The opinion
SUPERIOR COURT
Pap oy Ss CIVIL ACTION
el Say diag) DOCKET NO. CV-00-654
fy :
pues
STATE OF MAINE
CUMBERLAND, ss
ALLEGIANCE FINANCIAL
GROUP, INC.,
Plaintiff /Counterclaim Defendant
v. JUDGMENT
CAMDEN NATIONAL CORPORATION
d/b/a CAMDEN NATIONAL BANK,
Defendant/Counterclaimant
Jury-waived trial on the plaintiff's complaint and the defendant’s
counterclaim was held on October 15-16, 2001. At the close of the evidence, the
withdrew both counts of the counterclaim. The plaintiff seeks to recover
$10,537.50 based on theories of an account annexed, money had and received, and
breach of contract.
In 1998, Michael J. Dell’Olio, managing director of the plaintiff, had lunch
with Sue O’Brien, branch manager for the defendant. After discussing Ms. O’Brien’s
personal finances, the two discussed the plaintiff's putting together a proposal for an
investment program for the defendant. After the lunch meeting, Mr. Dell’Olio sent
a proposal to Ms. O’Brien on March 3, 1998. See Pl.’s Ex. 1. Randall Richard,
president of the plaintiff, and Mr. Dell’Olio met with Ms. O’Brien in April or May
1998 to discuss the proposal. Ms. O’Brien said that she would present the proposal to
the bank management. After that meeting, Mr. Richard took over the project.
A meeting was scheduled for June 10, 1998 with Mr. Richard and employees
of the defendant. Mr. Richard prepared a report to be handed out at that meeting.
See Pl.’s Ex. 12. This report was copyrighted in 1997 and appears to be a standard
outline of the method and implementation for providing investment services.
On June 10, Mr. Richard met with Ms. O'Brien: Ms. Westfall, the chief
financial officer for the defendant; Charles Wootton, then vice president of the
defendant; and Marie Charest. Mr. Richard expected a decision from the defendant
whether or not the plaintiff would move forward with the proposal. The
defendant's president, Robert Daigle, could not, however, attend the June 10
meeting; he had to be involved in the decision to proceed. There was no discussion
with regard to hiring the plaintiff as a consultant and there was no discussion of fees
to be paid by the defendant to the plaintiff for consulting work at the June 10
meeting; the meeting was informational. See Def.’s Exs. 2, 3,4. Mr. Richard sent a
letter to Mr. Wootton after the June 10 meeting and stated that the plaintiff looked
forward to formalizing a partnership with the defendant. See PL’s Ex. 2.
Mr. Richard had a chance meeting with Mr. Wootton at the end of June 1998
at the Maine Bankers Association regional meeting in Newport, Rhode Island. It is
after that meeting that the plaintiff alleges it began working for the defendant
providing consulting services on a hourly basis, although the invoice reflects
charges for work prior to that time. See Pl.’s Ex. 10. After that meeting, Mr. Richard
sent to Ms. O’Brien a letter stating that he understood from Ms. O’Brien and Mr.
Wootton that Ms. O’Brien and Mr. Richard would work together developing and
implementing a retail investment program. See Pi.’s Ex. 3.
Mr. Richard met with Ms. O’Brien several weeks after the encounter with Mr.
Wootton in Rhode Island. He continued to have contact with her on a weekly basis,
often on the telephone. On July 28, 1998, Ms. O’Brien reiterated, at Mr. Daigle’s
request, to Mr. Richard that the defendant had made no decision with regard to its
offering alternative investments to it customers and that the defendant had made
no decision to hire the plaintiff even if the defendants determined to offer those
services.
On July 29, 1998, Mr. Richard met again with various employees of the
defendant. See PL’s Exs. 4,5. Mr. Richard asked for this meeting in order to gather
information to tailor a proposal to the defendant. On August 27, 1998, a draft report
was sent by the plaintiff to Ms. O’Brien. See Def.’s Ex. 1.
During August and September 1998, Mr. Richard drafted his final proposal.
He dealt with Ms. O’Brien during this period and she provided information and
answers to his questions. See Pl.’s Ex. 6. Mr. Richard drafted the final proposal
through which the plaintiff and defendant would provide investment management
and financial planning to the defendant's customers. See PI.’s Ex. 7.
Mr. Richard met with Ms. O’Brien and Ms. Westfall in early September to
discuss the proposal. On September 29, 1998, Mr. Richard met with Mr. Daigle,
Keith Patten, Ms. Westfall, Mr. Wootton, Mr. Dell’Olio and Neal Richard to discuss
the final proposal. Mr. Richard responded to questions generated by the members of
the board of directors during Mr. Daigle’s discussion with the board regarding the
plaintiffs proposal. See PI.’s Ex. 8. Ultimately, the defendant’s board of directors
determined not to go forward with implementation of the plaintiff's proposal. The
plaintiff then sent an invoice to the defendant for work done in preparing the
proposal. See Pl.’s Exs. 9, 10. The defendant has paid nothing to the plaintiff. See
Def.’s Ex. 6.
The issue in this case is whether the plaintiff was retained on an hourly basis
to consult with the defendant and develop a proposal or whether the plaintiff
would be paid only if the defendant's board of directors determined to implement
the proposal. There was no discussion with regard to paying the plaintiff on an
hourly basis for consulting services. The defendant has never paid an hourly rate
for a proposal. It was made clear to the plaintiff that only the board of directors
could enter into a contract such as the one alleged by the plaintiff. None of the
witnesses who testified for the defendant had the authority to enter into such a
contract on behalf of the defendant. Although a financial planning fee may differ
from a consulting fee that would be charged to a bank, the discussion of fees by the
plaintiff and the defendant involved fees that the defendant's customers would pay
to the plaintiff to use their financial services; the defendant would get a percentage
of those fees. See Def.’s Ex. 1, pp. 27-30; Def.’s Ex. 2, pp. 2, 7; Def.’s Ex. 5.
The plaintiff has failed to prove that it is entitled to be paid pursuant to any of
the alleged theories. See Smith v. Cannell, 1999 ME 19, { 8, 723 A.2d 876, 879 (breach
of contract); Sun Lumber v. Loiselle, 593 A.2d 213, 215 (Me. 1991) (account annexed);
Harmony Homes Corp, v. Cragg, 390 A.2d 1033, 1035-36 (Me. 1978).
The entry is
Judgment is entered in favor of the Defendant and against
the Plaintiff on Counts I, Il, and III of the Plaintiff's
Complaint.
Date: October 23, 2001
Nefney Mills
Justice, Superior Court
CUM-CV-00-654
T .
Date Filed . 11-01-00 ss __CUMBERLAND
County
Action _ CONTRACT
ALLEGIANCE FINANCIAL GROUP, INC.
Plaintiff's Attorney
SUSAN J. SZWED ESQ 775-2838
PO BOX 9715-209
PORTLAND ME 04104
_— Docket No. CY 00-654
CAMDEN NATIONAL CORPORATION dba
CAMDEN NATIONAL BANK
Defendant’s Attorney
JOHN J. SANFORD ESQ 236-8836
PO BOX 190, CAMDEN ME 04843
MARY PLATT COOPER ESQ 236-8836
20 MECHANIC ST. PO BOX 190
CAMDEN ME 04843