The opinion
STATE OF MAINE FILED &E NTE R EDPERIOR COURT
PENOBSCOT, SS. SUPERIOR COURAkel No. CV-03-13 |
“SNO MOO
MAR 10 2004 AM Me PEN 3 / of DO
GARY WALKER and ) PENOBSCOT COUNTY
MELANIE WALKER, )
Plaintiffs, )
v. ) DECISION AND JUDGMENT
MAINE SPORTS COMPLEX, __ ) DUAL L pcre
LLC,, and PETER MADIGAN, _ ) pe
Defendants. ) mee
APE 16 24
FINDINGS
The facts surrounding the parties’ relationship are not in significant dispute,
although the precise nature of their agreement forms the crux of this disagreement.
Plaintiff’ has commenced a multiple count Complaint claiming certain amounts due
from the Defendants.
Plaintiff is a former professional soccer player from the United Kingdom who
came to the United States to pursue opportunities in coaching and development. He
owns All-Pro Soccer and Sports Camps (herein referred to as “All-Pro”) and obtained
an investor’s visa (E-2) for his ventures in the United States. He quickly perceived the
need for a year-round indoor sports facility in eastern Maine and set about making
plans for such a facility and sought investors.
Defendant Walker became an investor and Chief Executive Officer of the facility
which came to be known locally as “the Dome” and operated under ownership of
Defendant Maine Sports Complex, LLC (herein, Maine Sports). The Plaintiff signed on
as Operations Manager for the corporation. As Plaintiff’s status had changed (he was no
longer “investor-self-employed), he applied for an H 1-B visa in conjunction with his
new employment role with Maine Sports.
The relationship between Maine Sports and the Plaintiff was clarified ina
document entitled “CONTRACT Between Maine Sports Complex and Gary Walker:
Operations Manager.” See Plaintiff's Exhibit 2. Paragraph 1 of the contract provides:
Gary Walker's (GW) annual consultancy salary commencing employment at Maine Sports
Complex (MSC), to be $33,000 per annum. This will rise to a salary set by Maine Labor
Certification (sic). A review on a yearly basis (minimum cost of living rise). Within 2002, salaries
to be reviewed quarterly...
' - Throughout this Decision and J udgment, the court will refer to Gary Walker as the Plaintiff.
Paragraph 3 mandates three months minimum notice for cessation of employment.
Paragraph 8 provided for a contribution by Maine Sports Complex of “..up to $450 per
month towards GW’s health insurance.”
Paragraph 10 provides:
H-1B has not been awarded by May 1* salary will be increased to maximum of $54, 000 as per
labour certification board. Please note: Gary Walker’s contract should run concurrently with his
H-1B visa. A further review regarding financing brought to the facility by Gary Walker for
further development at the facility needs to be addressed regarding the eventuality of the sale of
the facility and Gary Walker's income.
All parties signed the contract on May 1, 2002.
Although the contract is extremely poorly written from a legal point of view, the
court is able to discern the parties intentions without difficulty and otherwise finds the
contract to be unambiguous. Paragraph 1 establishes a salary ($33,000 per year) which
will (emphasis supplied) rise to a salary set by the Maine Labor Certification2
Although paragraph 1 makes no reference to when this increase in salary
commences, paragraph 10 does. It provides that the granting of the H 1-B visa triggers
the contractual provisions (including the increased salary). The earlier reference to the
$33,000 salary simply clarifies and memorializes the parties’ agreement and
understanding of Plaintiff's compensation rate prior to the effective start of the written
contract.
Although Maine Sports claims to have considered Plaintiff an independent
consultant, it is clear to the court that he was, in fact, an employee. Although he had the
prerogative of pursuing gainful ventures outside his duties at Maine Sport, these
activities were restricted to an area outside an 80 mile radius of Maine Sports and could
not “...distract or impact from GW’s position at MSC...”. Further, the contract provided
at paragraph 8:
It should be noted that MSC will be GW’s primary employment and therefore GW must complete
and fulfill all his obligations as Manager of MSC ina satisfactory and professional manner prior
to undertaking additional work outside of MSC.”
It is clear that the parties are creating only a small window for outside ventures and that
Plaintiff's “...primary employment...” is with Maine Sport. Although Plaintiff had
considerable discretion in determining the actual operational end of Maine Sports, he
was acting within the scope and prerogative of any upper level salaried executive in
any business venture. He was not a paving contractor hired to build a driveway or an
accountant to audit financial records. He clearly was an employee of Maine Sports.
* - This is clearly a reference to the prevailing wage figure to be supplied by Maine Department
of Labor in conjunction with the H 1-B visa request.
* -“. Gary Walker’s contract should run concurrently with his H-1B visa...”
Maine Sport terminated the Plaintiff's employment without compliance with the
contractually mandated three month period and failed to compensate him for his return
flight to England when his visa status changed.
The forgoing conclusions of the court are supported by the testimony of the
Plaintiff which the court finds credible.
The court finds that Maine Sport was a viable corporation at all times mentioned
herein and that Defendant Madigan acted at all times as its duly authorized agent.
CONCLUSIONS
Plaintiff was entitled to be compensated at the rate of $4,458 per month pursuant
to the terms of the contract while his H 1-B visa was in effect. However, he received
(through his company All-Pro) $3000 per month.’ The resulting difference is $1,458. For
the months of May through October (when Plaintiff was terminated from employment),
2002, the cumulative difference is $8,748. Similarly, the failure of Maine Sports to follow
the three month cessation provision entitled Plaintiff for compensation for those months
(the sum of $13, 374).
Plaintiff is entitled to the cost of his ticket to return to England ($667.00).
The court declines to award damages for “start-up” efforts or other
compensatory damages as the Plaintiff has failed to demonstrate a basis for entitlement
to such amounts and has not proven a basis for a specific computation of such amounts.
The court finds no basis upon which to hold Defendant Madigan personally
liable for the obligations of the corporation as noted herein.
The court finds no basis for recovery on behalf of Plaintiff Melanie Walker.
The court is satisfied that 26 MRSA §621 entitles Plaintiff to a trebling of the total
of his withheld regular wages for a total of $26,244. Added with his three month
“severance pay” of $13,374, and airline fare of $667, Plaintiff is entitled to total
compensatory damages of $40,285..
The court also awards Plaintiff attorney’s fees of $13,728.06, plus interest and
costs of court.
JUDGMENT
Judgment is rendered in favor of Plaintiff Gary Walker against Defendant Maine
Sports Complex on Counts I, II, V, and VI of the Complaint in the amount of $40,285
compensatory damages, attorneys’ fees of $13,728.06, interest and costs.
* - The insurance contributions are not affected by these circumstances.
Judgment is rendered in favor of Defendants on all other counts. Judgment is
granted in favor of Defendant Peter Madigan on all counts.
The Clerk may incorporate this Decision upon the docket by reference.
(Lo fos
Andrew M. Mead
JUSTICE, MAINE SUPERIOR COURT
Dated: March 10, 2004
GARY WALKER - PLAINTIFF
141 BAKER ROAD °
WINTERPORT ME 04496
Attorney for: GARY WALKER
ANNEMARIE L STOREY
RUDMAN & WINCHELL
84 HARLOW ST
PO BOX 1401
BANGOR ME 04402-1401
Attorney for: GARY WALKER
EDMOND BEAROR
RUDMAN & WINCHELL
84 HARLOW ST
PO BOX 1401
BANGOR ME 04402-1401
MELANIE WALKER - PLAINTIFF
141 BAKER ROAD
WINTERPORT ME 04496
Attorney for: MELANIE WALKER
ANNEMARIE L STOREY
RUDMAN & WINCHELL
84 HARLOW ST
PO BOX 1401
BANGOR ME 04402-1401
Attorney for: MELANIE WALKER
EDMOND BEAROR
RUDMAN & WINCHELL
84 HARLOW ST
PO BOX 1401
BANGOR ME 04402-1401
vs
MAINE SPORTS COMPLEX LLC - DEFENDANT
330 COLDBROOK ROAD
HAMPDEN ME 04444
Attorney for: MAINE SPORTS COMPLEX LLC
RICHARD SILVER
RUSSELL LINGLEY & SILVER
145 EXCHANGE STREET
BANGOR ME 04401-6505
PETER MADIGAN - DEFENDANT
330 COLDBROOK ROAD
HAMPDEN ME 04444
Attorney for: PETER MADIGAN
RICHARD SILVER
RUSSELL LINGLEY & SILVER
145 EXCHANGE STREET
BANGOR ME 04401-6505
Page
SUPERIOR COURT
PENOBSCOT, ss.
Docket No BANSC-CV-2003-00013
DOCKET RECORD
Printed on:
03/11/2004