Politi v. Tyler

751 A.2d 788, 170 Vt. 428, 2000 Vt. LEXIS 40

• Court: Supreme Court of Vermont
• Decided: April 7, 2000
• Docket: 98-245
• Status: Published

Opinions

Amestoy, C.J.

Defendant Dr. Janet Tyler appeals a Chittenden Superior Court decision denying her motion for dismissal and for judgment on the pleadings, as well as her summary judgment motion against plaintiff Frances Politi in this suit for malpractice and intentional infliction of emotional distress. Defendant argues that it was error for the court to reject her motions to dismiss and for judgment on the pleadings because she had judicial immunity or, in the alternative, witness immunity. Defendant also argues that she is entitled to summary judgment against plaintiff’s malpractice claims because the statute of limitations has expired, or in the alternative, because she owed plaintiff no duty of care. Plaintiff cross-appeals, arguing that the court erred in dismissing her intentional-infliction-of-emotional-distress claims because it incorrectly measured the discovery date of her injury. We affirm.

Plaintiff and her husband, David Alexander, were divorced in 1990 pursuant to an order of the Chittenden Family Court. In early 1993, plaintiff was involved in a custody and visitation dispute with her ex-husband regarding their minor child. On March 18, 1993, the Chittenden Family Court issued an order that read: “Forensic evaluation will be done. . . . Counsel to let us know [within] a week who to engage for a forensic evaluation.” The evaluation was intended to assist the court in determining the best interests of the child pursuant to 15 V.S.A. § 667(b).

Defendant, a licensed psychologist, contracted with plaintiff and Mr. Alexander to conduct the evaluation, with all fees to be paid equally by the parties. During May and June 1993, defendant met with plaintiff, the child, the ex-husband, and others whom the parties identified as having information relevant to the custody proceeding. In June 1993, defendant prepared a report detailing her psychological evaluation, which she distributed to the parties in September 1993. Defendant testified about her evaluation and recommendation before the family court on March 22,1994. On May 5,1994, plaintiff and her ex-husband stipulated to a modified custody agreement.

On May 5,1997, plaintiff brought suit against defendant for slander, malpractice, and intentional infliction of emotional distress. Plaintiff alleged that as a result of defendant’s breach of her duty to professionally perform the forensic evaluation and defendant’s subsequent testimony based on that evaluation, plaintiff was forced to stipulate to joint custody with David Alexander of her youngest son and forced to continue to fight for the custody of her son.

Defendant filed a motion to dismiss and for judgment on the pleadings or, in the alternative, a motion for summary judgment. Defendant claimed she had absolute judicial immunity as a court appointed expert. In the alternative, defendant contended that she had immunity as a witness in a judicial proceeding; that all of plaintiff’s claims were barred by the statute of limitations; that her testimonial privilege precluded plaintiff’s claim for slander; and that she did not owe any duty to plaintiff that would support a malpractice claim. The court rejected defendant’s judicial immunity defense. The court declined to dismiss the malpractice claim, concluding that defendant owed a duty of care to plaintiff and that the claim included economic damages governed by a six-year statute of limitations. The court dismissed plaintiff’s intentional-infliction-of-emotional-distress claim because the statute of limitations had expired. Plaintiff agreed to dismissal of her slander claim.

Defendant now appeals, arguing that the superior court erred in rejecting her claim of judicial immunity. Defendant further contends that the court failed to consider her argument that witness immunity precludes plaintiff’s claims even if the court correctly concluded that defendant was not entitled to judicial immunity. Defendant also asserts that the court erred in holding that she owed a duty of care to plaintiff. Finally, defendant argues that the court erred in determining that the applicable statute of limitations for plaintiff’s claim is six years. Plaintiff cross-appeals, arguing that her intentional-infliction-of-emotional-distress.claim was filed within the applicable three-year statute of limitations.¹

For defendant’s claims that she is entitled to judgment as a matter of law on the pleadings, we consider all the factual allegations in the pleadings of the nonmoving party and all reasonable inferences that can be drawn from them to be true and allegations to the contrary by the moving party to be false. See In re Estate of Gorton, 167 Vt. 357, 358, 706 A.2d 947, 949 (1997). Similarly, for defendant’s claims that she is entitled to summary judgment, as well as plaintiff’s cross-appeal that summary judgment on her intentional-infliction-of-emotional-distress claim was improper, we apply the same standard as the trial court: summary judgment is appropriate when the record clearly indicates there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Lane v. Town of Grafton, 166 Vt. 148, 150, 689 A.2d 455, 456 (1997). In determining whether a genuine issue of material fact exists, we regard as true all allegations of the nonmoving party supported by admissible evidence, and we give the nonmoving party the benefit of all reasonable doubts and inferences. See id.

I. Defendant’s Immunity Arguments

Defendant makes two immunity claims, either of which she asserts bars plaintiff’s lawsuit: first, defendant argues that she is entitled to judicial immunity; in the alternative, she claims that she is entitled to witness immunity.

A. Judicial Immunity

A determination of whether judicial immunity exists is a question of law. See Lavit v. Superior Court, 839 P.2d 1141, 1444 (Ariz. Ct. App. 1992); LaPlaca v. Lowery, 134 Vt. 56, 57, 349 A.2d 235, 235 (1975) (stating that review inquires “whether the lower court committed error in finding that the doctrine of judicial immunity sheltered the words complained of”). Vermont has long recognized the doctrine of judicial immunity. See LaPlaca, 134 Vt. at 57-58, 349 A.2d at 236 (“Vermont law has included a doctrine of judicial immunity which applies to judges, attorneys, and witnesses, since [1838.]”). However, judicial immunity extends only during the performance of an act which was judicial, and within the claimant’s general authority. See id. at 58, 349 A.2d at 236; Polidor v. Mahady, 130 Vt. 173, 174, 287 A.2d 841, 843 (1972) (“This immunity does not reach beyond judicial acts.”).

Defendant asserts that each of plaintiff’s claims arise from allegations related to defendant’s conduct as a court appointed expert. Defendant points to other jurisdictions that have held court appointed psychiatrists and psychologists in custody matters are entitled to absolute immunity when fulfilling quasi-judicial functions. See Lavit, 839 P.2d at 1144-45 (cases cited therein regarding such immunity issues). Observing that Vermont “has not yet addressed the issue of immunity for experts who perform court ordered evaluations,” defendant asserts that the facts of this case squarely present us with the issue. We disagree because we conclude that defendant was not a court appointed expert. The superior court correctly decided that the duties imposed on defendant arose from her contract with the parties, not from a quasi-judicial function performed pursuant to a family court order.

We begin by noting that the evaluation performed by defendant was not ordered by the family court pursuant to its authority under Rule 5(a) of the Rules for Family Eroceedings, which provides:

[I]n any proceeding of the family court the court may order a physical or mental evaluation of a party or of a person who is in the custody or legal control of a party or may order a home study. The court shall select the physician or other expert who will perform the evaluation or home study, and shall consider the names of persons submitted by the parties. The court shall determine who pays the cost of such evaluation and may order a party, the parties, or the court or some combination thereof to pay.

V.R.F.E 5.² The court’s March 18,1993 order, which simply states that a “[florensic evaluation will be done” and that “counsel to let us know within a week who to engage for a forensic evaluation,” is not a sufficient order under those rules to categorize defendant as a court appointed expert entitled to immunity.³ Contrary to defendant’s current characterization of her role as a “court appointed expert,” the language of defendant’s contract with the parties is devoid of any suggestion that defendant was acting as an arm of the family court. Three excerpts from defendant’s contract suffice to demonstrate that she did not view herself as an expert assigned by the court to perform the evaluation. First, the contract states that defendant “ha[s] been requested to do an evaluation and a written report” and makes no reference to a court appointment. Second, the contract states “I am willing to be retained by both of you to perform the evaluation and furnish a report in connection with Court proceeding upon the following conditions, which must be accepted by you.” Third, the contract explicitly states that defendant’s evaluation and testimony is predicated not upon the authority granted by a court order, but instead upon payment by the parties:

I will not be called upon to furnish my report to any person nor to file the same in Court or discuss its contents in any way until all of my fees for services and the services of any consultants I may have retained have been paid in full.

In denying defendant’s claim of judicial immunity, the superior court observed that the duties required of defendant “were imposed by a contract with the parties for her professional services and [are] comparable with what is expected of any expert witness jointly selected by litigants.” The public policy arguments advanced by defendant for granting immunity to a court appointed psychologist may have persuasive force, but the facts of this case do not provide a basis upon which to conclude defendant was performing a judicial or quasi-judicial function pursuant to a court directive.

B. Witness Immunity

While conceding that the superior court found nothing in defendant’s performance that would set her apart as a judicial officer, defendant argues that the court failed to address the issue of witness immunity. Defendant’s witness immunity claim relies primarily on Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983), where the U.S. Supreme Court held that a lawsuit against police officers based on their alleged perjured testimony could not be brought because witness immunity protected the officers. Defendant is correct in arguing that such an immunity protects the actual testimony she gave in family court on March 22,1994, and plaintiff concedes that she may not predicate a claim on witness testimony. See Deatherage v. Examining Bd. of Psychology, 948 P.2d 828, 830 (Wash. 1997) (“The defense of absolute privilege [of witness immunity] generally applies to statements made in the course of judicial proceedings and acts as a bar to any civil liability.”).

To the extent that defendant’s assertion of witness immunity was intended to insulate her from liability for statements she made on the witness stand, the trial court’s dismissal of the slander and intentional-infliction-of-emotional-distress claims render the issue moot as to those claims. Defendant argues that as to the malpractice claim witness immunity should preclude a complaint based on defendant’s actions in conducting a forensic evaluation and preparing a report. Defendant’s expansive interpretation of witness immunity would extend the doctrine to nontestimonial acts outside a judicial proceeding. Neither the decision of the United States Supreme Court in Briscoe nor the precedents of this Court provide a foundation for doing so. See, e.g., Torrey v. Field, 10 Vt. 353, 414 (1838) (“This privilege, or immunity, for words spoken, extends equally to . . . parties, witnesses, jurors, judges and counsel, in courts of justice (emphasis added).

II. Defendant’s Duty of Care Argument

Defendant also argues that her only duty was to assist the family court in its determination of the best interest of the child in connection with custody and visitation, and that she thus owed no duty of care to plaintiff. Defendant owed whatever duties of care to plaintiff — and, for that matter, plaintiff’s ex-husband — the contract provided. See Peters v. Mindell, 159 Vt. 424, 429, 620 A.2d 1268, 1271 (1992) (“Accompanying every contract is an implied duty to perform with care, skill, reasonable expedience and faithfulness.”). A determination on plaintiff’s negligence claims stemming from defendant’s alleged breaches of this duty should proceed accordingly. Thus, defendant’s summary judgment motion on plaintiff’s malpractice claim was properly denied.

III. Defendant’s Statute of Limitations Argument

Defendant asserts that the superior court erred in its application of a six-year statute of limitations to plaintiff’s malpractice claim. Plaintiff’s malpractice claim included the following allegation:

As a proximate cause of the Defendant’s actions the Plaintiff was forced to seek counseling and was unable to continue in her career as a real estate broker, and was unable to work for long periods of time.

Defendant argues that the court erred by looking to the nature of the damages claimed by plaintiff rather than the nature of the harm done. See Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 575, 367 A.2d 677, 680 (1976). The court relied on our decision in Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595 (1990), in which we held that claims resulting in “mental anguish, emotional distress, and personal humiliation” were covered under 12 V.S.A. § 512(4)’s three-year statute of limitations, id. at 291, 583 A.2d at 599-600, but that damages sought by plaintiff for “economic losses that do not constitute personal injuries” fell under 12 V.S.A. § 511’s six-year limitation. Id. at 293, 583 A.2d at 601.

In Fitzgerald, as in the case before us, the plaintiff’s claim of malpractice sought personal injury damages for emotional distress but “[s]ome of the damages sought by plaintiff . . . [were] for economic losses that do not constitute personal injuries.” Id. We determined that the plaintiff’s claim included costs incurred by her to secure the return of her child. Here, to the extent plaintiff’s claim of damages for work interruption is for economic losses incurred in the effort to retain custody of her child, they fall within the limitations of 12 V.S.A. § 511, and the court did not err in its application of a six-year statute of limitations to those economic losses.

IV. Plaintiff’s Cross-Appeal

Plaintiff cross-appeals the court’s dismissal of her intentional-infliction-of-emotional-distress claim. She argues that the statute of limitations did hot begin until May 5,1994, when she stipulated to the family court’s order expanding her ex-husband’s custody and visitation of the minor child because that is when she suffered her injury. Plaintiff concedes that her claim falls under 12 V.S.A. § 512(4)’s three-year statute of limitations, and we have held that a cause of action under § 512(4) accrues when a party discovers or reasonably should have discovered her injury. See University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 290-91, 565 A.2d 1354, 1356-57 (1989).

In the presence of plaintiff, defendant testified in the custody proceeding before the family court on March 22, 1994. Plaintiff’s theory of defendant’s liability for the intentional infliction of emotional distress is premised on defendant’s responsibility for plaintiff losing sole custody of her son. Plaintiff’s own pleadings allege that “as a direct result of [defendant’s] testimony” in favor of the ex-husband having custody over the child, plaintiff “was forced to modify her parental rights and responsibilities.” An action accrues on the date an individual discovers the cause of action. See Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 526, 496 A.2d 154, 160 (1985). Here, the trial court correctly concluded that plaintiff should have reasonably discovered the injury on or before March 22, 1994. Indeed, the significance of the date of defendant’s testimony to the computation of the three-year statute of limitations was implicitly recognized by plaintiff, who mistakenly alleged the critical date of defendant’s testimony to be May 5,1994, and then filed the complaint on May 5, 1997, exactly three-years later. Plaintiff’s attempt to minimize the significance of defendant’s testimony to the accrual of the intentional-infliction-of-emotional-distress claim is belied by plaintiff’s pleading. The court correctly concluded that plaintiff’s claim for the intentional infliction of emotional distress is barred by § 512(4)’s statute of limitations.

Affirmed.

1 Each party filed a “supplemental appendix” after the time for the filing of the printed case and supplemental appendix had expired. See VR.A.E 30(a), (b). We grant plaintiff’s motion to exclude defendant’s supplemental appendix and defendant’s motion to exclude plaintiff’s supplemental appendix.

2 We agree with the dissent that the consequences of not having defendant appointed by court order are “painfully apparent.” 170 Vt. at 437, 751 A.2d at 795. We disagree that the “oversight” is irrelevant. Id. In each of the cases cited by the dissent in support of extending quasi-judicial immunity, the expert was appointed by court order. See Lavit, 839 P.2d at 1142 (“This case involves an issue of statewide importance for court-appointed psychologists . . . .”) (emphasis added); Lythgoe v. Guinn, 884 P.2d 1085, 1086 (Alaska 1994) (court appointed independent investigator in custody dispute); Howard v. Drapkin, 271 Cal. Rptr. 893, 894 (Ct. App. 1990) (parties’ stipulation for use of expert signed by court and converted into an order); Seibel v. Kemble, 631 P.2d 173, 174 (Haw. 1981) (court appointed psychiatrists to serve on sanity commission); S.T.J. v. P.M., 556 So. 2d 244, 245 (La. Ct. App. 1990) (court appointed psychologists to perform evaluations in custody dispute); LaLonde v. Eissner, 539 N.E.2d 538, 539 (Mass. 1989) (court appointed psychiatrist to evaluate family in visitation dispute); Duff v. Lewis, 958 P.2d 82, 84 (Nev. 1998) (court appointed psychologist to assess children in custody dispute); Delcourt v. Silverman, 919 S.W.2d 777, 779 (Tex. App. 1996) (court appointed psychologist to evaluate family in custody dispute); Parker v. Dodgion, 971 P.2d 496, 497 (Utah 1998) (court appointed psychologist to evaluate family in custody dispute).

3 The parties entered into a contract with defendant in May 1993. Neither the parties’ counsel, nor defendant, informed the family court of the agreement.