The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. CV-02-225
DAM. AEN are?
VAUGHAN STEVENS III, and
QUALITY TESTING DESIGNS, INC,
Plaintiffs
Vv. DECISION AND ORDER;
pONALD i! “ a
MARRINER, INC., e¢ al., Ne
_ DEC 12 208
This matter is before the court on defendants’ motion for summary judgment.
This case concerns circumstances surrounding an alleged agreement by a paving
business to purchase an industrial testing business, including its assets, and to employ
its owner and an employee. In conjunction therewith, there existed discussions of a
noncompete agreement.
Beginning in the spring of 2002, Vaughan Stevens, the owner of Quality Testing
Designs (“QTD”) began negotiating with Marriner, Inc., a paving company owned by
Linda, Jeffrey and Michael Marriner. QTD had provided testing services to Marriner,
Inc. over the years and hoped to sell its company to the Marriners and be employed by
them, along with William Crosby, one of his employees. QTD and plaintiff personally
were in financial difficulty.
In late March of 2002, plaintiff Stevens contacted defendant Jeffrey Marriner
about the sale of QTD. Some time in very early April, plaintiff and defendant Jeffrey
Marriner met again. A second meeting took place on April 5, 2002 in Jeffrey Marriner’s
office in Rockport during which Jeffrey’s sister Linda and brother Michael joined them.
At this meeting the parties discussed the idea of plaintiff coming to work for Marriner
2
Inc. immediately at a salary. (Plaintiff disputes only that $45,000 was a maximum
figure). There is a great deal of disagreement over the details of the conversation and
the meanings of the negotiations on April 5, 2002. Plaintiff maintains that the meeting
concerned buying his company and hiring him and that no discussion of his financial
situation occurred. Defendant avers that plaintiff went into great detail about his
financial problems at the April 5, 2002 meeting and “indicated that he wanted to receive
$150,000 from defendants to close down his business and come to work for them.” Both
sides admit that the issue of a noncompete agreement arose at the April 5, 2002 meeting.
Some time after the April 5, 2002 meeting, plaintiff asked his attorney to
memorialize the oral agreements reached at that meeting. Plaintiffs’ attorney and
defendants’ attorney began communications regarding memorializing the proposed
transaction. On May 16, 2002, Jeffrey Marriner and plaintiff Stevens signed a written
agreement advancing $20,000 to plaintiff in anticipation of a formal agreement to
purchase QTD.’ A “first draft agreement” dated June 27, 2002 followed. This draft
stated that the purchase price would be $150,000 and discussed possible ways to
structure payment. A number of letters were exchanged between the two attorneys but
no further draft agreements resulted. A growing concern among the Marriners over
encumbrances (secured loans, IRS liens, etc.) on equipment owned by QTD, and
plaintiff's frustration at not having been paid for his equipment, company and labor led
to a meeting on August 16, 2002,’ at which no attorneys were present. After this
meeting, plaintiff conferred with his attorney, and, as a result, took his equipment and
left the employ of Marriner, Inc.
1 According to defendants’ statement of material fact (which endeavors to reproduce part of the letter) the
$20,000 was an advance “toward our discussion currently being negotiated into a written statement.”
* This meeting is sometimes referenced as having taken place on the 15".
As in many other matters, the parties disagree as to why no attorneys were present.
On October 25, 2002, plaintiff filed a complaint in 13 counts against Marriners,
Inc. and the three owners individually in this court alleging breach of contract, fraud,
unjust enrichment and seeking damages, attorney’s fees, quantum meruit and specific
performance. On October 17, 2002,* defendant Marriner, Inc. and the Marriner siblings
filed an answer, counterclaims and affirmative defenses.
Summary judgment is proper if the citations to the record found in the parties’
Rule 56(h) statements 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 fact is material if it has the potential to
affect the outcome of the case under governing law.” Levine v. R.B.K. Caly Corp., 2001
ME 77, { 4, n.3, 770 A.2d 653, 655, n.3 (citing Burdzel v. Sobus, 2000 ME 84, J 6, 750 A.2d
573, 575). “The invocation of the summary judgment procedure does not permit the
court to decide an issue of fact, but only to determine whether a genuine issue of fact
exists. The Court cannot decide an issue of fact no matter how improbable seem the
opposing party’s chances of prevailing at trial.” Searles v. Trustees of St. Joseph’s College,
1997 ME 128, { 6, 695 A.2d 1206, 1209 (quoting Tallwood Land & Dev. Co. v. Botka, 352
A.2d 753, 755 (Me. 1976)). To avoid a judgment as a matter of law for a defendant, a
plaintiff must establish a prima facie case for each element of her cause of action. See
Fleming v. Gardner, 658 A.2d 1074, 1076 (Me. 1995).
Defendants assert that there was never a binding agreement between any of the
defendants and the plaintiff regarding the sale of QTD and related matters. Defendants
further assert that plaintiff held back critical financial information thereby undermining
negotiations. As to their counterclaim, defendants argue that plaintiff is contractually
obligated to repay the $20,000 advanced to him pursuant to the only writing signed by
“The complaint and the summons are dated September 30, 2002.
the parties (letter of May 16, 2002). Plaintiff maintains that there was a contract and
that contract was based on the agreement reached by the parties on April 5, 2002. He
also maintains that he disclosed all relevant financial information to defendants and
worked for them from April 8, 2003 until late August for no pay.
The complaint consists of 13 counts, but only the first five state causes of action
(the remainder names parties individually and jointly for procedural purposes); breach
of contract, specific performance, quantum meruit, unjust enrichment and fraud.
Defendants assert that while there were negotiations, there was never a meeting
of the minds sufficient to create a contract under Maine law. See, Pepperell Trust Co. v.
Mountain Air Financial Corp., 1998 ME 46, 113, 708 A.2d 651, 655.
To establish a legally binding agreement between parties, the mutual
assent to be bound by all of its material terms must be reflected and
manifested either expressly or impliedly in the contract and the contract
must be sufficiently definite to enable a court to determine its exact
meaning and fix any legal liability of the parties.
June Roberts Agency, Inc. v. Venture Properties, Inc., 676 A.2d 46, 48 (Me. 1996).
Plaintiff points to the discussion of $150,000 payment and an exclusive work
agreement during the April 5, 2002 meeting. Defendants reply that this meeting, which
produced no documentation, was essentially a discussion of ideas relating to a working
relationship with QTD and plaintiff. Defendant points to the May 16, 2002 letter as
proof that an oral agreement did not precede it (citing the language about advancing
funds “toward our discussion currently being negotiated”). This letter makes it clear
that there were still terms to be finalized and both parties seemed to want a written
memorialization.
Plaintiff argues that from QTD’s perspective “this is a contract for the sale of
goods” and should be governed by the UCC wherein a term can be left out entirely and
the contract may still be enforceable. Obviously this is also a services contract as
plaintiff was being offered $45,000 per year to work.
The $20,000 payment from the Marriners to plaintiff, noted in the May 16, 2002
letter, is portrayed as an “advance” by defendant, and plaintiff agrees. Whether an
advance on the purchase of equipment or for labor to be performed, the payment seems
to evidence an underlying agreement. However, on the facts provided the court, there
does not seem to exist sufficient facts arising out of the April 5, 2002 meeting for the
court to conclude that a contract was entered into awaiting written form. More likely, it
was an agreement by the parties to reach an agreement and enter a contract. In part, the
direct relationship of a noncompete agreement with an exclusive employment contract
and the lack of sufficient terms to protect the assets and claims of creditors would
preclude finality in a meeting of the minds. Certainly, those items alone provide the
basis for the need for negotiations to continue. - For these reasons, the defendants’
motion for summary judgment on the breach of contract claim must be granted.
As to the count of specific performance, because plaintiff has secured work with
a third-party paving company, he maintains that “events have made this remedy
impractical and plaintiffs abandon it.”°
In the quantum meruit count, plaintiff is seeking judgment for the value of the
services he and QTD provided to defendant above and beyond the $20,000 payment
noted in the May 16, 2002 letter.
The Law Court described a quasi contract equitable claim of quantum meruit in its
ruling in Forrest Associates. v. Passamaquoddy Tribe, 2000 ME 195, 760 A.2d 1041 so:
Quantum meruit describes the extent of liability under a quasi-contract
theory and therefore involves the "recovery for services or materials
provided under an implied contract." Bowden v. Grindle, 651 A.2d 347, 350
° Plaintiff's memorandum in opposition at page 13.
(Me. 1994) (quoting Aladdin Elec. Assocs. v. Town of Old Orchard Beach, 645
A.2d 1142, 1145 (Me. 1994)). To sustain a claim in quantum meruit, a
plaintiff must establish that "(1) services were rendered to the defendant
by the plaintiff; (2) with the knowledge and consent of the defendant; and
(3) under circumstances that make it reasonable for the plaintiff to expect
payment." Carvel Co. v. Spencer Press, Inc., 1998 ME 74, P12, 708 A.2d 1033,
1036.
Forrest Associates at (13, 1045.
Addressing only the wage claim of plaintiff’s complaint, defendant asserts that
plaintiff was paid in full for his employment services. Plaintiff argues that what he
supplied defendant was more than wage labor and included the assets of QTD.
Plaintiff also maintains that he was not paid for his last three days of work. Like the
contract claim above, this claim is very fact specific and the parties are far apart on the
facts. Plaintiff's averments, if taken as true, would show that plaintiff rendered services
and other valuables that defendant consented to receive and that it was reasonable for
the plaintiff to expect payment. For this reason, the defendants’ motion for summary
judgment on the quantum meruit claim must be denied.
“When one party unjustly benefits from labor and materials rendered by another
with the expectation of payment, the law may impose a promise on the part of the
recipient to pay the value of the benefit conferred.” A.F.A.B., Inc. v. Town of Old Orchard
Beach, 639 A.2d 103, 105 (Me. 1994). Plaintiff brought this claim as an alternate avenue
of recovery should this court find no valid contractual relationship existed. As the Law
Court noted in A.F.A.B., Inc.:
Although the terms "unjust enrichment” and "quantum meruit" are often
used synonymously, the distinction between them is legally significant.
Quantum meruit denotes recovery for the value of services or materials
provided under an actual, implied-in-fact contract. Martin v. Campanaro,
156 F.2d 127, 130-31 n.3 (2d Cir. 1946). Unjust enrichment describes
recovery for the value of the benefit retained when there is no contractual
relationship, but when, on the grounds of fairness and justice, the law
compels performance of a legal and moral duty to pay. Id.; Saunders v.
Saunders, 90 Me. 284, 289, 38 A. 172 (1897); 66 Am. Jur. 2d Restitution and
Implied Contracts § 166 (1973).
A.F.A.B., Inc. v. Town of Old Orchard Beach, 639 A.2d 103, 105 (Me. 1994).
Defendant flatly states that plaintiffs Stevens and QTD “do not claim that they
have provided any goods or services for which they were not compensated.” Plaintiff,
however, as noted above in the quantum meruit claim maintains that non-payment for
certain benefits and services is exactly what happened. Plaintiff's averments taken as
true must deny support summary judgment for defendant for the same reasons as those
stated in the quantum meruit claim.
Plaintiff seeks recovery from the defendant on the basis of fraud:
A defendant is liable for fraud or deceit if he (1) makes a false
representation (2) of a material fact (3) with knowledge of its falsity or in
reckless disregard of whether it is true or false (4) for the purpose of
inducing another to act or to refrain from acting in reliance upon it, and
(5) the plaintiff justifiably relies upon the representation as true and acts
upon it to [her] damage. . . . Reliance is unjustified only if the plaintiff
knows the representation is false or its falsity is obvious to [her].
Francis v. Stinson, 760 A.2d 209, 217 (Me. 2000); quoting Letellier v. Small, 400 A.2d 371,
376 (Me. 1979).
Plaintiff maintains that defendant Jeffrey Marriner told him that Marriner, Inc.
had set aside $150,000 for the purchase of QTD. Plaintiff maintains that he was told that
this money, waiting in the bank, would be available to pay his creditors once a non-
~ compete clause was signed. He also maintains that he brought $70,000 worth of
equipment with him to work for Marriner, Inc. on the basis of repeated statements by
defendants that they had an agreement. Defendant asserts that not only does plaintiff
lack a cause of action for fraud, but plaintiff, through counsel, has changed the basis for
the fraud claim without amending the complaint
While there may be some difference in emphasis arguing in support, and
certainly the plaintiff's affidavit of June 5, 2003 postdates the complaint and is not
referenced in it, the basic elements of the claim and the support for it have remained the
same. Plaintiff avers that he was promised $150,000 by the defendants to induce him to
act. This averment is consistent with plaintiff’s averments in opposition to summary
judgment. Again, in this very fact specific case, the parties are far apart on the facts,
especially the facts related to what occurred in the meeting of April 5, 2002. However,
considering the information in a light most favorable to the plaintiff, he seeks to
establish the elements of fraud on the basis that the defendant would pay him to
purchase his business, give him employment and, because they had the negotiated price
means available, were able to execute its terms. There is no evidence that these
defendants did not have the means to meet the financial terms of the contract or that
they knew any representations were false or in reckless disregard of whether they were
false. Further, while plaintiff may have justifiably relied upon the representation of the
defendant’s intent to enter into the contract, plaintiff entered into an employment
circumstance based upon negotiations appearing to be made in good faith and
buttressed by a $20,000 advance. This court is not satisfied that there exists prima facie
evidence of fraud on the part of the defendants.
There is a great deal of factual dispute over the status of negotiations at the time
of the $20,000 “deposit” paid in connection with negotiations for the purchase of QTD.
These factual uncertainties preclude the award of summary judgment for the defendant
on their counterclaim.
Defendant maintains that because plaintiff has retrieved all of his equipment and
obtained another job and retained his “deposit” he can show no damages. Of course,
plaintiff has alleged damages beyond his loss of employment and not that he had
permanently lost his equipment. He alleges damages both for loss of the bargain and
consequential damages resulting from breach of contract. While the breach of contract
claim does not survive, the issue of plaintiff’s damages under the remaining counts is
subject to genuine issues of material fact.
Defendant seeks to have the three Marriner siblings released as individual
defendants in this case because “[a]ccording to Stevens, the transaction would have
involved QTD selling assets to Marriners.” Plaintiff argues that because there may be an
element of fraud in this case, the corporate officers (the siblings) may be liable under the
holding of a 1991 Law Court case finding that it was not irrational for a jury to find a
corporation liable but not find its sole shareholder and chief executive officer liable.
Frost v. Drew, 586 A.2d 1242, 1243 (Me. 1991).
There is scant case law in Maine on the topic of “piercing the corporate veil” and
what there is does not favor plaintiff. It is well established that “corporations are
separate legal entities with limited liability." Anderson v. Kennebec River Pulp & Paper Co.,
433 A.2d 752, 756 n.5 (Me. 1981). “[Blefore a court may pierce the corporate veil, a
plaintiff must establish that: (1) the defendant abused the privilege of a separate
corporate identity; and (2) an unjust or inequitable result would occur if the court
recognized the separate corporate existence.” Johnson v. Exclusive Props. Unlimited, 1998
ME 244, (1, 720 A.2d 568, 570. Inasmuch as the court is removing the fraud claim as an
element of this case, the individual defendants must be dismissed and summary
judgment must be awarded.
Defendant points out that under Maine law, punitive damages are not available
for breach of contract, Drinkwater v. Patten Realty Corp., 563 A.2d 772, 776 (Me. 1989). In
addition, under Maine law, actual malice is required to support punitive damages. See,
Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985). While the breach of contract claim is
10
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not before us, we are left with allegations of failing to meet commitments and
understandings and even inducing detrimental reliance, but nothing approaching
actual malice has been alleged. Therefore, defendant must receive summary judgment
on the punitive damages claim.
The entry will be:
Defendant’s motion for summary judgment on count I of plaintiff's
complaint is GRANTED; judgment for defendant on count I, breach of
contract; count II of plaintiff’s complaint, specific performance, is
WITHDRAWN by plaintiff; defendant’s motion for summary judgment
on count III of plaintiff's complaint, quantum meruit, is DENIED;
defendants’ motion on count IV of plaintiff's complaint, unjust
enrichment, is DENIED; defendants’ motion for summary judgment on
count V of plaintiff's complaint, fraud, is GRANTED; judgment for the
defendant on count V of plaintiff's complaint; defendant’s motion for
summary judgment on counts VI, VII, VIII and IX, punitive damages, is
GRANTED; judgment for defendant on counts VI, VII, VIII and IX of
plaintiff's complaint; defendant’s motion for summary judgment on
counts X, XI and XII is GRANTED; judgment for the defendants Jeffrey
Marriner, Linda Durrell, and Michael Marriner on counts X, XI and XII of
plaintiff's complaint; defendants’ motion for summary judgment on its
counterclaim is DENIED.
Dated: November ¢2 2003
——___
onald H. Marden
Justice, Superior Court
VAUGHN STEVENS III - PLAINTIFF
24 CONY RD , .
AUGUSTA ME 04330
Attorney for: VAUGHN STEVENS III
JAMES E MITCHELL
MITCHELL & DAVIS
86 WINTHROP STREET
AUGUSTA ME 04330
Attorney for: VAUGHN STEVENS III
JOHN S BOBROWIECKI JR
FARRIS HESELTON LADD & BOBROWIECKI, PA
251 WATER STREET
PO BOX 120
GARDINER ME 04345-0120
QUALITY TESTING AND DESIGN INC - PLAINTIFF
Attorney for: QUALITY TESTING AND DESIGN INC
JAMES E MITCHELL
MITCHELL & DAVIS
86 WINTHROP STREET
AUGUSTA ME 04330
Attorney for: QUALITY TESTING AND DESIGN INC
JOHN S BOBROWIECKI JR
FARRIS HESELTON LADD & BOBROWIECKI, PA
251 WATER STREET
PO BOX 120
GARDINER ME 04345-0120
vs
MARRINER INC - DEFENDANT
CAMDEN STREET
ROCKPORT ME 04856
Attorney for: MARRINER INC
DAVID PERKINS
PERKINS OLSON PA
30 MILK STREET
PO BOX 449
PORTLAND ME 04112-0449
JEFFREY A MARRINER - DEFENDANT
CAMDEN STREET
ROCKPORT ME 04856
Attorney for: JEFFREY A MARRINER
DAVID PERKINS
PERKINS OLSON PA
30 MILK STREET
PO BOX 449
PORTLAND ME 04112-0449
Page
SUPERIOR COURT
KENNEBEC, ss.
Docket No AUGSC-CV-2002-00225
DOCKET RECORD
Printed on:
11/19/2003
LINDA DURRELL - DEFENDANT
CAMDEN STREET
ROCKPORT ME 04856
Attorney for: LINDA DURRELL
DAVID PERKINS
PERKINS OLSON PA
30 MILK STREET
PO BOX 449
PORTLAND ME 04112-0449
MICHAEL MARRINER - DEFENDANT
CAMDEN STREET
ROCKPORT ME 04856
Attorney for: MICHAEL MARRINER
DAVID PERKINS
PERKINS OLSON PA
30 MILK STREET
PO BOX 449
PORTLAND ME 04112-0449
Filing Document: COMPLAINT Minor Case Type: CONTRACT
Filing Date: 10/25/2002
Docket Events:
10/29/2002 FILING DOCUMENT - COMPLAINT FILED ON 10/25/2002
Plaintiff's Attorney: JOHN S BOBROWIECKI JR
10/29/2002 Party(s): VAUGHN STEVENS III
ATTORNEY - RETAINED ENTERED ON 10/25/2002
Plaintiff's Attorney: JOHN S BOBROWIECKI JR
Party(s): QUALITY TESTING AND DESIGN INC
ATTORNEY - RETAINED ENTERED ON 10/25/2002
Plaintiff's Attorney: JOHN S BOBROWIECKI JR
10/29/2002 Party(s): MARRINER INC
SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 10/25/2002
AS TO DEFENDANT MARRINER INC.
10/29/2002 Party(s): MARRINER INC
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 10/01/2002
AS TO MARRINER INC. SERVED IN HAND TO LINDA DARREL, CLERK.
10/29/2002 Party(s): LINDA DURRELL
SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 10/25/2002
AS TO DEFENDANT LINDA DURRELL, FILED.
10/29/2002 Party(s): LINDA DURRELL
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 10/01/2002
AS TO DEFENDANT LINDA DURRELL SERVED IN HAND, FILED.
10/29/2002 Party(s): MICHAEL MARRINER
SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 10/25/2002
Page 2 of 9
AUGSC-CV-2002-00225
DOCKET RECORD
Printed on: 11/19/2003
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. CV-02-225
py Pe ere cep o _
VAUGHAN STEVENS IIL et al.,
Plaintfts
v. DECISION AND ORDER
MARRINER, INC.,, et al.,
Defendants
This matter is before the court after bench trial. Plaintiffs filed a complaint with
the court of 12 counts alleging breach of contract, requesting specific performance of
contract, quantum meruit, unjust enrichment, fraud, punitive damages and individual
counts against owners of the defendant corporation. By summary judgment, the court
granted judgment for defendants on count I, breach of contract, count IL, specific
performance, was withdrawn by plaintiffs, judgment for defendants on allegations of
fraud in count V of plaintiffs’ complaint, judgment for defendants on counts VI, VII,
VIII and IX for punitive damages, and judgment for defendants on counts X, XI and XII,
the allegations against individual shareholders.
Defendants have counterclaimed for the return of a deposit (breach of contract)
in count I, tortious interference with prospective economic advantage and contractual
relationship in count II, conversion of personal property in count III, and abuse of
process in count IV.
Plaintiff Vaughan A. Stevens, II] is president and owner of Quality Testing and
Design, Inc. He has been involved with technical work in support of the construction
industry since 1988 and has post-secondary education in geology. He has experience in
analysis of soils, hot top asphalt mixing and pavement design. He has certification in
professional organizations in this field. For a number of years, Mr. Stevens and his
corporation have provided testing and design services to the defendant corporation as
an independent contractor as well as other general contractors and paving companies
throughout the State of Maine. Quality Testing and Design, Inc. has had an employee,
Mr. Crosby, who has operated as a technician in the same field. Quality Testing and
Design, Inc. has a number of pieces of equipment, including an SHRP laboratory which
was utilized for on-site evaluation of construction materials. Such evaluation is
necessary for contractors to obtain contracts with many entities, including public
institutions. As the president and operations manager of Quality Testing and Design,
Inc., Mr. Stevens acted in a consulting capacity to contractors and Mr. Crosby as the
technician maintaining the testing and quality control of product. Both individuals are
qualified to conduct those services.
In taxable year 1999, plaintiff Stevens reported wages of $46,023.70 from Quality
Testing and Design, Inc. from income of $221,875.77. In taxable year 2000, plaintiff
Stevens reported wages of $50,360 from total income of Quality Testing and Design, Inc.
of $189,591.03. In taxable year 2001, Quality Testing and Design, Inc. reported gross
receipts of $63,230.55 but for Internal Revenue Services purposes on a U.S. income
return from this corporation, a loss in the amount of $61,295.45. While the 2001 IRS
form 1040 is not in evidence for plaintiff Stevens personally, the 2001 Maine individual
income tax return 1040ME indicates a federal adjusted gross income loss of $19,943.98.
Defendant Marriner, Inc. is a corporation engaged in the business of asphalt
paving. Itis a privately held company owned by two brothers and a sister who all are
active in its operations. Each owns a one-third share in the corporation which is over 40
years old. In addition to paving, the defendants have activities in mineral extraction,
crushing of aggregate and manufacturing of asphalt paving material.
Starting in approximately March of 1999, Quality Testing and Design, Inc.
provided appropriate testing services to defendant Marriner, Inc. and billed the
defendant at various rates per hour or day, depending upon the activity actually
engaged in. This included services by an HMA technician, performed by Mr. Crosby,
HMA consulting, performed by Mr. Stevens, utilization of testing equipment and some
set price activities. Among other considerations, generally the plaintiffs charged $27
per hour for services by its technician, $50 per hour for consulting services, $25 an hour
for some technician services, rental of equipment at $250 per hour and mileage. In
October of 2001, plaintiff Quality Testing and Design, Inc. performed services for
another client using services of SHRP laboratory at a rate of $500 a day. The same
laboratory was used for trial “batching” at a rate of $400 a day for the other customer.
Work was invoiced for a second customer in September of 1999 with the use of SHRP
laboratory at a rate of $500 per day. Further invoices for other customers reflecting the
same rate for the use of that laboratory was disclosed in June, July and August of 1999,”
In addition, services performed for other clients in April 1999 revealed mixed design
work at a price of $3,000 per job and “super pave level 1” at a rate of $1,500 a job.
In late March or early April of 2002, plaintiff Stevens approached the defendants
proposing a sale of the assets of Quality Testing and Design, Inc. accompanied by a
contract of employment whereby Stevens and his employee, Mr. Crosby, would become
employees of Marriner, Inc. Mr. Stevens claims he did so because he became aware that
Marriner, Inc. had lost an employee. Defendants assert that Mr. Stevens approached
them with the proposal because he was in great financial difficulty. Nevertheless, after
preliminary discussions, a meeting was held on April 5, 2002. Present at the meeting
was Mr. Stevens and three owners of Marriner, Inc., Jefffrey Marriner, Michael
Marriner, brothers, and their sister, Linda Durrell. Jeffrey Marriner was the president
and Linda Durrell was the chief financial officer. A description of this meeting appears
in this court’s Decision and Order of November 19, 2003. Suffice it to say there is
considerable disagreement over the results of the meeting. This court has concluded
that no contract was entered into for the purchase and sale of Quality Testing and
Design, Inc. from Mr. Stevens to the Marriners. However, it was agreed that Mr.
Stevens would immediately become an employee of the defendant corporation at a
salary of $45,000 per year. It was agreed that Mr. Crosby would become an employee of
the defendant corporation at a salary. All parties agree that a large number of matters
were discussed regarding the sale of the assets including responsibilities of Mr. Stevens
in a position of operations manager for the Marriners, as well as details with regard to
defendants furnishing transportation, cell phone and health insurance benefits.
Generally speaking, it appears to have been clearly agreed that the sale was to take
place contingent upon a provision for a noncompetiton agreement in conjunction with
the employment of Stevens and Crosby with the Marriners and the furnishing of
sufficient materials by Stevens to the Marriners to assure them that they would be
receiving the assets of Quality Testing and Design, Inc. free and clear of liens and
encumbrances.
During the period of Apmnil, May, June, July and August of 2002, Stevens fully
performed services as operations manager for Marriner, Inc. and Crosby fully
performed his responsibilities as quality control technician and safety officer for the
defendants. They were paid in accordance with normal payroll practices and were
provided the benefits agreed upon. Mr. Stevens was successful in performing his
responsibilities with respect to the opening of a quarry, the negotiations and bidding for
paving contracts, the negotiations and purchasing of raw materials for Marriner’s -
purposes, and supervising and reviewing the quality assurance work by Mr. Crosby,
During this same period, attorneys for Mr. Stevens and the Marriners were in
communication regarding the information to be provided by the plaintiffs to the
Marriners to effectuate the details of a closing of the transfer of assets free and clear for
the agreed purchase price of $150,000. Therein lies the real controversy. Mr. Stevens
insists that he supplied the information as to the debts and liabilities of Quality Testing
and Design, Inc. to his attorney at the latest, in May of 2002, and his attorney believes, to
the best of his recollection, that the material was communicated to the Marriners’
counsel. Whatever the real turn of events, in July of 2002, defendants’ counsel was still
inquiring of plaintiffs’ counsel as to the whereabouts of the information necessary to
determine liens and encumbrances on the assets of Quality Testing and Design, Inc. In
June of 2002, plaintiffs’ counsel advised defendants’ attorney by letter that there existed
bank loans and various federal and state liens but defendants’ counsel insists, and
plaintiffs have provided no clear evidence to the contrary, that defendants’ counsel
never received the actual documentation with respect to the liens and encumbrances. In
July, it is clear that plaintiff Stevens became aware that defendants’ counsel were still
seeking the documentation.
By letter dated May 16, 2002, from Jeffrey A. Marriner to Vaughan Stevens and
Quality Testing and Design, Inc. specifically stating it was regarding a loan
advancement for the purchase of Quality Testing and Design, Inc, a check was
forwarded in the amount of $20,000 “to advance funds towards our discussions
currently being negotiated into a written agreement for the purchase of Quality Testing
and Design, Inc. and/or Vaughan Stevens, III’s assets.” The letter further asserted that
it was agreed that the funds would be used to pay down a bank loan with Stevens
furnishing evidence of payment promptly and that the check would be the only
advancement until all necessary paperwork and financial information was satisfactorily
forwarded to Marriner, Inc. Further language stated, “If negotiations results in failure
to meet agreements, Vaughan Stevens, III (XXX-XX-XXXX) agrees to pay back the sum of
$20,000 to Marriner, Inc. immediately.” The letter goes on to recite the remaining
balance on the contract upon satisfactory performance would be $130,000. The final
sentence prior to signature block says, “The two undersigned parties agree this day
May 16", 2001, (sic) to the above mentioned terms and conditions:”. The letter is signed
by Vaughan A. Stevens, III as president of Quality Testing and Design, Inc. and
Vaughan A. Stevens, IIT personally.
In August of 2002, either the 15" or the 16", the Marriners still had not received
the financial information they were looking for and a meeting was held with Stevens at
which this was discussed. There was some talk of working out the matter at $50,000 per
year for three years but there continued concerns with regard to the debt, and liens, if
any, to the IRS. The plaintiffs, believing that they had supplied all of the required
information in July, left the meeting, conferred with counsel, worked three more days to
attend meetings on behalf of the Marriners and then left the employment.
Plaintiffs claim, among other things, that the defendants have been unjustly
enriched by his activities in the amount of $142,857 for his work on the defendants’
quarry in the Town of Washington. He believes he is entitled to $59,393 claiming
defendants were unjustly enriched by his acquiring sand and gravel at a reduced price
with that amount of savings. He believes he should be entitled to the benefit of the
defendants’ unjust enrichment on contracts which would not have been awarded but
for his endeavors resulting in profits to the defendants in the amount of $288,795 for
State contracts. He believes he is entitled to profits which he negotiated with the towns
of Pittston and Windsor for contracts realizing $38,017. Plaintiffs believe that they
should be entitled to the amount of $13,880 for work he performed for an outside client
which he completed while in the employ of defendants for which defendants billed the
outside client and collected on the invoice in the amount of $13,880. Finally, plaintiffs
claim on behalf of Quality Testing and Design, Inc. the rental of SHRP laboratory at a
rate of $500 a day for 90 days, consisting of 70 days of behalf of the Marriners, 10 days
on behalf of the outside client and 10 days on other jobs.
On its counterclaim, defendants seek the return of the $20,000 and other damages
under various theories of law.
Quantum meruit, also sometimes called contract implied-in-fact or quasi contract,
involves recovery for services or materials provided under an implied contract.
Paffhausen v. Balano, 1998 ME 47, 708 A.2d 269. The party claiming the existence of an
implied contract must demonstrate a reasonable expectation to receive compensation
for his services and a concurrent intention of the other party to compensate him.
Howard & Bowie v. Collins, 200 ME 148, 759 A.2d 707. Itis a principle of contract law that
when one renders services to another at the request, or with the knowledge and
consent, of the other, and the surrounding circumstances make it reasonable for him to
believe that he will receive payment therefore from the other, and he does so believe, a
promise to pay will be inferred. Danforth v. Ruotolo, 650 A.2d 1334 (Me. 1994).
Unjust enrichment is the recovery for the value of a benefit retained when there
is no contractual relationship, but when, on the grounds of fairness and justice, the law
compels the performance of a legal and moral duty to pay. The damages analysis is
based on principles of equity, not contract. Paffhausen, 708 A.2d at 271. Unjust
enrichment describes recovery for the value of the benefit retained when there is no
contractual relationship but when on the grounds of fairness and justice the law
compels performance of a legal and moral duty to pay. In re: Wage Payment Litigation,
2000 ME 752, 759 A.2d 217. The most significant element of a doctrine of unjust
enrichment is whether the enrichment of the defendant is unjust. Bowie, 759 A.2d at
710,
There is no question that the exclusive employment of Stevens and Crosby by
Marriner, Inc. was contingent upon the sale of the assets of Quality Testing and Design,
Inc. to Marriner, Inc. and a resolution of the issue of a noncompete agreement. While
there was some discussion of issues of probationary periods and other protections, it
appears these matters were almost exclusively between the attorneys and did not reach
the parties. While Mr. Stevens did not have a specific employment contract, there can
be no equivocation but that he had a contract implied by the understanding of the
parties and the performance by both sides. Mr. Stevens was provided the information
as to the expectations of his employment as operations manager, he was supplied a
wage, he accepted that wage, performed under that wage, and did so in a payroll form
with appropriate deductions and benefits. There is no evidence that Mr. Stevens was
hired for that period as a consultant and no evidence that the defendants had the
expectation that Mr. Stevens was going to be expecting a rate of compensation of $50
per hour or a share in profits derived through his efforts as operations manager. Both
sides presented evidence with regard to profits and losses with plaintiffs asking for the
benefits of the profits and defendants asking to be reimbursed for their losses, both as a
result of plaintiffs’ performance. However, this was a quasi, implied-at-law contract in
which both sides would normally expect benefits and losses from normal business
practices. There is no evidence that plaintiff Stevens was not fully qualified to perform
as operations manager nor is there any evidence that his performance was in a category
wherein he would expect to be paid $50 per hour. There is no evidence that plaintiff
had a reasonable expectation to be paid a wage consistent with consulting services or is
there any evidence of a concurrent intention of the Marriners to pay him at the rate of a
consultant. Under the circumstances, under the contract theory of quantum meruit,
plaintiff is entitled to relief which he has received in the form of his salary.
Under this implied contract, there was no condition as to term. Defendants were
aware that the employment was part and parcel of a proposed contract to purchase the
assets of plaintiffs’ corporation. Defendants were well aware that plaintiffs believed
they had provided the necessary information and that progress had not been made
toward closing the details of the sale of assets. There is nothing in the contract to be
implied to expect that the plaintiffs were not free to terminate his agreement at any time
and the court finds no merit in defendants’ claim to be reimbursed for the $6,440 plus
paid Barrett Paving Materials, Inc. to complete plaintiffs’ work.
Prior to April 5, 2002, plaintiffs had agreed to perform consulting and technician
services for Bruce Manzer, Inc. It appears that Marriner, Inc. was aware of this
commitment and agreed that plaintiffs could complete that obligation while working
under their employment agreement, as implied. The work was performed by plaintitfs
and his employee during the period of time of April 25, 2002 to May 23, 2002, and was
billed on invoice of Quality Testing and Design, Inc. to Manzer in the amount of
$13,880.30 on a bill of Marriners, Inc. The description is “RE: 02-101A Rumford MDOT
project per enclosed invoicing by Quality Testing and Design, Inc. for technician work
performed on the above mentioned project.” The amount was paid to Marriner, Inc. on
July 24, 2002, by Manzer. There is no evidence to satisfy this court that the defendants
were entitled to work performed by Quality Testing and Design, Inc. for a third party or
any reasonable expectation that it would be entitled to the benefit of that work. In this
regard, Marriner, Inc. has been unjustly enriched by the services of Quality Testing and
Design, Inc. and should provide reimbursement to that corporation in that amount.
10
The. understandings reached at the April 5, 2002 meeting by the parties
apparently did not include any resolution with respect to the assets of Quality Testing
and Design, Inc. The defendants deny reaching any agreement with respect to
utilization of the equipment. The Marriners testified they had equipment of their own
but agreed they did not have all of the equipment utilized by Stevens and Crosby. The
court finds no theory of guantum meruit to provide an award to Quality Testing and
Design, Inc. for the use of that equipment. However, it appears clear that the
defendants were unjustly enriched by the ability on the part of Crosby in performing
his quality assurance activities to utilize the property of Stevens’ corporation. The use
of that equipment clearly was a benefit provided to the defendants. The court is
satisfied that the defendants were aware that plaintiffs were utilizing some of the
equipment and clearly, under principles of equity, it would be unjust for the defendants
to retain that benefit without payment of its value.
The issue is its value. Plaintiffs claim 90 days at $500 per day for the use of the
SHRP laboratory. Defendants argue that upon plaintiffs leaving the employment,
Barrett Paving Materials, Inc. provided a laboratory truck at the rate of $120 per day.
Defendants further argue that plaintiffs only actually used the laboratory equipment for
16% days, 13 days on Route 32 and 3% days on Route 17. Neither party has produced
any precise evidence as to the actual use of the equipment. Defendants have produced
20 pages of invoices of Quality Testing and Design, Inc. to Marriner, Inc. during the
period of April, 1999 through May of 2001. Rental for the SHRP laboratory does not
appear in any of the invoices. Plaintiffs have presented an invoice dated November 13,
2002, alleging 100 days of use of the SHRP laboratory at a rate of $700 per day
chargeable to Marriner, Inc. This invoice lacks credibility because it is not consistent
with other billings of Quality Testing and Design, Inc. and was prepared in anticipation
11
of litigation on behalf of plaintiffs’ attorney. However, the court notes that the invoice
prepared for Bruce Manzer dated May 28, 2002, shows nine days of utilization by SHRP
at a rate of $500 per day. During the course of the project it took 17 days. The invoice of
Barrett Paving Materials, Inc. to Marriner, Inc. for work performed in August through
November of 2002 shows 43 days of work with 42 days of use of the lab truck. Invoices
by plaintiffs to other clients during the period of 2000-2001 show only three days of use
of the SHRP laboratory at a rate of $500 per day. The court notes that other equipment
of Quality Testing and Design, Inc.,, most notably a gyro & oven, in previous years had
been utilized and billed on behalf of defendants at a rate of $250 per day. .
The most compelling testimony in this regard is that of Mr. Crosby. He agreed.
that defendants had some testing equipment of their own but that the plaintiffs
preferred that Quality Testing and Design, Inc. equipment be used. He specifically
designated five pieces of equipment belonging to Quality Testing and Design, Inc. used
for defendants work. He noted the gyro was frequently used but no one kept any
record of the days the equipment was used. There is no evidence that the entire SHRP
lab was used.
In the final analysis, the only direct evidence of the use of the equipment in terms
of the value is that actually billed by Barrett Paving. Mr. Crosby testified he routinely
used the equipment. Using the value established by the Barrett invoice and the length
of the performance of the employment, the court believes a reasonable award to Quality
Testing and Design, Inc. on the basis of unjust enrichment is $10,800.
It is agreed that the last payroll check provided to the plaintiffs was for a period
ending three days before he actually left the employment and it is agreed that he did
perform for that three days on behalf of defendants. The court has granted the plaintiffs
the opportunity to amend the pleadings to conform to the evidence and, therefore,
12
while it he does not have a specific complaint in that regard, the court finds that
Vaughan Stevens is entitled to three days pay at the payroll rate for which he was
impliedly employed by defendants. Mr. Crosby is entitled to the same but he is not a
party to this litigation.
Defendants, by its counterclaim, asserts its entitlement to a return of their $20,000
as supplied as an advancement toward purchase of the assets. The court is satisfied that
the letter of May 16, 2002, signed by Jeffrey A. Marriner and Vaughan A. Stevens, III
does constitute an express contract whereupon the parties agree that the $20,000 would
be reimbursed to the Marriners in the event the parties fail to reach a written agreement
for the purchase of Quality Testing and Design, Inc. and/or Vaughan Stevens, III’s
assets by Marriner, Inc. By the failure to return the $20,000, plaintiffs have breached
that agreement, defendants are entitled to judgment on count I of its counterclaim.
The court finds no evidence that plaintiffs have intentionally and tortiously
interfered with an economic advantage or a valid contract or that Stevens interfered
through fraud or intimidation. Rutland v. Mullen, 2002 ME 98, 798 A.2d 1104.
Defendants claim that plaintiffs retained certain of its property and converted it
to its own use upon leaving defendants’ premises. The property involves mix designs,
plans, and other personal property. The court has heard the testimony and witness on
behalf of both parties and is not satisfied that the defendants have met its burden of
proof in this regard and denies relief on count III of its counterclaim.
Defendants assert that plaintiffs have abused civil process in this litigation. The
court finds no evidence to suggest use of process in an improper manner or the
existence of an ulterior motive. Dumont v. Fleet Bank, 2000 ME 197, 760 A.2d 1049.
The entry will be:
Judgment for plaintiff Vaughan A. Stevens, IIT on count IIT of his
complaint for quantum meruit in the amount of salary already received plus
three days at a gross salary of $865 per week for damages of $519;
judgment for defendants on count III of complaint of Quality Testing and
Design, Inc.; judgment for plaintiff on count IV of complaint of Quality
Testing and Design, Inc. in the amount of $10,800 for defendants’ use of
equipment and $13,880.30 for monies received on the Manzer contract;
judgment for defendants on Stevens’ count IV for unjust enrichment;
judgment for defendant on count I of its counterclaim in the amount of
$20,000; judgment for plaintiff on counts II, III and IV of defendants’
counterclaim; prejudgment interest on judgments to run in 2004 at 4.28%;
prejudgment interest on judgments for 2005 to run at 5.77%; post-
judgment interest on judgments to run in 2005 at 8.777%; as prevailing
party, plaintiff to recover costs.
Dated: April SF _, 2005 GEE
13
Bonald H. Marden
Justice, Superior Court
VAUGHN STEVENS III - PLAINTIFF
24 CONY RD
AUGUSTA ME 04330
Attorney for: VAUGHN STEVENS III
MITCHELL & DAVIS
86 WINTHROP STREET
AUGUSTA ME 04330
Attorney for: VAUGHN STEVENS III
JOHN S BOBROWIECKI JR - WITHDRAWN 03/24/2003
FARRIS HESELTON LADD & BOBROWIECKI, PA
251 WATER STREET
PO BOX 120
GARDINER ME 04345-0120
QUALITY TESTING AND DESIGN INC - PLAINTIFF
Attorney for: QUALITY TESTING AND DESIGN INC
MITCHELL & DAVIS
86 WINTHROP STREET
AUGUSTA ME 04330
Attorney for: QUALITY TESTING AND DESIGN INC
JOHN S BOBROWIECKI JR - WITHDRAWN 03/24/2003
FARRIS HESELTON LADD & BOBROWIECKI, PA
251 WATER STREET
PO BOX 120
GARDINER ME 04345-0120
vs
MARRINER INC - DEFENDANT
CAMDEN STREET
ROCKPORT ME 04856
Attorney for: MARRINER INC
DAVID PERKINS - RETAINED
PERKINS OLSON PA
30 MILK STREET
PO BOX 449
PORTLAND ME 04112-0449
JEFFREY A MARRINER - DEFENDANT
CAMDEN STREET
ROCKPORT ME 04856
Attorney for: JEFFREY A MARRINER
DAVID PERKINS - RETAINED
PERKINS OLSON PA
30 MILK STREET
PO BOX 449
PORTLAND ME 04112-0449
LINDA DURRELL - DEFENDANT
CAMDEN STREET
ROCKPORT ME 04856
Page
1
of 14
SUPERIOR COURT
KENNEBEC, ss.
Docket No AUGSC-CV-2002-00225
DOCKET RECORD
Printed on: 04/05/2005
Attorney for: LINDA DURRELL
DAVID PERKINS - RETAINED
PERKINS OLSON PA
30 MILK STREET
PO BOX 449
PORTLAND ME 04112-0449
MICHAEL MARRINER - DEFENDANT
CAMDEN STREET
ROCKPORT ME 94456
Attorney for: MICHAEL MARRINER
DAVID PERKINS - RETAINED
PERKINS OLSON PA
30 MILK STREET
PO BOX 449
PORTLAND ME 04112-0449
Filing Decument: COMPLAINT Minor Case Type:
Filing Date: 10/25/2002
Docket Events:
10/29/2002 FILING DOCUMENT - COMPLAINT FILED ON 10/25/2002
Plaintiff's Attorney: JOHN § BORROWIECKI JR
10/29/2002 Party(s): VAUGHN STEVENS III
ATTORNEY - RETAINED ENTERED ON 10/25/2002
Plaintif£'s Attorney: JOHN S$ BOBROWIECKI JR
Party({s): QUALITY TESTING AND DESIGN INC
ATTORNEY - RETAINED ENTERED ON 10/25/2002
Plaintiff's Attorney: JOHN S BOBROWIECKI JR
10/29/2002 Party(s): MARRINER INC
SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 10/25/2002
AS TC DEFENDANT MARRINER INC.
10/29/2002 Party(s): MARRINER INC
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 10/01/2002
CONTRACT
AS TC MARRINER INC. SERVED IN HAND TO LINDA DARREL, CLERK.
10/29/2002 Party(s): LINDA DURRELL
SUMMONS /SERVICE - CIVIL SUMMONS FILED ON 10/25/2002
AS TO DEFENDANT LINDA DURRELL, FILED.
10/29/2002 Party(s): LINDA DURRELL
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 10/01/2002
AS TO DEFENDANT LINDA DURRELL SERVED IN HAND, FILED.
10/29/2002 Party(s): MICHAEL MARRINER
SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 10/25/2002
AS TO DEFENDANT MICHAEL MARRINER, FILED.
10/29/2002 Party(s): MICHAEL MARRINER
Page 2 of 14
AUGSC-CV-2002-00225
DOCKET RECORD
Printed on: 04/05/2005