Portland Pirates, LLC v. Cumberland County Recreation Center

j STATE OF MAINE BUSINESS AND CONSUMBR COURT CUMBERLAND, ss Location: Pol'llnnd Docket No.: BCD~CV-13-40 ) PORTLAND PIRATES, LLC, ) ) Plaintiff,- -- - ->­ - - ··" ) v. ) ) DECISION ANO ORDER CUMBERLAND COUNTY ) . (Motton to Dismiss) RECREATION CENTER n/k/11 ) CUMBERLAND COUNTY CIVIC ) CENTBR, ) ) Defendant ) ) Dofondant Cumberland County Recrnation Centel' n/k/n/ Cumberland County Civic Center (Dofondnnt 01· the Civic Center) moves, pursuant to M,R, Clv. P. I2(b)(6), to dismiss the complaint of Pol'tlnnd _Pirates, LLC (Ph1l11tiff or the Pirates), which complaint 11sse1'tS four counts: breach of contrnct (Count I), breach of contract to negotiate In good faith (Count JI), promissory estoppel (Count 111), and declarntory judgment (Count IV). The basis of the Civic Center's motion is that the resolution approved by the Civic Center's Board of Trnstees dated April 17, 2013, is not n binding agreement and c1m11ot servo as the foundRtlon fo1· any of the Pirates' chiims. Fnctunl nnd Procedurnl Bnckgrmrnd The following facts nre drnwn from Plaintiff's Complnint and 11re presumed to be true fo1· the purposes of the motion. See Joh11sto11 v. Me. E11erg)' Recovery Co., Ltd. P'shlp, 20IO ME 52, ~ 2," 997 A.2d 741. The Pirates Is n Dell\\vare limited liability comp11ny nnd Amerlcnu Hockey Leftgue franchise nffilintcd with !he Phoenix. Coyotes, ft National Hockey Le11gue franchise based — 2 — in Phoenix, Arizona. (Compl. YY 1, 3.) The Civic Center is a body corporn1e organized uncle!' the l11ws of Maine thllt owns and operates the Cumberland County Civic Center (CCCC), a mnlllpurpose sports nnd entertainment venue In Portland. (Comp!. f~ 2, 4.) The CCCC is currently undergoing renovation. (Comp!.~?.) The Pirates have been the prime tenant at the CCCC sJnce I993 ..(Comp[.Jl. .. . .. . . . ···· ······ ····· · In the six months prior to April 2013, the Pirntes llnd the Civic Cente,· conducted extensive negotllllloos over the m11tetlnl terms of a Jong-term lense ngreemont. (Comp!. SJ JO.) Jn AprJI 2013, the pnrties met imd agreed upon the mflterlal terms of tho p11rties 1 ngreement. (Compl. 9 11.) At the Aprll 17, 2013, Bonrd Meeting, the Civic Center Trustees voted to approve all of the mnterlnl terms of 11 long-lerm lenso agreement wilh the Pirates. (Comp.~ 13.) There nro nt lenst 17 mntel'inl terms within the resolution, including the length of tho lease, m11111nl bnse rent per gnme, and the division of 1·evenue between the parties for ticket sales, ndvertlsement, nnd concession sales, including alcohol. (Compl. 51~ 12-13,) With respect to advertising and concession sales, lhe ngreement contemplated lhat the Pirates would receive I) 57.5% of the revenue from the snle of food and beverages, including nlcohol, fo1· Its games; and 2) 50% of revenue for above ice advertising. (Compl. 51 12.) The Civic Center agreed that it would negotlnte in good faith with th1> Plrntes on a fin11l ag1·eeme1~t that would in.elude the ngrced upon mnterhtl terms. (Comp!.! 14,) On Mny 14, 2013 1 the Civic Center provided R clrnft of the ngreemont thnt did not Include nil of the agreed upon mnterlnl terms, most notably provisions l'egardlng the division of rnvenue for advertising l\lld concession sl\les of alcohol. (Com1>l. 51 15.) On June 17, 2013, the Civic Center told the Pirntes for tho first time thnt state lnw prohibited the Pirates from 1·ecelving revenue from the snle of alcohol and thus the Pirates could not receive that revenue. (Comp). — 3 — 11 17.) In ngreelng to sh1ue revenue from the sRle of 11lcohol sold at hockey gftmes the Civic Center represented that they had the nuthorlty to shnre the revenue \Vilh the Pirates. (Compl. J 18.) On or 11bout June 26, 2013, the Civic Center, ncting in b11d faith and in continued brench oTllie material terms on he agreement reached In A1)rll~en1ancle<ll hnt tlie-Plfotes nccept l)o 5% of revenue from the sale of 1100-alcoholic food and bever«ges only, rnther thm, 57.5% of both food and all bevemges, including 11lcohol; and 2) no 1·evenue from above ice ndvertlslng.. (Compl. ~9 19, 21.) On August 27, 2013, the Civic Center sent the Plrates an ultimatum demanding that the tenm accept the Civic Center's nnllnterul ch11ngcs to the previously agrned upon material terms by 5:00 p.m. 011 August 29, 2013, or the Civic Center would presume that Pirates we1·e reloc11tlng 1111d un<lel'tRke event planning fol' the d11tes previously reserved for hockey. (Comp!. Y 22.) Ou August 29, 2013, the Civic Center stated publicly that It had no ngl'eement with the Pirntes. (Compl . Y23 .) The Pirates filed theh· Complaint in Cumberland County Supel'ior Court on September 6, 2013, 11Iong with II motion fol' n temJ)orRry restrnlnlng order. In Its Complaint, the Pirates asset·t thnt "[t]he Portland Pirates and tho Civic Center mutually agreed and mutually expressed consenl to be bound by the material terms reflected in tho vote taken by the Civic Cente1· Trustees on April 17, 2013" nnd "[t]he materlRI terms of their agl'eement were sufficiently definite to be enfol'ceable." (Compl. !Y 25-26.) The mntler w11s approved for transfer to the Business nnd Consumel' Court on September 9, 2013, irnd the Pirates withdrew its motion for a temporary restraining on September'27, 2013. The Civic Center filed tho present motion on October 8, 2013, — 4 — Discussion A motion to dismiss pursmwt to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the complaint and, on such a challenge, the material allegations of the complnint must be tnken as admitted." Shaw v. S. Aroostook Cmty. Sch. Dist.• 683 A.2cl 502, 503 (Me. 1996) (quotntion . mnrl<s-omltle<l)-:- "The comphtinlis viewed 'lnthe lightrnost-favomble tothe plaititifno determine whether It sets forth elements of a CA\tse of action or alleges facts thnt would entltle the plaintiff to rellcf pursuant to some legal theory! 11 Ramsey v. Baxter Title Co., 2012 MB 113, ~ 6, 54 A.3d 710 (quotlng McCormick 11 • C1·a11e, 2012 MB 20, 9 5, 37 A.3d 295). "The purpose · of a complaint In modern notice pleading practice Js to pl'ovide defendants with fail' notice of the clnlm against them,,. Shaw, 683 A,2d nt 503 (quotation mRrks omitted). "A complRlnt is properly dismissed when it is beyond doubt that the plaintiff is entitled to no relief under any set of facts that might be pl'oven in support of the clalm,.' Rfchardso11 v. Wi11throp Sch. Dep't, 2009 MB 109, ~ 5,983 A.2cl 400 (quot11tio11 m111·ks ornllted). Here, the Civic Center maintains that ln the Complaint, the Pirates h1we failed to assert nn actionable clnim for breach of contract. Pursuant to Mnine contrnct lnw, 1111 11g1·eement is legally binding if the parties "mutually Rssented to be bound by all Its materJnl terms; the assent [wns] manifested In the contract, either expressly or lmplledlyi and tho contmct [was] sufficiently definite to enable the court to determine Its exact meaning and fix exactly the legnl linbilities of the parties," Barr v. Dyke, 2012 MB 108, SJ 13, 49 A.3d 1280, 1286 (quoting Sra11to11 v. U11iv. of Me. Sys., 200I MB96,113, 773 A.2d 1045). As referenced nbove, In Count I of tho Complaint, Plaintiff has alleged thnt "(tlhe Portland Pirates al\d the Civic Center nrntu11lly ngreed and mutually expressed consent to be bound by the nmte1'1RI terms reflected in the vole taken by the Civic Center Trustees on April 17, — 5 — 2013" and "lt}he mat_erlal terms of their ngreement were sufficiently definite to be enforceable." (Compl. YY 25-26.) In nddition, Plllintiff also set fol'th in its Complniitt the specific "material terms" that were the subject of the April 17, 2013, vote of the Trnstees. (Compl. 9 13 .) Ph1intlff thus asserted that the pal'ties agreed upon the material terms _of II binding agreement, which g1·eemenrPl11inti~f-nll~ges-Defend11u_c-_l_ms~~r~~-cl_1:eu~(-~01_1~Pl~'_!t2!?~?~1res-e1tlle-gat~o~-s, .____ ..,. .....___.. .. when "viewed 'in the light most fnvorable to the plaintiff ... [set] forth elements of II cause of actl?n or all~g~s _fa_cts _Iha~ _w~~~~-- ~-··~~Hie lh~. pl_~!~~.!f_f _to relief pursuant to_ ~~1~~ l~g_al _~h-~?ry_. '." Ramsey v. Baxter Title Co., 2012 MB 113, ~ 6, 54 A.3d 710 (quoting McCormick v. Crane, 2012 ME 20, ~ 5, 37 A.Jd 295); see also Stal/ton, 2001 ME 96, 9 13,773 A.2d 1045, The Civic Center nevertheless mnlntalns thnt the Court should dismiss the Complaint" because the agreement upon which Plaintiff relies does not satisfy the stntnto of frauds and is thus unenfo1·ceable. See 33 M.R.S. § 51 (2012). The statute of frauds Is au afflrmatlve defense. M.R. Civ. P. 8(c). A party can raise an affirmative defense by a motion to dismiss if the facts giving ,·lse to the motion nre apparent on the face of the complaint. Gray -v. T'.D. Bank. N.A., 2012 MB 83, ~ 10, 45 A.3d 735. Whether II wl'ltten agreement is necessl\ry under the circumstnnces of this case and, if so, whether n writing thnt satisfies the statute of frnuds exists nre questions that the Court cannot determine at this stnge of the proceedings. In othe1· words, the npplicabilHy of the statute of frauds to preclude enforcement of the alleged agreement is not llppnrent on the face of the Complalnt. 1 In Count III of the Complaint, the Pirates assert a clnlm for promissory estoppel. ln Daigle Commercial Group, l11c. v. St. L<wrellf, the Law Court reilernted that Maine has adopted the Rest11tement formulation of promissory estoppel: 1 In Count Ir of lho Conipl11lnt, Pl11lnllff alloge.s the bnmch of contrnot lo 11egoll11te In good faith. Tho Co\1rl's analysis regarding Count I ofthi, ComJ>lnlnt Is cqunlly 11ppllc11ble to Count II. A promise which the promlsor should reasonably expect to induce action or forbenrnnce on the pmt of the promlsee or a third person and which does induce such ncllon or forbeRrnnco is binding if Injustice can be avoided only by enforcement of the promise. The remedy granted for breach mny be limited as Justice requires. 1999 ME 107, ~ 14,734 A.'2d 667 (cltlng Pa11aso11ic Commc'nJ· & Sys. Co. v, State of Me., 1997 - ~ ~ - - -ME43 ,~9-1-7-,-69-l-A,2d~l-90rnlld~RBsT-A!f-13MBNT--(SEG0ND}0P-G0N1'RAef-S·§·90(:1·)'(-l 98·f ~ ),... , ------­ Tn this case, the Plrntes nllege that the Civic Cente1· "promised that it would honor the mnterial terms voted upon and approved at the April 17, 2013 Board Meeting, and further promised that it would negotlale in good faith with the . . . Pirates on the terms of the ngreernent11 : 0 [t]he Civic Center should have 1·e11son11bly expected Its promise to induce the ... Pirates to· mflke nil necessary business nmmgements to play hockey at the f.CCCCJ"; mid the "Plrntes in fact did rely on the Civic Center's promises." (Compl. 9~ 36, 37, 38.) The Pirntes hnve thus nsserted the elements necess1wy to stnte 11 c11use of action in promissory estoppel under M11lne law. Conclusion Based on the foregoing 11nnlysls, the Court denies Defendnnt's Motion to Dlsmiss.2 Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Order into the docket by reference. u !Ice, Maine Business & Consumer Court 2 111 Counl 1V of 1he Complnlnt, Plal11tlff"seck[s) o declnrnllon lh11l lhoro oxlsls II binding ngroomo11t bolwcen II nnd [Defcndnn1]." (Compl. ~ •12) Whether lho µnrllos entered Into II binding 11greomenl Is n contnil Issue in disfmlo In this onse. Although Plninllffhas nssor1od n 01111so ofncllon for br011ch ofoonlrncl, Pl11l11tlff11ovcrlholoss wlll hnvo Co o.slabllsh lho oxlslenco of n bl1ullc1g ngrccmon!. Plnlntlfl"s request ht Count IV, lhoroforo, Is consistent wllh Plalnllff's olnlms In Counts 1nnd II. AQcordlngly, dlsmlssnl of Count IV Is not w11rrnnted. 6 J;ntpraq t:Jn loo Oookeli I~ ~ (p -13 Z ~plaa sent via MnJI ...,. ~loct,onlcofly