2012 VT 67


Shaddy
v. Brattleboro Retreat, et al. (2011-267)
 
2012 VT 67
 
[Filed 10-Aug-2012]
 
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.
 
 

2012 VT 67

 

No. 2011-267

 

David Shaddy


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windham Unit,


 


Civil Division


 


 


Brattleboro Retreat, et al.


March Term, 2012


 


 


 


 


John
  P. Wesley, J.


 

David Shaddy, Pro Se, Johnson,
Plaintiff-Appellant.
 
Pamela J. Coyne and Timothy E. Copeland, Jr. of Downs Rachlin Martin PLLC, Brattleboro, for
  Defendants-Appellees.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
BURGESS, J.   Plaintiff David Shaddy
appeals the Windham Civil Division’s dismissal of his complaint against the
Brattleboro Retreat and certain employees of the Retreat.  Plaintiff, a
former Retreat employee, brought claims of defamation, obstruction of
justice, intentional infliction of emotional distress (IIED), and intentional
interference with a contract, arising from the Retreat’s allegation that he
unlawfully diverted regulated drugs from the medication room at its
facility.  The court dismissed the entire complaint on the ground that,
having been resolved in proceeding before the Department of Labor and in
plaintiff’s criminal case, the issue of whether plaintiff diverted the drugs
was res judicata.  The court also stated
alternative grounds for dismissing all of the claims against the individual
defendants, as well as the IIED, obstruction-of-justice, and
intentional-interference-with-a-contract claims against both the individual
defendants and the Retreat.  Plaintiff argues that the court erred in
dismissing his claims on the basis of res judicata
and by failing to properly consider his complaint in light of his pro se
status.  We reverse the court’s dismissal of the defamation claim against
the Retreat, but otherwise affirm its decision.
¶ 2.            
Plaintiff worked for the Retreat as a nurse from September 2007 through
most of January 2008.  During that time, the Retreat became aware that
someone was tampering with packets of a regulated drug, Adderall
XR, in the medication room of its facility.  After reviewing the work
schedules of its employees, the Retreat focused its investigation on
plaintiff.  It arranged for plaintiff to be in charge of the medication
room on the evening of January 20, 2009 and instructed all other nurses not to
enter the room without being observed by another nurse.  At the end of
plaintiff’s shift, the Retreat discovered that capsules of Adderall
XR had been tampered with in a similar manner to prior incidents.  Shortly
thereafter, the Retreat fired plaintiff.
¶ 3.            
Plaintiff sought unemployment-compensation benefits from the Department
of Labor.  The Employment Security Board denied benefits on the ground
that plaintiff was fired for gross misconduct.  After plaintiff’s first
appeal to this Court resulted in a remand, see Shaddy
v. Dep’t of Labor, 2009 VT 103, 186 Vt. 633, 987 A.2d 311 (mem.), the Board once again determined that plaintiff was not
entitled to benefits because he was fired for gross misconduct.  Upon
plaintiff’s renewed appeal, we affirmed the Board’s decision, concluding that
“the evidence was more than sufficient to support the Board’s denial of
benefits” on the grounds stated.  Shaddy
v. Dep’t of Labor, No. 2010-231, 2010 WL 7789084, at *1 (Vt. Dec. 8, 2010)
(unpub. mem.), available
at: http://www.vermontjudiciary.org/d-upeo/upeo.aspx. 

¶ 4.            
The incident led to criminal charges in the Windham Criminal
Division.  After his criminal trial ended with a hung jury, plaintiff pled
no contest to an amended charge of possession of a stimulant in violation of 18
V.S.A. § 4234(a)(1).  The amended information
alleged that plaintiff was in possession of the regulated drug after removing
granules from capsules contained in dispensing packages located in the
Retreat’s medication room.  
¶ 5.            
Plaintiff was also the subject of disciplinary proceedings before the
Office of Professional Regulation’s Board of Nursing.  The proceeding
before the Board of Nursing also ended in a settlement in the form of a
Stipulation and Consent Order (the Order).  The Order stated that
plaintiff was neither admitting liability nor disputing “that the State could
prove these charges by a preponderance of the evidence if this matter went to a
hearing.”  The most specific of these charges read that, in
violation of 26 V.S.A. § 1582(7), plaintiff “engage[d] in conduct of a
character likely to deceive, defraud or harm the public which include[d], but
[was] not limited to, diverting supplies, equipment, or drugs for personal or
other unauthorized use.” 
¶ 6.            
In January 2011, plaintiff filed a complaint against defendants alleging
counts sounding in defamation, obstruction of justice, intentional infliction
of emotional distress, and intentional interference with a contract. 
Plaintiff’s defamation count alleged that on January 20, 2008, and January 21,
2008, the Retreat, through multiple employees and on three different occasions,
leveled false accusations that he was the only person with the opportunity to
divert, and thus by implication did divert, Adderall XR
from the medication room during three separate time periods in November 2007
and January 2008.  It further alleged that on January 23, 2008, the
Retreat, through one of its employees, falsely accused plaintiff of taking
drugs from a Retreat patient.
¶ 7.            
Defendants moved to dismiss the complaint in its entirety based on the
doctrine of res judicata because each allegation was
or could have been litigated in prior proceedings before the Department of
Labor and the Windham Criminal Division.  Defendants also moved under
Vermont Rule of Civil Procedure 12(b)(6) to dismiss
all counts except the defamation count for failure to state a claim upon which
relief could be granted.  Finally, the individual defendants moved to
dismiss the entire complaint for failure to allege any act or omission by any
one of them in his or her individual capacities.
¶ 8.            
Plaintiff did not respond to defendants’ motions, and on April 28, 2011,
the court granted the motions and dismissed the complaint.  Quoting Lamb
v. Geovjian, 165 Vt. 375, 381, 683 A.2d 731, 735
(1996), for the proposition that the doctrine of res judicata
precludes a litigant “from using defenses available in one action as a basis
for a claim in a later action,” the court concluded that all of plaintiff’s
claims in this case centering around an alleged conspiracy and false statements
were identical to plaintiff’s defenses that were addressed in the prior
proceedings.  The court reasoned that res judicata
barred the claims “because the central question of his misconduct with respect
to the handling of medications during his term of employment at the Retreat has
already been fully litigated and resolved in favor of the Retreat.”  As
independent grounds for dismissal, the court also concluded that: (1) plaintiff
had failed to identify any separate legal basis for obtaining a judgment
against any of the individual defendants; (2) the obstruction-of-justice count
failed because plaintiff made no showing that a civil court could impose a
civil judgment for alleged criminal wrongdoing; and (3) the facts alleged in
the complaint were insufficient as a matter of law to support a claim for
intentional infliction of emotional distress.  The court subsequently
denied plaintiff’s motion for reconsideration.
¶ 9.            
Plaintiff’s main claim on appeal is that the court erred in dismissing
his complaint based on the doctrine of res judicata.[1]  He does not challenge the court’s
independent bases for dismissing all claims against the individual defendants,
and all claims but the defamation claim against the Retreat.  All that
remains, therefore, is whether the court properly dismissed the defamation
claim against the Retreat as res judicata, a question
of law we consider de novo.  See In J.A., 166 Vt. 625, 626, 699 A.2d 30, 31 (1997) (mem.)
(“Issues not briefed are waived.”); In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d 712 (reiterating
that questions of law are subject to de novo review).
¶ 10.         Plaintiff
raises three distinct reasons why the proceedings before the Windham Criminal
Division, Board of Nursing, and Department of Labor should not preclude his
defamation claim.  First, he argues that under Vermont Rule of Evidence 410(2)
his nolo contendere plea
cannot be used against him in his civil suit.  Second, he posits that the
Retreat was neither a party to the Board of Nursing
proceeding nor in privity with the Attorney General’s
office.  Last, plaintiff submits that under 21 V.S.A. § 1353 the
disposition of his unemployment compensation proceeding before the Department
of Labor cannot bar his suit.[2]
We hold that under Rule 410(2) and § 1353, respectively, neither plaintiff’s
criminal plea, nor the result of his unemployment compensation proceeding, can
bar his defamation claim.  We further hold that, under our decision in Trepanier v. Getting Organized, Inc., 155 Vt.
259, 583 A.2d 583 (1990), the order settling plaintiff’s Board of Nursing proceeding
is likewise too vague to constitute a final judgment on the merits and
therefore that it does not preclude plaintiff’s claim.  Accordingly, we
reverse the trial court’s dismissal of plaintiff’s defamation suit against the
Retreat and remand this matter for proceedings consistent with this opinion. 
¶ 11.         We
first address whether either plaintiff’s criminal plea or the outcome of his
unemployment compensation proceeding bars his defamation claim against the
Retreat.  Neither does.  Under the pertinent rule of evidence, a plea
of nolo contendere “is not,
in any civil or criminal proceeding, admissible against the defendant.”  V.R.E. 410(2).  Accordingly, plaintiff’s nolo contendere plea to criminal
possession of a stimulant arising from his employment at the Retreat has no
preclusive effect on his defamation suit.  Similarly, 21 V.S.A. § 1353,
addressing the collateral import of unemployment compensation claims
proceedings, provides that:
 
Any determination . . . made by . . . the employment security board . . . in
any type of proceeding under this chapter is binding only between the
department and all parties in that proceeding and is not binding, conclusive or
admissible in any separate or subsequent action between an individual and his or
her present or former employer brought before [a] . . . court or judge of this
state . . . regardless of whether the prior proceeding was
between the same or related parties or involved the same facts. 
 
Under § 1353, therefore, the
Board’s findings and conclusions reached in denying plaintiff’s claim for
unemployment compensation benefits are likewise inadmissible in, and cannot
bar, his defamation claim. 
¶ 12.         We
next consider whether the disposition of plaintiff’s proceeding before the
Board of Nursing precludes his defamation suit.[3]  At the threshold, we note that
while the trial court held that res judicata barred
plaintiff’s defamation claim against the Retreat, it is the doctrine of
collateral estoppel, or issue preclusion,
that is more precisely at issue here.  Res judicata
“bars the litigation of a claim or defense if there exists
a final judgment in former litigation in which the parties, subject matter and
causes of action are identical or substantially identical.”  Lamb, 165 Vt. at 379, 683 A.2d at 734 (quotation omitted). 
On the other hand, collateral estoppel bars a party
from re-litigating an already-decided issue where there has been a full and
fair opportunity to litigate that issue by the same party in a prior, if not
necessarily the same, proceeding.  See Trepanier,
155 Vt. at 265, 583 A.2d at 587 (outlining the
elements of collateral estoppel). 
¶ 13.         In
this case, plaintiff is not attempting to re-litigate a once-resolved claim
between the parties.  Rather, the Retreat contends that plaintiff had his
opportunity to dispute the charge of drug diversion but elected to accept a
disciplinary sanction in lieu of contesting the matter.  If the complaint
to the Board was admitted, the Retreat contends, the truth of plaintiff’s drug
diversion from its medication room would be an absolute defense to his
defamation claim.  See Russin v.
Wesson, 2008 VT 22, ¶ 5, 183 Vt. 301, 949 A.2d 1019 (“Truth is a complete
defense to defamation.”).  Because the crux is whether the latter
issue—the truth of the Retreat’s accusation against plaintiff—was, as the trial
court held, “fully litigated and resolved in favor of the Retreat,” the
applicable doctrine is collateral estoppel, not res judicata. 
¶ 14.         Stepping
into the merits, the question is whether the settlement of the Board of Nursing
proceeding, as reflected in the Order, meets the criteria for collateral estoppel set forth in Trepanier. 
In Trepanier, we held that preclusion should
be found when:
(1) preclusion is asserted against one who was a party or
in privity with a party in the earlier action; (2)
the issue was resolved by a final judgment on the merits; (3) the issue is the
same as the one raised in the later action; (4) there was a full and fair
opportunity to litigate the issue in the earlier action; and (5) applying
preclusion in the later action is fair.
 
155 Vt. at 266, 583
A.2d at 587.  Under the first criterion, “the
critical inquiry is whether the party to be bound has had a full and
fair opportunity to contest an issue resolved in an earlier action so that it
is fair and just to refuse to allow that party to re-litigate the same
issue.”  Id. at 266, 583 A.2d at 588 (emphasis added). 
Here, this criterion is satisfied because the Retreat seeks to bind plaintiff,
who was a party to the Board proceeding.
¶ 15.         Under
these facts, however, the second criterion, resolution of an issue by final
judgment, is not met.  Just like indefinite terms cannot bind parties to a
contract, an indefinite stipulation, unclear about what it settles, cannot be
preclusive.  See Evarts v. Forte, 135 Vt. 306, 310, 376 A.2d 766,
769 (1977) (“Vagueness, indefiniteness and
uncertainty of expression as to any of the essential terms of an agreement have
been held to preclude the creation of an enforceable contract.”). 
Assuming, without deciding, that a stipulated administrative judgment could
have preclusive effect as argued by the Retreat, it must at least describe
the factual and legal issues being resolved with enough specificity so as to
precisely identify what those issues are.  
¶ 16.         In
this case, the stipulated Order was too vague to resolve the issue of whether
the Retreat’s allegedly defamatory statements are true.  Pursuant to the
Order, plaintiff agreed that the State could prove by a preponderance of the
evidence that he “engage[d] in conduct of a character likely to deceive,
defraud or harm the public which include[d], but [was] not limited to,
diverting supplies, equipment, or drugs for personal or other
unauthorized use” in violation of 26 V.S.A. § 1582(7).[4]  (Emphasis added.)  This
charge, unlike the Retreat’s particular accusations set forth as defamation in
plaintiff’s complaint, reads in the disjunctive and fails to specify
plaintiff’s misconduct, so that plaintiff can be understood to admit to
preponderant proof of diversion of “supplies” or “equipment” to the public
detriment, but not necessarily to diversion of drugs.  That plaintiff
generally admitted the State could prove misconduct which just possibly
included drug diversion does not establish the truth of the Retreat’s specific
defamatory allegation that plaintiff thrice diverted a regulated drug.  In
short, for want of specificity, the Order does not establish the truth of the
Retreat’s supposed allegations and thus does not preclude plaintiff’s
defamation suit.  Accordingly, dismissal of plaintiff’s defamation count
against the Retreat is reversed, and this matter is remanded for further
proceedings consistent with this opinion.[5]
Reversed and
remanded. 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
After oral argument, plaintiff filed a document with this Court “complaining”
that defendant’s attorney made certain “dishonest” statements during her
argument, along with a series of documents supposedly supporting plaintiff’s
innocence of the allegations against him. We reject plaintiff’s
characterization of defendant’s attorney as dishonest and consider the
allegations in his “complaint” as attempting to raise a factual dispute not at
issue in this appeal.  Moreover, plaintiff’s submission of additional documentation
regarding the merits of the underlying charges against him was an attempt to
improperly expand the record in this case, and these documents were not
considered in deciding his appeal.
 


[2] 
We note that in the proceeding below, plaintiff failed to respond to
defendant’s motion to dismiss until after the court issued its April 28
decision granting dismissal.  On May 10, plaintiff filed a reply to
defendant’s motion to dismiss, in which he argued that under Rule of Evidence
410(2) his nolo contendere
plea could have no preclusive effect on his defamation suit.  Though
calling his arguments “untimely,” the court considered plaintiff’s reply, but
saw no reason to reverse its decision.  Plaintiff’s reply, however, did
not raise § 1353 in response to the court’s reliance
on his Department of Labor proceeding to hold that his suit was res judicata.
 
On appeal, we address plaintiff’s arguments under both
Rule 410(2) and § 1353—despite their imperfect preservation—because of the
greater flexibility afforded pro se litigants with respect to our preservation
rules, and because the rule and the statute expressly defeat the rationale of
the trial court’s decision.  See In re Entergy Nuclear Vermont Yankee,
LLC, 2007 VT 103, ¶ 12, 182 Vt. 340, 939 A.2d 504 (noting that this Court “afford[s] pro se litigants greater
flexibility with respect to the preservation rules”); State
Highway Bd. v. Sharrow, 125 Vt. 163, 164, 212
A.2d 72, 73 (1965) (explaining that while pro se litigants retain no greater
protection against unfavorable outcomes, “this Court will [not] permit unfair
imposition or unconscionable advantage to be taken of one who acts as his own
attorney”).
 


[3]  The Nursing Board proceeding was
ongoing at the time defendant filed its motion to dismiss, but was completed
before the court granted the motion.  As a result, the court did not
conclude that plaintiff’s defamation suit was res judicata
based on the Order, but only based on the outcome of plaintiff’s criminal case
and unemployment compensation proceeding.  Nevertheless, we address the
issue of whether the Order precludes plaintiff’s defamation claim because it is
likely to arise on remand and is purely a question of law.  See Agency
of Natural Res. v. Deso, 2003 VT 36, ¶ 12, 175
Vt. 513, 824 A.2d 558 (addressing issue not preserved for appeal because it
could arise on remand).
 


[4] 
Reference to § 1582(7) repeats only that the misconduct charged must be of a
type “likely to deceive, defraud, or harm the public” without lending any
specificity to what the misconduct was.


[5] 
Deciding his appeal on this basis, we do not address plaintiff’s argument that,
given his pro se status, the trial court failed to construe his complaint “to
do substantial justice.”



