Gove v. Carter

• Decision Date: 27 July 2001
• Citation: 2001 ME 126,775 A.2d 368
• Parties: Manley C. GOVE Sr. et al. v. Jonathan L. CARTER et al.
• Court: Maine Supreme Court

775 A.2d 368

2001 ME 126

Manley C. GOVE Sr. et al. v. Jonathan L. CARTER et al.

Supreme Judicial Court of Maine.

Argued: June 12, 2001.

Decided: July 27, 2001.

Stephen C. Whiting, Esq., (orally), Portland, for plaintiffs.

Edward R. Benjamin Jr., Esq., (orally), Thompson & Bowie, Portland, for defendants.

Panel: WATHEN, C.J.,¹ and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

SAUFLEY, J.

[¶ 1] Manley C. Gove Sr. and Tri Berwick Realty, Inc., (collectively, Gove) appeal from the judgment of the Superior Court (York County, Fritzsche, J.) granting a summary judgment to Jonathan L. Carter, the town manager for the Town of Wells. Gove contends that the Superior Court erred in concluding that Carter was entitled to immunity from his suit pursuant to the Maine Tort Claims Act, 14 M.R.S.A. § 8111(1) (1980 & Supp.2000). We affirm the judgment.

I. BACKGROUND

[¶ 2] The dispute in this matter arises out of the marketing of ocean front property on Wells Beach in the Town of Wells, where the public's interest in the local beaches has historically been a source of dispute and litigation. See Bell v. Town of Wells, 557 A.2d 168, 169 (Me.1989) (Bell II); Bell v. Town of Wells, 510 A.2d 509, 510 (Me.1986) (Bell I); see also Eaton v. Town of Wells, 2000 ME 176, ¶ 2, 760 A.2d 232, 235. In 1989, seven years prior to the events at issue here, we affirmed a decision of the trial court regarding another beach in the Town of Wells, known as Moody Beach. There we held that the public trust doctrine provided the public with only very limited recreational access to the dry sand of Moody Beach. Bell II, 557 A.2d at 169. Wells Beach, at issue here, is located north of Moody Beach.

[¶ 3] Wells Beach has been used and maintained by the Town as a public beach for decades. Title to much of the beach came under scrutiny in the 1990s. In 1996, the Town of Wells commissioned a study to explore the history of ownership of Wells Beach. The report prepared at the conclusion of that study noted that, in most instances, the original developers of Wells Beach conveyed away their rights in the land only as far as "the sea beach," and not "to the Atlantic Ocean" as had the original developers of Moody Beach. Thus, the report's author concluded that the heirs of the original developers of Wells Beach may have retained title to the beach itself. As a result of the uncertainty of ownership resulting from the report, the Town concluded that action was necessary in order to clear up questions. It therefore attempted to negotiate with the heirs to purchase whatever rights the heirs might hold, in order to assure the public's continued right to use the beach.

[¶ 4] Among the heirs to the original developers of Wells Beach were members of the Eaton family. The Town's negotiations with the Eatons were unsuccessful. Manley C. Gove Sr., on behalf of his company Tri Berwick Realty, Inc., was the listing broker for the Eaton family's beach property in 1996.² During the fall of 1996, Gove began marketing portions of the Eatons' beach property. As part of the marketing campaign, Gove sent solicitation letters to residents and businesses whose properties abutted portions of, or were near, the Eatons' beach property. In his letter, Gove represented that (1) the Eaton family owned the beach between the abutters' properties and the Atlantic Ocean; (2) the Eatons' beach property was being sold at $550 per foot; (3) there was a "high interest" in this property; and (4) title insurance and a title certificate were also being offered for this property. The letter did not mention the Town's asserted interest in the same property, nor did it disclose the fact that title insurance would not likely cover any claim made by the Town against the property.

[¶ 5] In reaction to Gove's solicitation letter, many beach front property owners and businesses from the Town called and visited the town office to speak to the town manager, Jonathan Carter. They were concerned that a private party could purchase and maintain control of the strip of beach between their land and the ocean. They also sought assurances from Carter that the property would continue to be maintained by the Town as a public beach and that they would not lose access to those areas.

[¶ 6] After reviewing a copy of Gove's solicitation letter, in which no mention was made of the Town's claim of interest in the land being offered for sale, Carter, in his capacity as town manager for the Town of Wells, filed a formal complaint with the Maine Real Estate Commission regarding the "manner and method" in which the solicitation was being made by Mr. Gove for the sale of the beach property. Included in the complaint was the following explanation:

The complaint is filed on Mr. Manley Gove of Tri-Berwick Realty, Inc., on the manner and method of marketing the beach property allegedly owned by the Eaton family .... The Town believes Mr. Gove, in his solicitation, has misrepresented the ownership in the land for sale which his client has not proven they own.

Carter attached to the complaint a copy of Gove's solicitation letter and information regarding members of the Town who had complained about Gove's solicitation efforts. Subsequently, Carter provided a copy of the complaint to the board of selectmen and discussed the status of the complaint and the dispute over the ownership of Wells Beach with the board in an open board meeting. The press also obtained information regarding the complaint from the Town and published articles regarding the complaint and the dispute over the ownership of the beach.

[¶ 7] Gove and Tri Berwick Realty, Inc., brought suit against the Town of Wells and Carter for defamation and tortious interference with prospective business. Carter and the Town moved for a summary judgment. The Superior Court granted the summary judgment on behalf of the Town and Carter, concluding that they were both entitled to immunity from the tort claims. Gove appeals from the Superior Court's judgment only to the extent that it relates to Carter.

II. DISCUSSION

[¶ 8] We review the Superior Court's grant of summary judgment de novo for errors of law. See Grossman v. Richards, 1999 ME 9, ¶ 3, 722 A.2d 371, 373. "Whether a defendant is entitled to governmental immunity is a question of law that may be resolved by a summary judgment in the absence of factual contradiction." Id. (quoting Dubail v. Dep't of Transp., 1998 ME 126, ¶ 7, 711 A.2d 1301, 1303). In the matter before us, there are no factual disputes regarding the material aspects of Carter's actions. Carter admitted in his statement of material fact that (1) he filed a complaint with the Real Estate Commission; (2) he reported his actions in filing the complaint to the board of selectmen and discussed that complaint in a public meeting; and (3) he or someone in the town office released that complaint to the public as part of a media packet or in response to specific requests for the document. Accordingly, the Superior Court's grant of summary judgment was appropriate if, on these facts, Carter was entitled to immunity pursuant to the Maine Tort Claims Act, 14 M.R.S.A. § 8111(1), for those actions.³See Grossman, 1999 ME 9, ¶ 3,722 A.2d at 373.

[¶ 9] Carter contends that he is entitled to immunity pursuant to the discretionary function immunity provision of the Act, which grants absolute immunity to "employees of governmental entities" for liability resulting from performing or failing to perform any of the employee's "discretionary function or duty." See 14 M.R.S.A. § 8111(1)(C).⁴ Immunity pursuant to the discretionary function immunity is "applicable whenever a discretionary act is reasonably encompassed by the duties of the governmental employee in question."⁵Id. § 8111(1). Thus, pursuant to the discretionary function immunity of the Act, Carter is entitled to immunity if (1) he was an employee of a governmental entity, and (2) his actions were discretionary acts that were "reasonably encompassed" by his employment duties as town manager. See id.; see also L.D. 2443, Statement of Fact (113th Legis.1987).

[¶ 10] Gove does not dispute that Carter is an employee of a governmental entity, who may be entitled to the protections of the Act. See 14 M.R.S.A. §§ 8111(1), 8102 (1980 & Supp.2000). Gove contends, however, that Carter's actions in this case were not "reasonably encompassed" by Carter's employment duties as town manager. Specifically, relying on our decision in Rippett v. Bemis, 672 A.2d 82 (Me.1996), Gove argues that Carter cannot be afforded the protections of discretionary function immunity, because his actions were not essential to accomplish any basic governmental policies or objectives of the Town.⁶ Further, Gove argues that Carter's actions violated the provisions of the Real Estate Brokerage License Act, 32 M.R.S.A. § 13006 (1998).

[¶ 11] Contrary to the officer's actions in Rippett, Carter's actions in this case were not counter to any stated policy, ordinance, or statute. Although the Real Estate Brokerage License Act makes confidential "hearings and records of hearings conducted by the grievance committee or the professional standards committee," there were no hearings regarding Carter's complaint in this case. 32 M.R.S.A. § 13006 (emphasis added). In fact, the complaint was subsequently voluntarily withdrawn by Carter before any official action was taken by the grievance committee or the professional standards committee. Thus, nothing in the Real Estate Brokerage License Act prohibited Carter from disclosing the contents of the complaint or the complaint itself to the board or the public.

[¶ 12] Nor was Carter restricted by any town policy or ordinance from releasing his complaint to the public. See Rippett, 672 A.2d at 88. His actions were, instead, consistent with the Town's general policy of releasing "a media packet," which included "copies of the agenda for the meeting and copies of documents that will be discussed...