184 F. Supp.2d 26 (2002) | Cited 0 times | D. Maine | February 5, 2002


Plaintiff brought suit seeking to force Defendants to pay feesand wages they allegedly owed him for work he performed on aconstruction project. Presently before the Court is Defendants'Motion for Summary Judgment (Docket # 14). For the followingreasons, the Court GRANTS IN PART and DENIES IN PART the Motion.


The Court will grant a motion for summary judgment "if thepleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c). An issue is "genuine" if it could beresolved in favor of the nonmoving party by a rational jurydrawing reasonable inferences. See, e.g., Ward v. MassachusettsHealth Research Inst., 209 F.3d 29, 32 (1st Cir. 2000). A factis "material" if it could affect the outcome of the case undergoverning law. See, e.g., Hinchey v. NYNEX Corp.,144 F.3d 134, 140 (1st Cir. 1998).

At summary judgment, the court views the facts in the lightmost favorable to the nonmoving party. See, e.g., Kearney v.J.P. King Auction Co., 265 F.3d 27, 33 (1st Cir. 2001). Whenthe facts support plausible but conflicting inferences on apivotal issue in the case, a court may not choose between thoseinferences, but must leave the conflict to the jury to resolve.SeeIglesias v. Mutual Life Ins. Co., 156 F.3d 237, 240 (1st Cir.1998).


Plaintiff Richard Larson and Defendant Edward C. Johnson werefriends and business acquaintances for nearly thirty years. In1995, Johnson asked Larson to supervise a construction projectlocated on Mount Desert Island, Maine (the "house project").Defendant ECJ Long Pond Property Trust ("ECJ"), a nominee trustof which Johnson was the beneficiary, owned the land on whichthe construction took place.1

Although they had no written contract, Larson agreed to takeon the project at a rate of pay of $6,700 per month, calculatedas a percentage of the total estimated cost of the projectdivided into monthly payments, plus lodging in a cottage locatedat the construction site. As project manager and generalcontractor, Larson was responsible for myriad tasks on the siteincluding liaising with subcontractors, discussing designdetails with the architect, and providing regular progressreports to Johnson. Defendant Strategic Advisors ("SA"), througha subsidiary known as Crosby Advisors, paid Larson's monthlywage.

Sometime during the house project, ECJ, on behalf of Johnson,purchased a house and property on Mount Desert Island thatbecame known as "Prays Meadow." Johnson permitted Larson to movefrom the construction site cottage into Prays Meadow.

At the termination of the house project in the spring of 1997,Johnson offered Larson a bonus for his work. After discussingand rejecting an arrangement by which Larson would take anownership interest in Prays Meadow, they settled upon a $175,000cash payment. Johnson also convinced Larson to remain at PraysMeadow on a continuing basis, rent-free, in exchange for lookingafter Johnson's property interests on Mount Desert Island andelsewhere in Maine. Larson stayed on at Prays Meadow with theunderstanding that Johnson could, at any time, evict him.

Between January 1998 and late summer 1999, Larson lived atPrays Meadow and "earned his keep" by performing various tasksfor Johnson. Then, in late summer 1999, Johnson beganpreparations for another building project to construct aworkshop on property located near the house project site (the"shop project"). Defendant Northern Neck Nominee Trust("NN"),2 of which Johnson was the beneficiary, owned theland. Johnson initially asked Larson to help with the shopproject, but when Larson asked to be paid at his former rate,Johnson balked because he had already hired a project manager.They did not reach an agreement and Larson declined to lend hisassistance.

In November 1999, Johnson again asked for Larson's help. Theparties disagree as to what transpired next. Larson contendsthat, as before, he asked Johnson to pay him $6,700 per monthfor his services (in addition to his continued use of PraysMeadow). Johnson responded that he would "take care of" Larsonif he would do the project, and told him to "trust theGreat Oracle" (meaning Johnson). (See Plaintiffs ReplyStatement of Material Facts ("PRSMF") ¶ 56 (Docket # 19).) Inreturn, Johnson asked only that Larson tell Patricia Hurley, amanager of Crosby Advisors and trustee of ECJ and NN, that hewas taking on the project "pro bono." (See PRSMF ¶ 58.) Larsonplaced the call to Hurley. However, he insists that heunderstood from his conversation with Johnson that he would bepaid at least the sum he had been paid for the previous job,although the form of the payment would be subject to Johnson's"whim." (See Larson Dep. at 185-86.)

Johnson tells a different story. According to him, he askedLarson to take on the shop project as a favor and inconsideration for continued rent-free use of Prays Meadow. Headmits that he refused to pay Larson at his former rate, butadds that he offered to pay Larson $4,700 per month, whichapproximated Larson's salary for the house project less a$2,000-per-month credit for rent at Prays Meadow. Larson refusedthis offer, according to Johnson, but ultimately agreed to takethe job on "pro bono" in a capacity that would not increase theamount of work he had already been performing for Johnson inexchange for occupying the house. Johnson acknowledges that hetold Larson that he would "take care of" him, but contends thatboth he and Larson understood that statement to mean thatJohnson could compensate Larson as much, or as little, asJohnson wished at the end of the project.

Larson's involvement with the shop project began in earnest inlate November 1999. By his own estimation, he spent roughlyforty percent less time on it than he had on the previous job.This reduction in work responsibility was due primarily to thefact that Larson did not serve as the general contractor on theshop project, but only assumed project manager duties. Henevertheless performed a wide range of tasks on and off theconstruction site. In particular, he attended regularconstruction meetings at which he served as the moderator,discussed design ideas with the architect and landscapearchitect, and assumed supervisory duties over various stages ofthe construction.

In March 2000, Larson asked Hurley for payment for his work.Hurley informed him that she did not believe that he was to bepaid. Larson continued working on the project, and one monthlater made the same request to Johnson for "something onaccount." (Defendant's Statement of Material Facts ("DSMF") ¶ 70(Docket # 15).) Johnson instead offered Larson a loan, whichLarson rejected. Larson nonetheless continued to work on theproject until August 2000, when he again asked Johnson to payhim. In response, Johnson terminated Larson's participation onthe project and asked him to vacate Prays Meadow. Larsoncomplied. There appears to be no dispute that Larson added somevalue to the shop project, and that Johnson was satisfied withthe end result.

Roughly one year later, Larson filed a complaint againstJohnson, SA, ECJ and NN in this Court alleging fraudulentmisrepresentation (Count I); negligent misrepresentation (CountII); breach of contract (Count III); breach of a Maine wagepayment statute, 26 M.R.S.A. § 626 (Count IV); promissoryestoppel (Count V); quantum meruit (Count VI); unjust enrichment(Count VII); and recovery and accounting for a joint venture(Count VIII). Johnson counterclaimed for payment of billsoutstanding on work performed at Prays Meadow during Larson'stenancy. Johnson then filed a motion for summary judgment as toall of the counts.


Although the record is voluminous, at heart this case involvesa simple dispute.Plaintiff and Defendants disagree over whether Defendant Johnsonpromised to pay Plaintiff for Plaintiffs work on the shopproject. Plaintiff insists that the statements "[I will] takecare of [you]" and "trust the Great Oracle" represented acommitment on Defendants' behalf to pay him. Defendants insistthat they did not because Plaintiff understood all along that hewould not be paid. Seeking compensation for the work heperformed, Plaintiff asserts a variety of legal theories, thefirst group of which is grounded in contract and equityprinciples, the second in tort law, and the last in statutorytext.

A. Contract and Equity Claims

For the first group of claims, the Court addresses in variouscontexts whether a reasonable person in Plaintiffs shoes couldhave heard Defendant Johnson's statements and expected paymentas a result.

1. Breach of Contract

"To establish a legally binding agreement the parties musthave mutually assented to be bound by all of its terms; theassent must be manifested in the contract . . . and the contractmust be sufficiently definite to enable the court to determineits meaning and fix exactly the legal liabilities of theparties." Stanton v. Univ. of Maine Sys., 773 A.2d 1045, 1050(Me. 2001) (internal citations omitted). To survive summaryjudgment on his breach of contract claim, Plaintiff mustestablish a genuine issue of material fact as to whetherDefendant Johnson's statements "[I will] take care of [you]" and"trust the Great Oracle" committed Defendants to pay him aspecific amount of money — $6,700 per month or its equivalent —in exchange for his assistance with the shop project. Areasonable jury need not find that the promise to pay wasexplicit, necessarily. Id. The terms of a contract may beimplied from the facts and circumstances of its formation,provided they are sufficiently defined for the Court to be ableto enforce them. Id. The Court first addresses whetherDefendant Johnson bound himself with these statements, and thenconsiders whether he bound the remaining Defendants with them.

a. Defendant Johnson

After reviewing the record, the Court concludes that there isample evidence to allow a rational jury to conclude thatDefendant Johnson promised to pay Plaintiff an amount equivalentto his wage on the house project in exchange for his assistancewith the shop project. The context in which the statements weremade is telling. Plaintiff alleges that Defendant Johnson madethem in response to Plaintiff's repeated demands for $6,700 permonth, and only after Plaintiff initially refused to assist withthe project if he would not be paid. It is reasonable to inferfrom these circumstances that a promise to "take care of"Plaintiff expressed or implied intent to pay him the requestedamount.

Defendant Johnson first objects that an agreement to pay aspecific amount, but in a form to be decided at DefendantJohnson's "whim," is illusory. It is true that the "reservationto either party of an unlimited right to determine the natureand extent of his performance" renders the obligation tooindefinite to be enforceable. Corthell v. Summit Thread Co.,132 Me. 94, 167 A. 79, 81 (1933). However, this is not such acase. The Court could enforce an agreement in which the form, ornature, of payment is left to one party's discretion, providedthe amount, or extent, of payment is fixed. See generally,Restatement (Second) of Contracts § 34(1) (1979) ("The terms ofa contract may be reasonably certain eventhough it empowers one or both parties to make a selection ofterms in the course of performance.")

Defendant Johnson next counters that even if his behaviorobjectively suggested the intent to be bound to specific terms,the contract was within the Statute of Frauds, 33 M.R.S.A. §51(5), and therefore is invalid since it was never reduced towriting. When it appears to have been understood by the partiesto an oral contract that it was not to be performed within ayear is the contract within the Statute of Frauds. Id.; seealso, White v. Fitts, 102 Me. 240, 66 A. 533, 535 (1906).Plaintiff contends, however, that in this case it was certainlypossible to perform the contract within a year, and there isno evidence on the record supporting the conclusion that theparties understood, at the time the contract was made, thatperformance would last for a longer period. Because it isDefendant Johnson's burden on summary judgment to point tospecific facts supporting this affirmative defense, see, e.g.,In re Varrasso, 37 F.3d 760, 763 (1st Cir. 1994), and he hasnot done so, his argument must fail.

Although there are also facts on the record tending to suggestthat Plaintiff knew, at the time Defendant Johnson made thestatements, that the shop project work would require less effortand would consume less time than the first project, those factsdo not wholly negate the evidence Plaintiff has offered insupport of his argument. Plaintiffs interpretation of thestatements is reasonable, as is Defendant's. The Court is boundto allow a jury to decide between them. See Iglesias, 156 F.3dat 240. Summary judgment on Plaintiffs breach of contract claimas to Defendant Johnson is therefore inappropriate.

b. Remaining Defendants

The remaining Defendants argue that they could not have beenbound under any conception of the agreement between the parties,because no reasonable jury could understand Defendant Johnson'sstatements as expressing an obligation on the other Defendants'part to be bound to pay Plaintiff for his services. Thisargument has merit. Plaintiff has demonstrated no facts thatcould lead a rational jury to conclude that Defendant Johnson'sstatements expressed a commitment on the part of SA, ECJ or NNto be bound. Indeed, by having Plaintiff tell Hurley that hewould be working without compensation, Defendant Johnsonappeared to exclude SA and the trusts from any agreement he hadwith Plaintiff. Significantly, as of March 2000, Hurley, amanger of CA and trustee of both trusts, was not aware of anypayment arrangement between Plaintiff and Defendant Johnsonwhatsoever. Summary judgment on the remaining Defendants' behalfis therefore appropriate on this claim.

2. Promissory Estoppel

Plaintiff alternatively claims that even if his agreement withDefendant Johnson was not enforceable, he is entitled to recoverfrom Defendants pursuant to the doctrine of promissory estoppel:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

Daigle Commercial Group, Inc. v. St. Laurent, 734 A.2d 667,672 (citing Restatement (Second) of Contracts § 90(1) (1981)).To survive summary judgment on this claim as to DefendantJohnson, Plaintiff need first demonstrate facts showing thatDefendant Johnson's statements constituted a promise that couldreasonably have beenexpected to prompt Plaintiff to work on the shop project. Forthe same reasons that the Court finds that Plaintiffs breach ofcontract claim against Defendant Johnson survives, the Courtconcludes that this claim, also, is viable. Plaintiff hasdemonstrated facts sufficient to establish a genuine issue as towhether Defendant Johnson promised to pay him.

There is also a genuine dispute as to whether DefendantJohnson's statements induced Plaintiffs action; Plaintiff claimsit did, whereas Defendant Johnson argues that Plaintiff took onthe shop project to earn his keep at Prays Meadow. Finally,there is a genuine issue as to whether it would be unjust not tohold Defendant Johnson to his alleged promise. Therefore,Plaintiffs promissory estoppel claim against Defendant Johnsonmust survive.

Plaintiff may not, however, pursue a claim for promissoryestoppel against the remaining Defendants SA, ECJ or NN, becausePlaintiff has failed to establish a genuine issue of materialfact whether Defendant Johnson's statements committed thoseDefendants to compensating him.

3. Quantum Meruit

The resolution of Plaintiffs claim for payment on the basis ofquantum meruit, or implied contract, also relies upon theCourt's conclusion that Defendant Johnson's statements canreasonably be construed as a promise. "A valid claim in quantummeruit requires that: (1) services were rendered to thedefendant by the plaintiff; (2) with the knowledge and consentof the defendant; and (3) under circumstances that make itreasonable for the plaintiff to expect payment." Howard &Bowie, P.A. v. Collins, 759 A.2d 707, 711 (Me. 2000) (internalcitations omitted). The first two elements of quantum meruitappear to be uncontested in the record. To survive summaryjudgment on this claim against Defendant Johnson, Plaintiff mustonly show that it was reasonable for him to expect paymentbecause of Defendant Johnson's statements. Because the Courtholds that a rational jury could conclude that Defendant Johnsonbound himself in contract to paying Plaintiff a specific sum, itfollows that a rational jury could find that Plaintiff wasjustified in expecting payment under the circumstances.

Plaintiffs expectation of payment from remaining DefendantsSA, ECJ and NN was not reasonable, however, in that DefendantJohnson excluded those entities from his alleged arrangementwith Plaintiff. No rational jury could find that, under thecircumstances, Plaintiff could have reasonably expectedcompensation from any of the other Defendants.

4. Unjust Enrichment

Plaintiff next argues that he is entitled to recover fromDefendants pursuant to the equitable doctrine of unjustenrichment. A defendant is unjustly enriched when (1) a benefitis conferred upon him by the plaintiff; (2) the defendant knowsof or appreciates the benefit conferred; and (3) the defendantaccepts or retains the benefit under such circumstances as tomake it inequitable for the defendant to retain the benefitwithout payment of its value. See, e.g., Aladdin Elec. Assocs.v. Town of Old Orchard Beach, 645 A.2d 1142, 1144 (Me. 1994).Although the terms are often mistakenly used interchangeably,unjust enrichment differs from quantum meruit in that the latterrefers to the compensation that is due a plaintiff under atheory of implied contract, whereas the former assumes thatthere was no contractual relationship between the parties. 1145.

Plaintiff has adduced sufficient facts to show that heconferred a benefit upon Defendant Johnson as beneficial owner,and Defendant NN as legal owner, of the shop property. Plaintiffhas also established that Defendant Johnson and Hurley, thetrustee of NN, knew of or appreciated the benefit that Plaintiffconferred. Finally, as discussed above, Plaintiff hasdemonstrated sufficient facts to create a genuine issue ofmaterial fact as to whether "fairness and justice" requireDefendants Johnson and NN to pay for the benefit. Id.

On the other hand, Plaintiff has not established factssufficient to show that SA or ECJ benefited from his services.SA is merely the corporate parent of CA, which paid Plaintifffor his house project services, and did not obviously benefitfrom Plaintiffs advisory services on the shop project. By thesame token, ECJ is the owner of the original constructionproperty and Prays Meadow. Plaintiff alleges no facts showing abenefit that flowed to this entity from Plaintiffs shop projectwork. Rather, he merely claims that it benefited indirectly.Without more, summary judgment is appropriate on behalf ofDefendants SA and ECJ on this claim.

B. Plaintiff's Tort Claims

Plaintiff also seeks payment for his services on the shopproject via available tort remedies. The Court addresses eachbelow.

1. Fraudulent Misrepresentation

Plaintiff first claims that Defendants fraudulentlymisrepresented their intent to pay him. Fraudulentmisrepresentation can be demonstrated by showing (1) amisrepresentation of material fact, (2) with knowledge of itsfalsity or in reckless disregard of whether it was true orfalse; and (3) reasonable reliance by Plaintiff on themisrepresentation to [his] detriment. See Barnes v. Zappia,658 A.2d 1086, 1089 (Me. 1995). Because this is a claim forfraud, a plaintiff must show that each of these elements was"highly probable." Francis v. Stinson, 760 A.2d 209, 217 (Me.2000).

The heightened evidentiary standard is Plaintiffs undoing. Todemonstrate that Defendant Johnson made a false statement,Plaintiff initially must show that it is highly probable thatDefendant Johnson's statements comprised a promise to pay him.Plaintiff has failed to clear this first hurdle. Although theCourt concludes above that Plaintiffs interpretation of "[Iwill] take care of [you]" and "trust the Great Oracle" as apromise to pay him was reasonable, it cannot take the additionalleap necessary to find that Plaintiff has shown, to a highdegree of probability, that his interpretation was correct.Thus, Plaintiff has failed to demonstrate the first element of aclaim for fraudulent misrepresentation, and his claim cannotsucceed.

2. Negligent Misrepresentation

Alternatively, Plaintiff alleges that Defendant Johnson'sstatements amounted to negligent misrepresentation. To survivesummary judgment on this claim, Plaintiff must raise a genuineissue of material fact as to whether (1) Defendants had apecuniary interest in securing Plaintiffs help with the shopproject; (2) they supplied Plaintiff with false information forhis guidance in deciding whether to provide his services to theproject; (3) they did so without exercising reasonable care orcompetence; and (4) their actions caused Plaintiff a loss due tohis justifiable reliance on the information. See, e.g., Binettev. Dyer Library Ass'n, 688 A.2d 898, 903 (Me. 1996) (quotingRestatement (Second)Torts, § 522(1) (1977)). Because Plaintiff's theory ofliability as to Defendant Johnson differs from his theory as tothe remaining Defendants, the Court addresses them separately.

a. Defendant Johnson

Plaintiff alleges that even if Defendant Johnson did notintend to pay Plaintiff, he failed to exercise reasonable carewhen he informed Plaintiff of that fact, leaving Plaintiff withthe erroneous, but reasonable, impression that he would be paidfor his shop project work. There is no disagreement thatDefendant Johnson had a pecuniary interest in securingPlaintiffs participation in the shop project. The partiesdisagree, however, over whether Defendant Johnson providedPlaintiff with false information. As before, Plaintiff mustdemonstrate that the statements expressed Defendant Johnson'sintent to pay him for his shop project work. In contrast to afraudulent misrepresentation claim, however, the elements ofnegligent misrepresentation need not be shown to a high degreeof probability. Compare Barnes, 658 A.2d at 1089 withBinette, 688 A.2d at 901. Thus, it is sufficient for Plaintiffto show, as he has, that there is a genuine issue of materialfact as to whether the statements represented a promise. SeeBinette, 688 A.2d at 901-03. Moreover, for the same reasons ajury could conclude that Defendant Johnson promised to payPlaintiff, it could also find that Defendant failed to exercisereasonable care in making the statements, even if he intended tolimit his obligation to pay Plaintiff.

Defendant Johnson nevertheless challenges Plaintiffs abilityto establish the fourth element of the claim, arguing thatPlaintiff could not have justifiably relied on the statementsbecause Plaintiff admitted at deposition that he understood,when he took on the shop project, that Defendant Johnson's"whim" would dictate what compensation he would receive.Defendant Johnson mischaracterizes Plaintiffs remarks, however.Plaintiff stated only that he believed the form of hiscompensation would be determined at Defendant Johnson'swhim,3 but that the amount of compensation wouldapproximate his former rate of pay. (See Larson Dep. at185-86). A rational jury could find this belief to bejustifiable, given the prior dealings between the parties andPlaintiffs prior insistence that he be compensated.

Defendant Johnson further objects that twice before DefendantJohnson asked him to quit the project, Plaintiff requestedpayment and was told he would not be paid. The first instanceoccurred in March 2000, when Plaintiff asked Hurley for apayment and Hurley told him she did not believe he would bepaid. The second occurred a month later, when Defendant Johnsonoffered him a loan in response to his request for "something onaccount." Defendant Johnson argues that after each of theseinstances, Plaintiff was no longer justified in relying upon thestatements made in November 1999.

The Court does not agree. A reasonable jury could find thatPlaintiff justifiably relied on Defendant Johnson's allegedpromise even after Hurley told him he would not be paid, becausePlaintiff himself had told Hurley, purportedly at DefendantJohnson's request, that he was taking on the shop project probono. A rational jury could find that it was reasonable forPlaintiff not to expect Hurley to know the"true" payment arrangement he had with Defendant Johnson. By thesame token, a reasonable jury could find that DefendantJohnson's offer of a loan did not necessarily indicate thatpayment was not forthcoming. A loan could as easily haverepresented an advance against Plaintiffs future earnings as itcould have been a flat-out rejection of Plaintiffs request forpayment. There are genuine issues of material fact as to all ofthe elements of Plaintiffs negligent misrepresentation claim,and therefore summary judgment on this claim for DefendantJohnson is not appropriate.

b. Defendants SA and ECJ

Plaintiff also presses his negligent misrepresentation claimagainst Defendants SA (the corporate parent of CA, which hadformerly paid Plaintiff his wages) and ECJ (the owner of PraysMeadow and the first construction project property).4Plaintiff alleges that these entities are liable to him becausethey indirectly benefited from the work he performed on the shopproject, and misrepresented their intent not to compensate himby silently acquiescing to his participation.

Assuming for the moment that Plaintiff has shown thatDefendants SA and ECJ had a pecuniary interest in Plaintiffsshop project work, Plaintiff has failed to demonstrate that theysupplied him with false information. For the purposes of anegligent misrepresentation claim, silence may be interpreted asa misrepresentation if the party who remains silent is under astatutory duty to disclose information to a plaintiff. SeeBinette, 688 A.2d at 903. Here, Plaintiff argues that pursuantto 26 M.R.S.A. § 629, Defendants SA and ECJ had the duty not toallow him to work without compensation.5 That duty,according to Plaintiff, encompassed the affirmativeresponsibility to inform Plaintiff that he would not becompensated for his work.

Maine courts have never read into section 629 an affirmativeobligation to inform persons that they are working without pay.In the handful of times it has been construed, the statute hasonly been interpreted as a measure to prohibit employers fromforcing employees to work knowingly without pay in order tosecure or retain future employment. See, e.g., Cooper v.Springfield Terminal Ry. Co., 635 A.2d 952 (Me. 1993) (railroadcould not require employees to qualify for certain new positionsby training without pay). The statute contains no affirmativenotice requirement, and did not require Defendants SA and ECJ toinform Plaintiff of his pro bono status. Plaintiffs claimagainst them therefore is without merit.

C. Maine Wage Payment Statute Claim

Plaintiff further argues that, as an employee of Defendants,he is entitled to unpaid wages pursuant to Maine statute, 26M.R.S.A. § 626. The statute, in relevant part, provides that

An employee leaving employment must be paid in full within a reasonable time after demand at the office of the employer . . . For purposes of this section, the term "employee" . . . does not include an independent contractor.

26 M.R.S.A. § 626. Defendants argue that, to the extent acontract existed between Plaintiff and Defendants, Plaintiffwas an independent contractor, not an employee.

Since the Maine Law Court's ruling in Murray's Case,130 Me. 181, 154 A. 352 (1931), Maine courts have recited the generalprecept that an employer's "right to control" the workerdetermines the employment relationship. Id. at 354; Taylor v.Kennedy, 719 A.2d 525, 527-28 (Me. 1998); Marston v. Newavom,629 A.2d 587, 591 (Me. 1993). Eight factors, in particular,suggest that a worker is an independent contractor rather thanemployee. They are (1) the existence of a contract for theperformance by the worker of a certain piece or kind of work ata fixed price; (2) the independent nature of the worker'sbusiness or his distinct calling; (3) his employment ofassistants with the rights to supervise their activities; (4)his obligation to furnish necessary tools, supplies, andmaterials; (5) the worker's right to control the progress of thework except as to final results; (6) employment for a short,rather than long, period of time; (7) payment by job, ratherthan by time; and (8) performance of work that is not part ofthe regular business of the employer. Id. at 354. The factorsneed not all be present for a Court to find an independentcontractor relationship, however, nor is any one particularfactor controlling. Id.

To the extent a contract existed between the parties, there islittle doubt that Plaintiff was an independent contractor. Heset his own schedule at the job site and apparently alsoselected the aspects of the project in which he became involved.He performed the work for Defendants, none of which is in thebusiness of residential construction, because of his particularexpertise in construction management. Finally, although hedemanded payment on a monthly basis, he alleges that the amounthe demanded was calculated as a percentage of the total cost ofthe shop project — a fixed price for a certain piece of work.

D. Accounting for Joint Venture

Plaintiff does not respond to Defendants' arguments in favorof summary judgment on his final claim for an accounting for ajoint venture. The Court treats this claim as abandoned. See,e.g., U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).


For the foregoing reasons, the Court GRANTS IN PART and DENIESIN PART Defendant's Motion. It GRANTS summary judgment in favorof all of the Defendants on Counts I and VIII. It GRANTS summaryjudgment in favor of Defendants SA, Patricia R. Hurley asTrustee of ECJ, and Patricia R. Hurley and Jeffrey P. Resnick asTrustees of NN on Counts II, III, IV, V and VI. The Courtfurther GRANTS summary judgment in favor of Defendants SA andPatricia R. Hurley as Trustee of ECJ on Count VII. The Motion isDENIED in all other respects.

1. The trustee of ECJ, Patricia Hurley, is a nominalDefendant in this action as Trustee of ECJ. For simplicity'ssake, the Court will refer to the party as ECJ, rather thanHurley, because Hurley is also an employee of DefendantStrategic Advisors, and a trustee of Defendant Northern NeckNominee Trust.

2. See note 1, supra. In addition to Hurley, Jeffrey P.Resnick is also a nominal Defendant in this action as a secondtrustee of NN.

3. Plaintiff contends that cash or an ownership interest inPrays Meadow, among others, were possible forms ofcompensation.

4. Plaintiff has not filed a claim against the NN trust fornegligent misrepresentation.

5. In relevant part, the statute reads:

No person, firm or corporation shall require or permit any person as a condition of securing or retaining employment to work without monetary compensation . . .

26 M.R.S.A. § 629.

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