RICHARD HOPKINS v. JORDAN PROPERTY SOLUTIONS, LLC and others [Note 1]

HADLEY, P.J. For several months in 2013, the plaintiff, Richard Hopkins ("Hopkins"), worked as a property manager for the defendant, Jordan Property Solutions, LLC ("JPS"). In his three-count complaint, Hopkins alleged that during that time, JPS improperly classified and paid him as an independent contractor, when in fact he was an employee of JPS. He also asserted that when his employment ended, JPS and its manager, Robert C. Jordan ("Jordan"), failed to pay Hopkins all the wages he had earned. [Note 3] More specifically, in count 1 of his complaint, Hopkins alleged that he was not paid for all of the time he had been on duty at JPS's premises and its worksites and for time spent traveling between worksites. In count 2 of his complaint, Hopkins asserted that by classifying him as an independent contractor rather than an employee, the defendants caused him financial loss. In both counts, Hopkins demanded an award of treble damages and reasonable attorney's fees pursuant to G.L. c. 149, § 150. In count 3 of his complaint, the plaintiff alleged that the defendants were unjustly enriched in the amount of his unpaid wages, any profits they made as a result of his work, and by the taxes, business costs, and expenses the defendants passed on to him. Under count 3, Hopkins sought an award of "[e]quitable damages for the defendants' unjust enrichment."

The case was tried before a jury over two days, and both the plaintiff and the defendants were represented by counsel at trial. We, however, have very little information as to the evidence that was introduced, as the parties have provided only a small portion of the trial transcript, consisting solely of part of the plaintiff's direct testimony and part of the judge's instructions to the jury.

Based on the partial transcript of the plaintiff's testimony, the jury could have found that on December 13, 2013, Jordan told Hopkins there were some things he did not like about the plaintiff's work and that the parties were going to "part ways." Hopkins then complained about having to wait for four hours a day and not getting

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paid for this time. He told Jordan that he had to work twelve hours a day to get paid for six, seven, or eight of those hours. Jordan asked Hopkins how much he was owed and "looked into the system." Jordan then said that Hopkins was owed $925. Jordan printed out a check for $600 and promised to send Hopkins the balance of $325. Payment never came, and Hopkins complained to Jordan, who responded by telling him he was holding the money "for damages." Hopkins told him that was illegal and that he would have to move forward with an attorney.

Sometime later, Hopkins received a check for $325 from JPS. On its face, the check stated that it was valid only for ninety days. When Hopkins went to cash the check at a bank in the middle of March, 2014, more than ninety days after December 13, 2013, he noted that the check had been backdated to December 13, 2013. He did not attempt to cash the check and subsequently complained to Jordan that the check was stale. Jordan responded by telling Hopkins "what [he] could do with the check."

As noted above, we have also been provided with a transcript of a portion of the trial judge's jury instructions. We have also received a copy of agreed-upon "Special Interrogatories" that were submitted to the jury. The trial judge instructed the jury "on the elements that must be proven in this particular case." The jurors were told that they should determine whether Hopkins had performed a service for one or both of the defendants, and if he had performed a service, they were to decide: whether Hopkins had been subject to the control and direction of the defendants in connection with the performance of his service; whether his services were performed within the usual course of the defendants' business; and whether Hopkins customarily engaged in an independently established trade, occupation, profession, or business as a maintenance worker. The trial judge instructed the jurors that if they determined that Hopkins performed a service for one or both of the defendants, he was an employee, unless the jury found: that Hopkins was free from control and direction of the defendants in the performance of his work; that the services he performed were outside of the usual course of the defendants' business; and that Hopkins was engaged in an independently established occupation performing maintenance work.

The judge went on to instruct the jurors that if they found that the plaintiff was an employee, the plaintiff had the burden to establish that he performed work for which he was improperly compensated and to produce sufficient evidence to show the amount and extent of that work. He also instructed the jurors that if they determined the plaintiff was an employee, the jury could make a reasonable estimate as to the extent of any lost wages.

The trial judge also instructed that employers must pay employees their hourly rate of pay for all, not just some, of their work time. He explained that this included compensation for all the time an employee is required to be on his or her employer's premises, to be on duty, or to be at a certain worksite. This also included the time an employee is required to travel from one place to another in the course of the work day. The judge instructed that if the jurors determined that the defendants had failed to pay the plaintiff for any hours he worked, the jury were to multiply the unpaid hours by the plaintiff's regular hourly rate of pay to determine the amount of his unpaid wages.

Finally, the trial judge explained the special interrogatories the jury were required to answer. Interrogatory 1 asked whether the plaintiff was subject to the control

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and direction of the defendants in connection with performance of his services. Interrogatory 2 asked whether the plaintiff's services were performed within the usual course of the defendants' business. Interrogatory 3 asked whether the plaintiff was customarily engaged in an independently established trade, occupation, profession, or business as a maintenance worker.

As to these three questions, the jury answered, "No," on Interrogatory 1. The jury answered, "Yes," as to JPS and, "No," as to Jordan on Interrogatory 2. On Interrogatory 3, the jury answered, "Yes," as to both defendants. Based on the judge's instructions, which the parties do not challenge and which we find accurately reflected the law in Massachusetts applicable to the claims asserted in counts 1 and 2, this meant that the jury had determined that Hopkins was an employee of JPS.

Per written directions on the verdict slip, the jury went on to consider a fourth and final question. Interrogatory 4 asked, "If the plaintiff is owed wages, how much is he owed in wages?" On this question, the judge instructed that "those wages you would take hours times the $25 per hour [an hourly rate to which the parties had stipulated] and come up with an answer. It could be any amount, zero up to whatever you find is reasonable." On the final interrogatory, the jurors simply wrote a zero in the space provided, as follows:

"Hours ___ x $25.00 = ___0.___ "

Immediately below the final special interrogatory was a line that read, "WE THE JURY award the plaintiff, Richard Hopkins, damages of: ___.___." Apparently pointing to this line, the judge instructed, "We, the jury award, and you just put it there. And then the foreperson signs and dates it." In the space provided, the jury entered the figure $325.00, as follows:

"WE THE JURY award the plaintiff, Richard Hopkins, damages of: __325.00__" Finally, the words, "The above is [sic] the jury's verdict and answers to the special interrogatories," appeared at the bottom of the verdict slip.

In short, the jurors made no entry in the space provided for a calculation of hours the plaintiff worked and entered a zero as the total of any wages he was owed. The plaintiff, however, asked the trial judge to treble the jury's award of $325 and award attorney's fees pursuant to G.L. c. 149, § 150. The defendants objected, arguing that by responding with a zero, the jury had found no wages were due and that their intent was to award some other form of damages.

Although the record before us is not absolutely clear on the question, it appears that the jurors were discharged without a request from either party for the court to return the jury for further consideration of their answers and verdict. The court continued the matter for further argument by the parties concerning the judgment that should issue based on the jury's verdict.

Ultimately, after reviewing additional submissions from the parties, the trial judge agreed with the defendants and ordered that judgment should enter in their favor on counts 1 and 2, the statutory wage claims, and in favor of the plaintiff on count 3 for unjust enrichment in the amount of $325, plus interest and costs. The plaintiff's notice of appeal followed.

Pursuant to Mass. R. Civ. P. 49(a), a judge "may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." If this is done, the judge is required to "give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make

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its finding upon each issue. If in doing so the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict." Id.

Pursuant to Mass. R. Civ. P. 49(b), a trial judge "may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict." Under this rule, the judge is required to "give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial." Id.

In this case, the trial judge proceeded pursuant to Mass. R. Civ. P. 49(b), as written interrogatories and a general verdict were submitted to the jury. Pursuant to this rule, "[i]f the jury's answers to interrogatories are consistent with each other but not with the general verdict, judgment may be entered on the answers." Solimene v. B. Grauel & Co., 399 Mass. 790, 801 n.14 (1987). Here, the trial judge properly could have determined that the answers to the interrogatories were consistent with each other, in that the jurors could have found that Hopkins was an employee, but that he had failed to introduce any evidence of the hours he worked. (On the issue of damages, as noted above, all we know from the limited record before us is that the jury heard that Hopkins was paid an hourly rate of $25 and that on the plaintiff's last work day, Jordan, without explanation, said Hopkins was owed $925, of which $600 was paid that day.)

In these circumstances, after the jurors were discharged, the court had two options under Mass. R. Civ. P. 49(b). Judgment could enter pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court could order a new trial. Here, as to counts 1 and 2, the trial judge determined that judgement should enter in accordance with the answers to the four interrogatories. Accordingly, he denied the plaintiff's motion for entry of judgment and allowed the defendants' cross motion for entry of judgment. In making his ruling, the trial judge endorsed the plaintiff's motion and stated that it was "[d]enied for essentially the reasons set forth in the Defendants' opposition and cross-motion memo." Based on this, it appears that the judge accepted the defendants' argument that the jury had likely determined that the plaintiff had failed to satisfy his burden of proving damages under counts 1 and 2, but found that JPS had failed to make good on the $325 check it sent to Hopkins and returned a general verdict in the amount stated on the stale, uncashed check.

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After considering the circumstances and the procedural history of this matter, we find that the trial judge acted properly in ordering that judgment enter against the plaintiff on counts 1 and 2. "Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury's finding inconsistent results in a collision with the Seventh Amendment." McCue v. Prudential Ins. Co., 371 Mass. 659, 664 (1976), quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962).

Regarding count 3, Hopkins asserts that the jury could not lawfully award $325 on his unjust enrichment claim because this is an equitable remedy that could be decided only by the trial judge. Massachusetts R. Civ. P. 39(a), however, provides that when a trial by jury is demanded under Rule 38 on all issues, as it was here, all issues will be determined by a jury unless the parties stipulate to have some issues tried by a judge without a jury or the judge on motion or on his own initiative finds that no right to jury trial exists. There was no such stipulation or order made in this case. Consequently, as to count 3, the jury were the finders of fact. Finally, although Hopkins is correct in his assertion that the jury were not instructed on the applicable law with regard to unjust enrichment, he failed to raise this issue by objecting to the trial judge's instructions before the jury retired to consider their verdict, and pursuant to Mass. R. Civ. P. 51, he waived his right to appeal on this issue.

For these reasons, we affirm the judgment of the trial court.