Clifford E. Avery v. Commissioner, New Hampshire Department of Corrections ( 2020 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2019-0051
CLIFFORD E. AVERY
v.
COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS
Submitted: November 20, 2019
Resubmitted: July 20, 2020
Opinion Issued: November 20, 2020
Clifford E. Avery, self-represented party, by brief.
Gordon J. MacDonald, attorney general (Lisa L. Wolford and Anthony J.
Galdieri, senior assistant attorneys general, on the brief), for the defendant.
New Hampshire Legal Assistance (Elliott Berry and Kay E. Drought on
the joint brief), Disability Rights Center–New Hampshire, Inc., of Concord
(Pamela E. Phelan and Todd R. Russell on the joint brief), and American Civil
Liberties Union of New Hampshire Foundation, of Concord (Gilles R.
Bissonnette and Henry R. Klementowicz on the joint brief), as amici curiae.
Paul Blackmer, by brief, as amicus curiae.
Darrin Partlow, by brief, as amicus curiae.
HANTZ MARCONI, J. The plaintiff, Clifford E. Avery, appeals an order of
the Superior Court (Ruoff, J.) dismissing his complaint for breach of contract
against the defendant, the Commissioner of the New Hampshire Department of
Corrections (DOC or department). Avery argues that the trial court erred in
concluding that his suit was barred by sovereign immunity and, alternatively,
that he lacked standing. After the case was submitted, we directed the parties
to provide supplemental briefing on the issue of sovereign immunity and
sought amicus briefing. We now reverse and remand.
I
The following relevant facts are found either in the plaintiff’s allegations,
which we accept as true, or in the trial court’s order, recited in the light most
favorable to the plaintiff. Alward v. Johnston, 171 N.H. 574, 576 (2018); see
New England Backflow v. Gagne, 172 N.H. 655, 658 (2019); see also Beane v.
Dana S. Beane & Co., 160 N.H. 708, 711 (2010) (holding that, in ruling on a
motion to dismiss, the trial court may consider, among other things,
“documents attached to the plaintiff’s pleadings”).
Avery, an inmate at the New Hampshire State Prison for Men (NHSP),
sued the DOC as part of a federal, class-action, 42 U.S.C. § 1983 lawsuit, and
the federal district court found that conditions at the NHSP subjected inmates
to cruel and unusual punishment in violation of the Eighth Amendment to the
United States Constitution. See generally Laaman v. Helgemoe, 437 F. Supp.
269 (D.N.H. 1977); Laaman v. Warden, New Hampshire State Prison, 238 F.3d
14 (1st Cir. 2001). The lawsuit resulted in a consent decree requiring the DOC
to provide certain services to inmates confined at the NHSP, regularly inspect
prison conditions, and ensure that NHSP practices, including those related to
food service, medical care, mental health care, sanitation, and maintenance,
comported with specified standards. The consent decree was modified to
resolve issues raised by Avery and the class of original plaintiffs in motions for
contempt that alleged the DOC was violating the terms of the original decree.
On April 23, 2001, the class of plaintiffs, including Avery, and the DOC entered
into an agreement (Laaman Settlement Agreement), comprised of the terms of
the modified consent decree, that settled the section 1983 lawsuit and
terminated federal jurisdiction over the matter, specifying that the agreement
“constitute[d] a settlement agreement enforceable by the courts of the State of
New Hampshire.”
In July 2018, Avery filed a “Petition for Enforcement of a Settlement
Agreement,” suing the department for breach of contract and seeking specific
performance of the Laaman Settlement Agreement. Avery makes numerous
allegations that conditions at the NHSP violate the terms of the Laaman
2
Settlement Agreement. For example, Avery alleges that portions of the
ventilation systems in multiple housing units are deteriorating and contain
holes and rust, causing the circulation of “noxious and/or unhealthy air.” He
alleges that the prison is overcrowded with more than double the population
permitted by relevant standards and that there is a lack of required toilet
facilities, both of which contribute to the “the decrepit state of these housing
units.” He alleges that the NHSP pharmacy cannot fill prescriptions in a timely
manner, that required programs are not being offered or are significantly
understaffed, and that required inspections are not being undertaken. He
alleges that “[c]ontaminated waste water, i.e., biological matter,” leaks onto
food preparation areas, meals, and the floor of the Food Service Department,
and that the attempt to resolve this issue involved putting up tarps and hoses
under the leak, which merely funnel the waste water directly onto the floors of
the Food Service Department. Among other contentions, Avery additionally
alleges that required counseling services, such as marital counseling,
aggression management, and a pre-release program, are not being provided.
The DOC moved to dismiss Avery’s complaint, arguing, among other
things, that his suit was barred by sovereign immunity and that he lacked
standing. Avery objected to the department’s motion. The trial court granted
the department’s motion to dismiss, concluding that Avery’s breach of contract
action seeking specific performance of the Laaman Settlement Agreement was
barred by sovereign immunity because RSA 491:8 (2010) (amended 2020)
waived sovereign immunity only for contract actions seeking money damages.
See RSA 491:8; Lorenz v. N.H. Admin. Office of the Courts, 152 N.H. 632, 635
(2005); Wiseman v. State, 98 N.H. 393, 397 (1953). The court alternatively
concluded that dismissal was warranted because Avery failed to demonstrate
an injury personal to himself, and, thus, lacked standing to sue for breach of
the Laaman Settlement Agreement. For example, the trial court found that
while Avery alleged a failure to provide required counseling services, he “has
not alleged that he has or would participate in any of the described
counseling.” This appeal followed.
II
We apply our traditional standard of review for motions to dismiss to the
legal issues presented. Alward, 171 N.H. at 580. Specifically, we review issues
of law de novo. Id.
We begin with the issue of sovereign immunity. The State is immune
from suit in its courts without its consent. XTL-NH, Inc. v. N.H. State Liquor
Comm’n, 170 N.H. 653, 656 (2018). As a State department or agency, the DOC
is “cloaked with the State’s sovereign immunity.”1 Id. (quotation omitted).
1While we reference, here and throughout this opinion, the DOC as the State actor, we
acknowledge that the named defendant in this action is the “Commissioner [of the] New
3
Accordingly, the DOC is immune from suit in New Hampshire courts “unless
there is an applicable statute waiving immunity.” Id. (quotation omitted). “Any
statutory waiver is limited to that which is articulated by the legislature; thus,
New Hampshire courts lack subject matter jurisdiction over an action against
the State ‘unless the legislature has prescribed the terms and conditions on
which it consents to be sued, and the manner in which the suit shall be
conducted.’” Id. (quoting Lorenz, 152 N.H. at 634 (brackets omitted)).
Sovereign immunity is a jurisdictional question not to be waived by conduct or
undermined by estoppel. Id. It is not a defense that must be affirmatively
pled. Lorenz, 152 N.H. at 634.
RSA 491:8 provides a statutory waiver of sovereign immunity for contract
actions against the State. RSA 491:8; accord Laws 2020, 12:2 (amending RSA
491:8, effective July 2020). Settlement agreements with the State are
contractual in nature and thus will generally fall under the purview of RSA
491:8. See Poland v. Twomey, 156 N.H. 412, 414 (2007); see also RSA 491:8;
Laws 2020, 12:2. At the time of the trial court’s order, we had interpreted RSA
491:8 to provide a waiver of immunity only for contract actions seeking money
damages against the State. See RSA 491:8; Lorenz, 152 N.H. at 635; Wiseman,
98 N.H. at 397. The State relied upon this interpretation of the statute in
responding to Avery’s appeal, arguing that the statute’s limited waiver of
immunity did not apply to his action, which seeks only specific performance of
the Laaman Settlement Agreement.
We requested supplemental briefing from the parties and solicited
amicus briefs on the issue of sovereign immunity. In July 2020, after these
additional briefs were filed, RSA 491:8 was amended, and now explicitly waives
the State’s immunity for actions “founded upon any express or implied contract
with the state, including specific performance and other equitable remedies
that are not limited to money damages.” Laws 2020, 12:2. Through this
amendment, the legislature has made clear its intent to undo the effects of our
prior cases interpreting RSA 491:8 as a waiver of sovereign immunity only for
contract actions seeking money damages against the State. See id. See
Hampshire Department of Corrections.” This is a distinction that does not materially affect the
type of immunity applicable to this case — sovereign immunity, rather than official immunity —
but may in other cases. See Tilton v. Dougherty, 126 N.H. 294, 297-98 (1985) (explaining
“[o]fficial immunity is considered a distinct doctrine [from sovereign immunity] that shields State
officials and employees themselves” and is “a derivative or extension of the doctrine of sovereign
immunity”). Based upon Avery’s allegations and arguments on appeal, we understand Avery to be
suing the Commissioner in her official capacity as a “nominal defendant[],” who is “being sued due
to [her] status as [an] agent[] of the State and for actions in which the State is the real alleged
[breaching party].” Id. (applying “official immunity” in lieu of “sovereign immunity” where the
defendants were not “mere nominal defendants,” but were being sued “for their personal and
individual acts of negligence” while acting within the scope of their employment as state
employees). Correspondingly, we do not understand Avery to have alleged that the current
Commissioner, herself, has personally and individually acted or failed to act in a manner that
breached the Laaman Settlement Agreement. See id.4
generally Lorenz, 152 N.H. at 635; Wiseman, 98 N.H. at 397. As a result of the
July 2020 amendment, the State filed a motion to withdraw its defense in the
instant appeal “that the Laaman Settlement Agreement cannot be enforced . . .
because such a remedy [of specific performance] has not been authorized by
[the] State.” We granted the State’s motion to withdraw this defense. Thus, we
need no longer decide if RSA 491:8, prior to its amendment in July 2020,
waived sovereign immunity for Avery’s suit.2
In its motion, however, the DOC “reserves all rights and does not waive
any other argument that sovereign immunity may bar this action, including the
argument that the Laaman Settlement Agreement is not the type of contract
contemplated by RSA 491:8 (i.e., a contract for which a legislative
appropriation exists or existed).” While the DOC is “reserv[ing]” and “not
waiv[ing]” other arguments that sovereign immunity bars Avery’s action, we do
not understand the department to be pursuing any of these arguments in the
instant appeal. Therefore, there are no additional arguments for us to
presently consider as to why sovereign immunity bars Avery’s action.
However, if we were to simply rest on the department’s withdrawal of its
defense regarding the remedy of specific performance, the DOC would be
entitled to raise its “reserve[d]” arguments to the trial court on remand because
sovereign immunity is “a challenge to the court’s subject matter jurisdiction,
which may be raised at any time.” Claremont School Dist. v. Governor (Costs
and Attorney’s Fees), 144 N.H. 590, 592 (1999); see XTL-NH, Inc., 170 N.H. at
656 (sovereign immunity is not “waived by conduct or undermined by estoppel”
(quotation omitted)). This course would be contrary to the interests of judicial
economy when the issue likely to arise on remand — additional argument on
sovereign immunity — presents a question of subject matter jurisdiction, XTL-
NH, Inc., 170 N.H. at 656, which we may address sua sponte, In re
Guardianship of K.B., 172 N.H. 646, 648 (2019), and presents a question of
law, which we review de novo, Conrad v. N.H. Dep’t of Safety, 167 N.H. 59, 70
(2014). Cf. State v. Williams, 173 N.H. ___, ___ (decided September 18, 2020)
(slip. op. at 2) (“In the interests of judicial economy, we address the arguments
of the parties that are likely to arise on remand.”).
We, therefore, proceed to interpret RSA 491:8, as amended in July 2020,
to determine whether the State has waived sovereign immunity for Avery’s
action. See XTL-NH, Inc., 170 N.H. at 656. Evaluating the statute anew, in
light of the language of the legislature’s recent amendment, we conclude that
2 Not only has the department, in response to the July 2020 amendment, withdrawn its defense
that the remedy sought by Avery is outside the scope of the State’s waiver of sovereign immunity,
but the legislature provided that “RSA 491:8 as amended by this section 2 of this act shall apply
to express or implied contracts with the state that are in effect on or after the effective date of
section 2 of this act.” Laws 2020, 12:3.
5
the State has waived sovereign immunity for Avery’s action for breach of the
Laaman Settlement Agreement. See Laws 2020, 12:2.
As questions of law, issues of statutory interpretation are subject to de
novo review. See Conduent State & Local Solutions v. N.H. Dep’t of Transp.,
171 N.H. 414, 419 (2018). In matters of statutory interpretation, this court is
the final arbiter of the intent of the legislature as expressed in the words of the
statute considered as a whole. Id. We first look to the language of the statute
itself, and, if possible, construe that language according to its plain and
ordinary meaning. Id. at 419-20. We interpret legislative intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include. Id. at 420. We
construe all parts of a statute together to effectuate its overall purpose and to
avoid an absurd or unjust result. Id. Moreover, we do not consider words and
phrases in isolation, but rather within the context of the statute as a whole,
which enables us to better discern the legislature’s intent and to interpret
statutory language in light of the policy or purpose sought to be advanced by
the statutory scheme. Id. Absent an ambiguity, we will not look beyond the
language of the statute to discern legislative intent. Id.
RSA 491:8, as amended in July 2020, provides:
The superior court shall have jurisdiction to enter judgment
against the state of New Hampshire founded upon any express or
implied contract with the state, including specific performance and
other equitable remedies that are not limited to money damages.
Any action brought under this section shall be instituted by bill of
complaint and shall be tried by the court without a jury. The
jurisdiction conferred upon the superior court by this section
includes any set-off, claim or demand whatever on the part of the
state against any plaintiff commencing an action under this
section. The attorney general, upon the presentation of a claim
founded upon a judgment against the state, shall submit the claim
to the department or agency which entered into the contract, and
said department or agency shall manifest said claim for payment
from the appropriation under which the contract was entered into;
provided, that if there is not sufficient balance in said
appropriation, the attorney general shall present said claim to the
general court for the requisite appropriation.
Laws 2020, 12:2 (emphasis added). The emphasized language constitutes the
full extent of the July 2020 amendment to the statute. See id.
Here, Avery’s complaint alleging breach of the Laaman Settlement
Agreement is founded upon an express contract with the State, specifically,
with the DOC. See id. His complaint seeks specific performance of the
6
agreement — a remedy explicitly authorized by the statute. See id. Should a
judgment be entered against the State in this matter, the attorney general shall
submit the claim to the DOC as “the department or agency which entered into
the contract.” Id.
The DOC shall then “manifest said claim for payment from the
appropriation under which the contract was entered into; provided, that if
there is not sufficient balance in said appropriation, the attorney general shall
present said claim to the general court for the requisite appropriation.” Id. We
have previously construed this language to support our interpretation that RSA
491:8, prior to the July 2020 amendment, limited the State’s waiver of
immunity to contract actions seeking money damages. See Wiseman, 98 N.H.
at 397 (“The procedure established by the Legislature for satisfaction of the
judgment permitted, either by ‘manifest . . . for payment’ or by legislative
appropriation, indicates that a judgment for the payment of money was
contemplated.”). To the extent our previous interpretation of this language
conflicts with the plain language of the newly amended statute as a whole, that
interpretation is no longer suitable because we must construe all parts of the
amended statute together to effectuate its overall purpose. See Conduent State
& Local Solutions, 171 N.H. at 420.
Accordingly, we now interpret the last sentence of RSA 491:8 in light of
the legislature’s recent amendment to its first sentence. See id.; Chase Home
for Children v. N.H. Div. for Children, Youth & Families, 162 N.H. 720, 731-33
(2011); see also Laws 2020, 12:2. The plain and ordinary meaning of
“payment” is “the act of paying or giving compensation : the discharge of a debt
or an obligation,” and “something that is paid : something given to discharge a
debt or obligation or to fulfill a promise.” Webster’s Third New International
Dictionary 1659 (unabridged ed. 2002); see K.L.N. Construction Co. v. Town of
Pelham, 167 N.H. 180, 185 (2014) (“When a term is not defined in the statute,
we look to its common usage, using the dictionary for guidance.”); see also RSA
21:2 (2020). Construing all parts of the statute together, we believe that the
unchanged language of the last sentence is broad enough to encompass the
explicit expansion of remedies available to plaintiffs suing the State on a
contract action set out in the amended first sentence. See Laws 2020, 12:2;
see also Conduent State & Local Solutions, 171 N.H. at 420.
When read in the context of the amended statute as a whole, we
conclude that the phrase “manifest said claim for payment from the
appropriation under which the contract was entered into,” refers to the relevant
department’s or agency’s responsibility to provide the remedy “to discharge a
debt or obligation or to fulfill a promise,” as determined by the judgment
entered against the department or agency. Laws 2020, 12:2; Webster’s Third
New International Dictionary, supra; see Laws 2020, 12:2. This judgment may
“includ[e] specific performance and other equitable remedies that are not
limited to money damages.” Laws 2020, 12:2. If the department or agency has
7
“insufficient appropriations to cover that judgment,” the attorney general shall
present the breach of contract judgment to the General Court to satisfy it.
Chase Home for Children, 162 N.H. at 732; see Laws 2020, 12:2. This
construction of the last sentence of the statute is consistent with the amended
statute as a whole, effectuates the statute’s overall purpose, and best conforms
to the legislature’s expressed intent reflected in the amendment. See Laws
2020, 12:2; Conduent State & Local Solutions, 171 N.H. at 420; XTL-NH, Inc.,
170 N.H. at 656.
Here, should a judgment be entered against the State, the DOC will be
responsible for providing the remedy from its appropriations to fulfill its
promises under the Laaman Settlement Agreement pursuant to said judgment.
See Laws 2020, 12:2. If the DOC has insufficient appropriations to cover the
judgment, the attorney general “shall present said claim to the general court
for the requisite appropriation.” Id. “The clear intent of RSA 491:8 is to grant
a right to sue the State for breach of contract.” Chase Home for Children, 162
N.H. at 731 (construing the prior version of RSA 491:8). The clarity of this
intent is only strengthened by the amended language, explicitly expanding the
remedies available to plaintiffs suing the State in a contract action. See Laws
2020, 12:2. We conclude that the legislature has prescribed the terms and
conditions on which it consents to be sued, and the manner in which the suit
shall be conducted, such that it has waived sovereign immunity for Avery’s
action seeking specific performance. See id.; see also XTL-NH, Inc., 170 N.H.
at 656.
The department argues that “[s]pecifically enforcing agreements like the
Laaman Settlement Agreement improperly constrains future legislatures and
commissioners from adapting to changing technology, rehabilitative practices,
and best correctional practices.” In light of its recent amendment to RSA
491:8, we disagree that the legislature would find that agreements settling
lawsuits against the State are “likely to impose obligations on the government
that would constrain future policy decisions or impair public welfare.” Texas A
& M University-Kingsville v. Lawson, 87 S.W.3d 518, 522 (Tex. 2002) (plurality
opinion); see Laws 2020, 12:2. Settlement of a lawsuit “trades unknowns —
such as what the evidence will be, and how [the trier of fact] will view it — for
knowns — obligations that are more accurately assessable.” Lawson, 87
S.W.3d at 522. The need to weigh the costs and benefits of agreeing to settle a
lawsuit is common to all parties to a settlement, including the State. “In
reaching a settlement, the government is guided by legal counsel to help gauge
the degree of exposure to liability and the fairness of the settlement.” Id.
When the State has decided to settle a lawsuit, or more broadly, to
contract with another party, “the legislature has specifically authorized the
courts to enter a . . . judgment against the State when it breaches a contract.”
Chase Home for Children, 162 N.H. at 733. To conclude that sovereign
immunity bars Avery’s action for breach of the Laaman Settlement Agreement
8
“would require us to ignore these legislative directives and to permit a State
[department or] agency to disregard its contractual obligations.” Id. Here,
Avery has alleged that the DOC is failing to meet its contractual obligations
under the Laaman Settlement Agreement by failing to redress, among other
things, holes and rust in the ventilation systems, “[c]ontaminated waste water”
leaking onto the floors of the Food Service Department, and the unavailability
of required counseling services. Assuming these alleged facts are true, as we
must at the motion-to-dismiss stage, Gagne, 172 N.H. at 658, we fail to see
how specific enforcement of the Laaman Settlement Agreement would
“constrain[]” the department from adapting to “best correctional practices.”
“[T]he functionality of state institutions depends on the trust and
confidence of New Hampshire citizens. Allowing the State to disregard its
contractual obligations would undermine this trust.” Chase Home for
Children, 162 N.H. at 733. This principle remains true in the context of
agreements settling lawsuits against the State, and a holding to the contrary
would deter the settlement of such lawsuits for fear of losing the ability to
enforce remedies the State has promised to deliver. This result cannot have
been the legislature’s intent. We, therefore, hold that RSA 491:8, as amended
in July 2020, has waived the State’s sovereign immunity for Avery’s suit for
breach of the Laaman Settlement Agreement. See Laws 2020, 12:2.
III
We now turn to the trial court’s alternative ruling that Avery lacked
constitutional standing to sue the department for breach of the Laaman
Settlement Agreement because he “failed to articulate any personal injury
suffered as a result of the NHSP’s alleged violations.” Generally, in ruling upon
a motion to dismiss, the trial court must determine whether the allegations
contained in the plaintiff’s pleading sufficiently establish a basis upon which
relief may be granted. Birch Broad. v. Capitol Broad. Corp., 161 N.H. 192, 199
(2010). When a motion to dismiss challenges the plaintiff’s standing to sue, the
trial court must look beyond the plaintiff’s unsubstantiated allegations and
determine, based upon the facts, whether the plaintiff has sufficiently
demonstrated his right to claim relief. Conduent State & Local Solutions, 171
N.H. at 418. Because the relevant facts are not in dispute, we review the trial
court’s determination on standing de novo. Id.
Standing under the New Hampshire Constitution requires parties to have
personal legal or equitable rights that are adverse to one another, with regard
to an actual, not hypothetical, dispute, which is capable of judicial redress. Id.
In evaluating whether a party has standing to sue, we focus on whether the
party suffered a legal injury against which the law was designed to protect. Id.
Neither an abstract interest in ensuring that the State Constitution is observed,
nor an injury indistinguishable from a generalized wrong allegedly suffered by
the public at large, is sufficient to constitute a personal, concrete interest. Id.
9
Rather, the party must show that its own rights have been or will be directly
affected. Id.
Avery argues that the trial court erred in finding that he did not have
standing to enforce the Laaman Settlement Agreement because he “has a
contractual relationship with [the DOC],” and he “has a legal and equitable
right to have [the DOC] comply with the terms and provisions of the settlement
agreement.” Avery essentially contends that he has alleged an injury sufficient
to confer standing to sue because he is a party to the Laaman Settlement
Agreement, he has alleged breaches of that agreement, and “‘[a]n unexcused
failure to perform a contract is a legal wrong.’” (Quoting 24 Samuel Williston &
Richard A. Lord, Williston on Contracts § 64:6 (4th ed. 2002)).
The department counters that Avery “does not allege injury to himself;
instead, he speculates that the conditions he describes harm all NHSP
inmates.” 3 Further, the department argues that Avery does not have standing
“because he does not have the right to represent the interests of the class of
Laaman inmates who were subject to the Laaman Decree and are third-party
beneficiaries to the Laaman Settlement Agreement.” In a similar vein, the
department asserts that Avery “is not permitted to bring this case as a class
action.” While the trial court acknowledged that Avery had “sufficiently alleged
that a contract, to which he is a party, has been breached,” it agreed with the
DOC that Avery did not have standing because he “failed to articulate how any
breach has injured him personally.”
We agree with Avery. Settlement agreements are contractual in nature
and, therefore, are generally governed by principles of contract law. Poland,
156 N.H. at 414; accord Trapp v. Roden, 41 N.E.3d 1, 8-9 (Mass. 2015). In
describing the distinction between having standing to bring a tort action and a
contract action, we have stated, “The fundamental difference between tort and
contract actions lies in the nature of interests protected. Tort actions protect
the interest in freedom from various kinds of harm. Contract actions protect
the interest in having promises performed.” Porter v. City of Manchester, 151
N.H. 30, 38 (2004) (quotation omitted).
A party to a contract has a cognizable interest in having the contract’s
promises performed, and an alleged breach constitutes a legal injury to that
interest sufficient to confer standing. See Katz v. Pershing, LLC, 672 F.3d 64,
72 (1st Cir. 2012) (“The invasion of a common-law right (including a right
conferred by contract) can constitute an injury sufficient to create standing.”);
Trapp, 41 N.E.3d at 9 (“When a party is a signatory to a contractual agreement,
a breach of contract is an injury sufficient to confer standing.”). “It is
3 The department argues that Avery also lacks standing because his claim is barred by sovereign
immunity; thus, his claim is not capable of judicial redress. Given our holding in part II above,
this argument is unavailing.
10
axiomatic that an action upon a contract or for breach of a contract can be
brought and maintained by one who is a party to the contract sued upon.”
Wilcox v. Webster Ins., Inc., 982 A.2d 1053, 1061 (Conn. 2009) (quotation
omitted). “[W]hen a plaintiff generally alleges the existence of a contract,
express or implied, and a concomitant breach of that contract, [the plaintiff’s]
pleading adequately shows an injury to [the plaintiff’s] rights.” Katz, 672 F.3d
at 72-73 (explaining that, to make out a breach of contract claim under New
York law, the plaintiff must plead the existence of a promise that the plaintiff is
entitled to enforce).
There is no dispute that Avery is a party to the Laaman Settlement
Agreement. See Wilcox, 982 A.2d at 1061. While Avery did not sign the
agreement himself, the agreement was signed on his behalf. See Trapp, 41
N.E.3d at 9. We conclude that, as a party to the Laaman Settlement
Agreement, Avery “has a cognizable legal interest in ensuring that the DOC
uphold its end of the bargain” under this agreement. Id. at 8-9 (holding that a
signatory to a settlement agreement had standing to sue the Department of
Corrections for breach of the agreement even though the signatory “ha[d] never
been, and was not at the time of trial, confined to [the relevant correctional
facility]”); see also Porter, 151 N.H. at 38 (“Contract actions protect the interest
in having promises performed.” (quotation omitted)). His interest is not
abstract and an injury to it is distinguishable from a generalized wrong
allegedly suffered by the public at large. See Conduent State & Local
Solutions, 171 N.H. at 418. Avery’s complaint alleges several breaches of the
Laaman Settlement Agreement. We need not inquire further to determine that
Avery has alleged a sufficient injury to his own legal interests to satisfy the
standing requirement. See Katz, 672 F.3d at 72; cf., e.g., Birch Broad., 161
N.H. at 199-200 (inquiring further where a plaintiff had assigned its rights
under the contract that was allegedly breached); Sunapee Difference v. State of
N.H., 164 N.H. 778, 783, 788 (2013) (inquiring further in order to hold lessee-
assignor “contractually retained a [concrete and] sufficient interest in the
outcome of the reformation claim to grant it standing to sue”).
On appeal, the DOC has pointed to no authority to explain why a party
to a contract alleging a breach of said contract lacks standing to pursue the
claim. Instead, the department supports its argument that Avery lacks
standing with case law holding, for example, that the “plaintiffs lack[ed]
standing because they cannot raise the constitutional claims of another,”
Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 35 (2005), and that “it [wa]s
plain error to permit this imprisoned litigant who [wa]s unassisted by counsel
to represent his fellow inmates in a [section 1983] class action,” Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam) (concluding that,
under Federal Rule of Civil Procedure 23, plaintiff could not “fairly and
adequately protect the interests of the class,” which depends in part on “the
quality of counsel,” because he did not have the assistance of counsel). These
cases are inapposite.
11
Although the Laaman Settlement Agreement settled a section 1983
claim, which alleged violations of Avery’s and a class of prisoners’
constitutional rights, Avery, in his action to enforce the Laaman Settlement
Agreement, is not raising a constitutional claim on behalf of himself or others;
he is raising a breach of contract claim. See Porter, 151 N.H. at 38; see also
Trapp, 41 N.E.3d at 8-9. As a party to a contract that he alleges has been
breached, Avery has sufficiently demonstrated that he has suffered a legal
injury against which the law was designed to protect. See Conduent State &
Local Solutions, 171 N.H. at 418. Avery has shown that his own rights, as a
party entitled to enforce the promises made by the DOC in the Laaman
Settlement Agreement, have been directly affected by the DOC’s alleged
breaches. See id. We, therefore, hold that Avery has standing to bring his
breach of contract action against the department.
IV
In sum, we conclude that the State has waived sovereign immunity for
Avery’s suit for breach of the Laaman Settlement Agreement and that he has
standing to pursue his action. Thus, the trial court erred in dismissing Avery’s
complaint on those grounds. We reverse and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
HICKS, BASSETT, and DONOVAN, JJ., concurred.
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