Hoeker v. Dept. of Social & Rehabilitation Services

Hoeker v. Dept. of Social & Rehabilitation Services (99-260); 171 Vt. 620;
765 A.2d 495 


[Filed 25-Oct-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-260

                            SEPTEMBER TERM, 2000


Kathleen M. Hoeker	                }	APPEALED FROM:
                                        }
                                        }
     v.	                                }	Windsor Superior Court
                                        }	
Department of Social and Rehabilitation	}
Services and Sally Lindberg	        }	DOCKET NO. 176-4-96 Wrcv

                                                Trial Judge: Richard W. Norton


             In the above-entitled cause, the Clerk will enter:


       Plaintiff Kathleen Hoeker appeals from an order of the Windsor
  Superior Court granting  defendant Department of Social and Rehabilitative
  Services (SRS) summary judgment on her claim  for damages against SRS. 
  This dispute arises out of a contract between plaintiff and SRS for 
  plaintiff to serve as a foster parent.  Plaintiff claims that SRS was
  negligent in breaching the contract  by failing to provide wraparound
  services.  We affirm.

       In December 1989, plaintiff began serving as a foster parent for
  J.P.S., a juvenile previously  adjudged to be a child in need of care or
  supervision (CHINS) under 33 V.S.A. § 5526.  J.P.S.  received additional
  services such as counseling and respite care, collectively called
  wraparound  services, through Northeastern Family Institute (NFI), an
  organization providing professional  therapeutic foster care services to
  emotionally disturbed children.  In March 1992, plaintiff and her  husband
  moved to Alabama and took J.P.S. with them after consulting with SRS. 
  Prior to the move,  plaintiff discussed the move with Sally Lindberg,
  J.P.S.'s social worker at SRS.  At that time,  plaintiff alleges that
  Lindberg promised to arrange for extensive supplemental services for J.P.S.
  in  Alabama, such as were being provided in Vermont by NFI.

       Upon arriving in Alabama, plaintiff discovered that SRS had not
  arranged for supplemental  services in advance and those services that were
  available in Alabama were not commensurate with  those available through
  NFI.  Plaintiff contacted Lindberg in Vermont on several occasions in 
  attempts to secure the provision of wraparound services for J.P.S.  In
  response, SRS proposed a  contract that would govern the relationship
  between plaintiff and SRS.  Plaintiff consulted with an  attorney,
  negotiated several changes to the contract and signed the document in
  November 1992.

       In April 1993, J.P.S. assaulted plaintiff, causing permanent injury to
  her thumb.  Shortly  thereafter, plaintiff terminated the contract with SRS
  and returned J.P.S. to Vermont.  Plaintiff filed  suit against SRS claiming
  that SRS's failure to provide wraparound services in Alabama caused her 

 

  injury.  The trial court granted defendant's motion for summary judgment
  holding that enforcement  of any prior oral agreement between Lindberg and
  plaintiff to provide wraparound services is barred  by a merger clause in
  the written contract.  On appeal, plaintiff claims that 1) the merger
  clause does  not exclude the oral agreement; 2) in any event she is not
  bound by the merger clause; and 3) SRS  failed to provide wraparound
  services as required by the written contract.  She argues that the written 
  contract, by its terms, incorporated a duty to provide wraparound services,
  and that the statutory and  regulatory regime governing SRS, which she
  claims is part of the contract, also includes these duties.

       Before turning to the merits, we address defendant's motion to dismiss
  the notice of appeal as  untimely, in violation of V.R.A.P. 4.  At the time
  of its decision in February 1999,  the trial court  filled out an "Entry
  Regarding Motion" form and the court clerk entered "case closed" on the
  docket.  Defendant claims that this entry is sufficient to begin tolling of
  the 30 day appeal period.  In May  1999, the court signed a formal Final
  Judgment order.  Plaintiff did not file a notice of appeal until  June
  1999, within 30 days of this order.  Plaintiff contends that the court's
  judgment did not become  final, and thus subject to appeal, until this
  later date.  We agree.  As we made clear in Baker v. Town  of Goshen, 169
  Vt. 145, 150, 730 A.2d 592, 596 (1999), a court must approve and sign a
  written  judgment order for the decision to be final.  The docket entry of
  the court's decision is not an entry of  judgment and does not commence the
  running of the appeal period.  See id.   The "Entry Regarding  Motion" that
  serves as a directive to the clerk is not a written judgment order.  In
  this case, the judge  provided the written judgment order required by
  V.R.C.P. 58 on May 12, 1999.  Therefore, plaintiff  had thirty days from
  that date in which to file notice of appeal, which she did.

       Turning to the merits, we first clarify the type of claim that
  plaintiff raises.  Despite plaintiff's  attempt to characterize her claims
  as negligence-based, the more persuasive analysis is that her  claims are
  based on breach of contract.  Plaintiff claims that her damages are a
  result of defendant's  failure to provide wraparound services to J.P.S., a
  duty allegedly owed under the contract between  the parties. 
  Alternatively, plaintiff claims that those services were promised by a
  prior oral  agreement between the parties.  Under either claim, the 'duty'
  that defendant purported to breach  arose out of a contract, rather than
  common law or statute.  See Lapoint v. Dumont Construct. Co.,  128 Vt. 8,
  10, 258 A.2d 570, 571 (1969) ("action for breach of duty arising out of a
  contract of  employment ... is based on failure to perform the special
  arrangement regardless of negligence"). (FN1) Because the obligations of
  the parties are defined only by contract, the plaintiff's claim is 
  governed by contract law.

       On appeal from summary judgment, we use "the same standard as the
  trial court" and will 

 

  affirm summary judgment "if there are no genuine issues of material fact
  and the moving party is  entitled to judgment as a matter of law."  Granger
  v. Town of Woodford, 167 Vt. 610, 611, 708 A.2d 1345, 1346 (1998) (mem.);
  see also V.R.C.P. 56(c).  Plaintiff's principal argument is that the entire 
  agreement between the parties includes the prior oral representations made
  to her by Lindberg about  SRS's obligation to provide wraparound services
  in Alabama.  Enforcement of any prior oral  agreement, however, is barred
  by a merger clause in the written contract.  Among the terms of the 
  contract, Attachment C, "Contract for Services, Customary State Contract
  Provisions," included the  following clause:

    1. Entire Agreement.  This contract represents the entire
    agreement  between the parties on this subject matter.  All prior
    agreements,  representations, statements, negotiations, and
    understandings shall  have no effect.

  Generally, a 'merger clause,' such as the one here, is designed to avoid
  the confusion created when  parties may have several agreements or
  contracts between them prior to completing a written  agreement.  The
  merger clause confirms that the contract is "adopted by the parties as a
  complete and  exclusive statement of the terms of the agreement." 
  Restatement (Second) of Contracts §210 (1979)  (emphasis added).  Thus the
  written contract becomes the exclusive medium for determining the 
  understanding of the parties, see Dartmouth Sav. Bank v. F.O.S. Assocs.,
  145 Vt. 62, 69, 486 A.2d 623, 626-27 (1984), and prior agreements covering
  the same subject matter are unenforceable, see  United Park Ass'n v.
  Ringuette, 168 Vt. 603, 606-07, 719 A.2d 884, 887-88 (1998) (mem.).

       In this case, the "Entire Agreement" clause expressly states that the
  written agreement  controls the intent of the parties on all aspects of
  foster care for J.P.S.  Any promises made by  Lindberg about the
  availability of services in Alabama are covered by this clause.  There is
  no  evidence that this contract involved fraud or misrepresentation.  See
  Ben & Jerry's Homemade, Inc.  v. La Soul, Inc., 983 F. Supp. 504, 506-07
  (D. Vt. 1997) (reviewing elements of fraud and duress  under Vermont law). 
  In fact, plaintiff had her own counsel examine the document and suggest 
  changes to it.  Plaintiff was successful in negotiating several alterations
  to the contract.  Thus, we  agree with SRS that any prior oral agreement
  with Lindberg is unenforceable.  See Milton Bd. of  School Dirs. v. Milton
  Staff Ass'n, 163 Vt. 240, 244, 656 A.2d 993, 995 (1995).  Even without the 
  merger clause, the parol evidence rule would bar enforcement of a prior or
  contemporaneous oral  agreement that varies or contradicts the terms of the
  written agreement.  See Housing Vermont v.  Goldsmith & Morris, 165 Vt.
  428, 431, 685 A.2d 1086, 1088 (1996).

       We note this is not a case where two independent contracts covering
  different subject matter  govern the same transaction.  Cf. Chappell v.
  Northern Realty, Inc., 128 Vt. 476, 479, 266 A.2d 453,  455-56 (1970).  The
  written contract states its subject matter is "personal services generally
  on the  subject of specialized foster care.  Detailed services to be
  provided by the contractor are described  [below]."  The oral promises made
  by Lindberg also concern the services for specialized foster care.   These
  overlapping promises are precisely the type of prior agreement that merges
  into the final  written document.  See Dartmouth Sav. Bank, 145 Vt. at 69,
  486 A.2d  at 627.

 

       Plaintiff argues that she is not bound by this merger clause.  She
  claims that she is bound only  by the terms relating to payment and no
  others because she signed the contract only to get paid  regularly.  We
  have long held that parties are bound by the plain and express meaning of a
  contract.   See Goodrich v. U.S. Fidelity & Guaranty Co., 152 Vt. 590, 594,
  568 A.2d 385, 388 (1989);  Lamoille Grain Co., v. St. Johnsbury & Lamoille
  County R.R., 135 Vt. 5, 8, 369 A.2d 1389, 1390  (1976).   The fact that
  plaintiff might have devoted her attention solely to the payment clauses of
  the  contract is of no significance.  See Lamoille Grain Co., 135 Vt. at 9,
  369 A.2d  at 1391 (where  plaintiff succeeded in altering one aspect of the
  contract, plaintiff bound to entire agreement even if  plaintiff signed
  without reading the rest of the contract).  

       Plaintiff's final claim is that the terms of the written agreement
  itself include an obligation to  provide wraparound services.  She argues
  that the written contract was intended to implement the  case plan for
  J.P.S. designed by SRS.  That case plan, however, fails to impose the
  duties that  plaintiff claims were breached.  The case plan in place at the
  time of plaintiff's injury does not  obligate SRS to secure wraparound
  services in Alabama.  The case plan explicitly contemplates that  plaintiff
  was to locate and arrange for those services in Alabama, and SRS would fund
  the cost.  In  fact, plaintiff was successful in locating several services
  for J.P.S., including counseling services, a  psychiatrist, and respite
  services.

       Finally, we reject plaintiff's claim that the general statutory and
  regulatory regimes that  govern SRS contain attendant duties to provide
  services other than those which were provided to  J.P.S.  Plaintiff argues
  that the contract necessarily incorporates all of the statutes and
  regulations  relating to SRS and that by not providing wraparound services,
  SRS violated these provisions.  There  is nothing in the statutes, however,
  which requires SRS to provide any wraparound services to a  foster parent.

       Affirmed.

                                       FOR THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Amy Davenport, Superior Judge
                                       Specially Assigned


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                                  Footnotes


FN1.  Defendant argues that plaintiff's claims are barred by the doctrine
  of sovereign immunity.  This  case, however, raises no tort claims and it
  is elementary that the state is not immune from liability based  upon
  obligations it assumes under contracts.  See, e.g., State v. Family Bank of
  Hallandale, 623 So. 2d 474, 479 (Fla. 1993) (noting that state waives
  immunity when it enters into contract authorized by powers  of general
  law); Grant Constr. Co. v. Burns, 443 P.2d 1005, 1010 (Idaho 1968) (states
  incurs rights and  responsibilities of private citizen when it enters into
  contractual obligations); Federal Sign v. Texas  Southern Univ., 951 S.W.2d 401, 405 (Tex. 1997) (state is liable on contracts entered for its own
  benefit).