# Portland Pirates, LLC v. Cumberland County Recreation Center > Superior Court of Maine · December 6, 2013 URL: https://www.frixlaw.com/law-library/cases/10810158 ## Case - **Court:** Superior Court of Maine - **Decided:** December 6, 2013 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** John C. Nivison - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10810158 ## Opinion text 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 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). 2 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~en1anclelnlnt Is cqunlly 11ppllc11ble to Count II. 5 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10810158. Public record. Not legal advice.