SCOVT reverses order granting Anti-SLAPP motion because the speech underlying the claim was not made in connection with a public issue; also holding the failure to take interlocutory appeal did not preclude challenge to the order. Affirms summary judgment dismissing defamation claim, holding - even if summary judgment was based on discovery sanction precluding use of evidence =- no special finding was required to support the discovery sanction, and that plaintiff in any event failed to demonstrate evidence of pecuniary loss specifically attributable to the claim or other actual harm, as required to support a defamation claim.

  Polak  v. Ramirez-Diaz, 2025 VT 9 [2/28/2025]

EATON, J.   Plaintiffs appeal the trial court’s order granting defendants’ special motion to strike plaintiffs’ claims of defamation, malicious prosecution, and intentional infliction of emotional distress (IIED) pursuant to Vermont’s anti-SLAPP law, 12 V.S.A. § 1041.  We conclude that the court erred in granting the special motion to strike because the speech underlying the affected claims—defendants’ allegedly false statements to police and the court accusing plaintiffs of criminal activity—was not made in connection with a public issue.  We therefore reverse the order granting the motion to strike and remand for further proceedings on the claims that were stricken. 

Plaintiffs also challenge a discovery sanction imposed by the trial court for plaintiffs’ failure to respond to defendants’ interrogatories and requests for production related to their remaining defamation claim, arguing that it amounted to dismissal without the requisite findings.  However, we hold that the court acted within its discretion in imposing the discovery sanction and affirm that order and the subsequent order awarding summary judgment to defendants on the related defamation claim.  

Despite court order plaintiffs did not timely produce the requested discovery, The court denied defendants’ request for dismissal but prohibited plaintiffs from introducing at trial any evidence that plaintiffs should have disclosed in response to defendants’ discovery requests. .” Citing John v. Med. Ctr. Hosp. of Vermont, Inc., 136 Vt. 517, 519,  (1978), plaintiffs argue this order effectively amounted to a dismissal of the defamation claim without sufficient findings. But our cases carefully distinguish imposition of a sanction of dismissal or default from a sanction that effectively results in dismissal. No special findings are required when there is no outright dismissal or default.  Stella ex rel. Estate of Stella v. Spaulding, 2013 VT 8, ¶ 22,  State v. Howe Cleaners, Inc., 2010 VT 70, ¶ 22, The sanction precluding plaintiff from offering certain evidence, was not a dismissal, and no special findings were required.  Stella, 2013 VT 8, ¶ 22.

 Plaintiffs failed to respond to defendants’ requests or the court’s orders, despite having had nearly nine months to do, and the court did not abuse its discretion by prohibiting them from submitting evidence relating to those discovery requests.  

 The court’s decision awarding summary judgment on the defamation claim, is supported by the record. Plaintiffs failed to demonstrate that they had evidence to support their defamation claim.   “To survive a defendant’s motion for summary judgment, the plaintiff must respond with specific facts to raise a triable issue and demonstrate sufficient admissible evidence to support a prima facie case.”  Gates v. Mack Molding Co., 2022 VT 24, ¶ 14, 216 Vt. 379, 279 A.3d 656; Cate v. City of Burlington, 2013 VT 64, ¶ 11, 194 Vt. 265, 270, 79 A.3d 854 (“A party opposing summary judgment may not rest on allegations or denials, but must demonstrate, with citations to the record, that a fact is genuinely disputed.”). 

The court granted summary judgment to defendants on the defamation claim, noting that in their response to defendants’ statement of undisputed facts, plaintiffs did not provide specific citations to parts of the record that demonstrated a genuine dispute as to any factor  identify any specific defamatory statements or produce evidence of pecuniary loss, attorney’s fees specifically attributable to the claim, or other actual harm, as required to support a defamation claim. Even when they finally responded to defendants’ interrogatories, they did not identify any specific defamatory statements or produce evidence of pecuniary loss, attorney’s fees specifically attributable to the remaining claim, or other actual harm. Thus, summary judgment on the defamation claim was appropriate.

Plaintiffs argue that because defendants did not seek an immediate appeal from the trial court’s decision on the anti-SLAPP motion.  defendants’ challenge to the anti-SLAPP decision is untimely. Defendants rely on 12 V.S.A. § 1041(g), which states: “An order granting or denying a special motion to strike shall be appealable in the same manner as an interlocutory order under Rule 5 of the Vermont Rules of Appellate Procedure.”

 

Viewed in context, § 1041(g) clarifies that, for purposes of Vermont law, an order granting or denying an anti-SLAPP motion is not a collateral final order.  Instead, it is an interlocutory order that must satisfy the Rule 5 criteria to be immediately appealed. . However, § 1041(g) does not state that an order resolving a motion to strike is only appealable under Rule 5, and we decline to read such a requirement into the statute. 

Absent an express indication of a contrary intent from the Legislature, we conclude that a timely appeal from a final judgment preserves a challenge to an interlocutory order resolving an anti-SLAPP motion.  We therefore have jurisdiction to consider plaintiffs’ claims

The trial court’s May 13, 2024, order awarding partial summary judgment is affirmed.  The trial court’s August 17, 2021, order granting defendants’ motion to strike is reversed and the matter is remanded for further proceedings on plaintiffs’ remaining claims.