2014 VT 43


Stone v. Irasburg, Town of
 
2014 VT 43
 
[Filed 25-Apr-2014]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
 
 

2014 VT 43

 

No. 2013-125

 

Linda Stone 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Orleans Unit,


 


Civil Division


 


 


Town of Irasburg


December Term, 2013


 


 


 


 


Robert
  R. Bent and Howard E. Van Benthuysen, JJ. (summary judgments)
Dennis R. Pearson, J. (final
  judgment)


 

Charles L. Merriman and James Pepper, Legal Intern, of Tarrant,
Gillies, Merriman &
  Richardson, Montpelier, for Plaintiff-Appellant.
 
Philip C. Woodward of Woodward & Kelley, PLLC, South
Burlington, for Defendant-Appellee.
 
 
PRESENT:   Reiber, C.J., Skoglund, Robinson and Crawford,
JJ., and Zimmerman, Supr. J. 
                     (Ret.), Specially Assigned
 
 
¶ 1.            
CRAWFORD, J.   Plaintiff Linda Stone sued the Town of Irasburg
alleging that the selectboard had acted unlawfully in ordering her, as town
treasurer, to raise her bond to $1,000,000.  Following plaintiff’s inability to
obtain the bond and her removal from office by the selectboard, she claimed the
Town improperly raised her bond and prevented her from obtaining the bond.  She
sought monetary damages based on common law defamation, tortious interference
with office, violation of the Vermont Constitution, and deprivation of due
process.  She also asserted that the Town was obligated to pay her attorney’s
fees pursuant to statute.  In several different orders, the trial court granted
the Town summary judgment on all counts.  Plaintiff appealed.  We affirm in
part, and reverse and remand in part.
¶ 2.            
The record reveals the following facts.  On March 2, 2010, plaintiff was
elected treasurer of the Town of Irasburg at town meeting.  The positions of
town clerk and treasurer had previously been held by Barbara Lawson for twenty years. 
Lawson’s granddaughter Danielle Ingalls held the position of assistant town
clerk.  After Lawson retired as clerk, the selectboard appointed Ingalls to the
position pending the election.  
¶ 3.            
At town meeting, plaintiff and Ingalls ran for both positions.  Ingalls
was elected town clerk; plaintiff was elected treasurer.  
¶ 4.            
Tension between the selectboard and plaintiff developed almost
immediately.  On March 22, 2010, a member of the selectboard proposed that the
Town’s auditors perform an audit every two weeks for the first two months and
every month thereafter.  On March 30, 2010, the auditors complained to the
selectboard that they were unable to balance the Town’s books due to mistakes
in the reports they received from the treasurer.  The errors included changes
in the amounts of payment orders, bills written for wrong amounts,
transposition of figures, and mistakes in some budget categories.  
¶ 5.            
The minutes of the April 5, 2010 selectboard meeting describe Ingalls’
decision to obtain legal advice from the town attorney Duncan Kilmartin about
what to do if the auditors could not balance the books.  Kilmartin advised
increasing the treasurer’s bond limit from $500,000 to $1,000,000 if plaintiff
could not satisfy the auditors.  The minutes note that “Randy [Wells] made a
motion to follow Duncan [Kilmartin]’s advice, Roger [Gagnon] seconded,
approved.”  
¶ 6.            
In a subsequent undated letter, the selectboard gave plaintiff until
April 19 to “settle and reconcile [her] accounts to the satisfaction of the
auditors.”  The letter stated that the selectboard had notified the current
bonding company of the dispute and warned of the potential need for increased
bonding limits and the appointment of an assistant treasurer.  
¶ 7.            
The minutes of the April, May and June meetings describe continuing
tension over plaintiff’s performance.  Plaintiff advised that she felt “set up”
by the auditors and the town clerk.  She admitted that she had made some
mistakes and was seeking additional training for her position.  During this
period plaintiff sought to increase her bond limit to $1,000,000 by seeking the
higher coverage from the Poulos Insurance Agency in Newport.  The Poulos agent
forwarded her request to the Cincinnati Insurance Co., which provided the
required application forms, including a form for a statement from plaintiff’s
employer. 
¶ 8.            
The dispute between plaintiff and the selectboard came to a head after a
dispute arose concerning an envelope containing $200 which was received at the
town offices as partial payment of property taxes for a particular taxpayer.  The
details remain contested but in broad strokes, the envelope containing the
bills was received and placed overnight in the treasurer’s safe.  When plaintiff
next looked at the envelope, it bore a taxpayer’s name in handwriting.  Since
she believed that the envelope was unmarked when it went into the safe, she concluded
that a member of the selectboard had opened her safe in her absence.  One
selectboard member had installed the safe and thus had access to the
combination.  The matter was discussed at the June 28, 2010 selectboard
meeting.  
¶ 9.            
The selectboard member suspected of opening the safe abstained from any
decision, and the two remaining members of the selectboard responded to plaintiff’s
allegations in writing on July 1, 2010.  In their fevered five-page letter, the
board members made accusations of their own, stating that plaintiff had made “false
accusations” against town officials, presented “false evidence,” repeated the
accusations when she was told they were false, and continued in her accusations
“after acknowledging that [her] own ‘supporters’ doubt [her] honesty.”  The
letter questioned plaintiff’s truthfulness, honesty, reliability, and ability
to perform the duties of Irasburg Town Treasurer.  The letter stated that plaintiff
had written the name on the envelope herself and then falsely accused the board
member of opening the safe and writing the name.  It accused her of “deliberate
and malicious fabrication of evidence” and lying.  It stated that her “pattern
from the beginning [of her term as treasurer] has been to accuse others of
being responsible for [her] failures.” 
¶ 10.        
The letter required plaintiff to increase her bonding limit from
$500,000 to $1,000,000.  The selectboard sent copies of the letter to the
Vermont League of City and Towns (VLCT), which provided the bond then in
effect.  The letter explained that:
It is your responsibility to obtain the
bond, not ours.  You will have to deal directly with VLCT and the bonding
company.  We are simply notifying them of the reasons for our order to you to
increase your bond, and providing them with the evidence which you provided to
us, so that they can make appropriate underwriting investigations and
determinations.
The letter gave plaintiff ten days
to obtain the bond, and stated that if she failed to comply, her position would
be declared vacant.  
¶ 11.        
During July, plaintiff renewed her efforts to obtain the higher bond
from Cincinnati as well as other insurers.  Cincinnati repeated its request for
the employer statement which “tells [the bond company] about the job she will
be doing and all the controls in place for the funds she will be overseeing.”  
¶ 12.        
In response, town attorney Kilmartin sent the insurer an email declining
to fill out the statement on the ground that the selectboard was not plaintiff’s
employer and “lacks the most fundamental form of control over the person who
collects and disburses tax monies.”  Kilmartin suggested that plaintiff
presented an “underwriting risk which both Poulos and Cincinnati would want to
evaluate.”  The selectboard wrote to plaintiff at the same time to tell her
they were unwilling to fill out the employer’s portion of the application.  Despite
her efforts, plaintiff was unable to obtain the higher bonding limit. 
¶ 13.        
At the next meeting of the selectboard on July 12, 2010, the selectboard
extended the deadline for the increased bonding limit to July 22, 2010.  Plaintiff
appeared at the meeting and attempted to defend her performance as treasurer.  
¶ 14.        
On July 12, 2010, plaintiff filed suit.  The initial complaint sought
only to “permanently enjoin [the Town] from demanding an increase in [plaintiff’s]
bond.”  The court issued an ex parte temporary restraining order (TRO) in plaintiff’s
favor on July 15, 2010.  Following a hearing, the court vacated the TRO four
days later without prejudice to renewal.  The court noted that plaintiff agreed
that since the Town had allowed plaintiff until July 22, 2010 to obtain the
bond, there was no imminent harm.  The case was scheduled for a preliminary
injunction hearing.  
¶ 15.        
Plaintiff filed an amended complaint on July 22, 2010.  She continued to
seek an injunction enjoining the town from seeking an increased bond and
requested, alternatively, that the Town be required to cooperate with her in
obtaining the bond.  
¶ 16.        
On July 26, 2010, based on plaintiff’s failure to obtain the increased
bond, the selectboard met and declared the position of treasurer to be vacant. 
On July 27, the selectboard wrote to plaintiff to inform her of the termination
of her position.  On July 28, the selectboard met and appointed an interim
treasurer and assistant treasurer.  
I. 
Litigation History
¶ 17.        
In August 2010, after the Town declared her position vacant, plaintiff filed
a motion for a preliminary injunction seeking reinstatement and for a writ of
mandamus “ordering the Selectboard to grant [her] full and unfettered access to
her office and restore her control and custody of the Town’s accounts,
financial computer programs, and finances.”  The Town filed a series of motions
opposing the request for an injunction, and also sought to dismiss the action for
failure to state a claim.  The court denied the motions to dismiss in December
2010.[1] 
The trial court concluded that plaintiff’s claims that representatives of the Town
had thwarted her efforts to obtain the increased bond by publishing false
statements about her established a prima facie case for a “stigma-plus” civil
rights claim for deprivation of a liberty interest in violation of the Fourteenth
Amendment.[2] 

¶ 18.        
The trial court commenced an evidentiary hearing on the motion for a
preliminary injunction on January 31, 2011.  The hearing continued through a
second day on February 28, 2011.  It was never completed because plaintiff’s
failure to win re-election at Town Meeting on March 7, 2011 rendered the claim
for injunctive relief moot.  
¶ 19.        
On April 11, 2011, plaintiff filed a second amended complaint.  The
filing was subsequently permitted by the trial court.  As amended, the
complaint sought money damages and attorney’s fees on five legal theories:  (1)
violation of Chapter I, Article 8 of the Vermont Constitution (granting voters
“right to . . . be elected into office, agreeably to the
regulations made in this constitution”); (2) civil rights violation arising
from the selectboard’s actions in demanding an increase in bonding and ousting plaintiff
without a vote; (3) common law defamation; (4) tortious interference with
performance of office; and (5) indemnification of legal fees pursuant to 24
V.S.A. § 901.  In two decisions, the trial court granted summary judgment
to the Town on all five claims.  
¶ 20.        
Plaintiff filed the first motion for summary judgment.  She sought a
ruling that the selectboard failed to conduct a formal vote to increase the amount
of her bond from $500,000 to $1,000,000 and to declare her position vacant. 
Those assertions related to count 2.  She also sought a ruling with respect to
count 5 that 24 V.S.A. § 901(b), which requires municipalities to pay the
reasonable legal fees “incurred by an officer . . . acting
in the performance of his duties” obligated the town to pay her legal fees in
this case.  The Town filed cross-motions for summary judgment on both counts.  
¶ 21.        
In a detailed decision dated July 5, 2012, the trial court granted summary
judgment to the Town.  It analyzed the civil rights violation as a stigma-plus
claim.  The court determined that for purposes of summary judgment, plaintiff
had made out a prima facie case of a stigma-plus claim by alleging damage to
her reputation through false statements by the selectboard and the related loss
of her position as treasurer.  The court noted that the stigma-plus claim was a
constitutional claim of deprivation of liberty without due process.  It
considered the “process” afforded to plaintiff through her participation in
multiple selectboard meetings at which her performance as treasurer and the
increase in the bonding requirement were discussed openly.  Plaintiff had
received advance notice of the selectboard’s concerns and proposed actions
through the July 1 letter and the discussions at selectboard meetings during
the months of April to July 2010.  The court concluded that the selectboard
meetings on June 28 and July 12 provided a sufficient opportunity for plaintiff
to address the claims against her and to clear her name prior to the
termination of her position.  Since she had received notice and an opportunity
to be heard, the court granted summary judgment in favor of the Town on the
stigma-plus claim.  
¶ 22.        
The trial court also granted summary judgment to the Town on the
statutory claim for attorney’s fees.  It determined that the decision to
increase the bond limit on April 5, 2010 was a valid exercise of the
selectboard’s authority despite the absence of a formal vote by all three
selectboard members.  The court concluded that plaintiff’s actions in filing
suit to retain her position was not an action taken in performance of her
official duties as required by § 901.  The court reasoned:
The town treasurer has many duties, which
are set forth in Title 24.  They include keeping accounts and investing money;
appointing an assistant treasurer; recording the amount of taxes voted for town
purposes; and so forth.  They do not include suing the town to defend one’s
position as treasurer.  Ms. Stone’s suit against the Selectboard, which sought
to prevent it from effectively deposing her from office, was a personal
matter.  
(Citations omitted.)  Since plaintiff
was not fulfilling her official duties in filing suit, the court concluded that
she was not entitled to payment of her legal fees.  The trial court’s initial
summary judgment disposed of counts 2 and 5—the civil rights violation and the statutory
claim for attorney’s fees.   
¶ 23.        
In October 2012, the Town moved for summary judgment on the remaining
claims—the constitutional “right to be elected,” common law defamation, and “tortious
interference with public office.”  The Town argued that plaintiff’s claim that
she was denied her right to be elected into office was rendered moot when she
lost the second election for treasurer in March 2011, that she failed to make
out the elements of a claim for defamation, and that Vermont law does not
recognize a cause of action for “tortious interference with performance of
office.” 
¶ 24.        
The trial court granted summary judgment to the Town on all remaining
counts in February 2013.  The decision was based largely on procedural grounds.
The court noted that plaintiff’s opposition memorandum was signed by plaintiff,
not her attorney, and was not supported by “affidavit, depositions or other
sworn testimony as required by [Vermont Rule of Civil Procedure 56].”  The
trial court addressed the merits of count 1—the right to be elected arising
under the state constitution—and concluded that Article 8 of the Vermont Constitution
“does not create a right to retain the office in derogation of a lawful
direction to obtain an increased bond.”  The court granted summary judgment on the
defamation and tortious-interference claims on the ground that plaintiff had
failed to support her claims with affidavits or other record evidence. 
¶ 25.        
“We review summary judgment
de novo.  The same standard employed by the trial court applies here.”  Handverger
v. City of Winooski, 2011 VT 134, ¶ 7, 191 Vt. 84, 38 A.3d 1158.  Summary
judgment is appropriate when there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law.  V.R.C.P.
56(a).  We consider the record evidence in the light most favorable to the nonmoving
party, in this case plaintiff.  Robertson v. Mylan Labs.,
Inc., 2004 VT 15, ¶ 15, 176 Vt. 356, 848 A.2d 310 (noting that “nonmoving
party receives the benefit of all reasonable doubts and inferences”).  
II. 
First Summary Judgment Order
¶ 26.        
We consider the trial court’s rulings in the order they were made:
first, the decision granting summary judgment with respect to counts 2 and 5
and second, the later decision concerning counts 1, 3 and 4.   
A. 
Count 2—Civil Rights Violation
¶ 27.        
We begin with plaintiff’s claim that the Town damaged her reputation
without providing her with an opportunity to clear her name in violation of the
Due Process Clause of the Fourteenth Amendment.  “To maintain a procedural due
process action against a governmental entity, a plaintiff must show that he was
deprived of interests protected by the Fourteenth Amendment.”  LaFlamme v.
Essex Junction Sch. Dist., 170 Vt. 475, 480, 750 A.2d 993, 997 (2000). 
Once a deprivation is established, it must be determined what process is due.  Hegarty
v. Addison Cnty. Humane Soc’y, 2004 VT 33, ¶ 18, 176 Vt. 405, 848 A.2d 1139. 
“Though the required procedures may vary according to the interests at stake in
a particular context, the fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.”  Langlois
v. Dep’t of Emp’t & Training, 149 Vt. 498, 501, 546 A.2d 1365, 1367
(1988) (quotation and alterations omitted).  
¶ 28.        
Plaintiff’s claim of reputational damage is frequently described as a
stigma-plus claim.  An individual may sue for reputational damages under 42
U.S.C. § 1983 if he or she can meet two criteria: damage to public
standing through governmental action without a hearing or opportunity to
contest the action plus an accompanying tangible loss such as discharge from
government employment.  Herrera v. Union No. 39 Sch. Dist., 2009 VT 35,
¶¶ 11-13, 186 Vt. 1, 975 A.2d 619 (citing Paul v. Davis, 424 U.S. 693,
701-02 (1976)).  Such claims are called stigma-plus claims.  The injury to
reputation alone—the stigma—is insufficient to amount to a deprivation of
liberty without some additional tangible loss—the plus—such as termination of
employment.  See Owen v. City of Independence, 445 U.S. 622, 633 n.13
(1980) (discussing both requirements).  The stigma-plus formulation is widely
accepted today as a constitutional analog to common law defamation in cases
involving statements and other actions by government officials.  See generally
E. Mitnick, Procedural Due Process and Reputational Harm: Liberty as
Self-Invention, 43 U.C. Davis L. Rev. 79 (2009).  
¶ 29.        
The trial court applied this test, setting forth the elements as follows:

To prove a stigma-plus claim, the
plaintiff must first demonstrate that the government made stigmatizing
statements about her—statements that call into question the plaintiff’s good
name, reputation, honor, or integrity.  Second, the plaintiff must show that
these statements were made public.  Third, the plaintiff must show some
tangible and material state-imposed burden in addition to the stigmatizing
statement.
(Quotations and citations omitted.) 

¶ 30.        
In considering the sufficiency of the record to overcome the motion for
summary judgment directed to the stigma-plus claim, the trial court appropriately
considered the evidence in the light most favorable to plaintiff.  Samplid
Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996)
(“In determining whether a genuine issue of fact exists, the nonmoving party
receives the benefit of all reasonable doubts and inferences.”).  Based on this
evidence, the trial court found there was a sufficient basis to conclude that plaintiff
was falsely accused and removed from office.  As the trial court wrote,
Ms. Stone alleged that the Selectboard
made false statements about her in a letter which was published to at least one
insurer, VLCT, as well as in phone calls to bonding companies, which resulted
in her inability to get a bond.  This satisfies the “stigma” prong.  In
addition, the Selectboard’s decision to raise Ms. Stone’s bond, coupled with
its alleged defamatory communications to the bonding companies, amounted to
adverse action by the government that resulted in Ms. Stone’s de facto removal
from office.  
¶ 31.        
The trial court determined, however, that the “pre-deprivation
hearings,” especially the hearing on July 12 following the issuance of the July
1 letter, provided plaintiff with “an adequate opportunity to be heard.”  The
trial court quoted at length from the transcript of the July 12 hearing and
concluded that at that hearing plaintiff was indeed given an opportunity to
express herself before the selectboard.  
¶ 32.        
When the facts are construed in a light most favorable to plaintiff, we
disagree that the hearing provided plaintiff a meaningful opportunity to be
heard.  Determining the type of process due requires examination of three
factors: the private interest at stake; the risk of an erroneous deprivation of
that interest through the procedure used relative to other available procedures;
and the governmental interest, including any increased administrative burden.  Langlois,
149 Vt. at 502, 546 A.2d at 1367 (citing Mathews v. Eldridge, 424 U.S.
319, 335 (1976)).  In assessing these factors in the context of this case, the
first factor favors a high level of process.  Plaintiff has a strong private
interest at stake since any damage to her reputation can affect her standing in
the community and her future prospects for town office.  See Patterson v.
City of Utica, 370 F.3d 322, 336 (2nd Cir. 2004).  Because plaintiff claims
she was effectively terminated by the Town’s actions, her interest in the
matter is elevated.  Id. at 337 (noting that strength of private
interest increases where employee is terminated and where stigmatizing
statements will affect plaintiff from obtaining future employment in her
profession).  At the same time, the selectboard has an interest in making and explaining
its decision.  Segal v. City of New York, 459 F.3d 207, 215 (2d Cir.
2006).  As to the remaining factor, the risk of an erroneous deprivation
depends in large part “on the effectiveness of the procedures available and the
promptness by which they are afforded.”  Id. 
¶ 33.        
The facts considered in the light most favorable to the nonmoving party
are as follows.  Immediately following plaintiff’s election, she was treated
unfairly by a selectboard that was influenced by the town clerk—her rival in
the election.  In an effort to remove her from office, the selectboard doubled
her bond requirement following a secret meeting on July 1.  The town’s attorney
and the selectboard members contacted all likely sources for the additional
insurance coverage and made false statements about her to ensure that no
company would accept the increased risk.  The board sent plaintiff a letter on
July 1, detailing several accusations, including mismanagement, lying and
fabrication of evidence.  The letter was also sent to potential insurers.  Plaintiff
appeared at the July 12 selectboard meeting and asked to be put on the agenda. 
She requested that the board reconsider the bond increase and attempted to
defend her performance.  She was told by one member: 
[I]t’s driving me crazy.  Every friggen
meeting we come down it’s the same rehash.  And I’m not taking sides, I’m
not—I’m—I’m [on the] side of Irasburg.  I’m [on the] side of Irasburg.
  . . .
I’m sick of it.  
  . . .
Half the people in town are sick of it. 
I’m hearing this every time.  Will you guys get this shit behind you and get it
done. 
  . . .
None of us have done it.  This is the
law.  This is the way the state has set things up to run.  
¶ 34.        
When plaintiff complained that town representatives were calling the
bonding companies to make certain they would not issue the new bond, another
selectboard member responded:
  We’re not—we’re not—we’re not dropping
the increase in the bond, I can tell you that right now.  
  . . . 
  To total of $1 million that you would
have, $1 million in coverage.  Now 500,000 for right now and you need an
additional 500,000 to add up to a million. 
  . . . 
You need to work on it and let us know.  
¶ 35.        
Plaintiff presented sufficient evidence to demonstrate a question of
fact as to whether the July 12 hearing adequately protected her due process
rights.  To remedy a stigma-plus violation through a post-deprivation
name-clearing hearing, due process requires more than a chance to speak.  It
requires an opportunity to clear one’s name before a body which is sufficiently
neutral that a person has some realistic chance of success.  See Patterson,
370 F.3d at 335-36 (explaining that post-deprivation hearing must give
plaintiff “opportunity to hear and answer first-hand any stigmatizing charges,
clearing his name of any false statements made about him, and curing the injury
to his reputation”).  
¶ 36.        
According to plaintiff, she initiated the interaction on July 12 by
appearing at the hearing and requesting that the selectboard reconsider raising
the bond.  While the selectboard granted her request and offered her an
opportunity to speak, the members made no statement of the allegations against
plaintiff at that time.  Because the selectboard did not provide notice in
advance, plaintiff had little opportunity to address each allegation in turn.  Further,
the transcript of the hearing creates a question of fact as to whether
plaintiff had sufficient opportunity to defend herself at the meeting.  The selectboard
members’ comments were rude and dismissive.  There was no occasion for
plaintiff to question the key individuals involved in the allegations or to present
her own evidence on the substance of the allegations.  Cf. Campbell v.
Pierce Cnty., 741 F.2d 1342, 1346 (11th Cir. 1984) (concluding that process
afforded was adequate where claimant was afforded notice of charges and
provided with “opportunity to hear and cross-examine all adverse witnesses and
to attempt to rebut their claims”).[3]
 A factfinder reviewing the above-quoted heated exchange—which is typical of
the statements made at the July 12 meeting—could reasonably conclude that the
selectboard failed to grant plaintiff a sufficient opportunity to clear her
name.[4] 
It was error to make a contrary factual determination in favor of the Town in
the context of summary judgment. 
¶ 37.        
On a final note, on appeal, plaintiff claims that she was entitled to a
predeprivation hearing prior to receiving the July 1, 2010 letter.  We conclude
plaintiff was not entitled to such a hearing in this case.  While deprivations
of a property interest require a predeprivation hearing, when there is a
deprivation of a liberty interest, the process required is a post-deprivation
name-clearing hearing.  See Herrera, 2009 VT 35, ¶ 13 (“When both
the ‘stigma’ and the ‘plus’ are present, the remedy for the due process
violation is a post-deprivation opportunity for the plaintiff to clear his
name.”  (quotation and alteration omitted)).  This makes practical sense in
this case because the reputational damage that forms part of the stigma-plus
claim did not occur until after receipt and publication of the July 1, 2010 letter. 
See Campbell, 741 F.2d at 1345 (explaining that identification of claim
as a deprivation of liberty interest is dispositive of question of whether
predeprivation hearing is required and noting that factual predicate for claim
did not occur until after termination).  
¶ 38.        
Plaintiff also contends that the Town deprived her of a property
interest when the selectboard raised her bond and then made it impossible for
her to obtain such a bond, effectively dismissing her from her position.  In
December 2010, in ruling on the Town’s motion to dismiss plaintiff’s § 1983
claims, the court concluded that plaintiff lacked a property interest in her
elected position, and therefore had failed to state a claim for relief under
§ 1983 for deprivation of a liberty interest.  On appeal, plaintiff renews
her claim, and argues that she had a property interest in not being unlawfully ousted
from office.  
¶ 39.        
We agree with the trial court that plaintiff did not have a property
interest in her elected position.  The U.S. Supreme Court has so held for some
time.  In Taylor v. Beckham, 178 U.S. 548, 577 (1900), the Court stated:
“The decisions are numerous to the effect that public offices are mere agencies
or trusts, and not property as such. . . .  In short,
generally speaking, the nature of the relation of a public officer to the
public is inconsistent with either a property or a contract right.”  Thus, the
Court held that removal of an elected officer did not amount to a deprivation
of a property interest under the Fourteenth Amendment.  Id. at 580; see Velez,
401 F.3d at 85 (holding that elected school board member’s claim that she was
improperly removed from office did not establish deprivation of property
interest protected by Fourteenth Amendment).  The majority of courts agree that
holding onto public office is not a property interest.  Slawik v. State,
480 A.2d 636, 642-44, 644 n.9 (Del. 1984) (explaining that federal and state
courts have consistently held that public officials do not have a property
right to office and citing cases).  This Court has rejected the notion that
public officials have a property interest in serving out their entire elected
term.  See Brennan v. Town of Colchester, 169 Vt. 175, 179-80, 730 A.2d
601, 605 (1999) (holding that planning commission members did not have property
interest in serving entire term where statute stated commissions could be
removed “at any time”).  As an elected official, plaintiff did not have a
property interest in retaining her position in the absence of the liberty claim
compensable in the stigma-plus context.  Therefore, the court did not err in
granting judgment to the Town on the claim of deprivation of a property
interest.
B.  Count 5—Legal Fees Under 24 V.S.A. § 901
¶ 40.        
Under 24 V.S.A. § 901(b), a municipality is required to “assume all
reasonable legal fees incurred by an officer when the officer was acting in the
performance of his duties and did not act with any malicious intent.”  In her
complaint, plaintiff claimed that her legal fees should be paid by the Town
because she was acting in performance of her duties when she brought legal
action to reclaim her office.  The trial court concluded that plaintiff was not
entitled to payment of legal fees because her lawsuit was filed not to further
one of her duties, but instead was a personal matter in which she sought to
defend her position as treasurer. 
¶ 41.        
On appeal, plaintiff argues that her suit was not a personal matter, but
the sole means for her to enforce her right to engage in the duties to which
she was elected.  As part of this claim, plaintiff argues that the Town did not
lawfully remove her from office because the selectboard did not have the power
to raise her bond without a public meeting and a vote.  Plaintiff argues that
because her removal was not effectuated lawfully, her suit was in furtherance
of her duties, and therefore the Town was required to pay for her legal fees
under § 901(b).
¶ 42.        
According to plaintiff, 24 V.S.A. § 832 requires the selectboard to
provide notice, deliberate and take an official vote before requiring an
increase in a bond.  Plaintiff claims that the selectboard did not hold a
public meeting or vote to increase plaintiff’s bond prior to sending the July
1, 2010 letter and therefore she still validly held office.  There is both a
factual and legal question encompassed in plaintiff’s argument—whether the
selectboard was required by the statute to take an official vote and whether
the facts demonstrate that the selectboard indeed voted.  Under § 832:
If the selectboard at any time considers
a bond of any such officer or employee to be insufficient, it may require, by
written order, the officer or employee to give an additional bond in such sum
as it deems necessary. If an officer or employee, so required, neglects for ten
days after such request to give such original or additional bond, his or her
office shall be vacant.
¶ 43.        
We need not reach plaintiff’s argument that the selectboard did not take
a formal vote prior to raising her bond and that she therefore still held
office until the election vote.  Regardless of whether the selectboard followed
the correct procedures under § 832 when it raised plaintiff’s bond requirement,
we conclude the intent of § 901 is not to provide attorney’s fees to
municipal employees who have disputes with the Town regarding the termination
of their employment.  
¶ 44.        
In construing the statutory language, “[o]ur main purpose must be to
find the intent of the Legislature based on a review of the entirety of the
statutory scheme.  Where the meaning of the words chosen is plain, we must give
effect to the words chosen.”  Smith v. Town of St. Johnsbury, 150 Vt.
351, 355, 554 A.2d 233, 237 (1988) (citation omitted).
¶ 45.        
Here, the statute states that the Town is required to “assume all
reasonable legal fees incurred by an officer when the officer was acting in the
performance of his duties and did not act with any malicious intent.”  24
V.S.A. § 901(b).  By its plain language, the provision is limited to
payment of attorney’s fees when the officer was “acting in the performance of
his duties.”  Id.  It permits reimbursement for the cost of defending a
treasurer sued in the course of his or her work.  It does not, however, require
the Town to assume plaintiff’s legal fees in this type of personal action to recover
damages against the Town for improper removal from office.
¶ 46.        
The intent of this subsection is illuminated by looking at the entirety
of § 901.  The section is entitled “Actions by or against town officers.” 
Subsection (a) indicates that when an action is brought by an appointed or
elected municipal officer, “the action shall be brought in the name of the town
in which the officer serves,” or if the action is brought against an officer,
it should be brought against the town.  This indicates that the Legislature
intended § 901 to cover those actions in which the interest of the officer
is coextensive with the interest of the town such that substitution of the
town’s name with the officer’s name does not alter the nature of the action. 
Here, plaintiff is asserting a right that is personal to her and not simply in
pursuit of the town’s interests.  We conclude that the intent of § 901 was
not to require a municipality to reimburse a town officer for legal fees
incurred in a dispute with the municipality about the officer’s position.  
¶ 47.        
Plaintiff cites two out-of-state cases in support of her position that
§ 901 was intended to allow a municipal officer to be reimbursed for legal
fees when the officer was forced to bring an action against the municipality. 
Although we examine each case, we note that generally out-of-state cases on
this topic are not particularly helpful because the statutory language involved
is unique.  
¶ 48.        
The first case involved a school superintendent, who was joined as a
necessary party in a suit by the town council against the board of education
seeking to enjoin an agreement between the superintendent and the board.  King
v. Bd. of Educ. of Watertown, 486 A.2d 1111 (Conn. 1985).  The relevant
statute provided that the board of education is responsible for legal fees
incurred by an employee if the suit is “arising out of any claim, demand, suit
or judgment by reason of alleged negligence or other act” provided that the
employee “was acting in the discharge of his or her duties or within the scope
of employment or under the direction of such board of education.”  Conn. Gen.
Stat. Ann. § 10-235(a).  The trial court denied fees, concluding that the
statute applied only to actions for damages.  King, 486 A.2d at 1114. 
The appeals court emphasized that it was reviewing solely this single issue and
not whether the superintendent’s actions fell within the scope of his
employment.  Id. at 1114 n.4.  The court reversed, holding that the
statute was not limited to damage claims, but extended to suits for injunctive
relief.  Id. 1115-16.  There are obvious factual differences between plaintiff’s
situation and the facts of King, including that plaintiff initiated this
action while the superintendent in King was joined as a necessary
defendant in the suit.  Most importantly, however, King does not assist
plaintiff because it did not reach the relevant factual and legal question of
whether the superintendent was acting in the scope of his employment when he
signed the stipulation.  Id. at 1114 n.4.  
¶ 49.        
The other case cited by plaintiff is closer factually, but did not rely
upon a statute at all.  In Ferrara v. Caves, 475 So. 2d 1295, 1299-1300
(Fla. Dist. Ct. App. 1985), the court held that the town was required pay the
reasonable attorney’s fees of the city mayor and town commissioners who brought
a declaratory judgment action alleging that a recall petition that was filed
was legally insufficient.  The court’s decision was not based on statute, but
on common law in Florida, which allows a public official “to a defense at the
public expense in defending suits or misconduct charges while performing his
public duties and while serving a public purpose.”  Id. at 1299 (citing Lomelo
v. City of Sunrise, 423 So. 2d 974, 976 (Fla. Dist. Ct. App. 1982)).[5] 
Because of the unique common law rule in Florida, this case is not persuasive
on how best to interpret Vermont’s statute.
¶ 50.        
In sum, neither case compels a ruling in plaintiff’s favor.  While some
states have granted attorney’s fees in like situations, there are equally
states that have not.  See, e.g., Castner v. City of Minneapolis, 99
N.W. 361 (Minn. 1904); Leo v. Barnett, 369 N.Y.S.2d 789, 792 (App. Div.
1975) (holding that municipality not liable to pay attorney’s fees of town
officers wrongfully removed from office).  The relevant inquiry is the intent
of the Legislature in drafting the statute, and its language and subject matter
indicate that it was not intended to cover cases such as this.  If plaintiff
prevails, she may be entitled to attorney’s fees under § 1983, but § 901
does not provide such a right.
III.  Second Summary Judgment Order
¶ 51.        
In February 2013, the trial court granted summary judgment to the Town
on counts 1, 3 and 4—violation of Article 8 of the Vermont Constitution, common
law defamation, and tortious interference with performance of office.  The
court based its decision largely on procedural grounds, concluding that
plaintiff had failed to adequately oppose summary judgment.  The court ruled
that plaintiff as the nonmoving party had failed to properly demonstrate issues
of material fact because her response to summary judgment was not supported by
affidavit, deposition or other sworn testimony.  We conclude that the
procedural grounds for granting the motion were inadequate and that the record
in this case, including the July 1 letter and plaintiff’s affidavit, which were
attached to the Town’s motion for summary judgment, clearly demonstrates the
presence of contested facts and a record which—if the evidence favoring plaintiff
is believed—could support a judgment in her favor after trial.[6]

¶ 52.        
Vermont Rule of Civil Procedure 56(c), as amended effective January 23,
2012, sets out a mandatory procedure for demonstrating that “a fact cannot be
or is genuinely disputed.”  V.R.C.P. 56(c)(1).  The party asserting that a fact
is not disputed must file “a separate and concise statement of undisputed
material facts” with citations to the record.  V.R.C.P. 56(c)(1)(A).
¶ 53.        
In this case, the Town was the moving party.  Although the Town included
a lengthy factual discussion in its motion for summary judgment, its Rule 56(c)
statement of undisputed facts was very brief.  It states only that plaintiff
never passed the audit process as required by the selectboard and that the Town
is a member of the Vermont League of Cities and Towns.  To the statement, the
Town attached plaintiff’s affidavit, the July 1, 2010 letter, and plaintiff’s
responses to written discovery.  The statement of facts concludes with three
complaints about plaintiff’s discovery responses and attaches a copy of a
letter from counsel concerning these deficiencies.  There is no concise
statement of the undisputed facts which would support the Town’s argument that plaintiff
was neither defamed nor forced unlawfully out of office. 
¶ 54.        
If the Town’s statement of undisputed facts is weak in its adherence to
Rule 56(c), plaintiff’s response is nonexistent.  Plaintiff filed a memorandum and
a response to the Town’s statement, but did not file her own statement of
disputed facts with reference to the record or in some other way show that the
materials cited by the Town did not establish the absence of a factual dispute. 
V.R.C.P. 56(b), (c)(1) (allowing adverse party to file opposition and statement
of disputed facts and requiring party asserting that fact is genuinely disputed
to support assertion by filing statement of disputed facts supported by
citation to record).  In other words, the Town did not lay out an appropriate statement
of undisputed facts and plaintiff made even less effort to engage in the Rule
56(c) process.  
¶ 55.        
The requirements of Rule 56 are important and where a party does not
adequately dispute a statement of undisputed facts, we have affirmed the
court’s acceptance of those facts as admitted.  See V.R.C.P. 56(e) (stating
that where party fails to properly support assertion, court may, among other
options, consider fact as undisputed); Sperling v. Allstate Indem. Co.,
2007 VT 126, ¶ 19, 182 Vt. 521, 944 A.2d 210.  Here, however, grant of summary
judgment to the Town based solely on plaintiff’s failure to adequately respond
was error for two main reasons.  First, because the Town failed to provide a proper
statement of undisputed facts with citations to the record demonstrating an
absence of any controverted material fact, the burden did not shift to
plaintiff to show the existence of disputed facts.  See Pierce v. Riggs,
149 Vt. 136, 138, 540 A.2d 655, 656-57 (1987) (explaining burden does not shift
to nonmoving party until moving party meets its burden of showing absence of
dispute over material fact).  
¶ 56.        
Second, plaintiff was not required to submit new evidence in support of
her opposition where evidence already in the record supported her position. 
The parties had both previously filed motions for summary judgment, which
contained detailed statements of undisputed facts, with attachments of various
important documents.  The trial court also conducted a two-day evidentiary
hearing on the motion for preliminary injunction.  Certainly, it was not the
trial court’s responsibility alone to search this record for factual disputes,
but the court should not have turned a blind eye to the existence of this
evidence either.  See Pierce, 149 Vt. at 138, 540 A.2d at 657 (explaining
that when deciding Rule 56 motion court should consider entire record,
“including affidavits, depositions, admissions, answers to interrogatories and
similar material”); see also V.R.C.P. 56(c)(3) (allowing court to consider
material in record even if not cited in required statement of facts).  Since
plaintiff’s critical evidence—the July 1, 2010 letter and plaintiff’s
affidavit—were both attached to the Town’s motion for summary judgment, it was readily
apparent that disputed issues of fact existed between the parties.  
¶ 57.        
In addition, plaintiff referenced the letter and facts from her
affidavit in her memorandum in response to the Town’s request for summary
judgment, although she failed to properly submit a statement of undisputed
facts or to include specific references to the record.  In effect, the court
sanctioned plaintiff with dismissal of the case for failing to appropriately
reference the record in her response to summary judgment.  Like the rules concerning
default judgment, the procedure of Rule 56 “should be
liberally construed in favor . . . of
resolving litigation on the merits,
to the end that fairness and justice are served.”  Desjarlais v. Gilman,
143 Vt. 154, 158-59, 463 A.2d 234, 237 (1983).  
¶ 58.        
In other circumstances, the failure of a party to follow the
requirements of Rule 56 could result in the granting or denial of the motion
for reasons of process only.  In this case, however, where neither party has
followed the rule, such a ruling cannot be sustained.  We turn now to the
merits of the remaining claims.  
A.  Count
1—Violation of Chapter I, Article 8
¶ 59.        
In count 1, plaintiff alleged that the Town had applied 24 V.S.A. § 832,
the section allowing the selectboard to raise her bond, in a manner that
violated Chapter I, Article 8 of the Vermont Constitution.  Article 8 provides
that “all voters . . . have a right to . . . be
elected into office, agreeably to the regulations made in this constitution.” 
Vt. Const. ch. I, art. 8.  Plaintiff asserted that by improperly raising her
bond and then removing her from office, the selectboard unlawfully invalidated
the Town vote, which elected plaintiff as treasurer.  The court considered this
claim on the merits and concluded that Article 8 “does not create a right to
retain the office in derogation of a lawful direction to obtain an increased
bond.”  Thus, the court held that the Town’s decision to require an increased
bond under § 832 did not amount to a constitutional violation.
¶ 60.        
On appeal, plaintiff does not present any argument related to this claim. 
Although plaintiff argues that the court erred in granting summary judgment on
procedural grounds, the court’s decision on this count was not based on
procedural considerations, but on the substance of plaintiff’s claim.  Absent
some argument about why the court’s decision was error, appellant has waived
consideration of this issue on appeal.  See State v. Brillon, 2010 VT
25, ¶ 5, 187 Vt. 444, 995 A.2d 557 (declining to consider state constitutional
claim where it was insufficiently raised and briefed); State v. Taylor,
145 Vt. 437, 439, 491 A.2d 1034, 1035 (1985) (concluding appellant failed to
adequately raise issue where brief contained “no specific grounds for the
claim” and explaining that this Court’s role is not “to foretell, through the
art of divination, those issues which the parties deem appropriate for
resolution”).  
B.  Count 3—Defamation
¶ 61.        
As to count 3, defamation, the court considered the six required
elements:
The general elements of a private action
for defamation (libel and/or slander) are: (1) a false and defamatory statement
concerning another; (2) some negligence, or greater fault, in publishing the
statement; (3) publication to at least one third person; (4) lack of
privilege in the publication; (5) special damages, unless actionable per se;
and (6) some actual harm so as to warrant compensatory damages.
Lent v. Huntoon, 143 Vt.
539, 546-47, 470 A.2d 1162, 1168 (1983) (footnote omitted).  Noting that truth
is a complete defense to defamation, the court concluded that plaintiff had
presented nothing more than mere allegations to support her view that there was
a dispute of fact as to the veracity of the Town’s statements in the July 1,
2010 letter.  The court also concluded that plaintiff had failed to support by
affidavit or otherwise her contention that the defaming comments caused her
damage.  Therefore, the court granted summary judgment to the Town.
¶ 62.        
The court’s decision is wholly based on plaintiff’s failure to follow
the procedural requirements of Rule 56.  For the reasons explained above, it
was error for the court to grant the Town summary judgment on this basis alone,
given the Town’s own failure to comply with the rule and the substantial
evidence in the record.  The Town did not delineate in its statement of
undisputed facts or support with citation to the record that plaintiff agreed
the statements in the July 1, 2010 letter were true or that plaintiff was
unharmed by any defaming comments.  Further, although on appeal the Town claims
that several privileges provide a complete defense to this claim, the Town’s
statement of fact does not establish the necessary facts to support the
asserted privileges.  
¶ 63.        
In addition, it is evident from a review of the record that plaintiff
disputes the veracity of the statements in the July 1, 2010 letter, and that
she contends that the defaming comments caused her damage.  For example, in
plaintiff’s July 2010 affidavit, which was submitted along with her original
complaint and request for injunctive relief, plaintiff averred that the July 1 letter
made “unsubstantiated and false accusations.”  Therefore, important facts
remained disputed, and the court’s order granting summary judgment on this
count is reversed.  
C.  Count 4—Tortious Interference with Office
¶ 64.        
Plaintiff’s final claim was for tortious interference with performance
of office.  The court granted the Town summary judgment, concluding that
plaintiff had failed to raise a factual dispute about whether the selectboard
acted maliciously and improperly in attempting to oust plaintiff from office.  Just
as for count 3, the court’s decision here was based on a procedural shortcoming. 
For similar reasons, we conclude that this decision was incorrect.  Because the
Town did not set forth facts in its undisputed statement of fact to establish
that the decisions the selectboard made relating to raising plaintiff’s bond as
treasurer lacked any malicious motivation, the burden to demonstrate a factual
dispute on this point did not shift to plaintiff.  Therefore, plaintiff’s
failure to respond in her reply did not warrant judgment in favor of the Town
of this count. 
¶ 65.        
We conclude, however, that the Town was entitled to judgment on other
grounds.  See In re Cabot Creamery Coop., Inc., 164 Vt. 26, 29, 663 A.2d
940, 941-42 (1995) (explaining that this Court can affirm on different grounds
than relied upon by trial court).  Even when the facts are viewed in the light
most favorable to plaintiff, she has failed to make a prima facie case of
tortious interference.  
¶ 66.        
Tortious interference generally refers to interference with performance
of an existing contract or a prospective contractual relationship.  See Restatement
(Second) of Torts § 766 (2013).  Under this tort, a person is liable if he
“intentionally and improperly interferes with the performance of a
contract . . . between another and a third person by
inducing or otherwise causing the third person not to perform the contract.”  Id. 
While plaintiff styles her claim as one for “tortious interference with
performance of office,” there is no such enumerated tort in our case law, or in
the law of other jurisdictions.  The closest analogy, although imperfect, is
tortious interference in the employment context, which has been recognized in some
states.  See Fellhauer v. City of Geneva, 568 N.E.2d 870, 877-78 (Ill.
1991) (setting out elements of tortious interference with prospective economic
advantage in an employment relationship).  While the elements are described by
courts in various ways, under any definition of this tort, the interference
with the contract or prospective advantage must come from a third party.  See Applied
Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 480 (Cal. 1994) (delineating
elements of intentional interference claim and emphasizing that tort requires
interference from third party, who has no interest in contract); Diederich
v. Yarnevich, 196 P.3d 411, 418 (Kan. Ct. App. 2008) (affirming dismissal
of tortious interference claim on grounds that claim requires interference from
third party unrelated to employment contract); Farrow v. St. Francis Med.
Ctr., 407 S.W.3d 579, 602 (Mo. 2013) (setting forth elements of tortious
interference with contract or business expectancy and explaining that action
will lie against third party only); Rutherfoord v. Presbyterian-Univ. Hosp.,
612 A.2d 500, 507-08 (Pa. Super. Ct. 1992) (explaining that cause of action
“requires three separate parties; parties to a contract or employment
relationship cannot assert this cause of action against each other”).  
¶ 67.        
Here, to the extent that we can apply tortious interference with an
employment relationship to plaintiff’s allegation of tortious interference with
performance of her office, we conclude that plaintiff has failed to meet the
elements of that tort.  Plaintiff alleges that selectboard members interfered
with plaintiff’s performance of her duties as treasurer.  Because the
selectboard members are agents of the Town and not third parties, plaintiff has
failed to allege interference by a third party, and has not pled a prima facie
case for tortious interference.  See Farrow, 407 S.W.3d at 602-03; see Puchalski
v. Sch. Dist. of Springfield, 161 F. Supp. 2d 395, 411 (E.D. Pa. 2001) (holding
that employees acting within scope of employment were not third parties for
purposes of tortious interference claim).  Therefore, the court was correct to
grant judgment to the Town on this count.
¶ 68.        
In sum, the rulings of the trial court are affirmed in part and reversed
in part.  Regarding the first summary judgment order, we reverse the judgment
in the Town’s favor on count 2, the civil rights violation, and affirm judgment
for the Town on count 5, the claim for attorney’s fees under 24 V.S.A. § 901. 
As to the second summary judgment decision, we affirm summary judgment on count
1, the violation of Article 8 of the Vermont Constitution, reverse judgment on
count 3, common law defamation and affirm on count 4, tortious interference. 
Affirmed in part, reversed in
part, and remanded for proceedings consistent with this decision.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 


[1] 
The trial court dismissed claims made by plaintiff against town attorney
Kilmartin.  This aspect of the case was not appealed. 
 


[2] 
Both plaintiff and the trial court relied on Velez v. Levy, 401 F.3d 75
(2d Cir. 2005), to establish the elements of the stigma-plus claim.  In a
stigma-plus case, the liberty interest consists of publicized, false
accusations of misbehavior combined with a tangible loss of position within the
community.  Id. at 87.  A deprivation of this liberty interest may occur
if the stigma-plus events are not followed by an adequate post-removal hearing.
 Id. at 90-92.


[3] 
There is a split among the federal circuit courts as to whether there must be
an opportunity to cross-examine witnesses at a name-clearing hearing to satisfy
due process.  Compare Campbell, 741 F.2d at 1345 (“While the features of
such a hearing itself have been prescribed with substantial flexibility, courts
have required that the claimant have notice of the charges which have been
raised against him, and an opportunity to refute, by cross-examination or
independent evidence, the allegations which gave rise to the reputational
injury.”), with Gunasekera v. Irwin, 678 F. Supp. 2d 653, 663-64 (S.D.
Ohio 2010) (noting circuit split, joining reasoning of Fourth and Seventh
Circuits, and concluding that cross-examination not required at name-clearing
hearing,).  Because the purpose of the hearing is not to determine the
correctness of the discipline, but to allow an opportunity to clear one’s name,
we hold that an opportunity for formal cross-examination is not always required
to satisfy due process.  The formality and procedural requirements of the
hearing vary depending on the interests at stake.  Nonetheless, there must be a
meaningful opportunity to counter the allegations by argument, “and if
necessary, by proof, however informal.”  Endicott v. Huddleston, 644
F.2d 1208, 1216 (7th Cir. 1980).  Here, there was sufficient controverted evidence
to create a question of fact regarding the opportunity plaintiff had to refute
the charges against her.
 


[4]
 Other courts have rejected the contention that due process requires a
differently composed tribunal than the one that rendered the challenged
decision.  See Campbell, 741 F.2d at 1346 (explaining that because
purpose of name-clearing hearing is not to revisit decision, but to clear name,
“the fact that the tribunal was composed of members of the Board of
Commissioners did not impair its ability to preside in an acceptably impartial
manner”).  Therefore, the fact here that the July 12 hearing was conducted
before the same board that imposed the bond increase does not in itself impair
the adequacy of the hearing.


[5] 
There is a relevant statute in Florida, but it is limited to recovery of fees
by prevailing defendants.  See Fla. Stat. § 111.07 (1981).  


[6] 
We also reject the trial court’s ruling that plaintiff’s signature on her
responsive motion is grounds for granting summary judgment.  Plaintiff signed
“on behalf” of Attorney Merriman—evidently because the memorandum was completed
at the last minute.  Attorney Merriman’s name appears in the signature block. 
While we cannot applaud this minimal level of compliance with Vermont Rule of
Civil Procedure 11(a), we do not agree that it warrants entry of judgment
against plaintiff.  


