The opinion
STATE OF MAINE
STATE OF MAINE eu Be AL AN Bs SS SUPERIOR COURT
CUMBERLAND, ss. DOCKET NO. CY 03-469
2893 } iB M -3 2 I: wee CUHK] 4: core
MORIARTY WATER WORKS, INC.,
Plaintiff
v. DONALD L. Gon “Ly ORDER
LAA CL) dlp Aer?
PORTLAND WATER DISTRICT,
NOV 2° 2003
Defendant
Before this court is Plaintiff, Moriarty Water Works, Inc.’s Motion for Trail,
pursuant to M. R. Civ. P. 80B(d).
FACTS
Plaintiff Moriarty Water Works, Inc. is a corporation based in Ashland, New
Hampshire. On or about May 21, 2003, Defendant, Portland Water District, issued a
request for proposals to firms interested in conducting the testing and repair of water
meters. Plaintiff submitted a proposal offering to perform work at a certain price, along
with several other firms, including EJ. Prescott.
Extensive communications took place between Plaintiff and Defendant during
the weeks leading up to the announcement of the winning bid. Despite these
communications, however, Defendant awarded the contract to E.J. Prescott.
Subsequent to this, Plaintiff filed a complaint in Superior Court. In addition, on
September 23, 2003, Plaintiff made a motion for a trial, pursuant to M. R. Civ. P. 80B(d).
DISCUSSION
For this matter to be reviewable under Rule 80B, review must be either
“provided by statute or [be] "otherwise available by law." M. R. Civ. P. 80B(a). “Rule
80B does not create an independent right to appeal any governmental action to the
Superior Court. It only provides a procedural avenue for those disputes in which the
court has jurisdiction.” Lyons v. Board of Directors of School Administrative District
NO. 43, 503 A.2d 233, 235 (Me. 1986) (citations omitted).
In the case at bar, this court has been unable to find, nor do the parties assert,
that a statutory right of appeal exists in regard to the Defendant’s purchasing decisions.
Therefore, the next step of the inquiry is to determine whether review by the Superior
Court is "otherwise available by law." "Review is deemed ‘otherwise available by law' if
it is in the nature of that formerly available under the common law extraordinary writs,
such as certiorari, mandamus or prohibition, adapted to current conditions." Lyons, 503
A.2d at 236 (citation omitted).
First,
[i]n order for an appeal to be properly brought under the writ of certiorari,
an appellant had to demonstrate that he was appealing from a decision of
a governmental agency performing a judicial or quasi-judicial function. A
judicial proceeding has been defined as adjudication of the rights of
parties who appeal to or are brought before a tribunal by notice or
process.
Windham v. Portland Water District, 537 A.2d 216, 219 (Me. 1986) (citation omitted).
“An agency’s actions are quasi-judicial in nature when it adjudicates the rights of the
party before it.” Lyons, 503 A.2d at 236 (citation omitted). In this case, Defendant was
purchasing services for the testing and repair of water meters. This function does not
involve adjudicating the rights of the parties before it. Instead, it involves a purely
discretionary function of choosing the best party for the position. Hence, this court
finds that this action could not be properly brought under a writ of certiorari.
Next, “[p]rohibition was issued only under extreme necessity ‘to direct any
inferior tribunal to cease abusing its power or usurping judicial functions that did not
rightly belong to it.” Lyons, 503 A.2d at 236 n.3 (citing R. Field & V. McKusick, Maine
Civil Practice § 81.6 at 617 (1st ed. 1959)). Since, this court has already determined that
the Defendant was not acting as a judicial or quasi-judicial tribunal, it also finds that
this common law action of prohibition could not properly be brought in this case.
Finally, this court will address the common law writ of mandamus. “Mandamus
is an extraordinary remedy.” Rogers v. Brown, 135 Me. 117, 119, 190 A. 632, 633 (1937).
“The writ is one requiring the doing of some specific duty, imposed by law, which the
applicant, otherwise without remedy, is entitled to have performed. The process cannot
be used to work an appeal. Neither can it be used to coerce or superintend duty, in the
discharge of which, by law, officers are given discretion.” Id. (citations omitted). Here,
the Plaintiff is using the process as an appeal. Hence, this court finds a writ of
mandamus would also be inappropriate.
Therefore, viewing the totality of the circumstances, this court finds that there
exists no statutory or common law basis to appeal the Defendant's purchasing decision
under M. R. Civ. P. 80B.
Moreover, the Plaintiff further argues, in its reply brief, that it can also seek
redress pursuant to M. R. Civ. P. 80C. First, this court notes that Plaintiff brought this
argument forward in its reply memorandum. Pursuant to M. R. Civ. P. 7(e), “the
moving party may file a reply memorandum, which shall be strictly confined to
replying to new matter raised in the opposing memorandum.” Since, the Defendant
did not raise this Rule 80C argument in its opposing memorandum, this court finds that
the Plaintiff cannot raise this new issue in its reply memorandum.
However, even disregarding this fact, this court finds that this appeal does not
fall within the purview of Rule 80C. Rule 80C requires that the mode of review of a
“final agency action or the failure or refusal of an agency to act shall be brought in
Superior Court pursuant to 5 M.R.S.A. § 11001,” the Administrative Procedures Act
(“Act”). M. R. Civ. P. 80C(a). Pursuant to the Act, the definition of agency excludes
“special purpose districts or municipalities ...” 5 M.R.S.A. § 8002(2) (2003). Here, the
Defendant is the Portland Water District, which is a special purpose district. Hence,
this court finds that M. R. Civ. 80C also does not apply in this case.
WHEREFORE, this court DENIES Plaintiff's Motion for Trial, pursuant to M. R.
Civ. P. 80B.
/
Dated: November _ 3 _, 2003 Laff
f
fooled A/Cole
Justice, Superior Court
oO
=e
MORIARTY WATER WORKS, INC - PLAINTIFF
Attorney for: MORIARTY WATER WORKS, INC
JED DAVIS
MITCHELL & DAVIS
86 WINTHROP STREET
AUGUSTA ME 04330
Attorney for: MORIARTY WATER WORKS, INC
KEVIN M FITZGERALD
LAW OFFICE OF KEVIN M. FITZGERALD
232 BRIGHTON AVENUE #2
PORTLAND ME 04102
vs
PORTLAND WATER DISTRICT - DEFENDANT
Attorney for: PORTLAND WATER DISTRICT
SETH BREWSTER
VERRILL & DANA
ONE PORTLAND SQUARE
PO BOX 586
PORTLAND ME 04112-0586
Filing Document: comnre oo
SUPERIOR COURT
CUMBERLAND, ss.
Docket No PORSC-CV-2003-00469
DOCKET RECORD