Daniel Sidman v. State of Vermont

VERMONT SUPREME COURT Case No. 2021-037
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
OCTOBER TERM, 2021
Daniel Sidman* v. State of Vermont } APPEALED FROM:
} Superior Court, Orange Unit, Civil Division
} CASE NO. 20-CV-00121
Trial Judge: Thomas A. Zonay
In the above-entitled cause, the Clerk will enter:
Plaintiff appeals pro se from the trial court’s dismissal of his complaint under Vermont
Rule of Civil Procedure 75 as time-barred. He contends that he was seeking and is entitled to
equitable relief. We affirm.
Plaintiff sued defendant in April 2020.* He alleged that he was entitled to homestead
property tax credits for tax years 2017 and 2018 (which would have been awarded in calendar
years 2018 and 2019) and that the State had erred in not sending these funds to the Town of
Randolph on his behalf. Plaintiff asserted that he took the steps necessary to claim these credits
and that he had been informed that the State lost his paperwork. He asked the court to direct the
State to award him these credits. Plaintiff stated that his property had been sold at a tax sale in
September 2019 and he suggested that this was due in part to the State’s failure to award him the
credits to which he was entitled.
The State moved to dismiss the complaint for lack of subject matter jurisdiction, failure
to state a claim, and as barred by sovereign immunity. As to the first ground, the State relied on
the law governing property-tax credits, 32 V.S.A. §§ 6061-6074. It argued that plaintiff’s
exclusive remedy for the denial of his claim for property-tax credits was an appeal to the
Commissioner of the Department of Taxes. See id. § 6072. Because plaintiff failed to exhaust
his administrative remedies, the State argued that the complaint should be dismissed for lack of
subject matter jurisdiction. We do not recount the State’s remaining arguments here.
Plaintiff responded by filing an amended complaint. The State moved to strike the
complaint because, among other reasons, it repeated the same allegations as the original
complaint, and it included reference to settlement negotiations between plaintiff and the State.
The State also reiterated its request for dismissal. While these requests were pending, plaintiff
* Plaintiff also sued the Town of Randolph, but he settled with the town and voluntarily
dismissed his claim against it.

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filed a document entitled “Equitable Appeal Against Case Dismissal.” The court heard oral
argument on the motions, following which it directed the State to respond to plaintiff’s filing
concerning equitable relief. The State did so. It explained that it was difficult to respond
because plaintiff’s specific equitable theory was unknown, but it nonetheless responded on the
merits.
The court granted the State’s request to strike the amended complaint on the grounds
identified by the State. In a separate order, it denied the State’s motion to dismiss. The court
concluded that, while there were clearly procedures available for appealing the denial of a
homestead tax credit, the appeal provision cited by the State did not apply under these
circumstances because plaintiff claimed that the State lost his paperwork, not that the State
denied his claim for a tax credit. Construing the facts in the light most favorable to plaintiff, the
court determined that plaintiff would not have had the opportunity to file an appeal in the
absence of a decision by the Department of Taxation. The court found no other statute that
provided an administrative process by which a person might seek a remedy for a physically lost
claim. It thus was unpersuaded that dismissal was warranted on the ground that plaintiff failed to
exhaust his administrative remedies.
The court further concluded that the facts pled were sufficient to put the State on notice
of a claim under Rule 75. That rule provided a mechanism by which courts could review “any
action or failure or refusal to act by an agency of the state or a political subdivision therefore,
including any department . . . that is not reviewable or appealable under [V.R.C.P.] 74.”
V.R.C.P. 75. The court found that there was no administrative avenue available to plaintiff to
seek a remedy for his lost paperwork, or, relatedly, the homestead tax credit he claimed to be
owed. And, while plaintiff did not articulate a specific cause of action through which he sought
relief, he clearly sought review of the Department’s conduct. The court found that plaintiff
properly complied with the rules in serving a complaint and summons on defendant and the
complaint contained the grounds upon which plaintiff asserted his claim and demanded relief.
While not artfully drafted, the court found that, under these circumstances, plaintiff’s claim was
properly brought as an action seeking review of government action under Rule 75 and it could
not say that there were no circumstances under which plaintiff might be entitled to relief. As part
of its decision, the court also rejected the State’s sovereign immunity argument.
The State moved for reconsideration, arguing in relevant part that plaintiff could not state
a claim under Rule 75 because the record undisputedly showed that such a claim was time
barred. Plaintiff responded to the motion and also sought to file a second amended complaint.
The trial court granted reconsideration and dismissed the complaint, agreeing with the
State that the claim was time-barred. The court set forth the procedural history of this case and
acknowledged that plaintiff did not cite Rule 75 in his complaint and that the court had first
raised Rule 75 as the basis for the claim in its order denying the motion to dismiss. The court
found that the parties were given an opportunity to address the issue of whether a Rule 75
complaint was time barred in the motions and replies and as the question was one of law, the
court determined that it was appropriately addressed in response to the motion for
reconsideration.
After reviewing again the relevant law and evidence, the court maintained its conclusion
that Rule 75 was the appropriate statutory avenue for plaintiff’s complaint that the Department
lost his filings. It also agreed with the State, however, that the claim was time barred. As argued
by the State, Rule 75(c) required that, where a failure to act was alleged, the claim must be filed

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“within six months after expiration of the time in which action should reasonably have
occurred.” Under 32 V.S.A. § 6066a(a), July 1 was the date by which the Commissioner must
act on timely filed claims for homestead tax credits. Plaintiff asserted that he timely filed his
claims but did not receive an approval or denial from the Commissioner. Thus, the court
concluded, July 1 represented the “expiration of the time in which action should reasonably have
occurred,” which served to put plaintiff on notice that he had six months to seek review of the
Commissioner’s inaction. Plaintiff filed no complaint until April 2020, well outside the six-
month period for either the filings for tax year 2017 and 2018. The court added that plaintiff’s
response to the motion for reconsideration did not substantially address any of the State’s
arguments or otherwise provide support for the court to conclude that the claim was not time-
barred under Rule 75. Because the court had not considered the impact of the time limitation in
Rule 75 in its order, it found it appropriate to do so on reconsideration and it concluded that the
claim must be dismissed as time barred under Rule 75(c). This appeal followed.
Plaintiff essentially argues that the court erred in dismissing his complaint because he is
entitled to some form of equitable relief. According to plaintiff, the court erred in determining
that he was seeking relief exclusively under Rule 75. He maintains that denying his request for
relief under these circumstances is unfair.
Our review is de novo, Heffernan v. State, 2018 VT 47, ¶ 7, 207 Vt. 340, and we find no
error. Plaintiff has invoked notions of equity in a very general sense but a general appeal to
“fairness” does not suffice. Plaintiff must articulate some recognized equitable theory of relief.
He failed to articulate a recognized equitable claim in this case until, arguably, his reply brief in
which he appears to rely on a constructive-trust theory. He failed to raise this claim below and
this Court does not address arguments raised for the first time in a reply brief. See Bull v.
Pinkham Eng’g Assocs., 170 Vt. 450, 459 (2000) (“Contentions not raised or fairly presented to
the trial court are not preserved for appeal.”); In re Wal-Mart Stores, Inc., 167 Vt. 75, 86 (1997)
(declining to address issue raised for first time in reply brief and recognizing that “issues not
briefed in the appellant’s or the appellee’s original briefs may not be raised for the first time in a
reply brief” (quotation omitted)). Absent a well-pled and presented colorable theory for
equitable relief, plaintiff is limited to his legal remedies.
We note that there are two potential legal remedies in play here: Rule 75/mandamus as
suggested by the trial court or statutory appeal of a constructive denial of the credits pursuant to
32 V.S.A. § 6072. We need not determine which, if either, applies here, nor whether sovereign
immunity is an obstacle, because neither of these avenues is available to plaintiff now. The Rule
75 claim is time-barred because, as the trial court explained, plaintiff did not file his suit until
April 2020, well outside the six-month period from July 1—the date by which the Commissioner
must act on timely filed claims for homestead tax credits—for either the filings for tax year 2017
and 2018. See 32 V.S.A. § 6066a(a). An appeal under 32 V.S.A. § 6072 is unavailable because
plaintiff did not file an appeal to the Commissioner within sixty days of the latest possible time
he was on notice that he did not get the credit—the October 31 due date for his first tax
installment. Thus, regardless of which legal theory, if either, applies, plaintiff’s claim is time-
barred.
Plaintiff also asserts that the court erred in striking his first amended complaint because it
included settlement discussions. He complains that the court failed to provide a supporting
rationale. In fact, the court set forth reasoned grounds for its decision to strike the complaint
pursuant to Rule 12(f) and plaintiff fails to show any abuse of discretion. In any event, plaintiff
fails to show any harm that resulted from this alleged error in light of our conclusions that any

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legal claim is time-barred and that plaintiff failed to preserve any clam to a specific form of
equitable relief.
Affirmed.
BY THE COURT:
Beth Robinson, Associate Justice
Karen R. Carroll, Associate Justice
William D. Cohen, Associate Justice