The opinion
STATE OF MAINE DISTRICT COURT
LOCATION: AUGUSTA
KENNEBEC, ss.
JEANNIE S. VAN DEVENTER,
Plaintiff
WILLIAM F. JUDSON,
Defendant
This matter is before the court after bench trial. In her complaint, plaintiff alleges
that defendant borrowed sums from her through the use of her credit card which, in
spite of demands, have not been repaid. Secondly, plaintiff alleges that she was
employed by the defendant as a secretaryJbusiness manager from April 1, 2003, to
December 17, 2004, for which she has not received compensation. Plaintiff asserts a
demand in accordance with the State Employment Law, 26 M.R.S.A. § 626. She seeks
judgment for the amount of the unpaid loans and unpaid wages including liquidated
damages provided by the statute.
It is defendant's position that he and the plaintiff were romantically involved
and that her utilization of the credit card and services performed were in her capacity as
a participant with the defendant in a joint venture for which she was to be fully
compensated with an expectation of future profits upon the establishment of a
successful business.
The plaintiff, a 42 year-old woman, has a two-year associates degree in
accounting. Prior to 2002, she was a sales representative for Schwanns but received an
injury in that employment and was unable to work for a significant period of time. She
began dating the defendant during this period ultimately traveling with him and
performing services in support of his business. At the time, the defendant was worlung
as a long haul truck driver under a lease arrangement with Dysart's. In April of 2003,
the defendant bought h s own tractor and the parties began discussing a business
relationship. At the same time, the romantic aspect of the relationship ceased to
continue and rather than traveling with the defendant, the plaintiff utilized her
apartment in Waterville to conduct bookkeeping activities for the defendant for which
the defendant paid a portion of her rent. By July of 2003, the special relationship had
ended and the parties operated solely in a business capacity.
In April of 2003, the plaintiff had excellent credit and the use of two credit cards.
The defendant could not get credit and, among other things, had been turned down by
T-Mobile for a contract for cell phones. In addition, plaintiff used a portion of her
workers' compensation settlement from Schwanns to assist the defendant in the
purchase of his trailer. Defendant spent all of his time on the road throughout the
country and relied upon plaintiff to maintain the books, pay the bills, and otherwise run
the administration of defendant's work. Starting in January of 2004, plaintiff started
using her credit cards to pay the bills commencing with a contract with T-Mobile for cell
phones. Reimbursement for these payments and other expenses were made by
defendant on the occasions when he returned to Maine by leaving signed blank checks
with the plaintiff.
During the period April through December 2003, the plaintiff was on the road
with the defendant about fifty percent of the time during which time she would do the
bookkeeping, keep journals, account for fuel taxes, and other trucking activities through
the use of a laptop computer, printer and cell phone. The other fifty percent of the time
she operated out of her apartment on Roosevelt Avenue accounting for loads, keeping a
journal and accountability for fuel taxes. During this time, defendant was operating a
sole proprietorship known as Leewood Transportation and was attempting to get the
authority to do his own interstate truchng. Throughout this period, the defendant was
telling the plaintiff that, "When his company gets going, you will be compensated."
The operating authority sought by the defendant was received in January of
2004. This represented more money, a greater diversification for customers and
defendant no longer needed to "lease on" to another. In keeping with that authority,
defendant made arrangements to take on additional drivers. While plaintiff avers that
the defendant had up to five, and possibly seven, drivers under contract at one time, the
defendant testified that the most he ever had was three drivers. Nevertheless, it is
plaintiff's position that from February 2004 through December 2004, Leewood
Transportation operated with four operators and two drivers plus the defendant with
three operators and two drivers at one time.
Because of the load of office work required, the parties made arrangements to
lease a residence in Fairfield utilizing it both as living quarters and an office. In
addition to plaintiff and defendant living separately within the building, the defendant
had an elderly tenant with plaintiff and others providing domestic services. Because of
the time differentials, it was necessary for plaintiff to communicate with defendant's
drivers at all hours of the day and night. Throughout the 48 contiguous states she was
managing three trucks with six to ten calls per day on each unit assisting in lining up
loads, pickup dates and times, etc. In addition, she performed all bookkeeping services
and claims to have averaged 50 hours per week. Defendant made no effort to
participate in the paperwork nor to become knowledgeable as to the bookkeeping.
At some point in time plaintiff discussed with defendant the need to establish a
payroll. Defendant agreed to take this step "when business gets going." It is unclear
from the evidence when this discussion took place but the evidence reveals that during
the period of May 6 through July 24, a series of checks were written to the plaintiff with
defendant's signature indicating a pay period at the rate of $310 per week for a total of
more than $2,500. It is plaintiff's unrebutted testimony that the issuance of payroll
checks was well known to the defendant and that he directed her to cease that practice
because he did not want his business to become liable for Social Security taxes.
As time went on, the relationship between the parties became soured, primarily
because plaintiff was managing a substantial workload, caring for the tenants as well as
one of defendant's drivers and, while she was having her living expenses paid, was not
receiving a regular income. After a series of threatening circumstances, plaintiff left the
residence with notlung but the shirt on her back. Under police escort, she returned to
the residence to pick up her laptop computer and her clothes.
At the hearing, the plaintiff established that an Elite Visa credit card account has
a remaining balance for funds expended for defendant's business for whch she has not
been reimbursed in the amount of $5,856. While there was substantial testimony and
many exhibits relating to the use of that credit card including payments made, deposits
entered, and checks proferred, the court is satisfied that the plaintiff has established that
it is more likely than not that the amount of $5,856 remains unpaid for whch she is
entitled to judgment.
Plaintiff also presented evidence through the use a Chase Gold Visa card account
for which she claims an unpaid balance of $1,810.15. After testimony and an
examination of the exhbits, the court is not satisfied that the plaintiff has met her
burden in this regard and denies recovery.'
The major dispute in this matter is the claim by the plaintiff that she is entitled to
wages as an employee of defendant and defendant's clear assertion that the plaintiff has
not been able to establish an employment contract. Citing Bates v. Anderson, 614 A.2d
551(Me. 1992), defendant notes that there was no mutual assent of the parties, express
or implied, and that therefore there were no material terms sufficiently definite to
enable the court to determine the exact meaning and fix the exact legal liability of the
parties. Defendant argues that plaintiff has not established any agreement on rate of
pay citing Bragdon v. Shapiro, 146 A.2d 83 (Me. 1951), also citing Ross v. Mancini, 146 Me.
9 32). Defendant does admit that
83 (1950) (quoting RESTATEMENTOF CONTRACTS
possibly he may have made a conditional promise that plaintiff would be reimbursed
once the business "got going" but notes that a person may not be held to their promise
and be bound by same until the condition is fulfilled. Citing Lynch v. Stebbins, 127 Me.
203 (1928).
Plaintiff argues that she is entitled to the reasonable value of her services during
the period in question noting that her subsequent employment makes it clear that she is
entitled to a minimum of $10 an hour as a matter of merit and, furthermore, that the
person performing her services subsequent to her departure is being paid at the rate of
$17 an hour. In the alternative to that claim, plaintiff seeks to be paid the minimum
wage, all these claims founded upon equitable principles. However, the court is not
satisfied that it needs to rely on such principles since there is clear evidence of an
implied contract under these circumstances for the reasons following.
- - -
I Plaintiff withdrew this claim at trial but upon reexamination of the documentation, reasserted this claim
in her written closing argument. The court has reconsidered that claim but is satisfied that it has not been
established to a probability.
In April, May and June of 2003, plaintiff was paying herself with the use of
presigned checks explicitly stating the wage of $310 per week. At the same time, she
was being reimbursed her living expenses, i.e., room and board. Defendant was aware
of these payments and caused them to cease specifically in order to avoid obligations
for Social Security. There is no evidence that at any time the defendant objected to the
rate of pay or plaintiff receiving h s money. This relationslup, inconsistent with
romantic involvement or a joint venture, created an environment where services were
rendered by the plaintiff with the knowledge and consent of the defendant under
circumstances consistent with contract relations between the two of them. This
relationship created a promise to pay ordinarily implied by law on the part of the
defendant who knowingly received the benefit of the services and is to be enforced by
the court on grounds of justice in order to compel the performance of a legal and moral
duty. Colvin v. Barrett, 151 Me. 344, 118 A.2d 775 (Me. 1955), citing Cole v. Clark, 85 Me.
336, 338,27 A. 186. In 1957, the case of Stinson v. Bridges states it is:
incumbent upon the plaintiff to satisfy the jury that the services were
rendered under circumstances consistent with contract relations between
the parties, and that the defendant either expressly agreed to pay for the
services, or to give certain property therefore, or that they were rendered
by the plaintiff in pursuance of a mutual understanding between the
parties that he was to receive payment, or in the expectation and belief
that he was to receive payment, and that the circumstances of the case and
the conduct of the defendant justified such expectation and belief.
Saunders v. Saunders, 90 Me. 284,290,38 A. 172.
A legally binding agreement must have the mutual assent of the parties,
either expressly or impliedly, to be bound by all its material terms and
must be sufficiently definite to enable the court to determine its exact
meaning and fix exactly the legal liabilities of the parties.
Bates v. Anderson, 614 A.2d 551 (Me. 1992); see also Roy v. Danis, 553 A.2d 663-664 (Me.
In 1998, Maine law starts to see the term "quantum meruit", sometimes called
"contract implied in fact." T h s contract is implied because it is inferred from the
conduct of the parties. Paffhausenv. Balano, 1998 ME 47,708 A.2d 269.
In the three months at the beginning of this business relationshp, the plaintiff
was compensated with the knowledge of the defendant at the rate of $7.75 per hour for
a 40-hour week and received her living expenses. The last payment in July of 2003 was
for the pay period June 20 through 27. Accordingly, from July 2003 to December of 2004
when she was abruptly terminated, there are 76 weeks for which she has not been
compensated.
Plaintiff presented substantial testimony and information regarding the work
expected of her in being the business manager of a multi-unit trucking company
operating throughout the continental 48 states picking up loads, dropping loads,
acquiring contracts for loads, keeping records required by interstate regulatory
authorities, accounting for fuel taxes, and seeing that the drivers are properly
compensated. She claims that she worked an average of 50 hours per week for which
she is statutorily entitled to overtime. Because no records were kept of her hours for
whch defendant had a statutory duty, she was in control of the bookkeeping and
certainly had the capability of maintaining such records herself. This fact, when
balanced against the benefits she received by virtue of having all of her living expenses
paid by the defendant consistent with the understanding back in April through June of
2003, satisfies the court that she is fully compensated for any overtime or work at
unusual hours w h c h she asserts.
Under date of February 11, 2005, counsel for plaintiff made demand on then
counsel for defendant for unpaid wages owed in an amount claimed by her of $44,500
representing 89 weeks from April 1,2003 to December 17,2004, for 50 hours per week at
$10 per hour. No compensation resulted and therefore plaintiff claims liquidated
damages under the law.
Title 26 M.R.S.A. 5 626 provides:
An employee leaving employment must be paid in full within a
reasonable time after demand at the office of the employer where perils
are kept and wages are paid, . . .
Defendant disputes any understanding of employment on the part of the
plaintiff but asserts that she was an independent contractor acting in a joint venture.
An analysis of the circumstances requires the court to apply certain factors to determine
whether the plaintiff was an independent contractor or an employee. Taylor v. Kennedy,
1998 ME 234, 719 A.2d 525. Citing Murray's Case, 130 Me. 181, 186, 154 A. 352, 354
(1931), the factors to be considered are:
(1) the existence of a contract for the performance by a person of a
certain piece or kind of work at a fixed price;
(2) independent nature of lus business or h s distinct calling;
(3) his employment of assistance with the right to supervise their
activities;
(4) his obligation to furnish necessary tools, supplies, and materials;
(5) h s right to control the progress of the work except as to final
results;
(6) the time for which the workman is employed;
(7) the method of payment, whether by time or by job;
(8) whether the work is part of the regular business of the employer.
"The most important factor is the right to control." Taylor v. Kennedy, 719 A.2d at 528.
There was no express contract, the plaintiff was not engaged in an independent
business, the plaintiff had no assistance with the right to supervise their activities, the
plaintiff was under no obligation to furnish tools, supplies or materials, plaintiff was
operating under the control of the defendant notwithstanding h s lack of day-to-day
supervision, plaintiff made all payments in accordance with the understanding of the
defendant and she was doing work which was part of the regular business of the
defendant. Whle there is no evidence that the defendant exerted supervisory control
over the hour-to-hour activities of the plaintiff, he clearly delegated full authority to
manage the business, maintain the books and meet all his obligations to regulatory
authorities. Defendant controlled the requirements of plaintiff's work. There is n o h n g
in plaintiff's activities to suggest her status as an independent contractor.
The plaintiff having made the required demand, the court is satisfied that the
provisions of 26 M.R.S.A. § 626 apply. The court finds that plaintiff is entitled to wages
in the amount of $310 per week for a 40-hour week for 76 weeks from July 2003 to
December 17, 2004, for a total of $23,560. In accordance with 26 M.R.S.A. 5 626, the
plaintiff is entitled to interest on tlus amount and the court will apply an under $30,000
pre-judgment interest rate of 8%. Because the judgment represents unpaid wages
entitled to protection under the statute, the mandatory nature of the law requires the
use of liquidated damages in an amount twice the amount of the wages due for a total
of $47,120. Accordingly, the amount of wages and liquidated damages to be awarded is
$70,680. In addition, plaintiff is entitled to be reimbursed the amount due for
defendant's expenses paid by plaintiff through the use of her credit in the amount of
$5,856.
The entry will be:
Judgment for plaintiff in the amount of $76,536 plus 8% interest
and costs; judgment for plaintiff for attorney's fees in an amount to be
established by affidavit.
Dated: November 2 ,2006
Donald H. Marden
Justice, Superior Court
JEANNIE S VANDEVENTER - PLAINTIFF DISTRICT COURT
PO BOX 446 AUGUSTA
FAIRFIELD ME 04937 Docket No AUGDC-CV-2005-00119
Attorney for: JEANNIE S VANDEVENTER
DAVID LIPMAN - RETAINED 03/31/2005
LIPMAN & KATZ & MCKEE, PA DOCKET RECORD
227 WATER STREET
PO BOX 1051
AUGUSTA ME 04332-1051
vs
WILLIAM F JUDSON - DEFENDANT
19 MONTCALM STREET,
FAIRFIELD ME 04937
Attorney for: WILLIAM F JUDSON
J WILLIAM BATTEN - RETAINED
JABAR BATTEN RINGER & MURPHY
ONE CENTER STREET
WATERVILLE ME 04901-5495
Filing Document: COMPLAINT Minor Case Type: CONTRACT
Filing Date: 03/31/2005
Docket Events:
03/31/2005 FILING DOCUMENT - COMPLAINT FILED ON 03/31/2005
04/01/2005 Party(s) : JEANNIE S VANDEVENTER
ATTORNEY - RETAINED ENTERED ON 03/31/2005
Plaintiff's Attorney: DAVID LIPMAN
04/01/2005 Party (s): JEANNIE S VANDEVENTER
MOTION - APPROVAL ATTACH/TRUSTEE PROC FILED ON 03/31/2005
Plaintiff's Attorney: DAVID LIPMAN
WITH MEMORANDUM OF LAW, DRAFT ORDER, NOTICE OF HEARING
05/18/2005 Party (s): WILLIAM F JUDSON
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/07/2005
06/22/2005 Party(s): WILLIAM F JUDSON
SUMMONS/SERVICE - PROOF OF SERVICE SERVED ON 05/07/2005
06/22/2005 Party(s): WILLIAM F JUDSON
ATTORNEY - RETAINED ENTERED ON 05/27/2005
Defendant's Attorney: J WILLIAM BATTEN
06/22/2005 Party(s): WILLIAM F JUDSON
RESPONSIVE PLEADING - ANSWER FILED ON 05/27/2005
Defendant's Attorney: J WILLIAM BATTEN
06/22/2005 Party(s): WILLIAM F JUDSON
RESPONSIVE PLEADING - RESPONSE FILED ON 06/01/2005
Defendant's Attorney: J WILLIAM BATTEN
OPPOSITION TO PLAINTIFF'S MOTION FOR APPROVAL OF ATTACHEMNT AND TRUSTEE PROCESS
Page 1 of 5 Printed on: 11/03/2006