NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
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                                           2019 VT 87

                                          No. 2019-025

Burlington School District                                      Supreme Court

                                                                On Appeal from
   v.                                                           Superior Court, Chittenden Unit,
                                                                Civil Division

Adam Provost and Seven Days                                     May Term, 2019


Helen M. Toor, J.

Joseph A. Farnham and Kevin J. Coyle of McNeil, Leddy & Sheahan, P.C., Burlington, for
 Plaintiff-Appellee.

Craig Weatherly, Burlington, for Defendant-Appellant Provost.

Thomas A. Little of Little & Cicchetti, PC, Burlington, for Defendant-Appellee Da Capo
 Publishing, Inc. d/b/a Seven Days.


PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Dooley, J. (Ret.),
         Specially Assigned


        ¶ 1.   REIBER, C.J.       In this declaratory judgment action, defendant Adam Provost

appeals the civil division’s determination that plaintiff Burlington School District could disclose,

in response to a newspaper’s public records request, an unredacted copy of a Resignation

Agreement reached by the District and Provost concerning his employment with the District.

Provost argues that the civil division: (1) lacked subject matter jurisdiction to consider the

District’s request for declaratory relief regarding a matter within the exclusive purview of the

Public Records Act (PRA); and (2) erred by granting the District’s request for declaratory relief
based on its conclusion that Provost had waived any objection to release of the agreement, even

assuming it had jurisdiction to consider the request. We affirm.

       ¶ 2.    By terms of a written agreement, Provost resigned from his employment at the

Burlington School District, effective January 2, 2018. In relevant part, the agreement provided

that “any action taken by the District to comply with its legal obligations shall not be a violation

of this Resignation Agreement,” and that if the District believed it was required to release the

agreement to the public, the District would notify Provost’s attorney. The agreement further stated

that the District is a public entity subject to the PRA and that, upon request for the Resignation

Agreement, “the District will determine whether it must release the requested document[] under

the provisions of applicable law.”

       ¶ 3.    On June 18, 2018, a reporter from defendant Seven Days made a PRA request for,

among other documents, a copy of any separation agreement between Provost and the District that

existed. Within days, the District’s attorney informed Provost’s attorney of its intent to release the

agreement to Seven Days. The two attorneys exchanged emails 1 concerning the Seven Days

records request, but ultimately the District disagreed with Provost’s position that disclosure of an

unredacted copy of the agreement would violate both the terms of the agreement and the PRA.

       ¶ 4.    On June 25, 2018, the District commenced the instant declaratory judgment action,

naming both Provost and Seven Days as defendants. The complaint, which was submitted under


       1
          Following Provost’s appeal to this Court, the District filed a motion asking this Court to
accept as part of the record on appeal several emails exchanged between the District’s and
Provost’s attorneys concerning the reporter’s request. While acknowledging that this Court’s
review is ordinarily confined to the record in the trial court proceedings, see In re K.F., 2013 VT
39, ¶ 26, 194 Vt. 64, 72 A.3d 908, the District argues that this is one of those rare cases where we
should accept the emails as part of the record on appeal even though they were not made part of
the record below. According to the District, not doing so would put Provost in a better position
than if he had properly preserved and adjudicated before the civil division his jurisdictional
challenge to the District’s declaratory judgment action. We deny the District’s motion, but, as
indicated above, conclude that the record supported the civil division’s exercise of its jurisdiction
to adjudicate the District’s request for declaratory relief and that the civil division did not err in
granting the requested relief under the circumstances of this case.
                                                  2
seal along with both unredacted and redacted versions of the Resignation Agreement, summarized

the email exchange between the parties’ counsel. The complaint set forth the District’s position

that Provost’s proposed redactions were unwarranted under Vermont law and recounted Provost’s

threat of litigation against the District. The District asked the court to review in camera the

unredacted and redacted versions of the agreement and to declare that the agreement should be

provided to Seven Days. The District also requested a speedy hearing in furtherance of obtaining

a declaratory judgment. See V.R.C.P. 57 (“The court may order a speedy hearing of an action for

a declaratory judgment and may advance it on the calendar.”).

       ¶ 5.    In his answer, under the heading “affirmative defenses,” Provost argued that:

(1) the District failed to state a claim upon which relief could be granted because it did not “plead

sufficiently the existence of a justiciable controversy” establishing subject matter jurisdiction

under the Declaratory Judgment Act (DJA); (2) the District should be denied its requested relief

because its conduct towards, and response to, Seven Days constituted a breach of its contractual

obligations to Provost and demonstrated its unclean hands; and (3) the District disregarded its

obligations under the PRA to protect Provost’s personal documents from disclosure, thereby

injuring him. Provost also objected to the District’s request for in camera review, contending that

the request was premature until the court determined that there was a justiciable controversy, that

the PRA did not protect the agreement from disclosure in its entirety, and that in camera review

was necessary to determine the scope of any declaratory relief available to the District.

       ¶ 6.    Following a July 31, 2018 status conference with the parties’ attorneys, the civil

division issued the following order:

               Seven Days has until 8/10/18 to file an answer/counterclaim. Adam
               Provost has until 9/15 to complete discovery, and until 9/28 to file
               his opposition to disclosure of his “Resignation Agreement” with
               [the District]. [The District] and Seven Days have until 10/18 to
               reply to Provost’s opposition. The matter will then be under
               advisement.


                                                 3
On August 9, in compliance with the court’s scheduling order, Seven Days filed an amended

answer and asserted a counterclaim against the District seeking production of an unredacted copy

of the resignation agreement, as well as attorney’s fees.2

       ¶ 7.    On October 10, 2018, two weeks after the September 28 deadline for Provost’s

opposition to disclosure of an unredacted copy of the agreement had come and gone without any

filing from Provost, the civil division deemed any objection by Provost waived and authorized

release of the Resignation Agreement to Seven Days. Provost filed a motion to reconsider, arguing

that he had stated his objections in his answer and that the July 31 scheduling order did not require

him to repeat those objections. He asked the court to vacate its October 10 order and “proceed to

dispose of this case under the provisions of” the DJA. The civil division denied the motion for

reconsideration, noting that Provost’s answer had been filed three weeks before the July 31

scheduling order, indicating that the court was expecting Provost to make a legal argument

supporting his stated defenses. The court noted, for the record, that it had reviewed the relevant

documents in camera before issuing its October 10 ruling. Accordingly, the court dismissed the

counterclaim and entered judgment in the District’s favor after stating that it had ruled on the

merits of the case.

       ¶ 8.    On appeal, Provost argues that the civil division: (1) lacked subject matter

jurisdiction to consider the District’s complaint; and (2) erred by entering judgment in favor of the

District without addressing the merits of the District’s complaint based on its determination that

Provost had waived his objections to the complaint. We conclude that, under the specific

circumstances of this case, the District could invoke the DJA to seek resolution of the parties’


       2
          At oral argument on appeal, Seven Days sought assurance that in those rare situations
where declaratory relief pursuant to the DJA effectively preempted adjudication under the PRA, a
prevailing requestor could still collect attorney’s fees as permitted under the PRA. Seven Days
also acknowledged, however, that in this case it ultimately did not pursue attorney’s fees. Nor has
Seven Days argued on appeal that the civil division erred in this case by not awarding it attorney’s
fees. Accordingly, we do not address this issue.
                                                  4
dispute concerning disclosure of the Resignation Agreement. Hence, given Provost’s failure to

raise specific legal arguments in support of his position that the PRA prohibited disclosure of the

agreement, the civil division did not err in entering judgment in favor of the District and allowing

disclosure of an unredacted copy of the agreement to Seven Days.

       ¶ 9.    As an initial matter, we emphasize that Provost’s “jurisdictional” argument does

not concern subject matter jurisdiction but rather challenges the authority of the civil division to

adjudicate the District’s request for declaratory relief under the circumstances of this case. We

have required preservation of challenges such as this that do not concern “the power of a court to

hear and determine a general class or category of cases.” Lamell Lumber Corp. v. Newstress Int’l.,

Inc., 2007 VT 83, ¶ 6, 182 Vt. 282, 938 A.2d 1215. That includes challenges concerning whether

the court can exercise its authority to adjudicate matters pursuant to specific statutory criteria or

the particular circumstances of the case. See State v. Thompson, 2011 VT 98, ¶ 9, 190 Vt. 605,

30 A.3d 671 (mem.) (stating that “erroneous exercise of jurisdiction is not the type of fundamental

jurisdictional defect that would compel this Court, absent a timely objection on jurisdictional

grounds, to vacate any order pursuant to the exercise of that jurisdiction”).

       ¶ 10.   Without question, the civil division possessed subject matter jurisdiction over the

general type of controversy brought before it in this case. The civil division has “original and

exclusive jurisdiction of all original civil actions,” apart from exceptions not relevant to this case.

4 V.S.A. § 31(1). Moreover, within that general jurisdiction, the divisions of the superior court

have the power under the DJA “to declare rights, status, and other legal relations whether or not

further relief is or could be claimed.” 12 V.S.A. § 4711; see also id. § 4713 (“A contract may be

construed either before or after there has been a breach thereof.”). Hence, the civil division

“presumptively” had jurisdiction over the declaratory judgment action in this case, pursuant to 12

V.S.A. § 4711. Negotiations Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent.

Educ. Ass’n, 2018 VT 18, ¶ 10, 206 Vt. 636, 184 A.3d 236 (concluding that civil division could

                                                  5
adjudicate request for declaratory relief requiring interpretation of Open Meetings Law). In short,

Provost was required to preserve, by raising before the civil division, his contention that the court

lacked authority under the circumstances of this case to adjudicate the District’s request for

declaratory relief.

        ¶ 11.   He failed to adequately do so in this case. See In re White, 172 Vt. 335, 343, 779

A.2d 1264, 1270 (2001) (stating that issue for appeal is not properly preserved unless it is presented

“with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it”

(quotation omitted)). As noted, Provost listed as an affirmative defense in his complaint the

absence of a justiciable controversy to confer subject matter jurisdiction upon the civil division to

adjudicate the District’s request for declaratory relief under the DJA. Provost missed the civil

division’s deadline for opposing disclosure of the Resignation Agreement, however, and therefore

never provided the court with a legal analysis in support of his argument that there was no

justiciable controversy under the DJA. Indeed, Provost appeared to abandon his jurisdictional

argument when, in his motion seeking reconsideration of the court’s determination that he had

waived any opposition to disclosure of the agreement, he explicitly asked the court to dispose of

the case under the DJA.

        ¶ 12.   Provost argues, however, that the civil division erred: (1) by concluding that his

failure to meet the court’s deadline for opposing the District’s request for declaratory relief

constituted a waiver of any and all opposition to the District’s disclosure of an unredacted copy of

the Resignation Agreement; and (2) by failing to address the merits of the District’s application

for declaratory relief. Provost asserts that his answer opposed the District’s request for declaratory

relief on several grounds and that the July 31 scheduling order merely indicated the matter would

be placed under advisement after the deadlines had passed for submitting memoranda of law.

According to Provost, the civil division effectively entered a default judgment, as evidenced by

the absence of any motion to dismiss or for summary judgment.

                                                  6
       ¶ 13.   Notwithstanding Provost’s failure to adequately preserve his challenge to the civil

division’s authority to adjudicate the District’s complaint, we conclude that the District’s

complaint for declaratory relief pled sufficient allegations to support the court’s exercise of its

authority to provide relief under the DJA. Further, because Provost never presented any legal

analysis as to why the PRA prohibited disclosure of an unredacted copy of the Resignation

Agreement, the civil division did not err in entering judgment in favor of the District.

       ¶ 14.   Although the DJA does not enlarge a court’s subject matter jurisdiction, it “allows

parties who have a dispute within a court’s jurisdiction to petition that court for declaratory relief

at an early stage of the proceedings.” Vt. State Emps.’ Ass’n, Inc. v. Vt. Criminal Justice Training

Council, 167 Vt. 191, 194, 704 A.2d 769, 771 (1997). The first prerequisite for adjudication under

the DJA is that there be an actual—not merely theoretical—controversy. Cupola Gulf Course, Inc.

v. Dooley, 2006 VT 25, ¶ 14, 179 Vt. 427, 898 A.2d 134 (per curiam) (“An action for declaratory

relief must be based upon an actual controversy, the claimed result of which is not based upon fear

or anticipation, but is reasonably to be expected.” (quotation omitted)); cf. Cont’l Cas. Co. v.

Coastal Sav. Bank, 977 F.2d 734, 737 (2d Cir. 1992) (stating that court must “entertain a

declaratory judgment action: (1) when the judgment will serve a useful purpose in clarifying and

settling the legal relations in issue, or (2) when it will terminate and afford relief from the

uncertainty, insecurity, and controversy giving rise to the proceeding”).

       ¶ 15.   A court faced with a request for declaratory relief “must look at the litigation

situation as a whole in determining whether it is appropriate to” entertain the request for such

relief. Country Home Prods., Inc. v. Schiller-Pfeiffer, Inc., 350 F. Supp. 2d 561, 566 (D. Vt. 2004).

In this case, the District and Provost had entered into a contract acknowledging the obligation of

the District, as a public entity subject to the PRA, to release the Resignation Agreement “under the

provisions of applicable law.” After Seven Days requested a copy of any separation agreement

between the two, the District and Provost disputed whether the PRA authorized public disclosure

                                                  7
of an unredacted copy of the agreement. Having determined that both the PRA and the terms of

the Resignation Agreement warranted disclosure of an unredacted copy of the Agreement, and

faced with Provost’s insistence that neither the Agreement nor the PRA permitted release of an

unredacted copy of the Agreement to Seven Days, the District sought declaratory relief. In doing

so, the District named as defendants both Provost and Seven Days as defendants—to bring together

in one action all parties with an interest in the matter.

        ¶ 16.   Under these circumstances, it was entirely appropriate for the superior court to

exercise its general jurisdiction to adjudicate the District’s request for declaratory relief. The

District and Provost had reached a legal stalemate over whether release of an unredacted copy of

the Agreement to Seven Days would violate not only the PRA, but also their Agreement, which

would expose the District to a breach-of-contract claim. At the same time, Seven Days was

demanding release of the Agreement under the PRA. Thus, the District was “facing the threat of

an actual injury to a protected legal interest.” Cf. Negotiations Comm. of Caledonia Cent.

Supervisory Union, 2018 VT 18, ¶ 11 (concluding that civil division appropriately addressed claim

for declaratory relief concerning applicability of Open Meetings Law, which was not excepted

from civil division’s general jurisdiction). The controversy among the parties was actual, not

theoretical, and declaratory relief would serve to clarify the legal relations of the three parties and

provide certainty regarding the controversy among them.

        ¶ 17.   Provost emphasizes that the PRA does not explicitly permit a custodian to seek

declaratory relief when confronted with a public records request. But neither does the PRA bar

obtaining such relief within the civil division’s general jurisdiction. See City of Garland v. Dallas

Morning News, 22 S.W.3d 351, 357-58 (Tex. 2000) (concluding that under then-current version

of state’s Public Information Act, which neither expressly recognized nor expressly prohibited

governmental entity from seeking declaratory relief in response to public records request,

municipality was not barred from seeking declaratory relief in response to news agency’s public

                                                   8
records request). This case is easily distinguishable from older cases cited by Provost that involved

plaintiffs’ attempts to use the DJA to circumvent exclusive administrative remedies provided by

statute. See Molesworth v. U. of Vt., 147 Vt. 4, 7, 508 A.2d 722, 723 (1986) (rejecting plaintiff’s

assertion that she could seek declaratory relief on her claim that she was entitled to resident in-

state tuition, where “the Legislature ha[d] delegated authority to the Trustees of the University of

Vermont to determine eligibility for reduced tuition charges”); Demag v. Am. Ins. Cos., 146 Vt.

608, 610, 508 A.2d 697, 698 (1986) (concluding that plaintiff was not entitled to declaratory relief

where Workers’ Compensation Act contained procedures for enforcement of rights and remedies

before commissioner and explicitly excluded all other rights and remedies).

       ¶ 18.   Finally, insofar as Provost failed to articulate any argument, or make any proffer,

in the proceedings before the civil division explaining why the PRA prohibited disclosure of an

unredacted copy of the Resignation Agreement, the civil division did not err in granting the

District’s request for declaratory relief and entering judgment in favor of the District.

       Affirmed.

                                                FOR THE COURT:



                                                Chief Justice




                                                  9
