Normandy v. Martin, No. S0278-04 CnC (Norton, J., Jan. 11, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT                                      SUPERIOR COURT
Chittenden County, ss.:                           Docket No.S0278-04 CnC



NORMANDY

v.

MARTIN




                                  ENTRY

        Plaintiff Kimberlie Normandy filed a two-count complaint against
Defendant Raymond Martin alleging sexual assault and battery and
intentional infliction of emotional distress. She now moves for partial
summary judgment on the issue of liability, arguing that Martin’s plea of
guilty to a criminal charge of sexual assault for the same incident precludes
him from now litigating the facts of the assault. For the reasons stated
below, Normandy’s motion for partial summary judgment is granted for the
issue of liability on Count I, sexual assault and battery, and denied for the
issue of liability on Count II, intentional infliction of emotional distress.
        Summary judgment is granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any . . . show that there is no genuine issue as to any material
fact and that any party is entitled to judgment as a matter of law.” V.R.C.P.
56(c)(3). In determining whether a genuine issue of fact exists, the
nonmoving party receives the benefit of all reasonable doubts and
inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15. Allegations
to the contrary must be supported by specific facts sufficient to create a
genuine issue of material fact. Id. “A summary judgment, interlocutory in
character, may be rendered on the issue of liability alone although there is a
genuine issue as to the amount of damages.” V.R.C.P. 56(c)(3).

                                      FACTS

       The following facts are undisputed. On August 24, 2002, Martin
engaged Normandy in a sexual act. Normandy reported this incident to
police as non-consensual, and Martin was charged with sexual assault, to
wit: “by having contact between his penis and K.N.’s?? vagina, and
compelling said K.N. to participate in the sexual act without her consent.”
He pleaded guilty to this charge on May 6, 2003. State v. Martin, No.
5848-08-02 CnCr (Burgess, J., May 6, 2003). The District Court accepted
Martin’s plea after determining that there was a sufficient factual basis for
the plea and finding the plea to be voluntary, made with knowledge and
understanding of the consequences.

                                  DISCUSSION

       Normandy argues that collateral estoppel applies to Martin’s guilty
plea and precludes re-litigation of his culpability. Martin contends that

       1
           K.N. refers to Plaintiff Kimberlie Normandy.
collateral estoppel does not apply to subsequent civil litigation when a
defendant merely pleads guilty to the issues involved in a criminal
proceeding. He maintains that the factual issue of Normandy’s consent to
the sexual contact remains to be litigated and that summary judgment
would be premature at this time.

       In Vermont, the crime of sexual assault is defined as:
       A person who engages in a sexual act with another person and
              (1) Compels the other person to participate in a sexual act:
                     (A) Without the consent of the other person; or
                     (B) By threatening or coercing the other person; or
                     (C) By placing the other person in fear that any
                     person will suffer imminent bodily injury

13 V.S.A. § 3251. Thus by pleading guilty to the charge, Martin admitted
that he engaged in a sexual act with Normandy; that he compelled this act;
and that he did not have her consent. The question is whether Martin
should be able to re-litigate this position in the present, succeeding
litigation.

                              Collateral Estoppel

        Collateral estoppel precludes a party from re-litigating an issue that
was decided against the party in an earlier action. Berlin Convalescent
Center v. Stoneman, 159 Vt. 53, 56 (1992). Collateral estoppel applies
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 to the later action is fair.”
Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265 (1990). In
particular, a list of non-exclusive factors is available to help determine
whether a situation satisfies the last two factors. That list includes: the
incentive to litigate, the foreseeability of future litigation, and the legal
standards and burdens employed in each action. Id.; see also Berlin
Convalescent Center, 159 Vt. at 57.

        Normandy seeks to use a form of estoppel known as “cross-over
estoppel”—where one party claims that an issue decided in a criminal
proceeding is precluded in a subsequent civil case, or vice versa. State v.
Stearns, 159 Vt. 266, 268 (1992) (citing People v. Gates, 452 N.W.2d 627,
630 (Mich. 1990)). The use of cross-over estoppel has been recognized
approvingly by the Vermont Supreme Court: “We see no barrier, however,
to the application of the [cross-over estoppel] doctrine in such a case as
long as the standards of proof are the same and no right of trial by jury is
affected.” Stearns, 159 Vt. at 268. While the Court has dealt with this
issue, it has done so in the limited context of prior civil judgments crossing
over into criminal prosecutions. In Stearns, for example, the use of cross-
over estoppel was denied to a defendant in a criminal case for drunk driving
after the defendant had successfully litigated his innocence in a prior civil
suspension hearing. Id. at 272. The Court held that the determinations
made in a civil suspension hearing should not be given preclusive effect
because of the purpose and design of a civil suspension hearing was to
provide speedy and summary justice. Id. at 271; see also 18B C. Wright, et
al., Federal Practice & Procedure: Jurisdiction 2d § 4474, at 412 (2002)
(noting that acquittals “seldom provide any basis for preclusion”).
Similarly, in State v. Brunet, 174 Vt. 135 (2002) a defendant was denied
the use of collateral estoppel in a criminal proceeding after successfully
litigating an issue at a probation violation hearing. The Court found that
the limited purpose of a probation hearing meant that the State did not a
have the same opportunity and incentive to litigate as it would in the
criminal proceeding. Id. at 140–43. The lower standard of proof in the first
proceeding further supported denying use of collateral estoppel. Id. at 141.
Since the present case is a criminal case where a higher standard of proof
was in effect, where the defendant had a full opportunity and a high
incentive to litigate, the primary concerns of Stearns and Brunet are
inapplicable.

       Looking to other jurisdictions that have dealt with cross-over
estoppel, there is a split over the preclusive use of guilty pleas to criminal
charges in subsequent civil cases. State Farm Fire and Casaulty Co. v.
Fullerton, 118 F.3d 374, 378–82 (5th Cir. 1997) (collecting cases). These
courts have also applied different sets of elements in arriving at their
various conclusions. Compare James v. Paul, 49 S.W.3d 678, 682 (Mo.
2001) (applying a four factor test), with Aetna Casualty & Surety Co. v.
Niziolek, 481 N.E.2d 1356, 1364 (Mass. 1985) (citing two factors—no
factual finding that the defendant committed the crime and no possibility of
inconsistent factual findings—to deny collateral estoppel). Applying the
Vermont law of collateral estoppel and the reasoning of other jurisdictions
where appropriate, the court finds that collateral estoppel does apply to
Martin’s guilty plea.

       While the first element of collateral estoppel is clearly met by the
undisputed fact that Martin was a party to the prior criminal case, the
second element raises the difficult question of whether the plea of guilty
resulted in a judgment on the merits. The Vermont Supreme Court has not
explicitly ruled on this issue and other jurisdictions differ in their answers.
Compare James, 49 S.W.3d at 683 (plea of guilty constitutes a judgment on
the merits when plea was voluntary and judge determined that a factual
basis existed for the plea), with Safeco Insurance Co. of Am. v. Liss, 2000
MT 380 ¶ 48 (“a guilty plea does not constitute a judgment on the merits”);
see also 18B Wright, et al., at § 4474.1 (criticizing the use of collateral
estoppel for prior guilty pleas). Notwithstanding this lack of general
consesus, there are several persuasive reasons for treating a guilty plea as a
judgment on the merits.
         Many of the courts that have applied collateral estoppel to guilty
pleas emphasize the procedural safeguards in place to ensure that the plea is
meaningful. A majority of states “cannot accept a plea of guilty in a felony
case unless the defendant is found to be mentally competent, the plea is
freely and voluntarily given, and a factual basis exists for the plea.” James,
49 S.W.3d at 686 (citing Fullerton, 118 F.3d at 381). In Vermont and this
case in particular, a district court must ensure that a plea is voluntary and
that the defendant made a knowing waiver of his rights. V.R.Cr.P. 11(c) &
(d). The district court is also required to “make such inquiry as shall satisfy
it that there [was] a factual basis for the plea.” V.R.Cr.P. 11(f). Here the
court did this by asking Martin directly whether he had had sex with
Plaintiff against her will. Martin answered an unequivocal yes. Only then
did the court accept Martin’s plea.

       The language of Rule 11 and its Reporter’s Notes lend further
support. The rule itself describes the acceptance of a guilty plea as a
“judgment.” V.R.Cr.P. 11(f). The Reporter’s Notes appear to have
contemplated use of a guilty plea for issue preclusion when, in explaining
the use of the alternative plea of nolo contendere, it states that a “defendant
may desire to avoid the preclusive effect of a guilty plea or conviction upon
a plea of not guilty in later civil or criminal litigation.” Reporter’s Notes,
V.R.Cr.P. 11 at 57 (emphasis added). This language stands in contrast to
the rules of a state such as Massachusetts that does not view a guilty plea as
a judgment on the merits. See Niziolek, 481 N.E.2d at 1364. The
Massachusetts equivalent of Rule 11 avoids mention of the word
“judgment” in connection with guilty pleas and has no equivalent to
Vermont’s Reporter’s Note. Mass.R.Crim.P. 12. The Vermont Rule’s
procedural safeguards to ensure the truthfulness of the plea coupled with its
description of acceptance of a guilty plea as a “judgment” and notes
regarding the difference between the pleas of guilty and nolo contendere all
weigh in favor of satisfying the second element.
       The third element of collateral estoppel, whether the current issue is
the same as the one previously litigated, is also met. Martin was charged
with and pleaded guilty to engaging in a sexual act with Normandy and
compelling Normandy to participate without her consent. See 13 V.S.A. §
3252(a)(1). This conduct satisfies the elements of sexual assault and
battery. Assault is any gesture or threat of violence exhibiting an intention
to cause harmful or offensive contact. Kent v. Katz, 146 F. Supp. 2d 450,
462–63 (D.Vt. 2001) (citing Bishop v. Ranney, 59 Vt. 316, 318 (1887)).
Battery requires both an intention and actual contact to have occurred. Id.
at 463 (citing Restatement (Second) of Torts § 13 (1977)). See In re Estate
of Peters, 171 Vt. 381, 389 (2000) (evidence of sexual contact without
consent was sufficient to prove intentional battery). Normandy’s allegation
of sexual assault and battery involves the identical issues present in the
criminal sexual assault case.

        The fourth element, that Martin have had a full and fair opportunity
to litigate, is also satisfied. Hearings at which the rules of evidence or
procedure are suspended are generally not full and fair opportunities.
Summary process-type proceedings, for example, often lack a full and fair
opportunity to litigate because of their emphasis on efficiency. See Stearns,
159 Vt. at 271-72 (civil suspension); Cold Spings Farm Dev., Inc. v. Ball,
163 Vt. 466, 469-70 (small claims); Brunet, 174 Vt. at 141 (probation
revocation). The party need only have had an opportunity to litigate an
issue and need not have taken advantage of the opportunity. Ball, 163 Vt.
at 470. In the present case, Martin was not prevented from going forward
with a full trial. Martin was provided with all due process rights available
to a criminal defendant. Other jurisdictions have held that where a
defendant who pleaded guilty was given all due process rights, the
defendant had a full and fair opportunity to litigate. See State Mutual Ins.
Co. v. Bragg, 589 A.2d 35, 37 (Me. 1991). As already discussed, Martin
was apprized of his right to a trial at the time he entered his plea and
voluntarily turned it down. No greater opportunity to litigate short of actual
litigation can be imagined.

       The fifth element requires the court to consider the overall fairness
of applying collateral estoppel to this guilty plea. As previously noted, a
number of states do not apply collateral estoppel to guilty pleas. These
opinions have primarily relied on section 85 of the Restatement (Second) of
Judgments cmt. 5, indicating that for preclusion purposes a distinction
should be made between a plea of guilty and a finding of guilt. The
Restatement’s analysis of the issue has been called into question, however,
James, 49 S.W.3d at 686-87, and the general trend is toward applying
collateral estoppel in a civil proceeding following a plea of guilty. Id. at
686; Fullerton, 118 F.3d at 381.

        The fairness factors to consider, including incentive to litigate and
the legal standards employed, also militate for application of collateral
estoppel. Martin was charged with a felony and, though he avoided jail
time with his plea, Martin had a strong incentive to litigate so as to avoid a
suspended sentence of five to fifteen years and a criminal record. Martin
was aware at the time he pleaded guilty that the State had the burden to
prove his guilt beyond a reasonable doubt. The fact that a civil case
requires his actions to be proven by the lesser standard of a preponderance
of the evidence further supports the use of issue preclusion in this situation.
Cf. State v. Pollander, 167 Vt. 301, 306-07 (1997) (holding that the State’s
failure to prove defendant’s guilt at a criminal trial for drunk driving does
not preclude State from relitigating defendant’s intoxication in a civil
suspension hearing because of the differing standards of proof).

                               Judicial Estoppel

       Finally, the defendant’s proposed position in this litigation, that
Normandy consented to the sexual act, is precluded on a separate ground of
judicial estoppel. This doctrine—separate from collateral estoppel—
protects the integrity of the court by preventing a litigant from adopting two
positions that are clearly contradictory when the first has been accepted by
the court. New Hampshire v. Maine, 532 U.S. 742, 750 (2001). As a
leading treatise describes its application:

       Courts do not relish the prospect that an adept litigant may succeed
       in proving a proposition in one action, and then succeed in proving
       the opposite in a second. . . . Absent any good explanation, a party
       should not be allowed to gain an advantage by litigation on one
       theory, and then seek an inconsistent advantage by pursuing an
       incompatible theory.

18B Wright, et al., at § 4477, at 551–53; see also note, Judicial Estoppel
and Inconsistent Positions of Law Applied to Fact and Pure Law, 89
Cornell L. Rev.191 (2003). In this case, Martin pled guilty to a crime that
necessarily included the fact that he initiated a sexual act with Normandy’s
consent. In return, he gained the benefit of a reduced sentence. Martin
cannot come to this court and disavow his implicit and explicit admission
or maintain a defense based on re-litigating the question of consent, which
has been settled. The result, if successful, would create two inconsistent
judgments and the possibility that Normandy’s legitimate right of recovery
was defeated. Cf. Lowery v. Stovall, 92 F.3d 219, 220, 224–25 (4th Cir.
1996). For these reasons, Martin is also judicially estopped from
relitigating the issue of consent and is bound by his guilty plea.
                            Summary Judgment

        Normandy moved for partial summary judgment on the issue of
liability. After finding collateral estoppel and judicial estoppel apply to
Martin’s plea of guilty for sexually assaulting Normandy, no genuine issues
of material fact remain for the claim sexual assault and battery. As
discussed above, the elements of the crime to which Martin pleaded guilty
satisfy all elements of the torts of assault and battery. Compare 13 V.S.A. §
3252(a)(1) with Kent, 146 F. Supp. 2d at 462–63 (describing elements of
both assault and battery).

        Normandy’s motion appears to also seek partial summary judgment
for intentional infliction of emotional distress. The statement of undisputed
facts includes only facts relating to Martin’s guilty plea. The elements of
intentional infliction of emotional distress include more than the act of an
intentional assault. There must be a finding that such conduct was
outrageous and that the Normandy suffered extreme emotional distress.
Dalmer, 174 Vt. at 171. Martin’s guilty plea does not address those
elements. Though collateral estoppel will preclude Martin from litigating
the issue of the assault itself, genuine issues of material fact remain as to
those elements of Count II.

       Accordingly, Plaintiff Kimberlie Normandy’s motion for partial
summary judgment is granted for the issue of liability on Count I, sexual
assault and battery and denied for the issue of liability on Count II,
intentional infliction of emotional distress.



       Dated at Burlington, Vermont this ___ day of January, 2005.
__________________________
             Presiding Judge
