Quintal v. City of Hallowell

• Court: Superior Court of Maine
• Decided: February 24, 2006
• Docket: KENap-04-20
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO AP-04-20 p !,j ,y4:/4 fl /"., j f )/ GARY QUINTAL,

Petitioner

SUMMARY JUDGMENT

CITY OF HALLOWELL and JAMES RHODES,

Respondents

T h s matter comes before the court on the parties' cross-motions for limited

summary judgment. The subject of both motions for partial summary judgment

concerns the legality of the actions by the Hallowell Personnel Committee in

determining that there was just cause to fire the petitioner. However, the parties come

at h s issue from dfferent drections.

Background

Petitioner Quintal had been employed for the preceding few years as Code

Enforcement Officer, Plumbing Inspector, and Health Officer for the City of Hallowell.

These positions are ones whch are filled by appointment by the City Manager and

ratified by the City Council, pursuant to the Charter of the City of Hallowell. However,

these positions are also covered under a collective bargaining agreement between the

City of Hallowell and the Granite City Employees Association ("Association").

According to the City of Hallowell Charter, appointed officers of the type like the

petitioner ". . . may be removed by the Council upon written charges and after a public

hearing on the same." (Charter, Article I, Section 3(d)). Quintal argues that only the

Council and all of the Council could remove h m from h s appointed position under the Charter, not the Personnel Committee created by the City Council through the City

Manager, as was done in h s case. Quintal's employment was terminated by the City

Manager after a public hearing before and finding by the Personnel Committee that

there was just cause for such termination. However, the Personnel Committee is

comprised of city councilors but does not include the entire City Council. Quintal

argues that h s violates h s rights to have the entire council review that employment

decision pursuant to statute (30-A M.R.S.A. 5 2601-A; 30-A M.R.S.A. 5 2001(10)(B))and

under the charter.

On the other hand, the defendants argue that the City followed to the letter the

procedure required under the Collective Bargaining Agreement w h c h has to do with

termination of employees. Unlike the respondents' earlier argument from the same

Collective Bargaining Agreement that it preempted the jurisdiction of h s court to hear

a Rule 80B appeal, the present argument focuses on the procedure taken prior to that

appeal. The argument also appears to invite the court to reexamine its decision of

January 14, 2005, w h c h denied the respondents' motion to dismiss on the basis of the

Collective Bargaining Agreement, citing Winston v. MTCS, 631 A.2d 70 (Me., 1993.)

After weighng the arguments, the court concludes, as a matter of law, that the

City followed the appropriate procedures vis-a-vis the termination of the petitioner and

also, on reconsideration, concludes that the binding arbitration called for under the

Collective Bargaining Agreement does preempt the Rule 80B appeal, though not any

independent claims. The petitioner's statutory and charter arguments are persuasive as

far as they go. However, what the arguments fail to acknowledge is that once a

municipality has entered into a collective bargaining agreement, binding arbitration

provisions of that agreement trump other procedures, w h c h would apply, to municipalities, w h c h do not have collective bargaining with their municipal

employees. As stated in the statute:

If a collective bargaining agreement between a public employer and a bargaining agent contains provisions for binding arbitration of grievances involved the following matters: the demotion, layoff, reinstatement, suspension, removal, discharge or discipline of any public employee, such provision shall be controlling in the event they are in conflict with any authority and power involving such matters of such municipal civil service commission or personnel board or its agents.

26 M.R.S.A. § 969. In other words, in the event of a conflict concerning arbitration, the

provisions of the contract will prevail if there is conflict with other granted powers or

authority, regardless of their source.

In summary, the City of Hallowell, unlike some other municipalities, has a

collective bargaining agreement with the bargaining unit representing its municipal

employees. Whle the provisions of statute and the charter normally prevail, if there is

a conflict the provisions of the contract are what control. There is no indication in the

present case that the petitioner questions the processing of h s termination pursuant to

the contract. In fact, it was the petitioner, through his bargaining agent, who used the

grievance provisions of the contract to pursue review of the employment decision all

the way through the State Board of Arbitration and Conciliation. As a result, the

respondents are entitled to partial summary judgment as to count I of the petitioner's

complaint and the petitioner's motion will be denied.

The entry will be:

Petitioner's motion for summary judgment is DENIED. The respondents' motion for summary judgment is GRANTED and summary judgment will be entered on count I of the complaint.

Dated: February, 24 2006 S. Kirk Studstrup / Justice, superio; Court Date Filed 1/39/n4K e n n ~ b e c Docket No. AP04-20 County

Action Rule 80B Comnl;zint

es Plaintiff's Attorney Defendant's Attorney Curtis Webber, Esq. ~~~K Clifford Goodall, Es 83 Pleasant Street 61 Winthrop Street Mary Denison, Esq. P.O. Box 190 Maine 04330-5502 Auburn, Maine 04212-0190 - Aueiista. Edward R. Benjamin, Esq. Three Canal Plaza P.O. Box 4630 Portland, Maine 04112 -James A. Billings, Esq. (co-counsel City of Date of Hallowell) Entry

Rule 80B Complaint ( Injunctive Relief Requested), filed. s/Webber, Esq. Notice of briefing schedule mailed to attys of record.

Entry of Appearance, filed. s/Federle, Esq.

Amended Rule 80B Complaint, filed. s/Webber, Esq. Motion for Order Specifying Future Course of Proceedings, filed. s/Webber, Esq. Acceptance of Service, filed. s/Federle, Esq.

Motion for Trial, filed. s/Webber, Esq. Certificate of Service, filed. sl~ebber,Esq. City of Hallowell and James ~hodes'Answer to plaintiff's Amended Complaint, Affirmative Defenses and Request for Jury Trial, filed. s/Benjamin, Esq. Defendant's Objection to Plaintiff's Motion for Order Specifying Future Course of Proceedings and Motion to Dismiss Rule 80B Portion of Claim, filed. s/Benjamin,. Esq. Proposed Order, filed. Reply to Objection to Motion to Specify Future Course of Proceedings and Request for Stay, filed. s/Webber, Esq. Motion to Amend Rule 80B Complaint, filed. s/Webber, Esq. Memorandum of Law in Support of Motion to Amend Rule 80B Complaint, filed. slwebber, Esq. Plaintiff's Motion for Extension of Time to file Brief and Record in the Rule 80B Appeal with Proposed Order, filed. s/C. Webber, Esq. Letter informing the court that Atty. Benjamin withdraws objection to request for extension of time to file the record and brief, filed. s/~ebber,Esq. ORDER, Marden, J. Motion for extension of time granted subject to understanding in May 5, 2004 Webber letter. Copies mailed to attys. STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. - L DOCKET NO. AP-0,4-20 .. 'i:? / ?-- . . GARY QUINTAL,

Plaintiff

DECISION ON MOTION FOR SUMMARY JUDGMENT CITY OF HALLOWELL and JAMES RHODES,

Defendants

This matter comes before the court on the motion of defendants City of Hallowell

and James Rhodes for summary judgment as to remaining counts in the plaintiff's

complaint. T h s claim originally involved an appeal pursuant to M.R. Civ. P. 80B

(Count I) from the decision of the City of Hallowell terminating Mr. Quintal from h s

position as Code Enforcement Officer, after hearing and finding by the City's Personnel

Committee that just cause existed to terminate h m . T h s count was the subject of a

summary judgment granted to the defendants by order dated February 24, 2006.

However, that partial summary judgment left for decision additional claims pursuant to

42 U.S.C. 5 1983 for alleged violation of plaintiff's First and Fourteenth Amendment

rights under the U.S. Constitution (Count 11), a statutory claim for alleged violation of

Maine's Freedom of Access Law, 1 M.R.S. 5 401 (Count 111), and a state tort claim

against defendant Rhodes for tortious interference with Quintal's advantageous

contractual relationship with his employer (Count IV). It is these remaining three counts whch are the subject of the pending motion for summary judgment. Discussion

Summary judgment is proper if the citations to the record found in the parties'

Rule 56(h) statements of material fact demonstrate that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.

See Dickinson v. Clark, 2001 ME 49, ¶ 4, 767 A.2d 303, 305. "A genuine issue of material

fact exists when the evidence requires a fact-finder to choose between competing

versions of the truth." Farrington's Owners' Assn. v. Conway Lake Resorts, Inc., 2005 ME

93, ¶ 9, 878 A.2d 504, 507. As such, the competing version of the truth must be

supported by some evidence of record of a quality that would be admissible at trial and

not be based upon pure speculation. To the extent that the plaintiff's arguments on the

motion allege a contested fact, the arguments fail. There appear to be few disputes as to

what happened; rather, the disputes concern the legal interpretation of those facts.

Count I1

In Count 11, the plaintiff alleges violations of his constitutional rights under

42 U.S.C. § 1983. These alleged violations will be considered separately.

The first allegation concerns whether the plaintiff received adequate notice of the

proposed reasons for h s termination prior to the Personnel Committee's hearing. There

is no disagreement that the notice was contained in a letter from City Manager Rhodes

dated February 10, 2004, whch referenced an earlier performance evaluation in whch

the plaintiff's performance had been rated as unsatisfactory in four of 13 categories.

The letter also referenced the "preliminary investigation," which clearly refers to the

plaintiff's activities in circulating a questionnaire. All that is legally necessary to meet

due process requirements is that notice be given and the employee have an opportunity

to explain h s position as to why termination should not occur. Moen v. Town of Fairfield, 1998 ME 135, 9 9, 713 A.2d 321, 324-325. The Rhodes letter meets the notice

requirement as a matter of law.

The plaintiff also claims that the Personnel Committee prejudged h s case by

having a private meeting with the City Manager prior to the hearing. The defendants

have presented affidavit evidence that no discussion of the upcoming hearing was

conducted during h s brief period together. All the plaintiff has presented in

opposition is his unsupported speculation that the defendants' statements are false.

T h s speculation is simply inadequate to raise a genuine issue of material fact.

The plaintiff's third issue under Count I1 is whether the city attorney improperly

provided legal advice to the Personnel Committee at the same time that he was

prosecuting the case for the City Manager, a violation of the holding in Gashgai v. Bd. Of

Registration of Medicine, 390 A.2d 1080, 1082, n.1 (Me. 1978) ("[Wle observe that the

combination of investigator, prosecutor and city member of the adjudicatory panel,

even if ostensibly a nonparticipating member, creates an intolerably high risk of

unfairness."). The plaintiff claims that this occurred during the hearing when the

Committee asked and received legal advice from the city attorney (plaintiff's statement

of material facts no. 175), but the only support for this assertion is a misstatement of a

portion of the hearing transcript. The plaintiff also claims that the city attorney assisted

in drafting the opinion signed by the chairperson of the Personnel Committee after the

hearing. This statement is qualified by the defendants, but even assuming it to be

correct, such assistance occurred after the Committee had taken its formal vote in open

session and is more alun to the drafting assistance often requested from counsel during

litigation. Therefore, even if true, the city attorney's drafting assistance does not create

an intolerably h g h risk of unfairness such as to implicate constitutional concerns. Finally, with regard to Count 11, the plaintiff alleges a First Amendment violation

when he was terminated, at least in part, for spealung out regarding matters of public

concern in the "Preliminary Investigation" memorandum he sent out. Plaintiff asserts

that the purpose of the memorandum was to inquire whether grounds existed to

support filing a complaint of harassment under section 14.1 of the Hallowell Personnel

Regulations. Plaintiff does admit that some of the questions posed in the memorandum

were personal, although he asserts that several raised issues of public concern, entitling

h m to First Amendment protection.

To determine whether a public employee's speech is entitled to the protection of the First Amendment, the court must engage in a two-part analysis. First, the court must determine whether the employee has shown that h s or her speech involved a matter of public concern. Next, if the employee is successful in this initial regard, the court must determine whether the State has demonstrated that its interest, as an employer, in providing efficient public services outweighs the employee's interest, as a citizen, in commenting on a matter of public concern.

Moen, 1998 ME 135 at

Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement as revealed by the whole record.

Connick, 461 U.S. at 147-48. Whle determination of what was said is a question of fact,

determination of whether what was said is a matter of public concern is a question of

law. There is no dispute that the memo sent to a few individuals asks whether

municipal officers are trying to drive a wedge between city employees and their union,

whether the city's policy of record retention can be considered a form of harassment

and whether the City manager had a behavioral problem which led to conflicts. These

questions, in their context, were related to the internal workings of an office and

employee morale, rather than a matter of public concern. Furthermore, in the context of

being written on city letterhead entitled "Preliminary Investigation," the overall content, context and form of the letter appears more as a personal attack on a supervisor

and an effort to refocus blame for the events that had led to the pending hearing. In

short, the court concludes that to the extent that the plaintiff was terminated as the

result of t h s memo, the subject matter does not involve a matter of public concern and

does not entail a First Amendment violation.

In summary, the plaintiff has failed to demonstrate any genuine issue of material

fact or persuasive legal argument such as would prevent summary judgment as to

Count 11.

Count I11

The plaintiff also alleges a statutory cause of action under Maine's Freedom of

Access Law, 1 M.R.S. § 401, asserting that the Personnel Committee discussed his case

in illegal executive session and that it failed to adopt findings of fact that were

separately voted upon. However, as noted above, plaintiff has not provided any

evidence supporting t h s argument beyond his own speculation as to what might have

occurred behnd closed doors in the minutes prior to the hearing. This speculation

would not be sufficient admissable evidence to find that an illegal executive session had

taken place. The issue concerning adoption of findings of fact is basically mooted by

the final written opinion of the Committee signed by the chairperson.

Count IV

The fourth count is a state court tort claim for intentional interference with an

advantageous contractual relationship brought against City Manager Rhodes. The

advantageous contractual relationship would be the plaintiff's employment by the

Caity. In response, Rhodes asserts that he is immune from any state court tort claim

arising from h s discretionary official duties as City Manager, and that the finding of

just cause to terminate the plaintiff came from the Personnel Committee. Gove v. Carter, 2001 ME 126, q[ 9. In support of this position, defendant Rhodes points out that he was

the plaintiff's supervisor and had discretionary disciplinary authority, that Rhodes'

decisions regarding discipline involved basic governmental functions concerning

delivery of public services, that Rhodes' actions were essential to delivery of services

and the overall supervision of employees, and his evaluation and disciplinary decisions

involved basic policy, education, judgment and expertise. On the other hand, the

plaintiff argues that there should be no immunity for actions that he claims were

intentional and taken in bad faith. However, the plaintiff's only cited evidence on t h ~ s

point is a hearsay statement included in h s affidavit concerning alleged statements by a

former police chief about the chief's "understanding" of statements made by Rhodes

about the plaintiff. This type of hearsay evidence is insufficient to raise a genuine issue

of material fact.

Summary and Entry

In summary, the plaintiff has not generated a genuine issue of material fact as to

any of the three remaining counts, whle the defendants have persuaded the court that

they are entitled to summary judgment on these counts, as a matter of law. The entry

will be:

Defendants' motion for summary judgment is GRANTED. Summary judgment shall be entered for the defendants on Counts 11, III and IV.

Dated: March 1 6 ,2007 S. Kirk Studstrup Justice, Superior Court Date Filed 1/29/nl bec Docket No. AP04-20 County

Action Rule 80B C c u n p h h t J. STUDSTRUP

v O-al Plaintiff's Attorney Curtis Webber, Esq. 83 Pleasant Street P.O. Box 190 Auburn, Maine 04212-0190 vs

- .,+ -*i~

- 4c!mmBRX- f -11 Defendant's Attorney &

Edward R. Benjamin, Esq. Three Canal Plaza P.O. Box 4630 Portland, Maine 04112 . T u d e s

V =wx-

- X b f m e w ~ (co-counsel~ ~ . City c Date of Hallowell) Entry

3/29/04 Rule 80B Complaint ( Injunctive Relief Requested), filed. s/Webber, Esq. 3/30/04 Notice of briefing schedule mailed to attys of record.

4/1/04 Entry of Appearance, filed. s/Federle, Esq.

4/2/04 Amended Rule 80B Complaint, filed. s/Webber, Esq. Motion for Order Specifying Future Course of Proceedings, filed. s/Webber, Esq. 4/5/04 Acceptance of Service, filed. s/Federle, Esq.

4/14/04 Motion for Trial, filed. s/Webber, Esq. Certificate of Service, filed. s/Webber, Esq. 4/15/04 City of Hallowell and James Rhodes' Answer to Plaintiff's Amended Complaint Affirmative Defenses and Request for Jury Trial, filed. s/Benjamin, Esq. 4/21/04 ~efendant's Objection to plaintiff's Motion for Order Specifying Future Course of Proceedings and Motion to Dismiss Rule 80B Portion of Claim, filed. s/Benjamin,, Esq. Proposed Order, filed. 4/28/04 Reply to Objection to Motion to Specify Future Course of Proceedings and Request for Stay, filed. s/Webber, Esq. 4/30/04 Motion to Amend Rule 80B Complaint, filed. s/Webber, Esq. Memorandum of Law in Support of Motion to Amend Rule 80B Complaint, filed. slwebber, Esq. 5/5/04 plaintiff's Motion for Extension of Time to file Brief and Record in the Rule 80B Appeal with Proposed Order, filed. s/C. Webber, Esq. 5/6/04 Letter informing the court that Atty. Benjamin withdraws objection to reques for extension of time to file the record and brief, filed. s/Webber, Esq. 5/14/04 ORDER, Marden, J. Motion for extension of time granted subject to understanding in May 5, 2004 Webber letter. Copies mailed to attys. 1 Date of 1 Docket No.

City of Hallowell and James Rhodes' Answer to Plaintiff's Second Amended Compliant, Affirmative Defenses and Request for Jury Trial, filed. S/E. Benjamin, Esq. ( Plaintiff's Motion for Further Extension of Time to File Brief and Record in Connection with the Rule 80B Appeal, filed. slwebber, Esq. Proposed Order, filed.

ORDER ON MOTION FOR EXTENSION, Marden, J. Motion granted, time to file brief/record extended 30 days. Copies mailed to attys of record. Notification of Discovery Service, filed. s/Benjamin, Esq. Defendants' Responses to plaintiff's Request for Production of Documents served on Curtis Webber, Esq. on 6/10/04. Defendant's Motion to Continue Hearing on Motion to Specify Future Course of Proceedings under Rule 80B, filed. s/Benjamin, Esq. Proposed Order, filed.

ORDER ON MOTION TO CONTINUE, Marden, J. Copies mailed to attys 05 record. plaintiff's Motion for Further Extension of Time to File Brief and Re- cord in Connection with the Rule 80B Appeal, filed:s/Webber, Esq. Plaintiff's Proposed Order for Further Extension, filed. (

ORDER ON MOTION FOR EXTENSION, Studstrup , J Time extended. . Copies mailed to attys. plaintiff's Motion for Further Extension of Time to File Brief and . Record, filed s/Webber . Proposed Order, filed. ORDER ON MOTION FOR EXTENSION, Marden, J. (dated 8/12/04) Time extended to September 12, 2004. Copies mailed to attys of record. Plaintiff's Motion for Further Extension of Time to File Brief and Record in connection with the Rule 80B Appeal, filed. s/Webber, Esq. Amended Motion for Trial, filed s/Webber, Esq. Proposed Order on Motion to Amend Complaint, filed.

ORDER ON MOTION FOR EXTENSION, Studstrup, J. Copies mailed to attys of record. ORDER ON MOTION TO AMEND 80B COMPLAINT, Studstrup, J. Copies mailed to attys of record. Plaintiff's Opposition to Defendants' Motion to Dismiss, filed. s/Webber, E: Defendants' Objection to plaintiff's Amended Motion for Trial with Attachment, filed. S/E. Benjamin, Esq.

Notics of sctiing for ////a5- A

sent to attorneys of record. PAGE 3 Date of Docket No. - AP0.A 70 Entry Gary Quintal v. City of Hallowell & Jamws Rhodes

12/16/04 Appearance, filed. s/Billings, E S ~ . 12/17/04 Letter from attorney Webber citing a case for the Court. 1/4/05 Hearing had on Motion for Trial and Motion to Dismiss with Hon. Justice Kirk Studstrup, presiding. Curtis Webber, Esq. for the Plaintiff. Thomas Federle, Esq. and James Billings, Esq. for the Defendants. Oral arguments made to the court. Court to take matter under advisement 1/24/05 MOTION TO DISMISS, Studstrup, J. (dated 1/14/05) After hearing, motion to dismiss Count I is DENIED. Winston v. MTCS, 631A 2nd 70. Copies mailed to attys of record. AMENDED MOTION FOR NEW TRIAL, Studstrup, J. (dated 1/14/05) After hearing, the motion for trial is granted. Parties will have 60 days for discovery from the date of this order. Counsel will prepare proposed stipulations to narrow issues for trial. A trial management conference will then be held to prepare for trial and determine which issues will be tried to a jury and which to the court. Copies-mailedto attys of record. 2/16/05 Notification of Disocvery Serivce of Defendants' Interrogatories and Defendants' Request for Production of Documents to Plaintiff served on Curtis Webber, Esq. on 2/14/05, filed. s/E. Benjamin, Esq. 2/16/05 Amended Rule 80B complaint, filed. SIC. Webber, Esq. 21 16/05 Notification of Discovery Service of PI-aintiff's Interrogatories Propounded to Defendant Served on Edward Benjamin, Esq. and Thomas Federle, Esq. on 2/10/05, filed. 2/22/05 City of Hallowell and James Rhodes' Answer to Plaintiff's Amended Complai Affirmative Defenses and Request for Jury Trial, filed. s/Benjamin, Esq. 3/3/05 Defendants' Motion to Extend Discovery Deadline (Agreed Upon), filed. Proposed Order, filed. 3/7/05 ORDER EXTENDING DISCOVERY DEADLINE, Studstrup, J. Discovery extended from March 15, 2005 to April 15, 2005. Copies mailed to attys of record. 3110105 Letter from attorney Webber agreeing that Count IV may be included and that the plaintiff requests that IV be tried by a jury. 3/14/05 Notification of Discovery service, filed. s/Benjamin, Esq. Defendants' Answer to Plaintiff's Interrogatories served on Curtis Webber on 3/9/05 3/17/05 Notification of Discovery Service, filed. s/Benjamin, Jr., Esq. Notice to Take Oral Deposition of Gary Quintal served on Curtis Webber, Es 3/15/05 3/18/05 Notification of Discovery Service, filed. s/Webber, Esq. Plaintiff's Answers to Defendants' Interrogatories and Plaintiff's Respons and Plaintiff's Responses to ~efendant's Request for Production of Documer served on Edward Benjamin, Jr., Thompson, Esq. on 3/17/05 411/05 Defendant's Motion to Extend Discovery Deadline and Proposed Order, filed s/Benjamin, Esq. Date of Entry I Docket No.

4/11/05 ORDER EXTENDING DISCOVERY DEADLINE, STUDSTRUP, J. Discovery deadline extended to June 15, 2005. Copies mailed to attys. 5/23/05 Notification of Discovery Service, filed. s/~enjamin,Jr., Esq. Notice to Continue the Oral Deposition of Gary Quintal served on Curtis Webber, Esq. on 5/19/05 6/28/05

8/30/05 I Request for Leave and Entry of Appearance of Substitute Counsel, filed. SIT. Federle, Esq.; C. Goodall, Esq. and M. Denison, Esq. Motion to Remove Case From Trial List, filed. slwebber, Esq. Proposed Procedural Order, filed.

9/1/05 P R O C ~ U ~ L O R D E RStudstrup, , J. Copies mailed to attys of record.

10/5/05 plaintiff's Motion for Partfal Summary Judgment, filed. slwebber, EF~,. Statement of Uncontested Material Facts, filed. slwebber, Esq. Plaitniff's Memorandum 8upportingc:Motion folr Partial Summary Judgmer.;:, filed. slwebber, Esq. 10-24-05 Received and filed by Edward Benjamin, Jr. for Defendant, Defendendan:. Memorandum In Opposition to Plts. Motion For Partial Summary Judgment and in Support of ~efendants'Motion for Partial Summary Judgment and Deendants' Statement of Additional Facts. 10/31/05 plaintiff's Objection to ~efendants'Motion for Partfal Summary Judgment, filed. s/Webber, Esq. Plaintiff's Responsestto ~efendants' Statement of Material Facts, i 1, filed. slwebber, Esq.. Plaintiff's Reply to ~efendants'Objection to Plaintiff's Motion for Summary Judgment, filed. slwebber, Esq. 1/4/06 Oral arguments held withijthe Hon. Justice Kirk Studstrup, presiding. Curtis Webber, Esq. for the Petitioner and Mary Denison, Esq. and Edward Benjamin, Esq. for the Respondent. I Oral arguments made to the court. court to take matter under advisement 2/24/06 ORDER ON MOTION FOR SUMMARY JUDGMENT, Studstrup, J. (dated 2/24/06) Petitioner's motion for summary judgment is DENIED. The respondent? motion for summary judgment is GRANTED and summary judgment will be entered on count I of the complaint. Copies mailed to attys of record. Copies mailed to Deborah Firestone, Garbrecht Library and Goss. 3/6/06 Motion for Extension of Time to File Motion for Reconsideration, filed. slwebber, Esq. Proposed Order, filed. Plaintiff's Motion to Alter or Amend the Judgment, filed. s/Webber,Enq, Plaintiff's Memorandum of Law in Support of Motion to Alter or Amend the Judgment, filed. slwebber, Esq. Certificate of Service, filed. slwebber, Esq. 3/27/06 3 e f e n d a n t s ' Memorandum i n O p p o s i t i o n t o P l a i n t i f f ' s M o t i o n t o A l t e r o r Amend t h e Judgment, f i l e d . s / B e n j a m i n , Esq. ( 4/3/06 I Amend Plaintiff's Reply to Defendant's Objection to Motion to Alter or Judgment, filed. s/Webber, Esq. Certificate of Service, filed. slwebber, Esq. 4/19/06 JURY TRIAL FEE PAID. ****** PAGE 5 Date of Docket No. AP04-20 Entry Garv Ouintal v. Citv of Hallowell & James Rhodes 6/1/06 Motion list cancelled. To be rescheduled. Notice mailed to parties on 5/31/06 06-01-06 Received and filed by Attorney Curtis Webber on behalf of Plaintiff, A Notification of Discovery Service; Plaintiff's Additional Interrogatories to Defendant Hallowell, Plaintiff's Additional Interrogatories to Defendant Rhodes, Plaintiff's Second Request for Production of Documents, Plaintiff's Request for Admissions By James Rhodes, Plaintiff's Request for Admissions By City of Hallowell Served on Edward Benjamin Jr. Esq. on May 31, 2006. 6/15/06 Notice of setting of hearing on 6/27/06 at 9:OOa.m. sent to attys of recor, 06-29-06 Received and filed by Edward Benjamin, Jr. on behalf of the Defendants A Notification of Discovery Service; Defedants' Objections to Plaintiff's Second Request for Production of Documents, Defendant City of Hallowell's Response to Requests for Admissions; Defendant James Rhodes' Response to Request for Admissions; Defendant City of Hallowell's Objection to Plaintiff's Additional Interrogatories; and Defendant James Rhodes' Objection to Plaintiffs Additional Interrogatories served on Curtis Webber Esq. on 06-28-06. 6/30/06 Hearing had, Hon. Kirk Studstrup. (no courtroom clerk) Case under advisement

7/17/06 DECISION ON MOTION TO ALTER OR AMEND, STUDSTRUP, J. The motion to reconsider is DENIED. Copies mailed to attys of record. 7/31/06 Notice of Withdrawal as Co-Counsel, filed. s/~illings,Esq.

8/3/06 Letter informing the court that matter is ready to be place on the trial list, filed. s/Webber, Esq. 8/14/06 Letter from attorney Benjamin regarding the status of case and scheduling of conference of counsel. 8/17/06 HEARINGICONFERENCE RECORD, Studstrup, J. Curtis Webber, Esq. and Edward Benjamin, Esq. participating in conference call. The entry will be: Any dispositive motions to be filed by 9/29/06. Copies mailed to attys. 9/29/06 Defendant's Motion for Summary Judgment and Incorporated Memdrandum of Law, Statement of Material Facts, Affidavit of James Rhodes and attachment Request for Hearing and Proposed Order, filed. s/Benjamin, Esq.

10/3/06 Motion for Extension of Time to Respond to Motion for Summary Judgment wit attached Certificate of Service, filed. s/Webber, Esq. Proposed Order, filed. 10/12/06 ORDER ON MOTION FOR EXTENSION, Studstrup, J. Copies mailed to attys of record. 10/27/06 Request for Extension of Time to Respond to Motion for Summary Judgment, filed. s/Webber, Esq. Proposed O r d e r , filed. Date of Docket No. Entry - - -

ORDER ON MOTION FOR EXTENSION, Studstrup, J. Time to respond enlarged to 11/30/06. ( Cop5es mailed to attys of record.

plaintiff's Motion for Leave to File Material Supplementing his Response to Defendants' Motion for Summary Judgment, filed. slwebber, Esq. Motion to Exceed Page Limit for Memorandum Responding to Motion for Summary Judgment, filed. slWebber, Esq. Plaintiff's Memorandum of Law Responding to Defendants' Motion for Summary Judgment, filed. s/Webber,.Esq. 1 Plaintiff's Responses to Defendants' Statement of Material Facts, filed. slwebber, Esq. plaintiff's Opposing Additional Statement of Material Facts, filed. (attached exhibits A-R) Defendants' Opposition to Plaintiffs' Motion in Limine, filed. s/Lavoie, Esq. ORDER ON MOTION TO EXCEED PAGE LIMITS, Studstrup, J. Copies mailed to attys of record. Defendants' Unopposed Motion for Extension of Time to File Reply to Summary Judgment, filed. s/Benjamin, Esq. Proposed Order, filed. Defendants' Unopposed Motion for Extension of Time to File Reply to Summary Judgment, filed. s/Benjamin, Jr., Esq. Proposed Order, filed. ( ORDER EXTENDING TIME TO FILE REPLY TO SUMMARY JUDGMENT, Studstrup, J. Time extended to November 30, 2006. Copies mailed to attys of record. ORDER EXTENDING TIME TO FILE REPLY TO SUMMARY JUDGMENT, Studstrup, J. Time extended to December 14, 2006. Copies mailed to attys of record. Defendants' Reply Memorandum in Support of Their Motion for Summary Judgment, filed. s/Benjamin, Jr., Esq. Defendants' Reply Statement of Material Facts, filed. s/Benjamin, Jr. l ? s c Affidavit of James Rhodes, filed. s/Rhodes, Esq.

Letter, filed. s/Webber, Esq. Hearing had, Hon. Kirk Studstrup, J. (No courtroom clerk) Case taken under advisement.

SLJMMARY AND ENTRY, Studstrup, J. Defendants' motion for summary judgment fs GRANTED. Summary judgmenc shall be entered for the fefendants on Counts 11,111, and IV. Copies mailed to attys. of record. Copies mailed to Donald Goss, Garbrecht Law Library and Deborah Firestone. (