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

______________
_________________
& Martin were on brief for appellant.
________
Pamela A. Smith for appellee.
_______________

____________________

May 7, 1996
____________________

Petruccelli
___________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

Plaintiff-appellant William J.

Hodgkins

("Hodgkins")

former

appellee

New

because

his

England Telephone

employer,

and Telegraph

defendant-

Company ("NET"),

he believes that NET paid him an insufficient amount for

cost-saving

program.

The

judgment on

quantum

sued

idea

he

submitted in

district court

its

employee

granted NET's motion

Hodgkins' claims, which include

meruit,

equitable

estoppel,

unjust

suggestion

for summary

breach of contract,

enrichment,

and

negligent

misrepresentation.

court's decision.

Hodgkins

appeals

the

district

We reverse in part, affirm in part, and remand

for further proceedings.

BACKGROUND
BACKGROUND
__________

Because

favor

the district court granted summary judgment in

of the defendant,

favorable to

we recite the

the plaintiff's claims,

facts in

the light most

giving him the

benefit of

all reasonably supported inferences.

NET has an employee

suggestion program named "Ideas at

Work" ("the

IAW program"), that encourages

ideas

produce

that

According

to

savings

or

NET's "Suggester's

and rewards employee

increased

Guide,"

profits

reviewed by

for

NET.

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

provides for "Initial Awards"

maximum

of $5,000) of the

of $50,000."

The IAW

program

of 15 percent (minimum of

$75 and

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

IAW

program handbook that NET

tangible

first year of implementation.

supplied to its employees, "[a]ll

ideas which were awarded

evaluated one year from

According to an

an initial award

will be re-

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.

reduce

the

cost

multisubscribers

April 20,

of

such

Hodgkins produced an idea

changing

telephone

as dormitories

and

1989, Hodgkins submitted his idea

service

nursing

that would

for

certain

homes.

On

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,

savings.

and

grant

Based

him fifteen

on his

percent

own knowledge

costs, Hodgkins expected that he

of

the first

of NET's

year's

operations and

would receive the maximum under

the IAW program, $50,000.

Hodgkins

signing

submitted

a submission

his idea

form in

which he

rules of the program as laid out

to

the

IAW program

agreed to abide

by

by the

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
the

determine the

extent, if any,

application, implementation,

of an idea.

of

or use

The

same documents also provided

Company

concerning

the terms,

that "[t]he

policy, structure,

administration of the

Program are within the

discretion

Company

of

the

decisions of the

and

are

operation or

sole and exclusive

final,

binding,

and

conclusive."

In August

1990, NET's initial evaluation reported that

Hodgkins' suggestion was "an

excellent idea to move the

forward in its goal of automated

received the maximum

company

provisioning."

As a result, he

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

percent

savings."

Tangible

Award

of 15

of

its

estimated

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

evaluation

form

back

to

the

IAW

low.

DuBois then sent the

program

manager

for

re-

evaluation.

In August 1993, NET informed Hodgkins that he would not

receive a Special Merit Award.

report,

NET could

with Hodgkins'

According to NET's re-evaluation

not quantify

idea because

savings associated

other innovations had

exclusively

produced the

same results as Hodgkins' idea.

Hodgkins appealed this decision,

and a

performed, which arrived

same

second re-evaluation was

conclusion.

task of

NET's evaluation

measuring savings

had been

reports indicated

at the

that the

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

receive the

$5,000

Initial Award.

total amount

retirement have

Because

he expected, his

been disturbed, causing him

Hodgkins did

not

financial plans

for

to draw prematurely

on certain investments and incur early withdrawal penalties.

theories

of

breach

of

contract,

enrichment, equitable estoppel

Hodgkins brought suit in

quantum

and negligent

meruit,

district court seeking damages incurred

additional

of award money he expected, plus money for income taxes,

____________________

unjust

misrepresentation,

in reliance on statements made by NET, as well as the

$45,000

On

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

de novo,
__ ____

nonmovant,

viewing the facts

Hodgkins.

court's grant of summary judgment

in the light

most favorable

to the

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

pleadings,

judgment is

affidavits,

issue as to

appropriate when,

and depositions,

any material fact, and

1995);

an

To

is

v. F.D.I.C., 71 F.3d 39, 42 (1st Cir.

________

evidence

to support

the

non-moving party's

Hope Furnace Assocs., 71 F.3d at 42

_____________________

902 F.2d 140, 143 (1st Cir.

1990)).

show that there

(quoting Rogers
______

"An issue is only

'genuine' if there is sufficient evidence to permit a

jury to

no genuine

Fed. R. Civ. P. 56(c);

succeed, the "moving party must

absence of

position."

v. Fair,
____

is

the

Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 671 (1st

_______
_______________________

Cir. 1995).

is

"there

[where] the moving party

entitled to judgment as a matter of law."

Hope Furnace Assocs., Inc.

__________________________

based upon

resolve the point in the

reasonable

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,

-6-

and whether

NET breached

it.

Alternatively,

Hodgkins

in

the

absence

claims that he

unjust

enrichment or

claims

under

estoppel.

of

enforceable

a trial on

meruit.

estoppel

claims that the

decide whether NET

contract,

a theory of

Hodgkins also

equitable

Finally, Hodgkins

that a factfinder

an

is entitled to

quantum

theories

of

and

advances

promissory

evidence requires

negligently misrepresented

to Hodgkins that he was entitled to additional compensation.

I.
I.

Breach of Contract
Breach of Contract

The district court decided

part

court

states

that the IAW program formed

of Hodgkins' contract of employment with NET.

also

found that

that "[a]ll

the provision

ideas

which result

of

the IAW

in

The district

program that

Initial Awards

for

tangible ideas

Award" was

shall receive

"clearly enforceable."

found crucial

"the

consideration for a

sole,

determine

the IAW program's

exclusive,

the

administration of

and

terms,

However, the

district court

express condition that

complete discretion

policy,

the Program."

Special Merit

structure,

and

NET had

right

operation

The district court

to

and

pointed to

the IAW program Submission Form, which along with allocating such

discretion

the

to NET, provides that NET has the right "to determine

method for

evaluating

determine the method for

be

granted."

As

ideas which

are submitted"

calculating the amount of any

result,

the

district

court

and "to

award to

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

discretion

was

so

discretion must have

broad

as to

been too

find an enforceable agreement.

was

that NET

and

the event that NET's reserved

encompass

broad for the

its

actions,

district court

such

to

The district court's key finding

Hodgkins formed

an

agreement that

remained

enforceable despite the clause granting NET "sole, exclusive, and

complete discretion"

authority "to

any award to

latitude

over the IAW program's operation, including

determine the method for calculating the amount of

be granted."

this provision

According to the

afforded NET

district court, the

was sufficiently

encompass NET's conduct in evaluating Hodgkins' idea.

the district court concluded, there was no breach.

wide to

Therefore,

Hodgkins

must

contends that

be erroneous.

reading of the clause

According to

the district

court's analysis

Hodgkins, the district court's

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

district

Moores
______

(stating

considering

court

and the

v. Greenberg,
_________

that "[w]here

this

argument,

parties that

834 F.2d

Maine

1105, 1107

the parties

controls in a diversity case, we can

we

agree

with

law applies.

n.2 (1st

agree what

the

See
___

Cir. 1987)

substantive law

-- and ordinarily should --

accept such a concession.").

the

Under Maine law,

paramount

construction

of

principle
contracts

in
is

the

to

give

effect to the intention of the parties as

gathered

from

the

language

agreement viewed in the

circumstances
. . . . Such

under

of

the

light of all the

which

it was

intention must be

made

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.,

___________________________

914,

cited in Top of the Track Assocs.

_________ ___________________________

919

(Me. 1983),

455 A.2d

v.

Lewiston Raceways, Inc., 654 A.2d 1293, 1295-96 (Me. 1995).

_______________________

The

district

court's

reading

instrument's literal terms is not disputed.

submitted

by

Hodgkins

clearly

reserves

of

the

written

The IAW program form

calculation

and

determination of

not argue

awards to

that he was

NET's discretion, and

not aware

Hodgkins does

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

its

district court's finding that

repeated evaluations

of Hodgkins'

NET's conduct, including

ideas, falls

within the

ambit of its "sole, exclusive, and complete

discretion" over the

IAW program's operation.

However,

argument that the

as to

question

lingers

regarding

discretion reserved by NET was

void the agreement.

See Corthell,
___ ________

Hodgkins'

so "unlimited"

167 A. at

81 (noting

that a party's reservation of an unlimited right to determine the

_________

nature and extent

indefinite

of its performance renders

for legal enforcement).

the Maine Law

an agreement

compensated

recognition,"

In Corthell, 167
________

A. at 81,

Court confronted facts bearing some resemblance to

those of the instant case.

executed

its obligation too

for

"all

In that

with

case, the plaintiff Corthell

his employer

future

whereby

inventions"

with

he would

be

"reasonable

"the basis and amount [of which] to rest with" the

employer

"at

all

discretion to the

Id.
___

employer, the

employer's promise

valid.

times."

Id. at
___

was not

82.

Despite

Maine Law Court

illusory and

Stating that

interpreted in good faith on the basis

intended,

and not

technically," and

contract contained specific

be

the reservation

the

held that

that the

contract

of

the

contract was

"was to

be

of what is reasonable and

also emphasizing

language instructing that it

that the

should

construed in that manner, the court found that the employer's

promise was not

illusory based on the provision

-10-

for "reasonable

recognition" and the parties' exhibition of a contractual intent.

Id. (finding
___

a valid

enforceable agreement and

also concluding

that the employer breached it).

Citing

program

Corthell, Hodgkins argues

________

agreement did

not

include any

recognition," as the agreement

agreement

void.

Comm'n,
______

reserved excessive

We do not agree.

449 A.2d

1116,

that because the IAW

mention of

"reasonable

in Corthell did, the IAW

________

discretion

See Brooking v.
___ ________

1118 (Me.

1982)

for NET

program

and was

thus

Maine Employment Sec.

_____________________

(noting that

it

was

"highly unlikely"

that an

employment agreement would

have been

unenforceable for vagueness even though compensation for services

was not stated,

reasonable

and failing

to note any

amount) (citing Corthell, 167

________

therefore accept Hodgkins' semantic

provision requiring

A. at 81).

emphasis based on

We cannot

Corthell.
________

See Towne v. Larson, 51 A.2d 51, 53 (Me. 1947) (noting that while
___ _____
______

"it

is true

enable

the

liability

that a

court to

of the

rather than to

as to render

contract must

determine its

parties . .

be sufficiently

meaning

. [t]he court

and fix

(discussing Corthell).
________

if that result

the legal

looks to substance

form, and is reluctant to construe

it unenforceable

definite to

a contract so

can be

avoided")

As

a result, we must

the agreement.

ascertain

look beyond the

In this regard, Top of the Track directs that, to

________________

what was reasonable and intended, we look at the facts

surrounding an agreement's making.

1295-96.

mere wording of

Viewing the

Top of the Track, 654 A.2d at

________________

facts in the best light

for Hodgkins, the

-11-

general

purpose

of the

IAW

program

agreement appears

fairly

straightforward.

program

An employee

is intended

to

suggestion plan

reward ideas

employee participation in

and

such as

the IAW

promote more

the productive process.

active

See Fish
___ ____

Ford Motor Co., 534 N.E.2d 911, 913 (Ohio Ct. App. 1987).
_______________

v.

These

programs give employees incentives in the form of rewards to work

harder

and generate

time, the

clauses in

possible improvements.

the employment contract

Id.
___

At

the same

and the

proposal

plan document must be upheld

to protect the company's interests.

Id.
___

is the

Among

quickly

those interests

resolve

instances

where

ability of the

the

employer to

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

proposition

illusory.

that,

under

Maine

the

unenforceable

IAW program,

by

assuming, arguendo,
________

grant

NET's

promise

constitutes an

he provided NET with

Given

of

promise

was

unfettered

was not

not

rendered

discretion.

agreement severable from

Even

that the IAW

his employment

cannot accept Hodgkins' assertion that

a suggestion in exchange for

it would give him

discretion.

NET's

that Hodgkins correctly argues

relationship with NET, we

that

law,

cast doubt on the

Given the context of employee relations and incentives

surrounding

program

material fact existed to

an award if

its

employees

when one

which NET

made its promise

policies of

of them

it wished to,

generally

received an

did not

NET's promise

at its total

informing

award, the

allow it to

its

context in

refuse to

pay

-12-

awards

arbitrarily at

awards,

then the

incentives

to

IAW program

employees

improvements depended,

awards.2

In

provision

alone

its discretion.

sum,

does

to

in the

If

future would

suggest

and still

NET refused

not provide

improvements.

depend, on current

the lack

of

not

render

an

to pay

Future

payment of

explicit "reasonableness"

the

IAW

program

contract

unenforceable, and

district

court's

this factual background further justifies the

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

precise

contractual

consider

that

NET

faced,

however,

we

must

the alleged tender by DuBois of a $17,500 special award

to Hodgkins.

question

duty

determining the

This is

certainly a disputed

issue of fact;

is whether it represents a material dispute.

the

Taken, in

Hodgkins' favor, as true, this statement could not create any new

obligation on the

"past

part of

consideration"

____________________

the company: the

and thus

insufficient

submitted idea

to

support a

was

new

2
and

Perhaps

NET could have quietly

publicize smaller

Hodgkins
sufficient

has

but still

presented

for

his

refused to pay

no

significant awards.

evidence

summary

higher awards

of

such

judgment burden.

However,
NET

While

judgment is only appropriate

when "there is no genuine

to any material

the moving party

judgment as a

fact and []

matter of law," Fed. R. Civ. P.

Diagnostic Sys., Inc., 50 F.3d

______________________
nonmoving

party

"may

1115, 1121 (1st

not rest

upon

the

policy

summary

issue as

is entitled to

56(c); Coll v. PB
____
__

Cir. 1995), the

mere allegations

or

denials of the . . . pleadings, but . . . must set forth specific

facts showing that there

is a genuine issue for

Civ. P. 56(e); Coll, 50 F.3d at 1121.

____

-13-

trial," Fed. R.

contract

or a modification.

See Greater Boston Cable Corp. v.

___ ___________________________

White Mountain Cable Constr. Co.,

_________________________________

1992)

(stating that

contract");

"[p]ast

604 N.E.2d 1315,

consideration does

1317 (Mass.

not support

Hayes v. Plantations Steel Co., 438 A.2d 1091, 1093

_____
______________________

(R.I. 1982) (concluding that because "[v]alid consideration . . .

must

be bargained

purported

promise

for

. . .

consideration must

is executed,

promise");

[t]o

valid,

therefore,

not have

been delivered

given

without reference

that is,

4 Richard A. Lord,

be

Williston on Contracts
______________________

the

before a

to the

8:9, at

193-202 (4th ed. 1992).

However,

we

conclude

that

whether

the

agreement

contained

an implicit

faith, accurate

obligation

evaluation of

treatment, the alleged offer

which

jury could

infer

of reasonable

the idea's

efforts,

good

worth, or other

such

of $17,500 represents evidence from

that

NET did

obligations when it

later claimed

merit more than the

Initial Award.

not

live

that Hodgkins'

up to

its

idea did

not

Having allegedly

tendered a

$17,500 Special Award, NET cannot avoid factfinding as to whether

its

subsequent

breached its

the breach

court's

refusal to

as a

duty regarding the Hodgkins idea.

of

grant

proceedings in

contract

of

claim,

summary

accord with

district court, in the

contractual

pay any amount

___________

duty

we must

judgment,

and

this opinion.

special award

As a result, on

reverse

the

remand

We leave

district

for

it to

first instance, to determine the

which arose

under Maine

further

law pursuant

the

precise

to the

parties' agreement.

-14-

II.
II.

Unjust Enrichment and Quantum Meruit

Unjust Enrichment and Quantum Meruit

Hodgkins also seeks damages under unjust enrichment and

quantum meruit

theories.

describes recovery

for the

Under Maine

value of

law, "[u]njust enrichment

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,"

services

or

while "quantum meruit involves

materials

provided

under

an

recovery for

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

court's

finding

Hodgkins.

render

have

already

of an

discussed

enforceable

and

upheld

agreement

the district

between NET

and

Without evidence of fraud, or other circumstances that

the contract

inoperative,

seeking additional payment outside

of the Track,
_____________

654 A.2d

at 1296

Hodgkins

is foreclosed

the contract terms.

(contract between

from

See Top
___ ___

the parties

forecloses unjust

Farmington,
__________

forecloses a

forth no such

104

enrichment

A.

521,

claim); Prest
_____

524 (1918)

quantum meruit action).

evidence, we

v.

(valid

Inhabitants of
_______________

express

Because Hodgkins

agree with the

contract

has put

district court

that

Hodgkins' unjust enrichment and quantum meruit claims must fail.

III.
III.

Equitable Estoppel and Promissory Estoppel

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

on what is untrue."

to act to his detriment

See Anderson v. Commissioner of the Dep't of

___ ________
____________________________

Human Servs., 489 A.2d 1094,

_____________

misunderstanding

estoppel").

promise

action or

person

binding

will

support

promisor should

forbearance on

and

not

1099 (Me. 1985)

which does

the part

induce

if injustice can be

such

(adding that "[a]

application

According to Maine law on

which the

in reliance

of

equitable

promissory estoppel, "[a]

reasonably expect

of the promisee

action

avoided only by

to induce

or a

third

or forbearance

is

enforcement of the

promise."

Martin
______

v. Scott Paper Co.,

_______________

511 A.2d 1048,

1050 (Me.

1986).

Hodgkins

program

contends

encouraged the

representations

to

that, taken

submission

employees,

as

of ideas

including

whole, the

and made

Hodgkins,

IAW

specific

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

Hodgkins

thereby

in good

to

rights of

faith relied

change

his position

Waterville Homes, Inc. v.

______________________

457 (Me. 1991).

contract against

Citing

upon NET's

for

the

Hodgkins, since

conduct and

worse.

Maine Dep't of Transp., 589

______________________

Martin, 511
______

A.2d at

was led

See,
___

e.g.,
____

A.2d 455,

1050 (Me.

1986),

Hodgkins also argues that promissory estoppel similarly applies.

The

because

it

district court

concluded

that

publications made it clear

found

this argument

unconvincing

since

the

IAW

various

program

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

that

an award.

Hodgkins

employee

Furthermore, the

could not

have

newsletter of January

submitted

a winning

alone evaluated after

reasonably

3, 1991,

idea, since:

announcement was made before

district court

(1)

relied

on

the

found

NET

listing him

as having

Hodgkins knew

that the

his idea was even

implemented, let

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

Hodgkins clearly

rules

and

"Initial

Awards."

meant an Initial

publications

Awards

use

for tangible

to a "Tangible

Award, since the

the term

ideas,"

"tangible"

but

Award" for

IAW program

to

describe

not "Special

Merit

On appeal,

court's

analysis in two ways.

question

promise

existed

was

projecting

would

Hodgkins attempts to sidestep

as

to

reasonable,

the district

First, he asserts that a factual

whether Hodgkins'

since

he

had

reliance

used

his

on

NET's

experience

costs for NET to estimate the likely savings that NET

realize

from implementing

his

idea.

contends that "taken as a whole," rather

program publications

Second,

Hodgkins

than looking at the IAW

and the NET newsletter

in isolation, NET's

conduct justifies both estoppel theories.

We

nonetheless.

find

the

district

court's

analysis

convincing

With respect to his first assertion, regardless of

-17-

his

assessment

equitable

of

likely

savings

estoppel

theory

Hodgkins

reasonably relied

reasonably

have

argument that

simply

does

or that NET

expected

to

his

induce Hodgkins'

to the

existed as

crux

idea,

was required

made statements

factual question

not respond

from

an

show

he

to

which it

should

actions.

to his

of the

under

The

estimates

district court's

analysis:

that his reliance was not reasonable.

Hodgkins'

emphasis on the IAW program "taken as a whole" forming

an

issue of

triable fact,

that allegation

With respect to

by itself

does not

convert the issue into a question of fact for the

Hodgkins has failed in his brief to

jury.

point to evidence other than

that considered by the district court in assessing

under equitable

estoppel, we

facts

may

Hodgkins

holistic approach.

competent

motion,

510

evidence

cannot

be referring

Because

NET's conduct

determine what

to

by

his

additional

invocation of

As a result of this failure to point to other

to

surmount a

supported

summary

see Thomas v. Metropolitan Life Ins. Co.,

___ ______
___________________________

judgment

40 F.3d 505,

(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

714

its claim"); Cloutier v. Town of Epping,

________
_______________

F.2d 1184, 1192 (1st Cir.

motion for summary judgment"

1983) ("surmount[ing] a supported

requires that plaintiffs "set forth

specific

IAW

facts showing a

program

publications and

competent evidence

both estoppel

triable issue"), we

the

NET

conclude that the

newsletter compose

regarding the relevant course

theories.

We

agree

with the

the

of conduct for

district

court's

-18-

discussion of this

estoppel

evidence, and find

theory, Hodgkins

could not

that, under an

equitable

have reasonably

relied on

statements or conduct

same reasons, under

reasonably

reliance.3

have

as evidenced

in these sources.

For

the

a promissory estoppel theory, NET should not

expected

to

induce

Hodgkins'

actions

in

____________________

Hodgkins' promissory

complaint.
equitable
the

Because

it

estoppel argument was not a count in his

fails

for

the

same

reasons

as

his

estoppel claim, we do not address the issue of whether

district

court

erred

estoppel argument was waived.

in concluding

that

the

promissory

See Hodgkins v. New England Tel. &

___ ________
__________________

Tel. Co., slip op. at 8 n.2 (D. Me. 1994).

________

-19-

IV.
IV.

Maine

Negligent Misrepresentation
Negligent Misrepresentation

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

interest, supplies
the

a pecuniary

false information for

guidance of others in their business

transactions, is subject to liability for

pecuniary

loss caused

to them

by their

justifiable

reliance

information,

if

he

reasonable

care

obtaining

or

upon

fails
or

to

the
exercise

competence

communicating

in
the

information.

Restatement (Second) of Torts

_____________________________

552(1) (1977), cited in Chapman

_________ _______

v. Rideout, 568 A.2d 829, 830 (Me. 1990).

_______

Hodgkins argued below

and IAW program publications

he justifiably relied in

court

was unconvinced

district

court's

estoppel arguments,

program

publications

contained false statements on which

deciding when to retire.

by

this argument.

finding

misrepresentation claim

that the newsletter announcement

must

that

fail for

The district

We agree

Hodgkins'

the same

NET

newsletter, as

the

negligent

reason as

namely, that specific statements

and the

with

his

in the IAW

well

as the

context

in

which they

were

alleged

reliance unreasonable.

read,

clearly rendered

Hodgkins'

We note in passing that the only

false statement Hodgkins has pointed to, the alleged statement by

DuBois,

had

taken as true, would still have been made after Hodgkins

already retired,

relied upon it,

and

thus Hodgkins

nor does Hodgkins so

cannot

claim.

claim to

Hodgkins

have

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,

reversed in part
_________________

further proceedings.
further proceedings

affirmed in part,
affirmed in part
________________

and remanded
and remanded
________

for
for

-21-