Drabik v. The Mohegan Tribe of Indians of Connecticut, (2020)

• Decision Date: 11 August 2020
• Docket Number: SC-2020-01
• Citation: Drabik v. The Mohegan Tribe of Indians of Connecticut, 1 M.C.O.E. 37, SC-2020-01 (Mohegan Council of Elders Aug 11, 2020)
• Parties: John Drabik and Ancient Highway Towers, LLC, Appellants, v. The Mohegan Tribe of Indians of Connecticut, Tribal Council of the Mohegan Tribe of Indians of Connecticut, Elaine Thomas and James Quinn, Appellees
• Court: Mohegan Council of Elders

1 M.C.O.E. 37

John Drabik and Ancient Highway Towers, LLC, Appellants, v. The Mohegan Tribe of Indians of Connecticut, Tribal Council of the Mohegan Tribe of Indians of Connecticut, Elaine Thomas and James Quinn, Appellees

No. SC-2020-01

Mohegan Council of Elders

August 11, 2020

Before the Council of Elders of the Mohegan Tribe

ORDER MODIFYING AND CORRECTING OPINION

I.Introduction

This matter is an appeal of a decision of the Mohegan Court of Appeals dated January 21, 2020.The questions before the Court were whether the Appellate Court was correct in dismissing Counts I, II, and III of Appellants' complaint and remanding Count IV of the complaint to the Trial Court.An Opinion was issued in this matter on July 29, 2020.Upon Motion of the Mohegan Tribe, et al., the Council of Elders was advised that the provisions of the Torts Code upon which the Opinion relied were not enacted until after the filing of Drabik's Complaint.Consequently, this Order is issued modifying and correcting the Opinion of July 29, 2020.

II.Summary of Decision

We affirm the dismissal of Counts I, II, and III based upon application of the litigation privilege, and affirm the remand of Count IV to the Trial Court.

III.Jurisdiction

The Council of Elders has jurisdiction in this matter pursuant to Article X, Sections 1and2(a) of the Mohegan Constitution.

IV.Standard of Review

Our review of this matter is de novo and plenary, as we review the legal conclusions of the Court of Appeals and Trial Court.

V.Facts and Procedural History

John Drabik owns two adjacent parcels of land located on Ancient Highway in East Lyme, Connecticut ("Drabik Property").In early 2015, Drabik and Ancient Highway Towers, LLC("Drabik") and AT&T entered into a business relationship to construct a cell tower on the Drabik property pursuant to an undisclosed lease agreement between Drabik, Ancient Highway Towers, LLC, and AT&T.The leased area is a 100 by 100 foot square parcel accessed via a 30 foot right of way.

AT&T filed an application with the Connecticut Siting Council("CSC") for the construction of a temporary cell tower on the Drabik property.In response, the Federal Communication Commission's Tower Construction Notification System ("TCNS") generated a Notice to the Mohegan Tribe.

The TCNS system is utilized by the Federal Communications Commission("FCC") to fulfill its responsibilities under several federal laws, including Section 106 of the National Historic Preservation Act.Deputy Historic Preservation Officer Elaine Thomas prepared a Response to the Notice ("Response") on behalf of the Mohegan Tribe and the substance of the Response was referred to in the CSC's December 22, 2016 Decision in DocketNo. 463A("CSC Decision").In conjunction with preparation of the Response, Tribal Historic Preservation Officers Quinn and Thomas conducted a site visit to the area specified in the TCNS Notice.Drabik alleges that, during this site visit, Quinn and Thomas walked onto the Drabik Property and a third parcel of land owned by Drabik without Drabik's consent or permission.

The CSC Decision contains a matrix listing, among other things, six properties which were either given "adverse effect" determinations by the Tribe or determined to be "culturally significant" to the Tribe.In discussing the Drabik property and a property referred to as the "286 Flanders Road Gateway parcel" proposed for cell tower placement by AT&T, the CSC decision states that those properties were ultimately determined by AT&T to be unacceptable due to "potential tribal features on an abutting parcel."AT&T terminated the lease agreement with Drabik, allegedly due to information contained in the Response.

Drabik filed a complaint in the Mohegan Trial Court on May 26, 2016, which was initially dismissed by Chief Judge Guernsey and refiled in amended form several times.^[1] The complaint leading to this appeal is the Second Amended Complaint ("Complaint"), dated August 16, 2017.^[2]

The Complaint contained four counts alleging: 1) tortious interference with a business relationship against Defendants Quinn, Thomas, the Tribe, and the Tribal Council; 2) negligence on the parts of Quinn and Thomas; 3) negligence on the parts of the Tribe and Tribal Council(failure to act in good faith and to properly supervise Quinn and Thomas); and 4) trespass on the parts of Quinn and Thomas only.

The Trial Court granted the Tribe's Motion to Dismiss and/or Strike in its Memorandum of Decision dated April 19, 2018, as to Counts I, II, and III, finding that the Response was entitled to absolute immunity as conferred by the litigation privilege.The Trial Court denied the Tribe's Motion to Strike Count IV.Thereafter, Drabik filed a Motion to Reargue and Reconsider Judgment on May 3, 2018.Reargument was allowed, but reconsideration was denied by the Trial Court on July 25, 2018.

Drabik appealed to the Mohegan Court of Appeals, which issued a Decision on January 21, 2020 adopting the Trial Court's analysis supporting the dismissal of Counts I, II and III, and denial of the Tribe's Motion to Strike Count IV, and remanding Count IV to the Trial Court.^[3] A Notice of Appeal was filed with the Council of Elders on February 5, 2020.

VI.Analysis

A.Subject Matter Jurisdiction

The Mohegan Tribal Code, at Chapter 1, Article I, Sections 1-4, provides as follows:

The Mohegan Court System shall be made up of two (2) distinct branches, each branch with a different jurisdiction as described hereafter.The Gaming Disputes Court has been structured and is governed by Art. XIII, Section 2 of the Mohegan Constitution and Mohegan Tribal Code, Chapter 3, Article II.Nothing contained in this Article shall affect the establishment of the Gaming Disputes Court.The branch, called the Mohegan Tribal Court, shall be a court of general (non-gaming) jurisdiction which may be exercised only after the enactment of enabling legislation or other official authorization by the Tribal Council pursuant to the Mohegan Constitution, Article IX, Sections 2 (n) and (o).The Mohegan Tribal Court shall have such divisions as may be established by the Tribal Council.

The Code further provides that:

Sec. 1-17.- General Subject Matter Jurisdiction.

Subject to any contrary provisions, exceptions, or limitations contained in either an applicable federal law, the Mohegan Constitution, or as specified in Section 1-18 of this Article, the Mohegan Tribal Court shall have jurisdiction over all civil causes of action for which the Tribal Council enacts enabling legislation or grants the Court jurisdiction by contract with the express waiver of sovereign immunity contained in this Article, and over all offenses prohibited by Mohegan Tribal law.

Based on the foregoing, the Mohegan Tribal Court is a court of limited jurisdiction.At the time of the filing of Drabik's Complaint, the Mohegan Torts Code authorized the Tribal Court to hear tort claims with certain exceptions.The...