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STATE OF MAINE PENOBSCOT. SS. Docket No. CV-05- 7 SJPEziQfi COURT

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crp 2. 2006
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Delta Hockey, LLC Inc., 1 PENOBSCOT COUNTY I Plaintiff
v. Order (Motion for Summary Judgment)
0ONAl.D 1.GARBRECHT LnV. 1.1 BRARY
City of Brewer, Maine et al., Defendants OCT ' 7 2006
Pending before the court is the defendants' motion for summary judgment on all counts of the complaint. The court has reviewed the parties' submissions associated with the motion. For the reasons set out below, the court concludes that each of the plaintiff's claims is barred by principles of sovereign immunity as codified in the Maine Tort Claims Act (MTCA), see 14 M.R.S.A. $3 8101 et seq.
A party is entitled to summary judgment when the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. M.R.Civ.P. 56(c); see also Darlings v. Ford Motor Co., 2003 ME 21,g 14, 817 A.2d 877, 879. The motion court views the evidence in the light most favorable to the non-moving party. Benton Falls Associates v. Central Maine Power Company, 2003 ME 99,g 10,828 A.2d 759,762. "Summary judgment is appropriate when a defendant is immune from tort liability," which is among the issues raised by the defendants, where the record on summary judgment does not reveal genuine issues of material fact. Grossman v. Richards, 1999 ME 9, g 3,722 A.2d 37 1, 373.
Through an agreement with the defendant City of Brewer, in 1995 T.J. Ryan, LLC constructed an ice rink facility on land that it purchased from the City of Brewer at a reduced price. Defendant's statement of material fact (DSMF) at gg 13, 14 and 16. Hockey is a very popular youth sport in Brewer, and the City promoted the construction of the facility in order to help increase opportunities for local children to have access to a rink, because such time previously had been limited. Id. at 1515,9, and 10. Defendant Manley G. DeBeck, Jr. was a member of the city council at the time of the transaction with TJ Ryan, LLC and was actively involved in the project. Id. at 15. After the facility was constructed, it was used by the Brewer High School team as well as by Brewer Youth Hockey, which is a privately operated league for younger hockey players. Id. at 99 8 and 18. The city owned the surrounding property and built a parking lot as an adjunct to the rink. Id. at 9 14. TJ Ryan, LLC fell into arrears on the municipal property taxes owed on the rink, and the City filed liens arising from that arrearage. Id. at yll 19 and 21. The plaintiff, Delta Hockey, LLC was formed to purchase the property in order to avoid foreclosure. Id. at 9 23. Both TJ Ryan, LLC and Delta Hockey were managed by the same person, Louis Janicki. Id. at gg 17,29, 33-34. In 2001, Delta Hockey acquired the facility and, as part of its purchase, paid the arrearage that had accumulated while TJ Ryan, LLC owned it. Id. at 99 23-24. Delta Hockey allowed a new arrearage to develop by December 2002, and there have been arrearages on city taxes continuously since that time. Id. at 9925-26. Its tax liability for 2004 and 2005 was in excess of $40,000. Id. at 9 30. In 2005, Delta Hockey advised the City that it would not longer participate in an agreement under which it would receive a credit against its tax debt for ice time used by the City. Id. at 9 28-29. The City then, by its own action, unilaterally exercised statutory authority to perpetuate that arrangement. Id. at 9 30. As a city council member, DeBeck was involved in the City's agreement with Delta Hockey and then in the City's decision to invoke its authority to maintain the availability of ice team, despite Delta Hockey's unwillingness. Id. at 9 31. DeBeck had also received complaints from his constituents about the way Janicki managed the facility. Id. at 99 32, 36-38. When Janicki announced a plan to form a new local youth hockey league that would be a competitor to Brewer Youth Hockey, Brewer residents complained to DeBeck because the new league would reduce the amount of ice time available to the existing league. Id. at 99 40-43,46-47.
Representatives of Brewer Youth Hockey scheduled a meeting with Janicki and other interested parties to be held in early August 2005, when the future course of Brewer Youth Hockey would be discussed. Id. at Yg 44-45. DeBeck attended the meeting in his capacity as a city councilor and at the request of constituents. Id. at 9 49. DeBeck felt that his responsibilities as a city councilor required him to attend the meeting; he did not
have any children of his own in Brewer Youth Hockey, and he had no personal interest in youth hockey or any other "personal agenda." Id. at 99 50-51.
At the meeting, someone asked Janicki if Delta Hockey had "tax issues" with the City and the amount of tax arrearages. Id. at J 58. Janicki responded that such issues existed but that he did not know the amount owed and did not know if the City had filed a tax lien against the property. Id. at 99 59,68. DeBeck then spoke, first introducing himself as a city councilor who was attending in that capacity and expressing views as a councilor. Id. at 9 61. Janicki understood this expression of the nature of DeBeck's capacity. Id. at J 62. DeBeck then said that the City was considering its options regarding the ice rink and that when the city council took over the rink, it would be better managed than Janicki managed it. Plaintiff's responses to DSMF JJ 63,66,70-71,74.' DeBeck made this comment in order to remind Janicki about the City's interest in the continuing available of ice time for Brewer Youth Hockey, local school teams and other public interests and about the City's history of working productively with the facility's management to promote this goal. DSMF at JJ 80, 82. DeBeck's comments related directly to concerns that constituents had expressed to him and constituted matters of public record and public interest. Id. at 9J 84-85. The Brewer city charter empowers the city council to provide "the administration of all the fiscal, prudential and municipal affairs" of the city. Id. at J 3.
1 The parties dispute the nature and wording of DeBeck's statement. With the exception noted below, the court construes the evidence in the parties' statements as is set out in the text, which reflects that evidence when seen in the light most favorable to the claims of the plaintiff (i.e., the non-moving party).
However, Delta Hockey asserts that DeBeck said that the City was going to take over the ice rink "imminently." See plaintiff's statement of additional material fact (PSAMF) at J 98. This assertion, which is based on Janicki's affidavit submitted in opposition to the motion at bar, is not supported by the record. At most, the record indicates that Janicki and others had the impression that the takeover would be imminent. See deposition transcript of Louis Janicki at pp. 82, 83. At that deposition, Janicki testified that he had no recollection that DeBeck assigned a timeframe to the City's planned takeover of the ice rink. Id. at p. 82. Janicki was deposed prior to the time he executed the affidavit. An affidavit cannot be used to contradict statements that the affiant made previously at a deposition. See Zip Lube, Inc. v. Coastal Savings Bank, 1998 ME 8 1,g 10,709 A.2d 733,735. The court therefore excludes from the record any evidence that DeBeck stated at the August 2005 meeting that the City would take over the ice rink "imminently."
As of the meeting date, Delta Hockey's tax arrearage owed to the City was approximately $28,000, and the City had filed tax liens on the property. Id. at 97 52-53. However, DeBeck and other members of the city council did not want the City to foreclose on the property but rather preferred that it remain in private ownership and in operation. Id. at SJ 55,79. Further, the City did not have any plans to assume ownership of the facility, although the lien process created the possibility that that result could occur automatically by operation of law. Id. at 79 56, 69. Under that applicable law, if Delta Hockey were to pay the outstanding tax liability, it would prevent the City from obtaining ownership. Id. at 7 76.'
In its complaint, Delta Hockey has alleged three substantive causes of action against DeBeck in his individual capacity and as a representative of the City of Brewer, and against the City itself. Those claims are for fraudulent misrepresentation, negligent or reckless misrepresentation, and tortious interference with a contractual relationship or advantageous relationship. (The fourth count of the complaint seeks punitive damages and does not set out an independent theory of liability.) The defendants have moved for summary judgment on all counts. Included among the grounds for the defendants' motion is their contention that they are immune from liability here under the MTCA.
As is noted above, Delta Hockey has asserted its claims against the City and against DeBeck in both an individual and municipal capacity.
First, as a general principle under the MTCA, the City is absolutely immune from tort liability. 14 M.R.S.A. 8 8103(1). That statutory grant of immunity is subject to exceptions set out in section 8104-A. The exceptions found in section 8104-A, however, are subject to limitations, which are created in section 8 104-B (entitled "Immunity notwithstanding waiver"). See Norton v. Hall, 2003 ME 118,JJ 12-13, 834 A.2d 928, 932; Peterson v. City of Bangor, 2003 NIE 102,7 6, n. 3, 831 A.2d 416,418. More particularly, under section 8104-B(3), a governmental entity (which includes a city, see
The court strikes several of the plaintiff's statements of additional material fact beyond that discussed in note 1 supra. These include the reference in PSAMF 7 93 to the City's "hostile" attitude toward the formation of a new league, because the foundation for such evidence is not established in this record; the reference in PSAMF 7 96 of communications between certain individuals and "the City" for lack of foundation; and PSAMF 99 100 and 101, for lack of foundation.
14 M.R.S.A. $$ 8102(2), (3)) remains immune from liability for acts or omissions involving discretionary functions, even if those acts or omissions fall within one of the exceptions to immunity under section 8103-A. Here, Delta Hockey's claims against the City itself are predicated entirely on the conduct attributable to DeBeck; there are no independent theories of liability that Delta Hockey has pursued against the City, other than the liability that may be vicariously assigned to the municipality on account of DeBeck's own actions. DeBeck's conduct does not fall into any of the exceptions to immunity enumerated in section 8104-A. Thus, Delta Hockey's claims against the City do not invoke any of the exceptions to the immunity established in section 8103. Therefore, under this analysis, there is no need to consider the question of whether the City benefits from any of the section 8104-B limitations to the exceptions to immunity found in section 8104-A, because none of the exceptions arise in the first place. Nonetheless, even if section 8104-B is applicable, the City remains immune from liability for DeBeck's conduct because, for the reasons set out below, that conduct constitutes the exercise of a discretionary function. See Roberts v. State of Maine, 1999 ME 89, Q 7, 73 1 A.2d 855,857 (equating discretionary function immunity of governmental entities and governmental employees)
Next, with respect to Delta Hockey's claims against DeBeck, the record on summary judgment establishes without genuine factual dispute that when DeBeck made the statement that underlies all of Delta Hockey's claims, he did so in his capacity as a member of the city council. In other words, at times relevant to this case, he was an "employee" of the City of Brewer within the meaning of 14 M.R.S.A.

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