On
Appeal from Superior Court, Franklin Unit, Civil Division
Thomas Z. Carlson, J.
Darren
Couture, Pro Se, Newport, Plaintiff-Appellant.
Caitlyn Trainer, Pro Se, St. Albans, Defendant-Appellee.
Jean
L. Murray, Vermont Legal Aid, Inc., Montpelier, for
Defendant-Appellee Britini Trainer.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
JJ.
REIBER, C.J.
¶
1. Father appeals from a summary judgment order dismissing
his defamation, negligence, and monetary claims against
mother and her sister (aunt). In his complaint, father
alleged that mother and aunt coached daughter into saying
"Daddy hit me" and submitted defamatory audio and
video recordings of daughter's statements to his parole
officer. Father also alleged that mother made false
statements to his parole officer and in mother's petition
for relief from abuse. The trial court ruled that these
recordings and statements were absolutely privileged. Father
also brought several monetary claims against mother premised
on his allegation that he had loaned money to mother. The
exact legal theories behind these monetary claims were not
explicitly detailed in father's complaint, and the trial
court imputed legal theories to those claims before
dismissing them. On appeal, father argues that the court (1)
erred in concluding that the recordings and statements are
protected by absolute privilege and that they should instead
be protected only by qualified privilege, (2) erred in
dismissing his monetary claims against mother, and (3) abused
its discretion in denying his motion for a court-appointed
expert. We affirm the superior court's entry of summary
judgment on all claims except for those monetary claims
indicated below.
¶
2. Because the trial court resolved this case on summary
judgment without making findings regarding all the facts, the
following recitation of facts comes from father's
complaint, mother's response, and various affidavits
filed by the parties in the trial court. After father's
release on parole from prison, father and mother began a
relationship and had daughter together. Father, mother, and
daughter lived together in an apartment. As part of his plan
that he and mother would eventually buy a house together,
father not only paid the rent for December 2013 and paid off
mother's credit card bills, but also paid the
apartment's power bill, half the rent for a shared
storage unit, and other similar expenses. During that same
month, the couple had a falling out and ended their
relationship, and father was escorted from the apartment.
Pursuant to a later court order, mother and father had joint
custody of daughter, but father was to have no direct contact
with mother. Instead, mother was to drop off daughter with
father's sister at her residence, and father was to pick
up daughter from there.
¶
3. Both parties agree that early in the morning of March 20,
2014, father picked up daughter directly from mother's
residence, notwithstanding the court order that pickup was to
be arranged through father's sister. Father claimed that
this pickup was specifically at mother's demand. Mother
alleged that at 7:10 a.m. that day, a staff member from
daughter's child-care facility called her and told her
that father had called the facility to say that he was not
bringing daughter to the facility and to ask the staff not to
tell mother. Father stated that he had noted worrisome signs
in daughter, so he called the Department for Children and
Families (DCF) Hot Line for advice. Father alleged that the
DCF Hot Line employee told him that his daughter was showing
signs of sexual abuse and recommended that he bring daughter
to a doctor. According to father, the DCF employee also
recommended that father contact his parole officer before
bringing daughter to the doctor, which he did.
¶
4. Later that same day, mother filed a petition for relief
from abuse against father in the superior court on behalf of
herself and daughter. In the petition, mother alleged that on
March 8, 2014, daughter-then two years old-told mother and
aunt that "Daddy hit me." Mother indicated that
daughter first made the statement in the car after mother
picked up daughter from a visit with father and then repeated
it when they arrived at home. Mother also indicated that she
and aunt made an audio recording of daughter repeating her
statements that day and a video recording of daughter
repeating her statements the next day. Mother did not include
copies of the recordings in her petition for relief from
abuse.
¶
5. Also on March 20, 2014, mother and aunt contacted
father's parole officer with an oral version of
substantially the same complaint and submitted the recordings
to the parole officer. Father was arrested for a parole
violation based on mother's complaint. On the original
violation report, the parole officer wrote that father's
violation of parole was based on the fact that "[o]n
March 20, 2014 [mother] reported to the Department of
Corrections that [father] had struck his daughter." The
report continued, "[p]lease refer to the attached audio
and video files." On the supplemental violation report,
the parole officer also noted that father violated the parole
condition stating that "[y]our Supervising Parole
officer has the authority to restrict people you associate
with." The parole board met on April 1, 2014, to discuss
father's case and subsequently revoked his parole because
he had remained in contact with mother in violation of a
court order-namely, the parole condition. Father was
reincarcerated.
¶
6. Father then filed two different suits. The first was
against mother for money damages based on defamation and
negligence, as well as monetary claims. These monetary claims
were premised on his allegation that he had loaned money to
mother during their relationship. The second was against aunt
for money damages for defamation and
negligence.[1] Father claimed that aunt had aided mother
in falsifying the video and had supported mother in filing
her petition for relief from abuse. As part of his suit
against aunt, father filed a motion for a court-appointed
expert to show that the recordings were falsified because
daughter had been coached into saying "Daddy hit
me." This motion was denied. Mother then filed a motion
to dismiss for failure to state a claim, and aunt filed a
motion for summary judgment.
¶
7. The trial court converted mother's motion to dismiss
into a motion for summary judgment and consolidated the two
suits based on common questions of law and fact. The court
then granted mother's and aunt's motions for summary
judgment, even after assuming for purposes of assessing the
summary judgment motions that the audio and video recordings
had been "falsified as alleged." In doing so, the
court determined that mother's statements to law
enforcement officers-including the video recordings, even if
false-were protected by absolute privilege. It recognized
that the modern trend is toward recognizing absolute
privilege in the case of false statements made in these
circumstances: the Restatement (Second) of Torts and a
growing number of jurisdictions recognize absolute privilege
for statements made as preliminary steps to judicial or
quasi-judicial proceedings. See, e.g., Ledvina v.
Cerasani, 146 P.3d 70, 73 (Ariz.Ct.App. 2006);
Hopkins v. O'Connor, 925 A.2d 1030, 1036 (Conn.
2007); Hartford v. Hartford, 803 N.E.2d 334, 338
(Mass. App. Ct. 2004).
¶
8. The court also cited several public policy reasons for
determining that mother's statements were protected by
absolute privilege. It reasoned that absolute privilege
minimizes the exposure of victims of violence to the risk of
defamation claims when they report incidents of abuse. In the
court's view, if only qualified privilege were to apply,
then defamation claims would survive summary judgment
relatively easily on the fact question of "good" or
"bad" motive. According to the court, the
reasonable and economic use of judicial resources militates
in favor of addressing the ...