio-
 lation, and defendant's knowledge of the right.  Without prejudging defend-
 ant's immunity claim, and understanding that it may look quite different
 after factual development, it does not appear to be as strong as that in
 Murray.  Based on this evaluation, and the fact that defendant must also
 overturn the defamation ruling to avoid trial, this appeal should be dis-
 missed.

      Finally, defendant asks the Court to acknowledge errors it made in
 handling this interlocutory appeal.  The Court acted sua sponte, as it is
 entitled to do, in response to the trial court's decision to grant inter-
 locutory review.  The record on appeal was sufficient to make that deter-
 mination.  We acknowledge that the Court initially overlooked Murray.  That
 oversight, however, was corrected by our denial of defendant's motion for
 reconsideration, wherein we concluded that Murray does not require the
 Court to take this appeal.




                                    BY THE COURT:



                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice

                                    _______________________________________
                                    Denise R. Johnson, Associate Justice
 [ ]  Publish

 [ ]  Do Not Publish