Huminski v. Lavoie

Huminski v. Lavoie (99-330); 173 Vt. 517; 787 A.2d 489

[Filed 26-Sep-2001]

[Motion for Reargument Denied 28-Nov-2001]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-330

                             JANUARY TERM, 2000

Scott and Dana Huminski and	       }	APPEALED FROM:
Bennington Mail Shoppe	               }
                                       }
     v.	                               }	Bennington Superior Court
                                       }	
John Lavoie, et al.	               }
                                       }	DOCKET NO. 335-10-98Bncv

                                                Trial Judge: John P. Wesley


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


       Plaintiff Scott Huminski*(FN1) appeals from a superior court order
  dismissing his complaint  against defendants, the State of Vermont, State's
  Attorney William Wright, Deputy State's Attorney  John Lavoie, and
  probation and parole officer David Miner on the basis of sovereign
  immunity,  prosecutorial immunity, and insufficiency of the pleadings.  We
  reverse because  the trial court failed  to afford adequate notice of its
  intent to dismiss on these grounds, and remand for further  proceedings.

       As best as we can discern from the record, the underlying facts are as
  follows:  The State  charged plaintiff in district court with two counts of
  obstruction of justice under 13 V.S.A. § 3015.   The prosecutor accused
  plaintiff of threatening a potential witness, Michael Ryan, in a landlord-
  tenant action. Plaintiff entered into a plea agreement with the State. 
  Under the terms of the  agreement, count 1 was dismissed, and plaintiff
  pleaded no contest to an amended charge of  disorderly conduct on count 2. 
  The district court imposed a fine of $100 with a surcharge, which 
  plaintiff paid.  Under a collateral agreement between the parties,
  plaintiff agreed to dismiss without  prejudice two civil actions he had
  filed in superior court, one against the plaintiff in the original civil 
  action and another against Ryan.  Plaintiff also agreed not to refile a
  civil action in federal court  against several people, which had been
  dismissed with leave to amend the complaint and refile.  The  State agreed
  not to recharge plaintiff on count 1 as long as he did not pursue the three
  civil actions.

       Plaintiff moved to dismiss the two actions in superior court, but
  represented to the court that  he was doing so only because he had been
  threatened with arrest if he did not do so.  In the federal  suit,
  plaintiff's wife, who had been a plaintiff in the action prior to
  dismissal, filed an amended 

 

  complaint without plaintiff.  The State considered these actions
  inconsistent with the plea agreement,  and filed a motion to vacate the
  plea.  The court, Judge Corsones presiding, granted the State's  motion,
  vacated the plea agreement, and reinstated the two felony charges of
  obstructing justice.   Later, on motions seeking to vacate the order
  reinstating the charges, the court, Judge Hudson  presiding, concluded that
  the State had violated the plea agreement.  The court rejected the State's 
  argument that plaintiff had violated the plea agreement when his wife
  refiled in federal court, noting   that plaintiff's wife was not bound by
  the agreement between plaintiff and the State.  Moreover, the  court ruled
  that the State was barred by the Double Jeopardy Clause of the federal
  constitution from  pursuing the two original charges for obstruction of
  justice.  The State appealed this ruling, which we  affirmed in State v.
  Huminski, No. 99-445 (Vt. Dec. 13, 2000) (mem.).

       In response to the court's initial reinstatement of the two felony
  charges, plaintiff filed this  action in superior court, alleging sixteen
  causes of action against defendants based on various actions  that
  plaintiff contends were part of a conspiracy against him and his wife
  designed to ruin them  financially.  The actions included allegedly
  obtaining perjured affidavits from police officers and  other witnesses to
  pursue criminal charges against plaintiff, as well as failing to prosecute
  those who  perpetrated crimes against plaintiff and his wife, negligent
  hiring, training and supervision,  conversion, and defamation.  Plaintiff
  also alleged that defendants employed their prosecutorial  power to
  interfere in various civil actions, and that defendants' actions were
  willful and malicious.

       Defendants filed a motion to dismiss for failure to state a claim
  under V.R.C.P. 12(b)(6),  arguing that: (1) the claims against defendants
  Wright, Lavoie, and Miner were barred by the  doctrine of res judicata; and
  (2) the claim against the State was barred by sovereign immunity.  
  Submitted with the motion and memorandum of law was a copy of a federal
  district court order  dismissing the action that plaintiff's wife had filed
  against Wright, Lavoie and Miner on the grounds  that (1) plaintiff's wife
  had no standing to bring an action for violation of plaintiff's
  constitutional  rights, (2) the allegations were insufficient to support a
  claim for conspiracy, and (3) the Eleventh  Amendment barred the claim
  against the State.  Plaintiff opposed the motion to dismiss.     

       Without holding a hearing, the court issued a written decision
  granting the motion. The court  rejected defendants' res judicata argument,
  ruling that it was "plainly insufficient regarding the  present claims,"
  because the federal case was decided primarily on the ground that
  plaintiff's wife  had no standing to bring constitutional claims on behalf
  of a third party.  Nevertheless, although  defendants had never presented
  immunity defenses on behalf of the individual defendants, the court  
  dismissed the claims against defendants Wright and Lavoie because: (1)
  under 12 V.S.A. § 5602(a),  claims based on an act or omission of a state
  employee acting within the scope of his or her  employment must be brought
  against the State; and (2) Wright and Lavoie have absolute  prosecutorial
  immunity.  Additionally,  the court dismissed the claim of conversion
  because the  complaint alleged that the property was misappropriated by a
  police officer, who was not a named  defendant, and ruled that the
  allegations were insufficient to support the claim of conspiracy, or the 
  claim against Miner for interference with contractual relations.  Finally,
  the court dismissed the  claims against the State on the ground that there
  is no private analog for the governmental function  of prosecuting a
  criminal case.  Plaintiff appeals.

 

       We first consider the court's decision to dismiss the claims against
  the individual defendants.  In their V.R.C.P. 12(b)(6) motion and
  accompanying memorandum, defendants did not assert any  immunity defense on
  behalf of the individual defendants.  Nor did defendants allege that
  plaintiff's  factual allegations fell short of stating a claim for relief,
  relying instead on the doctrine of res  judicata predicated on the federal
  court ruling.  Notwithstanding these omissions, the trial court  dismissed
  the claims against the individual defendants on the basis of immunity, an
  action that  amounts to a sua sponte dismissal of the complaint, without
  notice to plaintiff.  This was error.

       We have held that before the trial court may dismiss a complaint for
  failure to state a cause of  action on its own motion, the court must
  notify the parties of the proposed action, and afford an  opportunity to
  address the asserted grounds for dismissal, either in written form or at an
  oral hearing.  See Town of Westminster v. Hall, 139 Vt. 248, 250, 428 A.2d 1095, 1096 (1981).  As we explained  in Hall, although a claim may be
  entirely spurious on its face, the court cannot know, without hearing  the
  parties, whether the plaintiff may be able to amend the complaint
  sufficiently to state a claim  entitling the plaintiff to relief.  See id.;
  see also Neal v. Brockway, 136 Vt. 119, 122, 385 A.2d 1069,  1070 (1978)
  (dismissal of complaint for failure to state claim without affording party
  notice and  opportunity to amend was error requiring reversal).

       Although the record here shows that plaintiff did address some
  immunity issues in his  opposition to defendants' motion, this was
  inadequate to satisfy the purposes of the rule.  Notice of  the motion to
  dismiss, and the grounds on which it is based, is ordinarily afforded to
  alert the  plaintiff to the specific legal theories underlying the
  challenge, and to enable the plaintiff to respond  meaningfully by
  countering the legal arguments asserted, or by clarifying the factual
  allegations to  conform to the requirements of a valid cause of action. 
  Through this traditional adversarial process,   a complete record is
  produced, and the pertinent legal and factual issues are crystallized for
  review  on appeal.  Judicial economy is thereby served.   In contrast, sua
  sponte dismissals without adequate  notice to the parties tend to
  short-circuit the process, and ultimately to prolong the proceedings and 
  squander judicial resources.  See Perez v. Ortiz, 849 F.2d 793, 797 (2d
  Cir. 1988) (noting that sua  sponte dismissals may "tend to produce the
  very effect they seek to avoid - a waste of judicial  resources"); Tingler
  v. Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983) (lack of  record resulting
  from  sua sponte dismissal hampers arguments on appeal and "results in the
  waste of judicial resources").   
 
       As other courts have observed, sua sponte dismissals are also
  disfavored because they cast  the judge in the role of "'a proponent rather
  than an independent entity.' " Perez, 849 F.2d  at 797  (quoting Doe v. St.
  Joseph's Hosp., 788 F.2d 411, 415 (7th Cir. 1986)); see also Lewis v. New
  York,  547 F.2d 4, 5 (2d Cir. 1976). We note that courts should be
  particularly careful to avoid this  perception in cases involving pro se
  plaintiffs.   

       Because the court here failed to provide notice of its intent to
  dismiss the claims against the  individual defendants on grounds not raised
  in defendants' motion, we conclude that the judgment   must be reversed,
  and the matter remanded to afford the parties an adequate opportunity to be
  heard. 

 

       Because the issue may arise on remand, however, we note that the
  court's reliance on 12  V.S.A. § 5602(a) was misplaced.  That subsection
  provides: "When the act or omission of an  employee of the state acting
  within the scope of employment is believed to have caused damages to 
  property, injury to persons, or death, the exclusive right of action shall
  lie against the state of  Vermont; and no such action may be maintained
  against the employee."  12 V.S.A. § 5602(a).  The  following subsection,
  however, provides:  "This section does not apply to gross negligence or
  willful  misconduct." 12 V.S.A. § 5602(b).  Because plaintiff's claims are
  premised on allegations of willful  misconduct, § 5602 does not bar the
  claims against the individual defendants.
	
       The court also granted defendants' motion to dismiss the claims
  against the State on the  grounds of sovereign immunity.  "Sovereign
  immunity bars suits against the State unless immunity is  expressly waived
  by statute."  Sabia v. State, 164 Vt. 293, 298, 669 A.2d 1187, 1191 (1995). 
  Under  the Vermont Tort Claims Act, the State has waived its immunity to
  suits, caused by an employee  acting within the scope of employment, for
  which "a private person would be liable."  12 V.S.A. §  5601(a).  To
  determine whether a "private analog" exists, we ask whether the plaintiff's
  cause of  action is comparable to a recognized cause of action against a
  private person.  See Sabia, 164 Vt. at  298, 669 A.2d  at 1191.  

       Here, the court ruled generally that there is no private analog for
  the "purely governmental  function of prosecuting a criminal case."
  Although it is well settled that the State and prosecutors  enjoy absolute
  immunity from civil suits for pursuing criminal prosecutions, this
  protection  encompasses only those acts "closely associated with litigation
  or potential litigation, but does not  cover administrative functions or
  investigative functions that are not a part of the judicial function."  
  Muzzy v. State, 155 Vt. 279, 280, 583 A.2d 82, 83 (1990) (internal
  citations omitted). The complaint  here stated multiple causes of action,
  including defamation, tortious interference with contract, civil  rights
  violations, and negligent hiring and supervision, which require more
  thorough analysis in light  of the specific factual allegations to
  determine whether they fall within the scope of the immunity.

       Plaintiff also contends on appeal that the trial court failed properly
  to consider his motion for  a temporary restraining order or his motion to
  reconsider the denial of a temporary restraining order.   In these motions,
  plaintiff requested that the court enjoin defendants Wright, Lavoie and the
  State   "from filing criminal charges against Scott Huminski grounded upon
  Scott Huminski's protected  activity of engaging in litigation before State
  Superior Court."  The motion was filed January 4,  1999, in this civil
  case, after the first judge in the criminal proceeding vacated the plea and
  reinstated  the original charges.  Plaintiff then filed his brief in this
  case on August 23, 2000, appealing the  denial of the temporary restraining
  order.  Since then, the district court issued another order in the 
  criminal proceeding, dismissing the reinstated charges because
  reinstatement violated the Double  Jeopardy Clause.  Moreover, this Court
  affirmed the dismissal in State v. Huminski, No. 99-445 (Vt.  Dec. 13,
  2000). In view of the change in circumstances since plaintiff filed the
  motion, we conclude  that the motion is moot.  Accordingly, we affirm the
  denial of the motion on this ground.  In any  event, the change in
  circumstances would warrant reconsideration by the superior court even if
  not  moot.  Thus, plaintiff may renew the motion, if still necessary, on
  remand.

 

       Plaintiff also filed a motion in this Court to vacate the district
  court order dated September 4,  1998, which was the order in the criminal
  proceeding vacating his plea to a reduced charge and  reinstating the
  original charges.  It is not clear why this motion has been filed in this
  civil action or in  this Court in the first instance.  In any event, the
  motion is now moot as the charges have been  ordered dismissed.  See
  Huminski, No. 99-445, slip. op. at 3-4.

       Reversed and remanded. 

 
                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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FN1.  Scott Huminski filed a pro se brief.  Plaintiffs Dana Huminski and
  the Bennington Mail Shoppe  have not filed briefs.  Consequently, we refer
  to Scott Huminski as plaintiff in this decision.