Wool v. Menard

• Decision Date: 09 March 2018
• Docket Number: No. 2017-044,2017-044
• Citation: 2018 VT 23
• Court: Vermont Supreme Court
• Parties: Kirk Wool v. Lisa Menard, Commissioner, Vermont Department of Corrections

2018 VT 23

Kirk Wool v. Lisa Menard, Commissioner, Vermont Department of Corrections

No. 2017-044

Supreme Court of Vermont

September Term, 2017

March 9, 2018

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@vermont.gov 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.

On Appeal from Superior Court, Washington Unit, Civil Division

Mary Miles Teachout, J.

Kirk Wool, Pro Se, Baldwin, Michigan, Plaintiff-Appellant.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Robert C. Menzel, Jr., Assistant Attorney General, Waterbury, for Defendant-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. REIBER, C.J. Plaintiff Kirk Wool is an inmate in the custody of the Vermont Department of Corrections (DOC). He appeals the dismissal of his claim that DOC and its Commissioner violated a statutory obligation to negotiate and award a contract to provide telephone services to inmates in state correctional facilities in a manner that provides for the lowest reasonable cost to inmates. We affirm the trial court's dismissal of plaintiff's claim for money damages, but reverse the dismissal of plaintiff's claim for mandamus relief and remand for further proceedings.

¶ 2. In June 2016, plaintiff filed a complaint against defendants in the civil division. He alleged that for the past several years, DOC had violated 28 V.S.A. § 802a(d) and Vermont law by failing to use a competitive process to obtain telephone services for inmates. Instead, he alleged, DOC had purchased telephone services from the only company from which it sought a bid. Plaintiff alleged that under "Vermont law," such "sole source" contracts may only be used in "extraordinary circumstances," which did not exist here. According to plaintiff, the company with which DOC contracted charged approximately $8.00 per hour for a telephone call, while competing firms offered rates closer to $3.00 per hour. He argued that DOC had not negotiated and awarded the contract in a manner that provided for the lowest reasonable costs to inmates, as required by § 802a(d), which states that "[a]ny contract to provide telephone services to inmates in state correctional facilities shall be negotiated and awarded in a manner that provides for the lowest reasonable cost to inmates, to their families, and to others communicating with inmates." Plaintiff sought damages equivalent to the difference between the current rates and the lower rates he alleged would be offered by other contractors for calls he had placed.¹

¶ 3. Defendants moved to dismiss plaintiff's claim. Defendants argued that plaintiff lacked standing to challenge the contract because he was not an intended third-party beneficiary of the contract. They further argued that plaintiff's claim for damages was barred by sovereign immunity because it was based upon defendants' performance of a discretionary function and did not have a private analog. Plaintiff opposed the motion to dismiss, arguing that § 802a(d) limited DOC's discretion. He also filed a claim for a writ of mandamus, asserting that DOC had a nondiscretionary duty to provide telephone services at the lowest reasonable costs to inmates.²

¶ 4. The trial court ruled that plaintiff's damages claim was barred by the State's sovereign immunity. It held that plaintiff's claim for relief in the nature of mandamus also failed because plaintiff did not seek enforcement of a purely ministerial act. The court therefore dismissed plaintiff's claims.

¶ 5. On appeal, plaintiff argues that the trial court erred in dismissing his claims for damages and mandamus relief. Although his brief is not a model of clarity, we understand his argument to be that DOC had a nondiscretionary duty to negotiate and award the telephone services contract in a manner that led to the lowest reasonable costs for inmates, specifically by using a competitive bidding process to select the contractor, and that DOC violated this duty. He seeks damages and an order compelling DOC to reopen the bidding process.

¶ 6. We review the trial court's determination of a motion to dismiss de novo, accepting as true all allegations made by the non-moving party. Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998 A.2d 1040; In re Estate of Holbrook, 2016 VT 13, ¶ 14, 201 Vt. 254, 140 A.3d 788. "Motions to dismiss for failure to state a claim are disfavored and should be rarely granted." Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.). A court should not grant a motion to dismiss for failure to state a claim "unless it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997) (quotation omitted).

I. Damages Claim

¶ 7. We first consider whether the trial court properly dismissed plaintiff's damages claim. We conclude that plaintiff failed to demonstrate that the State waived its sovereign immunity such that he may obtain money damages for the alleged violation of § 802a(d), and affirm the trial court's ruling on this issue.

¶ 8. Sovereign immunity protects the State and its components from liability for money damages unless immunity is waived by statute. Jacobs v. State Teachers' Ret. Sys. of Vt., 174 Vt.404, 408, 816 A.2d 517, 521 (2002). "[I]f a statute is silent regarding a waiver of sovereign immunity, then no such waiver exists." Depot Square Pizzeria, LLC v. Dep't of Taxes, 2017 VT 29, ¶ 5, ___Vt.___, 169 A.3d 204. The statute at issue here, 28 V.S.A. § 802a, does not provide for an aggrieved party to obtain money damages in such an action. It therefore does not provide an avenue for plaintiff to obtain the relief he seeks. See In re Williams, 166 Vt. 21, 24, 686 A.2d 964, 966 (1996) (declining to imply waiver of sovereign immunity from statutory silence).

¶ 9. The State has waived its immunity for certain tort claims under 12 V.S.A. § 5601. Section 5601 provides that the State can be held liable for injury to persons or property caused by the negligent or wrongful act or omission of a State employee while acting in the scope of his or her employment, provided that the claim is "comparable to a recognized cause of action against a private person." Sabia v. State, 164 Vt. 293, 298, 669 A.2d 1187, 1191 (1995); 12 V.S.A. § 5601(a). The State remains immune for governmental functions for which there is no private analog. LaShay v. Dep't of Soc. & Rehab. Servs., 160 Vt. 60, 68, 625 A.2d 224, 229 (1993). In order to bring a tort claim for damages against the State, the plaintiff must demonstrate that a private analog exists and that no exception to the State's waiver of sovereign immunity applies. Mellin v. Flood Brook Union Sch. Dist., 173 Vt. 202, 218-19, 790 A.2d 408, 423 (2001).

¶ 10. In this case, the trial court found that there was no private analog that would permit plaintiff's damages claim under § 5601(a). Plaintiff does not challenge this determination on appeal. Instead, he focuses solely on challenging the court's holding that the discretionary function exception set forth in § 5601(e)(1) also barred his claim. Plaintiff's brief is "wholly inadequate" on the issue of availability of damages "because it omits discussion of an essential element of [his] claim." Mellin, 173 Vt. at 219, 790 A.2d at 423. Even if plaintiff were correct that his damages claim is not barred by the discretionary function exception, he has failed to show that a private analog exists, as is required to state a claim for relief under 12 V.S.A. § 5601(a). We therefore decline to disturb the trial court's ruling that plaintiff's claim for damages was barred by sovereignimmunity. See id. at 219, 790 A.2d at 423 (holding that Court would not address plaintiff's argument on appeal that trial court erred in dismissing negligence claim against State on basis of sovereign immunity where plaintiff presented no argument on how her claim was comparable to recognized cause of action against private person, and focused only on discretionary function exception).

II. Claim for Mandamus Relief

¶ 11. However, we agree with plaintiff that the trial court acted prematurely in dismissing his claim for relief in the nature of mandamus. Mandamus is a command from the court to an official, agency, or lower tribunal "to perform a simple and definite ministerial duty imposed by law." Vt. State Emps.' Ass'n, Inc. v. Vt. Criminal Justice Training Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997); see also Bargman v. Brewer, 142 Vt. 367, 369-70, 454 A.2d 1253, 1255 (1983). In order for a court to issue a writ of mandamus, there are three requirements:

(1) the petitioner must have a clear and certain right to the action sought by the request for a writ; (2) the writ must be for the enforcement of ministerial duties, but not for review of the performance of official acts that involve the exercise of the official's judgment or discretion; and (3) there must be no other adequate remedy at law.

In re Fairchild, 159 Vt. 125, 130, 616 A.2d 228, 231 (1992).

¶ 12. In Fairchild, we affirmed the trial court's determination that the petitioners, who were neighboring landowners and interested persons, were entitled to a writ of mandamus compelling the town to enjoin owners of a building from using the property in violation of the town's zoning ordinance. We determined that petitioners met all three criteria for mandamus relief. Id. First, as interested persons, they were affected by the zoning violations and were entitled to enforcement of the ordinance. Id. Second, the statute imposed a ministerial duty on the zoning officer to enforce the ordinance. Id. Third, the official's refusal to perform this nondiscretionary duty left the...