USCA1 Opinion
May 16, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1818
WILLIAM J. HODGKINS, JR.,
Plaintiff - Appellant,
v.
NEW ENGLAND TELEPHONE COMPANY,
Defendant - Appellee.
____________________
ERRATA SHEET
The opinion of this court issued on May 7, 1996 is amended
as follows:
Page 6, line 13 should read "absence of evidence to support
the non-moving party's position." ___
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1818
WILLIAM J. HODGKINS, JR.,
Plaintiff - Appellant,
v.
NEW ENGLAND TELEPHONE COMPANY,
Defendant - Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Cyr and Stahl, Circuit Judges. ______________
_____________________
Joel C. Martin, with whom Thomas C. Bradley and Petruccelli ______________ _________________ ___________
& Martin were on brief for appellant. ________
Pamela A. Smith for appellee. _______________
____________________
May 7, 1996
____________________
TORRUELLA, Chief Judge. Plaintiff-appellant William J. TORRUELLA, Chief Judge. ___________
Hodgkins ("Hodgkins") sued his former employer, defendant-
appellee New England Telephone and Telegraph Company ("NET"),
because he believes that NET paid him an insufficient amount for
a cost-saving idea he submitted in its employee suggestion
program. The district court granted NET's motion for summary
judgment on Hodgkins' claims, which include breach of contract,
quantum meruit, equitable estoppel, unjust enrichment, and
negligent misrepresentation. Hodgkins appeals the district
court's decision. We reverse in part, affirm in part, and remand
for further proceedings.
BACKGROUND BACKGROUND __________
Because the district court granted summary judgment in
favor of the defendant, we recite the facts in the light most
favorable to the plaintiff's claims, giving him the benefit of
all reasonably supported inferences.
NET has an employee suggestion program named "Ideas at
Work" ("the IAW program"), that encourages and rewards employee
ideas that produce savings or increased profits for NET.
According to NET's "Suggester's Guide," reviewed by Hodgkins
before he submitted his idea, the IAW program "rewards the people
who come up with ideas the company uses by paying the originators
fifteen percent of the savings or earnings from the first year of
implementation--up to a limit of $50,000." The IAW program
provides for "Initial Awards" of 15 percent (minimum of $75 and
maximum of $5,000) of the estimated net savings or profits for
-2-
one year on so-called "tangible ideas," and "Special Merit
Awards" of up to 15% of the actual savings or profits produced by
the idea in its first year of implementation. According to an
IAW program handbook that NET supplied to its employees, "[a]ll
tangible ideas which were awarded an initial award will be re-
evaluated one year from the date of implementation to determine
the actual savings or profits."
William Hodgkins, Jr. was employed by NET in Maine from
1956 until February 1992. Hodgkins produced an idea that would
reduce the cost of changing telephone service for certain
multisubscribers such as dormitories and nursing homes. On
April 20, 1989, Hodgkins submitted his idea to the IAW program.
Hodgkins conducted his own study, and based on his own managerial
expertise, concluded that the idea would save NET money, and that
therefore NET would implement the idea, evaluate it under the IAW
program, and grant him fifteen percent of the first year's
savings. Based on his own knowledge of NET's operations and
costs, Hodgkins expected that he would receive the maximum under
the IAW program, $50,000.
Hodgkins submitted his idea to the IAW program by
signing a submission form in which he agreed to abide by the
rules of the program as laid out on the reverse side of the form
and in a NET document called General Administrative Procedure No.
53 ("GAP 53"). Both the back of the submission form and GAP 53
specified that NET had the
sole, exclusive, and complete discretion
and right to determine the terms, policy,
-3-
structure, operation and administration
of the Program, including the right: . .
. .
e) To determine the method for
calculating the amount of any award.
f) To determine the amount of any award
granted.
g) To determine the person entitled to
receive any award.
h) To determine the extent, if any, of
the application, implementation, or use
of an idea.
The same documents also provided that "[t]he decisions of the
Company concerning the terms, policy, structure, operation or
administration of the Program are within the sole and exclusive
discretion of the Company and are final, binding, and
conclusive."
In August 1990, NET's initial evaluation reported that
Hodgkins' suggestion was "an excellent idea to move the company
forward in its goal of automated provisioning." As a result, he
received the maximum Initial Award of $5,000 in September 1990.
In January 1991, NET announced in its weekly in-house publication
that Hodgkins' idea had been adopted and that it "earned for its
suggester a Tangible Award of 15 percent of its estimated
savings." NET implemented Hodgkins' idea in July 1991, and thus
no determination of the first-year savings for a Special Merit
Award could be made until after July 1992.
Expecting to receive the maximum award for his idea,
Hodgkins retired from NET in February 1992, earlier than he would
have retired had he not expected the award. In September 1992,
-4-
NET manager Philip DuBois informed Hodgkins by telephone that NET
had awarded him $17,500 for his idea.1 Hodgkins told DuBois
that the amount of the award was too low. DuBois then sent the
evaluation form back to the IAW program manager for re-
evaluation.
In August 1993, NET informed Hodgkins that he would not
receive a Special Merit Award. According to NET's re-evaluation
report, NET could not quantify savings associated exclusively
with Hodgkins' idea because other innovations had produced the
same results as Hodgkins' idea. Hodgkins appealed this decision,
and a second re-evaluation was performed, which arrived at the
same conclusion. NET's evaluation reports indicated that the
task of measuring savings had been rendered impossible by the
destruction of cost records, given the passage of time.
As a result, NET has not awarded Hodgkins any money
beyond the $5,000 Initial Award. Because Hodgkins did not
receive the total amount he expected, his financial plans for
retirement have been disturbed, causing him to draw prematurely
on certain investments and incur early withdrawal penalties. On
theories of breach of contract, quantum meruit, unjust
enrichment, equitable estoppel and negligent misrepresentation,
Hodgkins brought suit in district court seeking damages incurred
in reliance on statements made by NET, as well as the additional
$45,000 of award money he expected, plus money for income taxes,
____________________
1 NET contests this assertion.
-5-
which NET had agreed to pay on any IAW program award amount. The
district court granted summary judgment on all counts.
STANDARD OF REVIEW STANDARD OF REVIEW __________________
We review a district court's grant of summary judgment
de novo, viewing the facts in the light most favorable to the __ ____
nonmovant, Hodgkins. Dominique v. Weld, 73 F.3d 1156, 1158 (1st _________ ____
Cir. 1996); Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir. _____ ________________
1995). Summary judgment is appropriate when, based upon the
pleadings, affidavits, and depositions, "there is no genuine
issue as to any material fact, and [where] the moving party is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c);
Hope Furnace Assocs., Inc. v. F.D.I.C., 71 F.3d 39, 42 (1st Cir. __________________________ ________
1995); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 671 (1st _______ _______________________
Cir. 1995). To succeed, the "moving party must show that there
is an absence of evidence to support the non-moving party's
position." Hope Furnace Assocs., 71 F.3d at 42 (quoting Rogers _____________________ ______
v. Fair, 902 F.2d 140, 143 (1st Cir. 1990)). "An issue is only ____
'genuine' if there is sufficient evidence to permit a reasonable
jury to resolve the point in the nonmoving party's favor." Id. ___
at 42-43 (quoting NASCO, Inc. v. Public Storage, Inc., 29 F.3d ___________ _____________________
28, 32 (1st Cir. 1994)).
DISCUSSION DISCUSSION __________
On appeal, Hodgkins argues that the evidence sufficed
to raise genuine issues of material fact as to whether he and NET
formed an enforceable contract, and whether NET breached it.
-6-
Alternatively, in the absence of an enforceable contract,
Hodgkins claims that he is entitled to a trial on a theory of
unjust enrichment or quantum meruit. Hodgkins also advances
claims under theories of equitable estoppel and promissory
estoppel. Finally, Hodgkins claims that the evidence requires
that a factfinder decide whether NET negligently misrepresented
to Hodgkins that he was entitled to additional compensation.
I. Breach of Contract I. Breach of Contract
The district court decided that the IAW program formed
part of Hodgkins' contract of employment with NET. The district
court also found that the provision of the IAW program that
states that "[a]ll ideas which result in Initial Awards for
tangible ideas shall receive consideration for a Special Merit
Award" was "clearly enforceable." However, the district court
found crucial the IAW program's express condition that NET had
"the sole, exclusive, and complete discretion and right to
determine the terms, policy, structure, operation and
administration of the Program." The district court pointed to
the IAW program Submission Form, which along with allocating such
discretion to NET, provides that NET has the right "to determine
the method for evaluating ideas which are submitted" and "to
determine the method for calculating the amount of any award to
be granted." As a result, the district court found an
enforceable contract -- one which it found NET did not breach.
On appeal, Hodgkins argues that the IAW program is
severable from his employment contract, and that by accepting his
-7-
submission and implementing his idea, NET was bound to pay him if
it was successful. Hodgkins also contends that while there was
no explicit reasonableness requirement in Hodgkins' contract with
NET, other terms in the contract substitute for it. Under this
reading of the contract, Hodgkins asserts that a genuine issue of
material fact persisted with respect to whether NET breached the
contract.
Hodgkins argues that, in the event that NET's reserved
discretion was so broad as to encompass its actions, such
discretion must have been too broad for the district court to
find an enforceable agreement. The district court's key finding
was that NET and Hodgkins formed an agreement that remained
enforceable despite the clause granting NET "sole, exclusive, and
complete discretion" over the IAW program's operation, including
authority "to determine the method for calculating the amount of
any award to be granted." According to the district court, the
latitude this provision afforded NET was sufficiently wide to
encompass NET's conduct in evaluating Hodgkins' idea. Therefore,
the district court concluded, there was no breach.
Hodgkins contends that the district court's analysis
must be erroneous. According to Hodgkins, the district court's
reading of the clause granting NET discretion is so generous to
NET that it must lead to the conclusion that Hodgkins received no
consideration or enforceable promise in return for submitting his
idea, since NET had the unbridled discretion to vary the contract
at will. See, e.g., Whitten v. Greeley-Shaw, 520 A.2d 1307, 1309 ___ ____ _______ ____________
-8-
(Me. 1987) (noting that "[e]very contract requires
'consideration' to support it"); Corthell v. Summit Thread Co., ________ _________________
167 A. 79, 81 (Me. 1933) (stating that "a reservation to either
party of an unlimited right to determine the nature and extent of
his performance renders his obligation too indefinite for legal
enforcement, making it, as it is termed, merely illusory").
In considering this argument, we agree with the
district court and the parties that Maine law applies. See ___
Moores v. Greenberg, 834 F.2d 1105, 1107 n.2 (1st Cir. 1987) ______ _________
(stating that "[w]here the parties agree what substantive law
controls in a diversity case, we can -- and ordinarily should --
accept such a concession."). Under Maine law,
the paramount principle in the
construction of contracts is to give
effect to the intention of the parties as
gathered from the language of the
agreement viewed in the light of all the
circumstances under which it was made
. . . . Such intention must be gathered
from the written instrument, construed in
respect to the subject matter, the motive
and purpose of making the agreement, and
the object to be accomplished.
Baybutt Constr. Corp. v. Commercial Union Ins., Co., 455 A.2d ______________________ ___________________________
914, 919 (Me. 1983), cited in Top of the Track Assocs. v. _________ ___________________________
Lewiston Raceways, Inc., 654 A.2d 1293, 1295-96 (Me. 1995). _______________________
The district court's reading of the written
instrument's literal terms is not disputed. The IAW program form
submitted by Hodgkins clearly reserves calculation and
determination of awards to NET's discretion, and Hodgkins does
not argue that he was not aware of these provisions. In the
-9-
absence of any evidence proffered by Hodgkins that NET engaged in
bad faith acts such as intentionally destroying records, we agree
with the district court's finding that NET's conduct, including
its repeated evaluations of Hodgkins' ideas, falls within the
ambit of its "sole, exclusive, and complete discretion" over the
IAW program's operation.
However, a question lingers regarding Hodgkins'
argument that the discretion reserved by NET was so "unlimited"
as to void the agreement. See Corthell, 167 A. at 81 (noting ___ ________
that a party's reservation of an unlimited right to determine the _________
nature and extent of its performance renders its obligation too
indefinite for legal enforcement). In Corthell, 167 A. at 81, ________
the Maine Law Court confronted facts bearing some resemblance to
those of the instant case. In that case, the plaintiff Corthell
executed an agreement with his employer whereby he would be
compensated for "all future inventions" with "reasonable
recognition," "the basis and amount [of which] to rest with" the
employer "at all times." Id. Despite the reservation of ___
discretion to the employer, the Maine Law Court held that the
employer's promise was not illusory and that the contract was
valid. Id. at 82. Stating that the contract "was to be ___
interpreted in good faith on the basis of what is reasonable and
intended, and not technically," and also emphasizing that the
contract contained specific language instructing that it should
be construed in that manner, the court found that the employer's
promise was not illusory based on the provision for "reasonable
-10-
recognition" and the parties' exhibition of a contractual intent.
Id. (finding a valid enforceable agreement and also concluding ___
that the employer breached it).
Citing Corthell, Hodgkins argues that because the IAW ________
program agreement did not include any mention of "reasonable
recognition," as the agreement in Corthell did, the IAW program ________
agreement reserved excessive discretion for NET and was thus
void. We do not agree. See Brooking v. Maine Employment Sec. ___ ________ _____________________
Comm'n, 449 A.2d 1116, 1118 (Me. 1982) (noting that it was ______
"highly unlikely" that an employment agreement would have been
unenforceable for vagueness even though compensation for services
was not stated, and failing to note any provision requiring a
reasonable amount) (citing Corthell, 167 A. at 81). We cannot ________
therefore accept Hodgkins' semantic emphasis based on Corthell. ________
See Towne v. Larson, 51 A.2d 51, 53 (Me. 1947) (noting that while ___ _____ ______
"it is true that a contract must be sufficiently definite to
enable the court to determine its meaning and fix the legal
liability of the parties . . . [t]he court looks to substance
rather than to form, and is reluctant to construe a contract so
as to render it unenforceable if that result can be avoided")
(discussing Corthell). ________
As a result, we must look beyond the mere wording of
the agreement. In this regard, Top of the Track directs that, to ________________
ascertain what was reasonable and intended, we look at the facts
surrounding an agreement's making. Top of the Track, 654 A.2d at ________________
1295-96. Viewing the facts in the best light for Hodgkins, the
-11-
general purpose of the IAW program agreement appears fairly
straightforward. An employee suggestion plan such as the IAW
program is intended to reward ideas and promote more active
employee participation in the productive process. See Fish v. ___ ____
Ford Motor Co., 534 N.E.2d 911, 913 (Ohio Ct. App. 1987). These _______________
programs give employees incentives in the form of rewards to work
harder and generate possible improvements. Id. At the same ___
time, the clauses in the employment contract and the proposal
plan document must be upheld to protect the company's interests.
Id. Among those interests is the ability of the employer to ___
quickly resolve instances where the suggestion involved may
provide benefits that are difficult or impossible to quantify.
We find that the district court properly concluded that
no genuine issue of material fact existed to cast doubt on the
proposition that, under Maine law, NET's promise was not
illusory. Given the context of employee relations and incentives
surrounding the IAW program, NET's promise was not rendered
unenforceable by a grant of unfettered discretion. Even
assuming, arguendo, that Hodgkins correctly argues that the IAW ________
program constitutes an agreement severable from his employment
relationship with NET, we cannot accept Hodgkins' assertion that
he provided NET with a suggestion in exchange for NET's promise
that it would give him an award if it wished to, at its total
discretion. Given its policies of generally informing its
employees when one of them received an award, the context in
which NET made its promise did not allow it to refuse to pay
-12-
awards arbitrarily at its discretion. If NET refused to pay
awards, then the IAW program in the future would not provide
incentives to employees to suggest improvements. Future
improvements depended, and still depend, on current payment of
awards.2 In sum, the lack of an explicit "reasonableness"
provision alone does not render the IAW program contract
unenforceable, and this factual background further justifies the
district court's conclusion, especially in the absence of
proffered contravening evidence by Hodgkins.
Like the district court before us, we believe that the
Maine Law Court would conclude that the IAW program constituted a
valid agreement between NET and Hodgkins. Before determining the
precise contractual duty that NET faced, however, we must
consider the alleged tender by DuBois of a $17,500 special award
to Hodgkins. This is certainly a disputed issue of fact; the
question is whether it represents a material dispute. Taken, in
Hodgkins' favor, as true, this statement could not create any new
obligation on the part of the company: the submitted idea was
"past consideration" and thus insufficient to support a new
____________________
2 Perhaps NET could have quietly refused to pay higher awards
and publicize smaller but still significant awards. However,
Hodgkins has presented no evidence of such a NET policy
sufficient for his summary judgment burden. While summary
judgment is only appropriate when "there is no genuine issue as
to any material fact and [] the moving party is entitled to a
judgment as a matter of law," Fed. R. Civ. P. 56(c); Coll v. PB ____ __
Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir. 1995), the ______________________
nonmoving party "may not rest upon the mere allegations or
denials of the . . . pleadings, but . . . must set forth specific
facts showing that there is a genuine issue for trial," Fed. R.
Civ. P. 56(e); Coll, 50 F.3d at 1121. ____
-13-
contract or a modification. See Greater Boston Cable Corp. v. ___ ___________________________
White Mountain Cable Constr. Co., 604 N.E.2d 1315, 1317 (Mass. _________________________________
1992) (stating that "[p]ast consideration does not support a
contract"); Hayes v. Plantations Steel Co., 438 A.2d 1091, 1093 _____ ______________________
(R.I. 1982) (concluding that because "[v]alid consideration . . .
must be bargained for . . . [t]o be valid, therefore, the
purported consideration must not have been delivered before a
promise is executed, that is, given without reference to the
promise"); 4 Richard A. Lord, Williston on Contracts 8:9, at ______________________
193-202 (4th ed. 1992).
However, we conclude that whether the agreement
contained an implicit obligation of reasonable efforts, good
faith, accurate evaluation of the idea's worth, or other such
treatment, the alleged offer of $17,500 represents evidence from
which a jury could infer that NET did not live up to its
obligations when it later claimed that Hodgkins' idea did not
merit more than the Initial Award. Having allegedly tendered a
$17,500 Special Award, NET cannot avoid factfinding as to whether
its subsequent refusal to pay any amount as a special award ___________
breached its duty regarding the Hodgkins idea. As a result, on
the breach of contract claim, we must reverse the district
court's grant of summary judgment, and remand for further
proceedings in accord with this opinion. We leave it to the
district court, in the first instance, to determine the precise
contractual duty which arose under Maine law pursuant to the
parties' agreement.
-14-
II. Unjust Enrichment and Quantum Meruit II. Unjust Enrichment and Quantum Meruit
Hodgkins also seeks damages under unjust enrichment and
quantum meruit theories. Under Maine law, "[u]njust 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," while "quantum meruit involves recovery for
services or materials provided under an implied contract."
Aladdin Elec. Assoc. v. Town of Old Orchard Beach, 645 A.2d 1142, ____________________ _________________________
1145 (Me. 1994); see A.F.A.B., Inc. v. Town of Old Orchard Beach, ___ ______________ _________________________
639 A.2d 103, 105 n.3 (Me. 1994).
We have already discussed and upheld the district
court's finding of an enforceable agreement between NET and
Hodgkins. Without evidence of fraud, or other circumstances that
render the contract inoperative, Hodgkins is foreclosed from
seeking additional payment outside the contract terms. See Top ___ ___
of the Track, 654 A.2d at 1296 (contract between the parties _____________
forecloses unjust enrichment claim); Prest v. Inhabitants of _____ _______________
Farmington, 104 A. 521, 524 (1918) (valid express contract __________
forecloses a quantum meruit action). Because Hodgkins has put
forth no such evidence, we agree with the district court that
Hodgkins' unjust enrichment and quantum meruit claims must fail.
III. Equitable Estoppel and Promissory Estoppel III. Equitable Estoppel and Promissory Estoppel
Hodgkins also seeks damages under theories of equitable
estoppel and promissory estoppel. Under Maine law, equitable
estoppel "bars the assertion of the truth by one whose misleading
-15-
conduct has induced another to act to his detriment in reliance
on what is untrue." See Anderson v. Commissioner of the Dep't of ___ ________ ____________________________
Human Servs., 489 A.2d 1094, 1099 (Me. 1985) (adding that "[a] _____________
misunderstanding will not support application of equitable
estoppel"). According to Maine law on 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." Martin v. Scott Paper Co., 511 A.2d 1048, 1050 (Me. ______ _______________
1986).
Hodgkins contends that, taken as a whole, the IAW
program encouraged the submission of ideas and made specific
representations to employees, including Hodgkins, about the
evaluation process and the compensation to be paid for ideas that
produced financial results. Hodgkins argues that under Maine's
doctrine of equitable estoppel, NET's course of conduct precludes
NET from asserting rights of contract against Hodgkins, since
Hodgkins in good faith relied upon NET's conduct and was led
thereby to change his position for the worse. See, e.g., ___ ____
Waterville Homes, Inc. v. Maine Dep't of Transp., 589 A.2d 455, ______________________ ______________________
457 (Me. 1991). Citing Martin, 511 A.2d at 1050 (Me. 1986), ______
Hodgkins also argues that promissory estoppel similarly applies.
The district court found this argument unconvincing
because it concluded that since the various IAW program
publications made it clear that NET retained complete discretion
-16-
as to the evaluation methods and conclusions, it would have been
unreasonable for Hodgkins to conclude that such publications
promised him an award. Furthermore, the district court found
that Hodgkins could not have reasonably relied on the NET
employee newsletter of January 3, 1991, listing him as having
submitted a winning idea, since: (1) Hodgkins knew that the
announcement was made before his idea was even implemented, let
alone evaluated after one year; (2) the newsletter reference to
"15 percent of the estimated savings" is a clear reference to an
"Initial Award for a tangible idea," not a "Special Merit Award";
and (3) the announcement's reference to a "Tangible Award" for
Hodgkins clearly meant an Initial Award, since the IAW program
rules and publications use the term "tangible" to describe
"Initial Awards for tangible ideas," but not "Special Merit
Awards."
On appeal, Hodgkins attempts to sidestep the district
court's analysis in two ways. First, he asserts that a factual
question existed as to whether Hodgkins' reliance on NET's
promise was reasonable, since he had used his experience
projecting costs for NET to estimate the likely savings that NET
would realize from implementing his idea. Second, Hodgkins
contends that "taken as a whole," rather than looking at the IAW
program publications and the NET newsletter in isolation, NET's
conduct justifies both estoppel theories.
We find the district court's analysis convincing
nonetheless. With respect to his first assertion, regardless of
-17-
his assessment of likely savings from his idea, under an
equitable estoppel theory Hodgkins was required to show he
reasonably relied or that NET made statements which it should
reasonably have expected to induce Hodgkins' actions. The
argument that a factual question existed as to his estimates
simply does not respond to the crux of the district court's
analysis: that his reliance was not reasonable. With respect to
Hodgkins' emphasis on the IAW program "taken as a whole" forming
an issue of triable fact, that allegation by itself does not
convert the issue into a question of fact for the jury. Because
Hodgkins has failed in his brief to point to evidence other than
that considered by the district court in assessing NET's conduct
under equitable estoppel, we cannot determine what additional
facts Hodgkins may be referring to by his invocation of a
holistic approach. As a result of this failure to point to other
competent evidence to surmount a supported summary judgment
motion, see Thomas v. Metropolitan Life Ins. Co., 40 F.3d 505, ___ ______ ___________________________
510 (1st Cir. 1994) (noting that "[t]o avoid summary judgment, a
nonmoving party must be able to point to some specific, competent
evidence in support of its claim"); Cloutier v. Town of Epping, ________ _______________
714 F.2d 1184, 1192 (1st Cir. 1983) ("surmount[ing] a supported
motion for summary judgment" requires that plaintiffs "set forth
specific facts showing a triable issue"), we conclude that the
IAW program publications and the NET newsletter compose the
competent evidence regarding the relevant course of conduct for
both estoppel theories. We agree with the district court's
-18-
discussion of this evidence, and find that, under an equitable
estoppel theory, Hodgkins could not have reasonably relied on
statements or conduct as evidenced in these sources. For the
same reasons, under a promissory estoppel theory, NET should not
reasonably have expected to induce Hodgkins' actions in
reliance.3
____________________
3 Hodgkins' promissory estoppel argument was not a count in his
complaint. Because it fails for the same reasons as his
equitable estoppel claim, we do not address the issue of whether
the district court erred in concluding that the promissory
estoppel argument was waived. See Hodgkins v. New England Tel. & ___ ________ __________________
Tel. Co., slip op. at 8 n.2 (D. Me. 1994). ________
-19-
IV. Negligent Misrepresentation IV. Negligent Misrepresentation
Maine has adopted the Restatement (Second) of Torts
definition of the tort of negligent misrepresentation, which runs
as follows:
One who, in the course of his business,
profession or employment, or in any other
transaction in which he has a pecuniary
interest, supplies false information for
the guidance of others in their business
transactions, is subject to liability for
pecuniary loss caused to them by their
justifiable reliance upon the
information, if he fails to exercise
reasonable care or competence in
obtaining or communicating the
information.
Restatement (Second) of Torts 552(1) (1977), cited in Chapman _____________________________ _________ _______
v. Rideout, 568 A.2d 829, 830 (Me. 1990). _______
Hodgkins argued below that the newsletter announcement
and IAW program publications contained false statements on which
he justifiably relied in deciding when to retire. The district
court was unconvinced by this argument. We agree with the
district court's finding that Hodgkins' negligent
misrepresentation claim must fail for the same reason as his
estoppel arguments, namely, that specific statements in the IAW
program publications and the NET newsletter, as well as the
context in which they were read, clearly rendered Hodgkins'
alleged reliance unreasonable. We note in passing that the only
false statement Hodgkins has pointed to, the alleged statement by
DuBois, taken as true, would still have been made after Hodgkins
had already retired, and thus Hodgkins cannot claim to have
relied upon it, nor does Hodgkins so claim. Hodgkins does not
-20-
point to evidence contradicting NET's statements in the IAW
program publications and the NET newsletter that rendered
justifiable any reliance on those materials in his retirement and
related decisions. Because Hodgkins must show justifiable
reliance in order to sustain a negligent misrepresentation claim,
he consequently cannot establish that a genuine issue of material
fact remains that would compel us to grant him a trial under a
Maine law theory of negligent misrepresentation.
CONCLUSION CONCLUSION
For the foregoing reasons, the judgment of the district
court is reversed in part, affirmed in part, and remanded for reversed in part affirmed in part and remanded for _________________ ________________ ________
further proceedings. further proceedings
-21-