Fitzgerald v. Hutchins

• Decision Date: 03 December 2009
• Docket Number: No. Pen-09-139,Pen-09-139
• Citation: 983 A.2d 382,2009 ME 115
• Parties: Timothy P. FITZGERALD v. Christopher HUTCHINS.
• Court: Maine Supreme Court

983 A.2d 382

2009 ME 115

Timothy P. FITZGERALD v. Christopher HUTCHINS.

No. Pen-09-139

Supreme Judicial Court of Maine.

Submitted On Briefs: September 30, 2009.

Decided: December 3, 2009.

Edward W. Gould, Esq., Gross, Minsky, & Mogul, P.A., Bangor, ME, for Timothy Fitzgerald.

Jeffrey Bennett, Esq., The Bennett Law Firm, P.A., Portland, ME, for Christopher Hutchins.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, GORMAN, and JABAR, JJ.

JABAR, J.

[¶ 1] Timothy P. Fitzgerald appeals from a summary judgment entered by the Superior Court (Penobscot County, Anderson, J.) in favor of Christopher Hutchins on Fitzgerald's complaint for breach of contract, quantum meruit, and unjust enrichment in connection with the sale of a power plant. Fitzgerald argues that the court erred in concluding that Hutchins's agency status was dispositive in this case. Fitzgerald also contends that: (1) even if Hutchins was acting as an agent, Hutchins himself is also liable on the contract; and (2) the court erred in failing to consider the applicability of an exception to the statute of frauds. Because we conclude that the Superior Court erred in granting summary judgment based upon agency principles, and because we find no alternative basis for the judgment, we vacate the summary judgment.

I. BACKGROUND

[¶ 2] From 1997 until July of 2005, Fitzgerald worked for Alternative Energy, Inc. (AEI), a company of which Hutchins owns seventy-five percent. Fitzgerald's responsibilities at AEI included selling power plants, and in 2004 Fitzgerald unsuccessfully attempted to sell a power plant located in Chester. Until the sale at issue, Beaver Wood Joint Venture owned the Chester power plant.¹

[¶ 3] In September of 2005, after Fitzgerald's employment with AEI ended, Hutchins telephoned Fitzgerald to ask for his help in selling the Chester power plant. Fitzgerald recalls that Hutchins stated the following to him:

[H]i, [Fitzgerald]. I have somebody that called here in the office and wants to look at Chester. And I was wondering if you would do me a favor and do this for me and show them the Chester plant, and if the sale goes through, I'll give you a commission.

[¶ 4] Fitzgerald agreed to help Hutchins sell the power plant equipment, but not the real estate.² The exact amount of the commission was not discussed, and the agreement was not reduced to writing.

[¶ 5] Fitzgerald knew that Beaver Wood Joint Venture owned the Chester power plant and had previously observed the company conduct business through Hutchins. Fitzgerald also previously witnessed Hutchins act as a "spokesperson and/or deciding person" for Beaver Wood Joint Venture with the understanding that Hutchins was acting in his capacity as a representative of Beaver Wood Joint Venture. Nevertheless, in this instance, Fitzgerald believed and assumed he was working for Hutchins personally because Hutchins asked him for a favor and because "that's what [Fitzgerald's] process was." Hutchins presented no countervailing affidavits or supported statements of material fact regarding his version of the conversation between the parties.

[¶ 6] Fitzgerald showed the Chester power plant to potential buyers, and one of these buyers purchased the property. Although Fitzgerald offered only the power plant equipment for sale, the buyer purchased both the equipment and the real estate. After the sale of the power plant, Hutchins refused to pay Fitzgerald a commission on the sale of the equipment.

[¶ 7] In February of 2007, Fitzgerald filed suit in the Superior Court against Hutchins personally, alleging breach of contract, quantum meruit, and unjust enrichment. Hutchins moved for a summary judgment in May of 2008, asserting: (1) an affirmative statute of frauds defense to the breach of contract claim because Fitzgerald sought to hold Hutchins liable for the debt of Beaver Wood Joint Venture on a bare oral promise; and (2) that illegality barred all of Fitzgerald's claims because Fitzgerald engaged in "real estate brokerage services" without a real estate license in violation of 32 M.R.S. §§ 13003, 13004 (2008).³

[¶ 8] After its first review of the documents filed in support of and in opposition to the motion, the Superior Court issued an order noting that the filings were "silent" on whether Beaver Wood Joint Venture was a limited liability entity, and also "silent" on Hutchins's relationship with Beaver Wood Joint Venture. The court gave each side an opportunity to address those issues through supplemental filings. Hutchins filed a short reply with an attached affidavit. Fitzgerald did not file a response. Thereafter, the court entered a summary judgment in favor of Hutchins on agency principles. The court concluded that there was no genuine issue of material fact as to Hutchins's liability because Fitzgerald knew Beaver Wood Joint Venture owned the Chester power plant, and because Fitzgerald was expecting a commission from the sale of property owned by Beaver Wood Joint Venture. The court reasoned that the only evidence offered by Fitzgerald that Hutchins was acting in an individual capacity was Fitzgerald's own subjective belief, which was insufficient to raise a genuine issue of material fact. Fitzgerald timely appealed.

II. DISCUSSION

[¶ 9] We review a grant of a summary judgment de novo, considering "the evidence in the light most favorable to the party against whom judgment has been granted to decide whether the parties' statements of material facts and the referenced record material reveal a genuine issue of material fact." Brawn v. Oral Surgery Assocs., 2003 ME 11, ¶ 15, 819 A.2d 1014, 1022 (quotation marks omitted). Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law. Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821, 825; Botka v. S.C. Noyes & Co., 2003 ME 128, ¶ 18, 834 A.2d 947, 952-53. A factual issue is genuine when there is sufficient supporting evidence for the claimed fact that would "require a fact-finder to choose between competing versions of the truth at trial." Inkel v. Livingston, 2005 ME 42, ¶ 4, 869 A.2d 745, 747 (quotation marks omitted).

A. Agency

[¶ 10] Hutchins asserts that, as a matter of law, he cannot be found personally liable to Fitzgerald because he was acting as an agent for Beaver Wood Joint Venture, a disclosed principal, and the Superior Court therefore properly granted summary judgment.

[¶ 11] For contracts made between third parties and agents for disclosed principals, the Restatement (Third) of Agency provides:

When an agent acting with actual or apparent authority makes a contract on behalf of a disclosed principal,

(1) the principal and the third party are parties to the contract; and

(2) the agent is not a party to the contract unless the agent and third party agree otherwise.

Restatement (Third) of Agency § 6.01 (2006); see also Ludington v. LaFreniere, 1998 ME 17, ¶ 4 n. 3, 704 A.2d 875, 877 (quoting Restatement (Second) of Agency § 320 (1958), which provides: "Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.").⁴

[¶ 12] We discern no genuine issue of material fact that Hutchins had authority⁵ to act as an agent on behalf of Beaver Wood Joint Venture. "Whether an agency relationship exists is generally a question of fact. . . ." Steelstone Indus., Inc. v. N. Ridge Ltd. P'ship, 1999 ME 132, ¶ 12, 735 A.2d 980, 983. Fitzgerald admitted that he: (1) knew Beaver Wood Joint Venture had conducted business through Hutchins; and (2) understood that Hutchins acted as a spokesperson and decision-maker for Beaver Wood Joint Venture. Based upon these admissions, no factual dispute exists that Hutchins had authority to act as an agent for Beaver Wood Joint Venture.

[¶ 13] Nevertheless, Fitzgerald contends that, notwithstanding Hutchins's general authority to act as an agent for Beaver Wood Joint Venture, Hutchins was acting in his individual capacity when he asked Fitzgerald to help sell the Chester power plant. Fitzgerald relies upon the alleged oral contract, which he contends creates a genuine issue of material fact that Hutchins was acting in an individual capacity, rather than as a representative of Beaver Wood Joint Venture. Moreover, we note that even if Hutchins was contracting as an agent on behalf of Beaver Wood Joint Venture, Hutchins could have agreed to bind himself as a party to the oral contract. See Restatement (Third) of Agency § 6.01(2). Indeed, regardless of whether agency principles apply, resolution of this issue requires us to interpret the alleged oral agreement between the parties. See Restatement (Third) of Agency § 6.01 cmt. d(2) ("The nature of the parties' contract may . . . establish whether an organizational executive agreed to be individually liable."). Accordingly, we review the summary judgment record concerning the alleged oral contract to ascertain if there is a genuine issue of material fact as to whether Hutchins agreed to bind himself individually.

[¶ 14] Fitzgerald alleges an oral contract with Hutchins based on the following conversation:

[H]i, [Fitzgerald]. I have somebody that called here in the office and wants to look at Chester. And I was wondering if you would do me a favor and do this for me and show them the Chester plant, and if the sale goes through, I'll give you a commission.

We cannot conclude that this language conclusively demonstrates that Hutchins intended to contract with Fitzgerald only in a representative capacity. By using the language "if you would do me a favor and do this for me" and "I'll give you a commission," one could reasonably interpret, as Fitzgerald argues, that Hutchins intended to act in his individual capacity or as an agent agreeing to become a party to the contract. The only direct evidence in the summary judgment record of the...