County responds with motion to dismiss ambulance lawsuit

Sue Guinn Legg • Mar 4, 2019 at 8:50 PM

ERWIN — The attorney representing Unicoi County, its mayor and county commissioners has filed a motion to dismiss a lawsuit that attempts to force the county to put its contract for ambulance service back out for bid.

County Attorney Doug Shults filed the motion to dismiss in response to a lawsuit filed Jan. 31 by Johnny Day, a former candidate for county mayor and the organizer of a group of a citizens concerned with how the contract was advertised for proposals and ultimately awarded to the sole bidder, MedicOne Medical Response.

The motion contends Day lacks standing to bring the lawsuit, failed to state a claim for which relief can be granted, failed to seek a court review before requesting a judgment and failed to include MedicOne as “an indispensable party” to the complaint.

If the motion for dismissal is denied, Shults requests the court postpone proceedings until Day joins MedicOne to the lawsuit.

His motion asserts, “Plaintiff states that the first cause of action lies in an alleged failure by defendants to employ ‘an open, fair and competitive bidding process.’ As relief sought, plaintiff alleges that this court should void the contract between defendants and MedicOne or should require that the contract be rescinded.

“Defendants assert that (Day) lacks standing to challenge any contract entered between the defendants and MedicOne and the complaint must therefore be dismissed.

“Alternatively, if plaintiff establishes standing to the satisfaction of this court, the only avenue by which plaintiff may proceed is by filing a writ of certiorari to the court.”

The motion states, “It is well established that, as a general rule, taxpayers have no right to contest in an equity suit or to enjoin a city from entering into a contract except in the most limited of circumstances. ... Plaintiff Day does not allege and is unable to show that he would sustain an injury different from that common to all similarly-situated taxpayers. Without such showing, plaintiff lacks standing to proceed.

“Because defendants have statutory authority to contract to provide ambulance services to its citizens, this authority can only be reviewed to determine if the county’s action or exercise of its discretion ‘is fraudulent or manifestly abusive or oppressive.’ No such allegations have been made by plaintiff. … In fact, plaintiff has been quoted by more than one news outlet as stating that defendants have acted legally.”

“In sum, civic-mindedness, while laudable, does not include access to the courts to restrain municipal officials in the performance of their administrative duties. Contracting to provide ambulance service is an example of administrative duty that can only be challenged in very limited circumstances, none of which exist in this case and have not been alleged to exist.”

The motion further states, “If it’s possible for a taxpayer to seek judicial review of competitive bidding procedures, the taxpayer can only do so by filing a writ of certiorari,” as the Tennessee Court of Appeals in Knoxville held in its September 2018 ruling in a case of alleged violation of the competitive bidding procedures.

“Therefore in the case at hand, dismissal of the plaintiff’s claims for declaratory and equitable relief are likewise required. … Alternatively , the court should review the action as if it is an action brought by writ of certiorari.”

Finally, the motion states, “If plaintiff is permitted to proceed, MedicOne must be joined as an indispensable party’ in order to defend allegations of “very serious deficiencies, including causing three deaths,” and of its owner Jim Reeves possibly intimidating defendants “into believing that he has a basis to sue the county for breach of contract.”

The motion states, “Defendants are in no position to defend, rectify or respond to the allegations against MedicOne.”

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