Fenzel v. Group2 Software, LLC et al

Filing 105

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/7/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JERRY FENZEL
:
v.

:

Civil Action No. DKC 13-0379

:
GROUP 2 SOFTWARE, LLC, at al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this breach of
contract action are motions for summary judgment filed by: (1)
Defendant Group 2 Software, LLC (“Group 2”) (ECF No. 87); (2)
Defendant Deven Software, LLC (“Deven”) (ECF No. 88); and (3)
Defendant Thomas C. Bowen (ECF No. 89).

Also pending are cross-

motions for partial summary judgment filed by Plaintiff Harry J.
(“Jerry”)

Fenzel

(“Plaintiff”).

(ECF

Nos.

92;

93).

The

relevant issues have been briefed, and the court now rules, no
hearing being deemed necessary.
following

reasons,

the

motion

Local Rule 105.6.
for

summary

judgment

Group 2 will be granted in part and denied in part.
for

summary

granted,

and

judgment
the

filed

by

cross-motions

filed by Plaintiff will be denied.

Deven
for

and

Mr.

partial

For the
filed

by

The motions

Bowen

summary

will

be

judgment

I.

Background
A.

Factual Background

This case involves several contract, fraud, and equitable
claims.

Plaintiff provided consulting services to Group 2, a

company that develops, promotes, and sells software packages for
use in merger and acquisition transactions (the “EMA software”).
According to Plaintiff, he learned about an opening for a CEO
position at Group 2 in November 2010.

Plaintiff met with Mr.

Bowen, the owner or managing member of Group 2, on November 12,
2010.

(ECF No. 92, at 1).

January

and

April

2011,

Plaintiff alleges that, between

without

a

formal

contractual

or

employment relationship, he assisted Mr. Bowen in building a
website

for

Group

2,

business strategies.
compensation

for

securing

office

space,

and

discussing

Plaintiff did not request or receive any

this

work.

(Id.

at

2).

In

early

2011,

Plaintiff negotiated the terms for his consulting contract with
Group

2

and

Group

2’s

lawyers.

(Id.;

see

ECF

No.

92-4).

Plaintiff alleges that on May 19, “[Mr.] Bowen, on behalf of
Group 2, and Plaintiff executed Plaintiff’s employment contract
dated May 1, 2011 [(the ‘May 1 Agreement’)].”
2).

(ECF No. 92, at

The May 1 Agreement provides that, “[c]ommencing May 1,

2011[, Plaintiff] will become a consultant to Group 2, assuming
the role of CEO, and will devote such time as shall be necessary
to further the business of Group 2.”
2

(Id. ¶ 1).

Under the May 1 Agreement:
Commencing on May 1, 2011, and for 52
consecutive weeks thereafter, [Plaintiff’s]
compensation
will
be
$2,000
per
week.
Unless agreed to otherwise by the Parties,
[Plaintiff] will be paid $1,000 per week
with the difference of $1,000 to be deferred
and recognized as an obligation of Group 2
until paid by Group 2.
The deferred
compensation shall be paid to [Plaintiff]
upon the earliest of the following to occur:
(i) Group 2 raises $300,000 in outside
investment and/or debt capital (excluding
any
investment
by
[Mr.
Bowen]),
or
(ii) Group 2’s cumulative gross revenues
exceed $1,000,000, or (iii) a change in
control occurs whereby another party (or
parties) owns 50% or more of the equity in
Group 2, or (iv) the Parties agree to pay
[Plaintiff] the outstanding balance of the
amount of the liability to [Plaintiff].
(Id. ¶ 2).

The next paragraph reads, in its entirety:
Upon the one year anniversary of this
Agreement if [Plaintiff] is still acting in
a consulting capacity, or as an employee of
Group 2, or earlier if either event occurs:
(i) a change in control occurs whereby
another party (or parties) owns 50% or more
of the equity in Group 2, or (ii) the
Parties agree to award [Plaintiff] a noncontingent membership interest in Group 2
which
shall
represent
a
15%
ownership
interest in Group 2, subject to [Plaintiff]
executing an operating agreement or joinder
to an operating agreement with Group 2.

(Id. ¶ 3).
In addition, the parties agreed that “[u]pon the one year
anniversary
experiencing

of

this

positive

Agreement,
cash

flow

3

provided
and

that

growth,

Group
Group

2
2

is
and

[Plaintiff] will negotiate in good faith terms for” a future
business relationship.

(Id. ¶ 5).

The May 1 Agreement also

contains provisions concerning the nondisclosure of confidential
information and noninterference with clients that ran for the
life of the contract and for one or two years thereafter.

(Id.

¶¶ 6-8).
On or about June 1, 2011, a lawyer for Group 2, Don Rogers,
requested that Plaintiff execute another contract.

According to

Plaintiff, “[t]he purpose of the meeting . . . was to sign a
copy of the [May 1 Agreement] for Mr. Rogers’ files.”
92, at 3).

Plaintiff signed the new document, which was dated

June 2, 2011.
Agreement”)
Agreement.

(ECF No.

is

The language of the second contract (the “June 2
virtually

identical

to

that

of

the

May

1

(See ECF No. 92-7).1

Plaintiff asserts that he worked as CEO for Group 2 for 56
weeks from May 1, 2011, through May 24, 2012.
2).

(ECF No. 92, at

During this time, according to Plaintiff, he hired a team

of software developers, developed marketing strategy for the EMA
software,

networked

and

travelled

1

to

meet

with

potential

The parties agree that, except for minor discrepancies,
there is no meaningful difference between the substantive
language of the two contracts.
In fact, the June 2 Agreement
contains typographical errors that appeared in the earlier
version.
The dates on the first page and signature page,
however, are different. (See ECF Nos. 92-5, at 1, 3; 92-7, at
1, 3).
4

customers,

and

hired

business

fulfilling his responsibilities.

students

to

assist

(Id. at 2-3).

him

in

Plaintiff took

a month-long vacation to Italy from July 25 to August 25, 2011.
He wrote in an e-mail to Mr. Bowen on July 11, “I do not ask for
any comp for the month of August, even though I’ll be in regular
contact.”

(ECF No. 92-9).

According to Group 2, Plaintiff’s

Italy trip constituted roughly five missed weeks of work.

(ECF

No. 87-1, at 13).
On

April

24,

2012,

Mr.

Bowen

sent

Plaintiff

a

letter

terminating the consulting contract:
Pursuant to the terms of the consulting
agreement dated June 2, 2011, Group 2
Software LLC, is hereby terminating the
consulting agreement effective May 24, 2012
(“Termination Date”).
Thus, as of May 24, 2012, [Plaintiff’s]
position with Group 2 is terminated and
absent a new agreement, [Plaintiff] may not
act for Group 2.
The above being said,
Group
2
would
have
an
interest
in
negotiating a new consulting agreement with
you, if that is of interest to you.
(ECF No. 92-8).

Plaintiff received $47,333.00 in compensation

while working for Group 2 over the course of 56 weeks.
the

consulting

$1,000.00

per

contract
week,

called

plus

an

for
equal

Because

Plaintiff

to

be

paid

amount

in

deferred

compensation, Plaintiff asserts that he is owed the difference

5

of $8,667.00.2

Furthermore, Plaintiff alleges that Group 2 did

not record the deferred compensation as a liability, and that
Plaintiff is entitled to a 15% ownership interest in Group 2.
After Group 2 terminated the consulting relationship, Plaintiff
applied for and received unemployment benefits.

On September 6,

2012, the Maryland Department of Labor, Licensing and Regulation
(“MDLLR”)

determined

unemployment benefits.
B.

that

Plaintiff

was

eligible

for

(ECF No. 92-14).

Procedural History

Plaintiff filed his original complaint in the Circuit Court
for Prince George’s County asserting claims against Group 2 and
Mr. Bowen.

On February 4, 2013, Defendants removed this case to

the United States District Court for the District of Maryland on
the basis of diversity jurisdiction.

(ECF No. 1).

Shortly

thereafter, Group 2 filed a counterclaim (ECF No. 20), which
Plaintiff answered (ECF No. 21).

On December 23, 2013, Group 2

moved for a preliminary injunction (ECF No. 33), and Mr. Bowen
moved to dismiss Plaintiff’s claims.
2

A hearing was held on

Plaintiff provides some evidence of payment from Group 2
during the contractual relationship.
Checks indicate that he
was paid for work completed in May and June 2011 on July 13,
2011.
(ECF No. 92-13, at 1).
Plaintiff was paid for his
services rendered in July and September on October 3, 2011.
(Id. at 4).
Group 2 paid Plaintiff for October 2011 and the
first week of November on November 7, 2011.
(Id. at 5).
Plaintiff attaches two additional checks from Group 2, but it is
unclear to what weeks or months of work the payments correspond.
(See id. at 6-7).
6

February

12,

2014,

at

which

the

motion

for

a

preliminary

injunction was denied and the motion to dismiss was deferred.
(ECF No. 38).

Also on February 12, a scheduling order was

entered.

No.

(ECF

39).

Plaintiff

then

filed

an

amended

complaint (ECF No. 41), and Defendants answered (ECF No. 42).
Group 2 did not reassert the counterclaim.

Plaintiff’s motion

for leave to file a second amended complaint was granted on June
24, 2014.

(ECF No. 57).

Deven as a party.

The second amended complaint added

In granting leave, however, the court noted

that “the intracorporate conspiracy doctrine bars Plaintiff’s
claim [in Count IX] and his motion to amend to add this claim
will be denied.”
stricken.
counterclaim.

(ECF No. 57, at 4).

Again,

Defendants’

Accordingly, Count IX was

answer

did

not

reassert

any

(ECF No. 64).3

3

The Federal Rules of Civil Procedure do not plainly
resolve the question whether the failure to reassert a
counterclaim in an answer to an amended complaint constitutes
abandonment of a previously asserted counterclaim.
Although
some courts have held that failure to reassert counterclaims in
response
to
an
amended
complaint
does
not
waive
the
counterclaims or otherwise affect their viability, others have
reached the opposite conclusion. Ground Zero Museum Workshop v.
Wilson, 813 F.Supp.2d 678, 705-06 (D.Md. 2011) (collecting
cases). The analysis in Ground Zero turned on whether, “despite
[the defendant’s] failure to reassert the counterclaims when
answering [the plaintiffs’] first and second amended complaints,
[he] has otherwise manifested his intent to pursue the
counterclaims throughout the case history.” Id. at 706. Here,
it is possible that Group 2 failed to prosecute and thereby
abandoned its counterclaim. See Davis v. White, 794 F.3d 1008,
1016 (8th Cir. 2015) (finding no abuse of discretion when “the
7

The second amended complaint asserts the following claims:
breach

of

contract

against

Group

2

requesting

unpaid

wages,

deferred compensation, and a 15% ownership interest in Group 2
(Count I); breach of contract against Mr. Bowen requesting a 15%
ownership interest in Group 2 (Count II); breach of the Maryland
Wage Payment and Collection Act (“MWPCA”), Md. Code Ann., Lab. &
Emp.

§

3-505,

accounting

against

(Count

Group

performance

(Count

contractual

relations

Mr.

Bowen

unjust

IV);

2

enrichment

(Count

VI);

and

intentional

against

Mr.

Bowen

(Count
V);

specific

interference
(Count

III);

VII);

with
and

fraudulent conveyance (Count VIII).4
Group 2 moved for summary judgment on counts I, III, IV, V,
and VI, to which Plaintiff responded and filed a cross-motion
for partial summary judgment, seeking, inter alia, a judgment
for $64,667.00 in wages.
fully briefed.

(ECF Nos. 87; 92).

(ECF Nos. 99; 103).

The motions are

Deven moved for summary

district court adopted an equitable approach in determining
whether
[the
defendant’s]
counterclaim
should
be
deemed
abandoned, concluding that [the plaintiff] had lengthy notice
[the defendant] was pursuing the counterclaim, undertook
discovery on the counterclaim, and therefore would not be
prejudiced”).
Group 2 will be directed to inform the court
whether it contends that the counterclaim remains viable.
4

Count IX of the second amended complaint was stricken by
the
court’s
prior
opinion,
which
determined
that
“the
intracorporate conspiracy doctrine bars Plaintiff’s claim [in
Count IX]” and thus denied his motion to amend to add the claim.
(ECF No. 57, at 4).
Accordingly, there is no civil conspiracy
claim pending against Defendants.
8

judgment on Count VIII (ECF No. 88), Plaintiff responded and
withdrew

Count

VIII

against

replied (ECF No. 97).

Deven

(ECF

No.

94),

and

Deven

Mr. Bowen also moved for summary judgment

on Counts II, III, V, VI, and VII.

(ECF No. 89).

Plaintiff

responded and filed a cross-motion for partial summary judgment
(ECF No. 93), Mr. Bowen replied and responded (ECF No. 98), and
Plaintiff replied (ECF No. 104).
II.

Cross-Motions for Summary Judgment
A.

Standard of Review

A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”

Liberty

Lobby, 477 U.S. at 250; JKC Holding Co. LLC v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
The moving party bears the burden of showing that there is
no genuine dispute as to any material fact.

However, no genuine

dispute of material fact exists if the nonmoving party fails to
make a sufficient showing on an essential element of his or her
case as to which he or she would have the burden of proof.
9

Celotex, 477 U.S. at 322–23.

Therefore, on those issues on

which the nonmoving party has the burden of proof, it is his or
her responsibility to confront the summary judgment motion with
an “affidavit or other evidentiary showing” demonstrating that
there is a genuine issue for trial.

See Ross v. Early, 899

F.Supp.2d 415, 420 (D.Md. 2012), aff’d, 746 F.3d 546 (4th Cir.
2014).

“A mere scintilla of proof . . . will not suffice to

prevent summary judgment.”
(4th Cir. 2003).
significantly

Peters v. Jenney, 327 F.3d 307, 314

“If the evidence is merely colorable, or is not

probative,

summary

judgment

may

be

Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
pro

se

litigants

are

to

be

standards apply to everyone.

given

some

latitude,

granted.”
Although
the

above

Thus, as courts have recognized

repeatedly, even a pro se party may not avoid summary judgment
by relying on bald assertions and speculative arguments.

See

Smith v. Vilsack, 832 F.Supp.2d 573, 580 (D.Md. 2011) (citing
cases).
“When

cross-motions

for

summary

judgment

are

before

a

court, the court examines each motion separately, employing the
familiar standard under Rule 56 of the Federal Rules of Civil
Procedure.”

Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d

351, 354 (4th Cir. 2011).

The court must deny both motions if it

finds there is a genuine dispute of material fact, “[b]ut if
there is no genuine issue and one or the other party is entitled
10

to prevail as a matter of law, the court will render judgment.”
10A Charles A. Wright, et al., Federal Practice & Procedure §
2720 (3d ed. 1998).
B.

Analysis5

1.

Breach of Contract Claim Against Group 2 (Count I)

Plaintiff

seeks

$64,667.00

from

Group

2:

$8,667.00

unpaid wages and $56,000.00 in deferred compensation.

for

Plaintiff

also requests that the court award him a 15% ownership interest
in Group 2, or fair market value of such an equity stake.
a.

Plaintiff’s Claim for Unpaid Wages

Plaintiff seeks $8,667.00 in unpaid compensation based on
work

completed

before

Group

2

5

terminated

the

consulting

All of Plaintiff’s causes of action in the second amended
complaint arise under Maryland state law.
A federal court
sitting in diversity must apply the law of the state in which
the court is located, including the forum state’s choice of law
rules. Colgan Air, Inc. v. Raytheon Aircraft Co., 507 F.3d 270,
275 (4th Cir. 2007). For contract claims, Maryland courts follow
the rule of lex loci contractus, applying the substantive law of
the state where the contract was formed, unless there is a
choice-of-law provision in the contract. Am. Motorists Ins. Co.
v. ARTRA Group, Inc., 338 Md. 560, 573 (1995). For tort claims,
Maryland applies the principle of lex loci delicti, or the law
of the “place of the alleged harm.”
Proctor v. Washington
Metropolitan Area Transit Auth., 412 Md. 691, 726 (2010). “Lex
loci delicti dictates that when an accident occurs in another
state[, the] substantive rights of the parties, even though they
are domiciled in Maryland, are to be determined by the law of
the state in which the alleged tort took place.” Philip Morris
Inc. v. Angeletti, 358 Md. 689, 745 (2000) (citation and
internal quotation marks omitted).
Here, because both parties
rely exclusively on Maryland law as the substantive law
governing Plaintiff’s claims, Maryland law will be applied.
11

relationship.

(ECF

No.

58

¶

14).

Under

Maryland

law,

to

establish breach of contract, a plaintiff must prove that the
defendant owed the plaintiff a contractual obligation and that
the

defendant

materially

breached

that

obligation.

RRC

Northeast, LLC v. BAA Maryland, Inc., 413 Md. 638, 658 (2010).
The thrust of Plaintiff’s argument is that he worked for Group 2
through May 24, 2012 - when the contractual relationship was
terminated - and is owed compensation for all of his consulting
work, including that which occurred beyond the initial 52-week
period for which a particular payment is specified.
Plaintiff

asserts

that

he

worked

for

56

weeks

In short,
but

was

compensated for only 47 1/3 weeks, and that Group 2 breached by
not paying him in full.

Group 2 challenges whether it was

obligated to pay additional compensation.
Both the May 1 and June 2 Agreements provide that on, or as
of, May 1, 2011, Plaintiff became “a consultant to Group 2,
assuming the role of CEO.”

(ECF Nos. 92-5 ¶ 1; 92-7 ¶ 1).

also provide that as of or commencing on:
May 1, 2011, and for 52 consecutive weeks
thereafter, [Plaintiff’s] compensation will
be $2,000 per week.
Unless agreed to
otherwise by the Parties, [Plaintiff] will
be paid $1,000 per week with the difference
of $1,000 to be deferred and recognized as
an obligation of Group 2 until paid by Group
2.

12

Both

(ECF

Nos.

92-5

¶

2;

92-7

¶

2).

The

consulting

contract

established Plaintiff’s compensation for the first 52 weeks and
provided that the parties would negotiate in good faith on the
one

year

anniversary

date

regarding

Plaintiff’s

relationship with Group 2 and compensation.
92-7 ¶ 5).

business

(ECF Nos. 92-5 ¶ 5;

Furthermore, the arrangement had no specified end

date, and either party was permitted to terminate upon 30 days’
notice.

(ECF Nos. 92-5 ¶ 10; 92-7 ¶ 10).

In Maryland, under

these circumstances, the relationship is “at will.”

See Spriggs

v. Diamond Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999) (“In
Maryland,

at-will

employment

is

a

contract

of

indefinite

duration that can be terminated at the pleasure of either party
at any time.”); Porterfield v. Mascari II, Inc., 374 Md. 402,
422 (2003) (“[A]n employment contract is of indefinite duration,
unless otherwise specified.”).

Even if the payment term of 52

weeks expired, the “continuance of employment can be evidence of
an

implied

agreement

to

the

terms

of

that

employment.”

Kropfelder v. Snap-On Tools Corp., 859 F.Supp. 952, 954 (D.Md.
1994) (quoting Bodie v. City of Columbia, 934 F.2d 561, 564 (4th
Cir. 1991)).
Plaintiff and Group 2 appear to agree that Plaintiff was
paid $47,333.00 between May 1, 2011, and May 24, 2012.

The

parties dispute, however, whether this was adequate compensation
for Plaintiff’s work during that period.
13

As will be discussed

later, they disagree over the meaning of the contract terms.
See infra Part II.B.1.c.
contractual

Plaintiff and Group 2 contest when the

relationship

began

and

whether

Plaintiff

can

demonstrate entitlement to all of the unpaid wages he claims.
Plaintiff presents some evidence that, if the relationship began
on May 1, Group 2 did not compensate him in full for the period
during

which

he

performed

consulting

work

and

thus

owes

Plaintiff some money, either for work performed in August 2011
when he was in Italy, and/or for the weeks between May 1, 2012,
and May 24, 2012.

If the relationship began in June, as Group 2

contends, perhaps Plaintiff has been fully compensated.
parties

dispute

whether

Plaintiff

waived

one

month

The
of

compensation during his vacation in the July and August 2011.
(ECF

Nos.

Plaintiff’s

87-1,

at

13,

entitlement

19;
to

92,

at

6).

compensation

Beyond
during

challenging

his

vacation,

however, Group 2 fails directly to address Plaintiff’s claim.6
As

a

result,

there

exists

a

dispute

of

fact

regarding

what

amount of compensation – separate from Plaintiff’s claims for
6

Group 2 appears to argue generally that Plaintiff failed
to perform his contractual duties and, accordingly, is not
entitled to compensation.
(ECF No. 87-1, at 19 (“[Plaintiff]
did not work 52 consecutive weeks to qualify for deferred
compensation.”)).
Group 2, however, advances this argument in
response to Plaintiff’s claim for deferred compensation and
makes no such argument concerning Plaintiff’s claim for unpaid
wages.
Moreover, the consulting contract provides only that
Plaintiff will be paid for 52 consecutive weeks; no provision
requires that Plaintiff work consecutively for 52 weeks.
14

deferred

compensation

and

an

ownership

interest

–

remains

unpaid, and whether Group 2 was under a contractual obligation
to pay Plaintiff.

Accordingly, the cross-motions for summary

judgment on Plaintiff’s claim for unpaid wages against Group 2
will be denied.
b.

Plaintiff’s Claim for Deferred Compensation

According

to

Plaintiff,

Group

2

breached

the

consulting

contract by failing to pay him deferred compensation in the
amount of $56,000.00.

(ECF No. 58 ¶ 14).

Under the consulting

contract:
The deferred compensation shall be paid to
[Plaintiff]
upon
the
earliest
of
the
following to occur: (i) Group 2 raises
$300,000 in outside investment and/or debt
capital (excluding any investment by [Mr.
Bowen]), or (ii) Group 2’s cumulative gross
revenues exceed $1,000,000, or (iii) a
change in control occurs whereby another
party (or parties) owns 50% or more of the
equity in Group 2, or (iv) the Parties agree
to pay [Plaintiff] the outstanding balance
of
the
amount
of
the
liability
to
[Plaintiff].
(ECF Nos. 92-5 ¶ 2; 92-7 ¶ 2).

Group 2 argues that none of the

conditions precedent has occurred, and it is under no duty to
pay the deferred compensation.
When

a

contractual

(ECF No. 87-1, at 19).

duty

is

subject

to

a

condition

precedent, there is no duty of performance until the condition
precedent has occurred or been performed.

Chirichella v. Erwin,

270 Md. 178, 181 (1973) (citing Griffith v. Scheungrab, 219 Md.
15

27, 34–35 (1958)); see 13 Williston on Contracts § 38:1 (4th ed.
2012)

(“A

condition

precedent

is

a

fact

or

event

which

the

parties intend must exist or take place before there is a right
to performance.”).
condition

the

“Whether a provision in a contract is a

nonfulfillment

of

which

excuses

performance

depends upon the intent of the parties, to be ascertained from a
fair and reasonable construction of the language used in []
light of all the surrounding circumstances when they executed
the

contract.”

13

Williston

on

Contracts

§

38:1;

see

Chirichella, 270 Md. at 182.

Here, the consulting contract

conditions

compensation

payment

of

deferred

on:

(1)

Group

2

raising $300,000.00 in outside investment and/or debt capital
(excluding any investment by Mr. Bowen); (2) Group 2 exceeding
$1,000,000.00

in

cumulative

gross

revenues;

(3)

a

change

in

control occurs whereby another party (or parties) owns at least
50%

of

the

equity

in

Group

2;

or

(4)

an

Plaintiff remaining deferred compensation.

agreement

to

pay

(ECF Nos. 92-5 ¶ 2;

92-7 ¶ 2).
To date, Plaintiff has not produced any evidence that one
of

the

conditions

precedent

compensation has occurred.

entitling

him

to

deferred

He argues that, “[d]ue to [Group

2’s] refusal to provide an accounting, . . . [he] is not in a
position to show that these triggering events have taken place.”
(ECF No. 92, at 9).

According to Plaintiff, “a full accounting
16

of Group 2 will show that Group 2 has raised at least $300,000
in

outside

revenues

investment,

have

exceeded

or

that

Group

$1,000,000.”

2’s

cumulative

(Id.).7

The

gross

discovery

process has concluded, however, and Plaintiff cannot withstand
summary

judgment

conclusions.

review

without

more

than

belief

or

mere

There is no evidence of Group 2’s financing or

gross revenues.

Neither does Plaintiff provide evidence that

Group 2’s ownership has undergone a change.

Finally, there is

no evidence that the parties have agreed to pay Plaintiff the
outstanding balance of the deferred compensation, which remains
a liability for Group 2.

Accordingly, Plaintiff’s claim for

deferred compensation fails as a matter of law, and Group 2 is
entitled to summary judgment.

7

Relatedly, Plaintiff argues that Group 2 “transferred its
entire business – namely the EMA software – to” Deven. (ECF No.
92, at 9). Conceding that “Deven does not hold itself out as a
successor to Group 2,” Plaintiff nevertheless contends that
“Deven either owns a 50% or greater interest in Group 2, . . .
or Deven’s books will show cumulative gross revenues of over
$1,000,000.” (Id. at 12). As a threshold matter, Plaintiff did
not include a breach of contract claim against Deven in the
second amended complaint on the basis of successor liability.
See Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 455
F.Supp.2d 399, 435 (D.Md. 2006) (“A plaintiff may not amend its
complaint through arguments at the summary judgment stage.”).
Moreover, Plaintiff lacks evidentiary support and cannot
substantiate his claim.
17

c.

Plaintiff’s Claim for a 15% Ownership Interest

The consulting contract provides:
Upon the one year anniversary of this
Agreement if [Plaintiff] is still acting in
a consulting capacity, or as an employee of
Group 2, or earlier if either event occurs:
(i) a change in control occurs whereby
another party (or parties) owns 50% or more
of the equity in Group 2, or (ii) the
Parties agree to award [Plaintiff] a noncontingent membership interest in Group 2
which
shall
represent
a
15%
ownership
interest in Group 2, subject to [Plaintiff]
executing an operating agreement or joinder
to an operating agreement with Group 2.
(ECF Nos. 92-5 ¶ 3; 92-7 ¶ 3).

Unfortunately, this provision is

unintelligible; something apparently was left out.
Plaintiff argues that, although the provision is unclear,
“[a]t the time that Plaintiff signed the [May 1 Agreement], it
was explained to him that this paragraph meant that if he still
worked for Group 2 one year after signing the [May 1 Agreement],
he would receive a 15% equity interest in Group 2.”
92, at 13; see ECF No. 92-6 ¶ 1).

(ECF No.

Plaintiff points to e-mail

correspondence with Mr. Rogers in April 2011 as evidence that
Group 2 intended to convey a 15% ownership interest after one
year.

The e-mail from Mr. Rogers, however, reads: “If your only

change is that you wish to get paid if Group 2 is sold during
the first 12 months, then we’ll revise the Agreement to provide
that you get your deferred comp and 15% interest.”
4, at 1).

(ECF No. 92-

Based on the foregoing, Plaintiff concludes, “Despite
18

the unclear and ambiguous language in paragraph 3 of the [May 1
Agreement], both parties intended to convey a 15% interest in
Group 2 to Plaintiff upon the one year [anniversary].”

(ECF No.

92, at 13).
Group 2 first contends that “there is no affirmative duty
of Group 2 to transfer a 15[%] ownership interest to Plaintiff
upon the one year anniversary of the consulting agreement.
simply does not say that.

. . .

statement’ without the ‘then.’”

It

[T]he contract has an ‘if/then
(ECF No. 87-1, at 21).

Second,

Group 2 disputes whether the May 1 Agreement controls, asserting
instead that “‘the one year anniversary of this Agreement’ runs
from the date of the [June 2 Agreement].”

(Id.).

In support of

its contention, Group 2 argues that “the final executed version
of the consulting agreement, which was dated June 2, 2011, was a
novation of the [May 1 Agreement].”
a

distinction

between

the

(Id. at 22).

effective

date

of

Group 2 draws
the

consulting

relationship – May 1, 2011 – and what should be considered to be
the

one

year

anniversary

of

the

contract.

(Id.

at

22-23).

According to Group 2, it terminated the contractual relationship
with Plaintiff on May 24, 2012 pursuant to the 30-day notice
provision and prior to the one year anniversary of the June 2
Agreement.
conclusory

Moreover, and in the alternative, Group 2 argues in
fashion

that

Plaintiff

19

is

not

entitled

to

a

15%

ownership interest because he failed to meet certain benchmarks
established by the consulting contract.
i.

(Id. at 23).

Novation

A novation is a new contractual relation made with the
intent to extinguish an existing contract.

I. W. Berman Props.

v. Porter Bros., Inc., 276 Md. 1, 7 (1975).

To constitute a

novation, the party asserting it must demonstrate four elements:
“(1) [a] previous valid obligation; (2) the agreement of all the
parties

to

the

new

contract;

(3)

the

validity

of

such

new

contract; and (4) the extinguishment of the old contract by the
substitution of the new one.”

Id.

Essentially, “there must be

(evidence of) an agreement among the parties to extinguish the
old obligation(s) and substitute a new one for it.”
(citations omitted).
asserting

it

must

Id. at 7-8

“A novation is never presumed; the party
establish

clearly

and

satisfactorily

that

there was an intention, concurred in by all the parties, that
the existing obligation be discharged by the new obligation.”
Id. at 8 (citation omitted).

When, as here, there is no express

agreement to a novation, the requisite intent can be inferred
from the facts and circumstances surrounding the transaction, as
well as the subsequent conduct by the parties, “but such facts
and circumstances, when shown, must be such to establish that
the

intention

to

work

(citations omitted).

a

novation

is

clearly

implied.”

Id.

Confronted with conflicting evidence, “the
20

issue of whether or not there was a novation is one of fact for
the jury, or the court sitting as a jury.”

Id. at 9 (citations

omitted).
Here, the June 2 Agreement was signed by both parties, and
Group

2

contends

that

the

“[June

2

Agreement]

did

intended to replace the [May 1 Agreement] entirely.”
87-2 ¶ 7 (emphasis added)).

and

was

(ECF No.

Plaintiff asserts, to the contrary,

that he executed the June 2 Agreement upon being summoned to Mr.
Rogers’ office for the purpose of “sign[ing] a copy of the [May
1

Agreement]

for

Mr.

Rogers’

files.”

(ECF

No.

92-6

¶

2).

According to Plaintiff, “The [June 2 Agreement] was not meant to
be a novation, and no discussion of a novation took place.”
(Id. ¶ 3).

Plaintiff attested, “When I asked Mr. Rogers about

the new date on the contract, he explained to me that his word
processing settings required that everything printed was printed
with the current date at the top of the first page.”

(Id. ¶ 4).

There is no explicit language in the June 2 Agreement stating
that it supersedes the May 1 Agreement.

See Aggarao v. Mitsui

O.S.K. Lines, Ltd., 741 F.Supp.2d 733, 739 (D.Md. 2010), aff’d
in part, vacated in part, remanded sub nom. Aggarao v. MOL Ship
Mgmt. Co., 675 F.3d 355 (4th Cir. 2012).

The undisputed evidence

is that the parties signed a new contract on June 2 containing
minor edits, including a new date in the heading and on the

21

signature page.8

The parties dispute, however, whether there was

intent to create a novation.

On the current record, a dispute

of fact exists, and it is unclear whether Group 2 can produce
evidence of intent sufficient to show that the June 2 Agreement
constitutes a novation of the May 1 Agreement.
ii.

Ambiguity and Incomplete Provision

Maryland
contracts.
Md.

435,

courts

an

objective

of

(2008)
contract

(citation

omitted).

interpretation

is

effectuate the intention of the parties.”
Indem.

interpretation

of

Nova Research, Inc. v. Penske Truck Leasing Co., 405
448

principal

apply

Co.

v.

Md.App.

217,

language

of

Scarlett
290

the

Harbor

Assocs.

(1996),

aff’d,

346

contract

itself

is

determining the parties’ intentions.
249 Md. 678, 688-89 (1968).

“A
to

ascertain

and

Hartford Accident &

Ltd.
Md.

the

fundamental

Partnership,

122

(1997).

primary

source

109
The
for

Shillman v. Hobstetter,

Under Maryland law, “interpretation

of a contract, including the determination of whether a contract
is ambiguous, is a question of law.”

Sy–Lene of Wash., Inc. v.

Starwood Urban Retail II, LLC, 376 Md. 157, 163 (2003).

“A

contract is ambiguous if, when read by a reasonably prudent
person,

it

is

susceptible

of

more

8

than

one

meaning.”

Nova

Although the June 2 Agreement provides that the contract
“commences on the date set forth below,” the precise date is
left blank. (ECF No. 92-7 ¶ 10).
22

Research, Inc., 405 Md. at 448.

In dealing with an ambiguity,

courts may “consider any extrinsic evidence which sheds light on
the intentions of the parties at the time of the execution of
the

contract.”

Cty.

Commissioners

of

Charles

Cty.

Charles Assocs. Ltd. P’ship, 366 Md. 426, 445 (2001).
examining

extrinsic

evidence,

there

remain

genuine

v.

St.

If, after
issues

of

material fact regarding the contract’s interpretation, summary
judgment should be denied, and resolution of these issues should
be left to the trier of fact.

Wash. Metro., 476 F.3d at 235

(citing Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126 (4th
Cir. 1993)).
Here, there are two interpretation problems: (1) what is
meant by “one year anniversary of this Agreement”; and (2) what
paragraph 3 was meant to provide.

It appears that Plaintiff

believes the anniversary is May 1, and Group 2 contends it is
June

2.

Under

both

the

May

1

and

June

2

Agreements,

the

parties’ contractual relationship apparently began May 1, 2011.
(ECF Nos. 92-5 ¶ 1; 92-7 ¶ 1).

The parties signed the May 1

Agreement on or about May 19, 2011.
2).

(ECF Nos. 58 ¶ 6; 92, at

And on June 2, 2011, Plaintiff signed the June 2 Agreement.

(ECF Nos. 58 ¶ 7; 92, at 3).

Paragraph 10 provides that the

contract “commences on the date set forth below” (ECF Nos. 92-5
¶ 10; 92-7 ¶ 10), but confusion persists because the signature
date to which paragraph 10 refers differs in the two versions of
23

the contract.

The May 1 Agreement was “understood and agreed to

as of May 1, 2011.”

(ECF No. 92-5, at 3).

The June 2 Agreement

provides that the contract was “understood and agreed to as of
June __, 2011,” leaving the precise date blank.
at

3).

Neither

anniversary,”

and

ambiguous term.

version

of

extrinsic

the

contract

evidence

(ECF No. 92-7,

defines

does

not

“one

year

clarify

the

The anniversary could refer plausibly to the

date on which Plaintiff began receiving compensation, the date
on which the May 1 Agreement was signed, or the date on which
the

June

2

Agreement

was

signed.

The

ambiguity

materially

affects whether Plaintiff – should he be able to show that the
parties

intended

to

transfer

equity

upon

the

one

year

anniversary – is entitled to a 15% ownership interest in Group
2.
Furthermore, paragraph 3 - the contract provision at issue
–

is

not

merely

ambiguous;

due

to

a

missing

term,

unintelligible.
[W]hile
there
are
few
rules
of
interpretation more firmly established or
universally accepted than that courts may
not rewrite the contract of the parties,
there are equally few courts that will give
the words of a contract their literal
meaning if it appears from the surrounding
circumstances that a literal construction or
interpretation will defeat or frustrate the
intentions of the parties.

24

it

is

11 Williston on Contracts § 31:7 (4th ed. 2012).

Here, the

court

it

cannot

interpret

indecipherable

paragraph

provision

3

obviously

literally,
missing

a

as

key

is

an

clause.

According to Plaintiff, “[b]y still working for Group 2 on the
one

year

anniversary

of

the

[May

1

Agreement],

Plaintiff

satisfied the one contractual requirement necessary for him to
receive his 15% interest in Group 2.”

(ECF No. 92, at 14).

Group 2 concedes that “[t]here appears to be something missing
at the end of the paragraph, but it essentially lays out [three]
conditions, including if Plaintiff is a consultant or employee
upon the one year anniversary of the agreement.”
at 21).

(ECF No. 87-1,

Group 2 argues that the contract provision “simply does

not say that” Plaintiff is entitled to a 15% ownership interest
upon the one year anniversary.

(Id.).

Extrinsic evidence in the current record does not solve the
problem.

Plaintiff asserts that, “[a]t the time that Plaintiff

signed the [May 1 Agreement], it was explained to him that this
paragraph meant that if he still worked for Group 2 one year
after signing the [May 1 Agreement], he would receive a 15%
equity interest in Group 2.”
92-6 ¶ 1).

(ECF No. 92, at 13; see ECF No.

Plaintiff’s e-mail correspondence with Mr. Rogers

from April 2011 does not conclusively demonstrate agreement on
that point.

Rather, Mr. Rogers wrote: “If your only change is

that you wish to get paid if Group 2 is sold during the first 12
25

months, then we’ll revise the Agreement to provide that you get
your deferred comp and 15% interest.”

(ECF No. 92-4, at 1).

Plaintiff produces no other evidence that the parties intended
to

convey

a

15%

ownership

interest

contract’s one year anniversary.

in

Group

2

upon

the

Furthermore, according to Mr.

Bowen, “benchmarks detailed in the consulting agreement, namely
$300,000 in outside investment or debt capital, $1,000,000 in
cumulative gross revenues, and positive cash flow and growth,
were conditions precedent to Plaintiff receiving the deferred
compensation and the possible 15% membership interest in Group
2.”

(ECF

No.

87-2

¶

21).

Mr.

Bowen

continued,

“[T]he

consulting agreement actually provided [that] [the parties] had
to reach an agreement on whether Plaintiff would receive a 15%
ownership

interest

certainly

does

in

not

portion entailed.

Group

establish

2.”

(Id.

¶

22).

conclusively

what

The
the

record
missing

The cross-motions for summary judgment on

Count I as to the 15% ownership interest will be denied.
2.

Breach of Contract Claim Against Mr. Bowen (Count II)

Plaintiff asserts a claim for breach of contract against
Mr.

Bowen

in

Count

II

of

the

second

amended

complaint.

Plaintiff alleges that, “at all relevant times, [Mr. Bowen] was
the sole owner and sole member of [Group 2].

[Mr. Bowen] agreed

to compensate Plaintiff for his work with [Group 2] with 15%
ownership interest in [Group 2].”
26

(ECF No. 58 ¶ 20).

According

to Plaintiff, “after [Mr. Bowen’s] refusal to grant Plaintiff
his 15% ownership interest in [Group 2], [Mr. Bowen] transferred
substantially all of the assets of [Group 2] to a successor
company for no consideration in an attempt to prevent Plaintiff
from

receiving”

the

equity

stake.

(Id.

¶

22).

Plaintiff

requests that the court award him a 15% ownership interest in
Group 2, or fair market value of the same.
As

noted

above,

to

establish

breach

of

contract,

a

plaintiff must prove that the defendant owed the plaintiff a
contractual

obligation

and

breached that obligation.

that

the

defendant

materially

RRC Northeast, 413 Md. at 658.

It

follows, then, that generally “a person cannot be held liable
under a contract to which he was not a party.”
Zumot,

533

F.Supp.2d

Bros.,

Inc.

v.

554,

Heft,

564

271

(D.Md.

Md.

409,

Mowbray v.

2008)

(quoting

Snider

414

(1974));

accord

Residential Warranty Corp. v. Bancroft Homes Greenspring Valley,
Inc., 126 Md.App. 294, 316 (1999).
that

Mr.

Bowen

was

a

party

to

Although Plaintiff contends
the

contract

and

under

a

contractual obligation to transfer a 15% ownership interest, the
plain language of the contract says otherwise.

Plaintiff and

Group 2 are the only parties to both the May 1 and June 2
Agreements.
the

terms

(See ECF Nos. 92-5, at 1; 92-7, at 1 (establishing
of

a

consulting

agreement

“between

Jerry

Fenzel

(‘Fenzel’) and Group 2 Software, LLC (‘Group 2,’ and together
27

with Fenzel the ‘Parties’)”)).
contract

are

made

by

Group

The only promises found in the
2

to

Plaintiff.

Other

than

Plaintiff, the only signatory is Mr. Bowen as “sole member” of
Group 2.

Even though Mr. Bowen signed the contract on behalf of

Group 2, he is not a party to it.

“It is now well-established

that if an agent fully discloses the identity of his principal
to a third party, then, absent agreement to the contrary, he is
insulated from liability.”
(citation

and

quotation

Mowbray, 533 F.Supp.2d at 564 n.12
marks

omitted);

accord

Testerman Co. v. Buck, 340 Md. 569, 653 (1995).

Curtis

G.

Accordingly,

only Group 2 could be liable to Plaintiff for a breach of the
contract, and summary judgment will be entered against Plaintiff
and in favor of Mr. Bowen on Count II.
3.

Violation of the MWPCL (Count III)

In Count III, Plaintiff argues that Group 2 and Mr. Bowen
have failed to pay back wages in violation of the MWPCL.
No. 58 ¶¶ 24-28).

(ECF

The parties do not dispute that Plaintiff was

paid $47,333.00 for work during the period from May 1, 2011 to
May 24, 2012.

According to Plaintiff, Group 2 and Mr. Bowen

“deliberately failed to pay Plaintiff his wages, including his
deferred compensation, without valid reason.

The amounts owed

to

plus

Plaintiff

from

deferred

wages.”

maintain

a

claim

[Group
(Id.
under

2]
¶

include

27).

the

MWPCL
28

$8,667

Plaintiff
for

$56,000

cannot,

deferred

in

however,

compensation

because, as explained above, he has not demonstrated that any
one

of

the

conditions

precedent

entitling

compensation has occurred to date.

him

to

deferred

He may, as discussed above,

be entitled to some compensation for work up to $8,677.00.
a.

MWPCL Claim Against Group 2

The

MWPCL

requires

that

employers

employees upon termination of employment.
Emp.,

§

3–505.

An

employer

is

“any

pay

accrued

to

Md. Code Ann., Lab. &
person

who

employs

individual in the State or a successor of the person.”
501(b).

wages

an

Id. § 3–

A wage is “all compensation that is due to an employee

for employment.”

Id. § 3–501(c)(1).

If “a court finds that an

employer withheld the wages of an employee in violation of [the
MWPCL] and not as a result of a bona fide dispute, the court may
award the employee an amount not exceeding 3 times the wage, and
reasonable counsel fees and other costs.”

Id. § 3–507(b)(1).

Notably, the [MWPCL] does not define
“employee.”
But, in [Baltimore Harbor
Charters, Ltd. v. Ayd], the Maryland Court
of Appeals made clear that the [MWPCL’s]
provisions
extend
to
executive
and
professional employees. 365 Md. 366, 384–85
(2001).
The court stated: “Thus, if the
General Assembly had intended to exclude
administrative, executive and professional
employees from the provisions of §§ 3–505
and
3–507.1,
or
otherwise
limit
the
application of these provisions to that
class of employees, it would have expressly
done so.”
Id. at 385.
The court reasoned
that the use of the word “employee” in the
statute was meant to distinguish between

29

independent contractors and servants of the
employer. Id. at 387.
An “employee” within the purview of the
[MWPCL] is one who would be considered an
agent
or
employee,
as
opposed
to
an
independent contractor, at common law. Id.
Horlick v. Capital Women’s Care, LLC, 896 F.Supp.2d 378, 388
(D.Md. 2011).
Several
individual

factors

is

an

are

relevant

“employee”

under

in
the

considering
MWPCL,

whether

including:

an
(1)

whether the employer actually exercised or had the right to
exercise control over the performance of the individual’s work;
(2) whether the individual’s service is either outside all the
usual

course

of

business

of

the

enterprise

for

which

such

service is performed; (3) whether the individual is customarily
engaged

in

an

independently

established

trade,

occupation,

profession, or business; (4) whether it is the employer or the
employee who supplies the instrumentalities, tools, and location
for

the

work

to

be

performed;

(5)

whether

the

individual

receives wages directly from the employer or from a third party
for work performed on the employer’s behalf; and (6) whether the
individual held an ownership interest in the business such that
the individual had the ability and discretion to affect the
general policies and procedures of the business.

Id. at 388

(citing Ayd, 365 Md. at 392; Dunn v. Eastern Petroleum, No. JKB–
09–2851, 2011 WL 310400, at *5–6 (D.Md. Jan. 26, 2011)).

30

Under the MWPCL, wages are defined as “all compensation
that is due to an employee for employment,” including bonuses,
commissions,

fringe

benefits,

promised for service.”
Wages

must

performed.

be

payment

and

“any

other

remuneration

Md. Code Ann., Lab. & Emp., § 3–501(c).
due

for

work

the

employee

actually

See Provident Bank of Maryland v. McCarthy, 383

F.Supp.2d 858, 861 (D.Md. 2005).

“Even if an employer is found

liable

is

for

wages,

the

employer

not

liable

for

statutory

treble damages, attorneys’ fees, or costs under the [MWPCL], if
there [was] a bona fide dispute about the payment.”

Horlick,

896 F.Supp.2d at 389 (citing Ayd, 365 Md. at 396; Md. Code Ann.,
Lab. & Emp., § 3–507(b)(1)).9

If unclear, the “existence of a

bona fide dispute under § 3–507 is a question of fact left for
resolution by the jury, not the trial judge.”

Ayd, 365 Md. at

396.
In its motion for summary judgment, Group 2 does not argue
that Plaintiff’s statutory relief is unavailable owing to a bona
fide dispute regarding payment.

The possibility is inescapable,

9

The existence of a bona fide dispute over wages affects
whether treble damages, attorneys’ fees, and costs may be
awarded.
This inquiry concerns whether there existed a
“legitimate dispute over the validity of the claim or the amount
that is owing.
. . .
The question, simply, is whether there
was sufficient evidence adduced to permit a trier of fact to
determine that [the defendant] did not act in good faith when it
refused to pay” wages to the plaintiff at the end of the
employment relationship.
Admiral Mortgage, Inc. v. Cooper, 357
Md. 533, 543 (2000).
31

however, that such a dispute over compensation owed to Plaintiff
existed

at

the

time

Group

2

terminated

the

consulting

relationship in May 2012.

Group 2, because it did not advance

this

entitled

argument,

Plaintiff’s

is

not

MWPCL

claim.

to

summary

Instead,

the

judgment

parties

on

wrestle

throughout the briefing papers over Plaintiff’s status, and a
genuine
status

dispute
-

exists

whether

concerning

Plaintiff

the

was

an

nature

of

“employee”

Plaintiff’s
entitled

statutory protection or merely an independent contractor.

to
(See

ECF Nos. 87-1, at 25-29; 92, at 15-19; 99, at 13-21; 103, at 47).

Group

2

argues

that

Plaintiff

was

an

independent

contractor, and Plaintiff concludes that the relevant factors
demonstrate an employment relationship.
The multi-factor test outlined in Ayd calls for an analysis
of various factual nuances to determine whether Plaintiff is
properly classified as an employee of Group 2.
there

is

a

legitimate

dispute

of

fact,

For nearly all,

precluding

summary

judgment.

First, did Mr. Bowen, as the sole member of Group 2,

have

right

the

performance

of

to

direct

Plaintiff’s

and

exercise

work?

control

Critically,

over

this

the

factor

concerns whether Mr. Bowen could have exercised control over
Plaintiff, not whether he actually did.
Plaintiff

concedes

[Plaintiff]

that

instructions

Mr.
as

Bowen
to
32

what

Ayd, 365 Md. at 393.

“rarely,
to

do

if
or

ever[,]
how

to

gave
run

a

business as [Mr. Bowen] reminded [Plaintiff] that he had no
experience in running a software company or any kind of company,
except

for

hauling

sailboats.”

(ECF

No.

92-2,

at

10).

Similarly, Mr. Bowen attested, “Plaintiff was given significant
autonomy in [his consulting position], and neither I nor Group 2
dictated

how

or

where

he

was

to

provide

contemplated in the consulting agreement.”

the

services

(ECF No 87-2 ¶ 10).

On the other hand, Plaintiff explained that Mr. Bowen “had the
authority
decisions.

to

exercise

control

over

[Plaintiff’s]

actions

and

[Mr. Bowen] hired [Plaintiff] and had the authority

to fire [Plaintiff] at any time.
the Group 2 checkbook . . . .

[Mr. Bowen] also controlled

[Mr. Bowen] could overrule any

Group 2 decision [Plaintiff] made.”

(ECF No. 92-6 ¶ 13).

If

believed by a trier of fact, testimony adduced by Plaintiff
supports the proposition that Mr. Bowen had the authority to
direct and exercise control over Plaintiff.

Ayd, 365 Md. at

393.
Second, did Plaintiff’s work fall within the usual course
of Group 2’s business?

As Plaintiff argues, he “was hardly a

plumber called by [Group 2] to fix a leaky faucet.

Plaintiff

had high[-]level, continuous responsibilities that were integral
to [Group 2’s] business.”

(ECF No. 92, at 17).

Group 2’s

contention that “Plaintiff did not provide software or coding
services to Group 2” is misplaced (ECF No. 87-1, at 28); Group 2
33

concedes

that

“provide

management

agreement,

including

product development, sales and obtaining investors.”

(ECF No.

services,

Plaintiff

pursuant

to

was

expected

the

to

consulting

87-2 ¶ 16; see ECF No. 99, at 16).

Plaintiff acted in his

capacity as CEO, and Plaintiff’s MWPCL claim is not weakened
because
marketed

he

did

by

not

Group

actually
2.

build

The

third

or

maintain

factor

the

concerns

software
whether

Plaintiff was customarily working in his own interest, albeit
also benefitting Group 2.
whether

Plaintiff

contractor.

At bottom, this inquiry examines

performed

his

work

as

an

independent

Ayd, 365 Md. at 393; see Schultz v. Capital Int’l

Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006).

Group 2 argues

that, during the term of the consulting relationship, Plaintiff
was also providing the same services to another company and
serving as its president and CEO.
Nos. 87-9; 99-6; 99-7; 99-8).

(ECF No. 87-1, at 28; see ECF
Plaintiff asserts in response,

“During my time employed by Group 2, I did not work [for] nor
received

any

compensation

from

any

other

entity

.

.

.

.

Further, I did not market myself as an independent contractor or
provide consulting services to any other companies.”
92-6 ¶ 7).

(ECF No.

Thus, whether Plaintiff was customarily engaged in

an independently established trade, occupation, profession, or
business is disputed.

34

The fourth factor examines whether Plaintiff supplied his
own equipment or used instrumentalities, tools, and locations
provided by Group 2.
worked

from

materials.

home

According to Group 2, Plaintiff mostly

and

supplied

his

own

computer

and

work

(ECF No. 87-1, at 28; see ECF No. 87-5, at 15).

Mr.

Bowen declared that “Group 2 had no rights or obligations to
supply [Plaintiff] any tools, devices or other instrumentalities
for

his

work

as

a

consultant.”

(ECF

No.

87-2

¶

13).

Conversely, Plaintiff highlights that Group 2 provided office
space for Plaintiff to use.
1, at 28).

(ECF No. 92, at 18; see ECF No. 87-

The fifth factor queries whether Plaintiff received

wages directly from Group 2 or from a third party for work
performed on Group 2’s behalf.

Group 2 asserts that Plaintiff

was paid as an independent contractor and received a Form 1099MISC reflecting miscellaneous income rather than a Form W-2 for
wages paid to employees.
10).

(ECF No. 87-1, at 29; see ECF No. 87-

Group 2’s argument proceeds thusly: “For tax purposes,

Group 2 treated Plaintiff as, and Plaintiff reported to the
Internal

Revenue

contractor.”

Service

that

he

(ECF No. 87-1, at 29).

was,

an

independent

Plaintiff’s classification

for tax purposes, however, is not dispositive, at least in the
analogous context of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201, et seq.
report

amounts

paid

Indeed, a Form 1099 is generally used to
to

independent
35

contractors,

see

United

States v. Cox, 856 F.2d 187, at *1 (4th Cir. 1988) (unpublished
table opinion) (citing 26 U.S.C. § 6041(a)), but Group 2 focuses
on formal labels rather than on the realities of the parties’
working

relationship

—

a

position

directly

contrary

adopted by the Supreme Court of the United States.

to

that

Calle v.

Chul Sun Kang Or, No. DKC-11-0716, 2012 WL 163235, at *5 (D.Md.
Jan. 18, 2012) (citing Rutherford Food Corp. v. McComb, 331 U.S.
722, 729 (1947)).

Plaintiff received compensation directly from

Group 2, and there is no evidence that he was paid by a third
party for work performed on behalf of Group 2.
13).

(See ECF No. 92-

Finally, under the sixth factor, the parties agree that

Plaintiff did not have any ownership interest in Group 2 during
the first 52 weeks of employment.

It is also undisputed that

Group 2 did not transfer any equity to Plaintiff during the
course of the consulting relationship.
lacked

“the

ability

and

discretion

Accordingly, Plaintiff
to

policies and procedures of the business.”

affect

the

general

Ayd, 365 Md. at 395.

The competing declarations provided by the parties preclude
a finding that either party has met its burden to demonstrate
that there exists no genuine issue of material fact concerning
whether Plaintiff is an employee under the MWPCL.

See Watson v.

Brown, 446 F.App’x 643, 645 (4th Cir. 2011) (“[The parties’]
factual assertions effectively boiled down to a swearing contest
backed chiefly by parties’ own affidavits . . . .
36

The district

court therefore erred when it made a dispositive credibility
determination on the basis of the competing affidavits.”).

The

cross-motions for summary judgment on Count III against Group 2
will be denied.
b.

MWPCL Claim Against Mr. Bowen

Plaintiff also asserts that Mr. Bowen is personally liable
under the MWPCA as an employer.
support

of

Plaintiff
developed
exists.

his

contention

relies
to

on

the

determine

that

(ECF No. 93, at 6-9).
Mr.

Bowen

is

an

multi-factor

“economic

whether

employment

an

In

“employer,”

reality”

test

relationship

See Coles v. Von Paris Enterprises, Inc, No. PJM-14-

450, 2014 WL 6893861, at *3 (D.Md. Dec. 3, 2014).

Plaintiff’s

argument, however, is unavailing.
The [MWPCL] requires employers to pay
accrued wages to employees upon termination
of employment. Md. Code Ann., Lab. & Emp.,
§ 3–505.
The MWPCL defines “employer” to
include
“any
person
who
employs
an
individual in the State or a successor of
the person.” Id. § 3–501(b). In Watkins v.
Brown, the court noted that the definition
is more “restrictive” than that found in the
[Fair Labor Standards Act (“FLSA”)].
173
F.Supp.2d
409,
416
(D.Md.
2001).
Specifically, the MWPCL does not contain a
provision that expands employer liability to
those acting on behalf of the employer. Id.
As such, an “employer” under the MWPCL has
the “commonly understood meaning of the term
. . . , which contemplates some sort of
contractual
relationship
involving
the
payment of wages in exchange for services.”
Id. at 414. Courts analyzing the MWPCL have
rejected
any
interpretation
that
would
37

encompass supervisors, officers, or other
agents acting on behalf of the corporate
employer.
See, e.g., id. at 416; Hosack v.
Utopian Wireless Corp., No. DKC-11–0420,
2011 WL 1743297, at *5 (D.Md. May 6, 2011).
Caseres v. S & R Mgmt. Co., LLC, No. 12-CV-01358-AW, 2012 WL
5250561, at *4 (D.Md. Oct. 24, 2012).
Here, Plaintiff entered into a consulting agreement with
Group 2.

(See ECF Nos. 92-5; 92-7).

checks from a Group 2 bank account.

He received payment via
(See ECF No. 92-13).

The

fact that Mr. Bowen had managerial authority “is insufficient,
as a matter of law, to make him an ‘employer’ within the meaning
of

the

submits
addition

MWPCL.”
no

Watkins,

evidence

to

Group

that
2

consulting agreement.

–

173
Mr.

was

F.Supp.2d
Bowen

–

at

416.

separate

Plaintiff’s

Plaintiff

from

employer

and

under

in
the

Accordingly, Mr. Bowen is “entitled to

judgment as a matter of law on Plaintiff’s MWPCL claims as it is
undisputed that Plaintiff did not enter an employment contract
with [Mr. Bowen] in his individual capacity.”
5250561,

at

*6.

Summary

judgment

will

be

Caseres, 2012 WL
entered

against

Plaintiff and in favor of Mr. Bowen on Plaintiff’s MWPCL claim
in Count III.
4.

Accounting (Count IV)

In Count IV, Plaintiff asserts that he is entitled to an
accounting of Group 2’s financial books and records.
58

¶¶

29-32).

He

alleges

that,
38

during

the

(ECF No.

contractual

relationship, Group 2 “refused in bad faith to present to []
Plaintiff an accounting evidencing the existence of a liability
on its books and records, and federal and state tax returns,
representing the deferred compensation due [to] [] Plaintiff.”
(Id. ¶ 30).

Moving for summary judgment on Count IV, Group 2

argues that “[t]he general rule is that a suit in equity for an
accounting

may

be

maintained

when

the

remedies

at

law

are

inadequate.”

Alternatives Unlimited, Inc. v. New Baltimore City

Bd.

Comm’rs,

of

Sch.

155

Md.App.

415,

508

(2004)

(citation

omitted).
“To

be

remedy.”

sure,

an

Goldstein

accounting
v.

F.D.I.C.,

is

considered

No.

an

ELH-11-1604,

equitable
2012

WL

1819284, at *13 (D.Md. May 16, 2012) (citing Mass Transit Admin.
v. Granite Const. Co., 57 Md.App. 766, 774 (1984)).

Moreover,

under Maryland law, “an accounting is available when ‘one party
is under obligation to pay money to another based on facts and
records that are known and kept exclusively by the party to whom
the

obligation

is

owed,

or

where

there

relationship between the parties . . . .’”

is

a

fiduciary

Polek v. J.P. Morgan

Chase Bank, N.A., 424 Md. 333, 365 (2012) (quoting P.V. Props.,
Inc. v. Rock Creek Village Assocs. Ltd. P’ship, 77 Md.App. 77,
89 (1988)).

“[W]hereas an equitable claim for an accounting

once served a necessary discovery function, that function has

39

been superseded by modern rules of discovery.”

Alternatives

Unlimited, 155 Md.App. at 510.
P.V. Props. provides an example under
Maryland law of when a freestanding claim
for accounting is appropriate.
In that
case, a commercial tenant in a shopping
center sought “an itemized listing of common
area maintenance expenses where the lease
[was] silent in that respect and the
landlord [was] unwilling to provide the
desired information.”
77 Md.App. at 80.
The
Maryland
Court
of
Special
Appeals
explained the “general rule” that “a suit in
equity for an accounting may be maintained
when the remedies at law are inadequate,”
and said: “An accounting may be had . . .
where there is a confidential or fiduciary
relation between the parties, and a duty
rests upon the defendant to render an
account.”
Id. at 89 (citing, inter alia,
Nagel v. Todd, 185 Md. 512 (1946)).
Goldstein,

2012

WL

1819284,

at

*14.

In

contrast,

however,

courts have rejected claims for accounting:
where the plaintiff was fully capable of
ascertaining, through its own efforts, the
information it sought from the defendant by
way of an accounting[;] where discovery was
otherwise available[;] or where there was no
basis for inferring that [the defendant] was
in any sort of confidential relationship
with or bore any fiduciary duty toward [the
plaintiff].
Id. at *15 (citations and internal quotation marks omitted).
Here, Plaintiff requests information properly sought during
the discovery process.

According to Group 2, “Plaintiff has

failed to and cannot reference any contractual, statutory or
common

law

basis

to

obtain

an
40

accounting

based

upon

the

circumstances of this case.
agreement,

but

there

is

Plaintiff referenced the consulting
no

fiduciary

relationship

created

therein and no express obligation to provide an accounting to
Plaintiff.”

(ECF No. 87-1, at 30).

financial

accounts

Plaintiff

has

not

and

records

demonstrated

Merely concluding that the

are
any

maintained

by

Group

2,

confidential

or

fiduciary

relationship that would obligate Group 2 to render an account.
(See ECF No. 92, at 19-20).

Nor has Plaintiff explained that

“there are circumstances of great complication, or difficulties
in the way of adequate remedy at law.”
155 Md.App. at 508-09.

Alternatives Unlimited,

As a result, construing Plaintiff’s

claim for accounting as an independent cause of action, summary
judgment will be entered against Plaintiff and in favor of Group
2 on Count IV.
5.

Unjust Enrichment (Count V)

In Count V, Plaintiff asserts a claim for unjust enrichment
against Group 2 and Mr. Bowen.

Plaintiff argues that Group 2

and Mr. Bowen received the benefit of Plaintiff’s work from May
1, 2011, through the termination of the contractual relationship
effective May 24, 2012.

In his prayer for relief under Count V,

Plaintiff requests that the court award him the 15% ownership
interest
value.

in

Group

2

or,

in

the

(ECF No. 58 ¶¶ 33-40).

alterative,

its

fair

market

Defendants do not dispute that

Plaintiff assisted Group 2 and was due compensation under the
41

terms of the consulting contract.
that

his

unjust

enrichment

Plaintiff notes, however,

claim

is

“an

alternative

breach of contract claim, not in addition to it.
finds

that

no

Defendant[s],

contract

Plaintiff’s

(ECF No. 92, at 20).
consulting

contract,

exists

unjust

between

enrichment

to

his

If the [c]ourt
Plaintiff

claim

is

and

valid.”

As explained above, there exists a valid
but

Plaintiff

has

not

yet

demonstrated

entitlement to a 15% ownership interest – the damage he seeks
alternatively through Count V.
Under

Maryland

law,

unjust

enrichment

requires:

(1)

a

benefit conferred upon the defendant by the plaintiff; (2) the
defendant’s appreciation or knowledge of the benefit; and (3)
the defendant’s acceptance or retention of the benefit under
circumstances that would make it inequitable for the defendant
to retain the benefit without the payment of its value.

Hill v.

Cross

(2007).

Country

Settlements,

LLC,

402

Md.

281,

295

Critically, however:
The
general
rule
is
that
no
quasicontractual claim can arise when a contract
exists between the parties concerning the
same subject matter on which the quasicontractual claim rests . . . . The reason
for this rule is not difficult to discern.
When parties enter into a contract they
assume certain risks with an expectation of
a return. Sometimes, their expectations are
not realized, but they discover that under
the contract they have assumed the risk of
having those expectations defeated.
As a
result, they have no remedy under the
42

contract for restoring their expectations.
In desperation, they turn to quasi-contract
for recovery. This the law will not allow.
Cty. Comm’rs of Caroline Cty. v. J. Roland Dashiell & Sons,
Inc., 358 Md. 83, 96 (2000) (quoting Mass Transit Admin. v.
Granite Constr. Co., 57 Md.App. 766, 776 (1984)); see also FLF,
Inc. v. World Publications, Inc., 999 F.Supp. 640, 642 (D.Md.
1998) (“It is settled law in Maryland, and elsewhere, that a
claim for unjust enrichment may not be brought where the subject
matter of the claim is covered by an express contract between
the parties.”).
Here,

a

written

contract

governs

relationship between Plaintiff and Group 2.
are

available

to

Plaintiff,

and

the

the

consulting

Contract remedies

circumstances

of

the

consulting relationship are not inequitable such that the court
must award him a 15% ownership interest in Group 2.

Plaintiff

will be expected to vindicate his claims through a cause of
action for breach of contract.

Summary judgment will be entered

against Plaintiff and in favor of Group 2 and Mr. Bowen on Count
V.
6.

Specific Performance (Count VI)

Stemming

from

Defendants’

alleged

breach

of

contract,

Plaintiff asserts Count VI seeking specific performance and a
court order transferring a 15% ownership interest in Group 2 to
Plaintiff.

(ECF No. 58 ¶¶ 41-47).
43

Plaintiff does not demand

specific

performance

provisions.
prayer

for

concerning

any

other

contractual

The court, therefore, will treat Count VI as a
a

special

remedy

–

specific

performance

–

for

Defendants’ purported breach of contract pleaded in Counts I and
II.
As

a

threshold

matter,

the

availability

of

specific

performance - a drastic equitable remedy - is contingent on
Plaintiff

demonstrating

a

contractual

corresponding breach by Group 2.

obligation

and

See Geoghegan v. Grant, No.

DKC–10–1137, 2011 WL 673779, at *9 (D.Md. Feb. 17, 2011); Data
Consultants, Inc. v. Traywick, 593 F.Supp. 447, 453 (D.Md. 1983)
(citing Offut v. Offut, 106 Md. 236 (1907)), aff’d, 742 F.2d
1448 (4th

Cir. 1984);

see also Namleb Corp. v. Garrett, 149

Md.App. 163, 174 (2002) (“Specific performance may be granted in
an

appropriate

case

on

the

basis

of

the

strength

of

the

circumstances and equities of each party.”).

Should Plaintiff

prevail

the

on

his

breach

of

contract

claims,

consider specific performance as a remedy.

court

will

See Zouck v. Zouck,

204 Md. 285, 290 (1954) (“[A court] will not use its discretion
to grant the remedy unless its exercise will subserve the ends
of justice and the result of its assistance is fair, just and
reasonable.”).
entitlement

to

Plaintiff has not yet demonstrated a contractual
a

15%

ownership

interest

in

Group

2

–

the

ultimate compensation sought via specific performance – and the
44

cross-motions for summary judgment on Count VI against Group 2
will be denied.

Plaintiff cannot, however, maintain a breach of

contract claim against Mr. Bowen.

Judgment will be entered in

favor of Mr. Bowen on Count VI.
7.

Intentional Interference Claim (Count VII)

In

Count

VII,

“intentionally

and

Plaintiff
improperly

alleges

that
with

interfered

Mr.

Bowen

Plaintiff’s

[contractual relationship with Group 2] with an improper motive
to injure Plaintiff and to benefit his own personal interest.”
(ECF

No.

58

¶

50).

Plaintiff

offers

no

allegations

of

intentional and improper activity, let alone evidence of the
same, and merely concludes that Group 2 “breached its [c]ontract
with Plaintiff as a result of [Mr. Bowen’s] intentional conduct,
which . . . was outside the course of his position as officer
and director and managing member of [Group 2].”

(Id. ¶ 51).

“The tort of intentional interference with contract is well
established in Maryland.”
Md. 287, 296 (1994).
‘(1)

existence

party;

(2)

defendant’s

of

Macklin v. Robert Logan Assocs., 334

To state a claim, “a plaintiff must allege
a

contract

defendant’s
intentional

between

knowledge
interference

plaintiff

of
with

that
that

and

a

third

contract;
contract;

(3)
(4)

breach of that contract by the third party; and (5) resulting
damages to the plaintiff.’”

Ayres v. Ocwen Loan Servicing, LLC,

No. WDQ-13-1597, 2015 WL 5286677, at *10 (D.Md. Sept. 8, 2015)
45

(quoting
(1991)).

Fowler

v.

Printers

II,

Inc.,

89

Md.App.

448,

466

“Intent can be proven ‘by showing that the defendant

intentionally induced the breach or termination of the contract
in order to harm the plaintiff or to benefit the defendant at
the expense of the plaintiff.’”

Webb v. Green Tree Servicing,

LLC, No. ELH-11-2105, 2011 WL 6141464, at *5 (D.Md. Dec. 9,
2011) (quoting Macklin, 334 Md. at 301).

Furthermore:

It is well established that in order to
state a cause of action for tortious
interference with a business relationship, a
plaintiff must allege that a third party,
without justification and for an unlawful
purpose, intentionally interfered with the
business relationship between the plaintiff
and another, causing the plaintiff actual
damage.
See K & K Mgmt. v. Lee, 316 Md.
137, 154–156 (1989); Wilmington Trust Co. v.
Clark, 289 Md. 313, 329 (1981); Cont’l Cas.
Co. v. Mirabile, 52 Md.App. 387, 402, cert.
denied, 294 Md. 651, 652 (1982).
Maryland
courts have “never permitted recovery for
the tort of intentional interference with a
contract when both the defendant and the
plaintiff were parties to the contract.”
Wilmington Trust, 289 Md. at 329; K & K
Mgmt., 316 Md. at 137.
Thus, when an
employee acts within the scope of her
employment, or as an agent of her employer,
she cannot be held liable for interfering
with the contract, business relationships,
or
economic
relationships,
between
the
employer and another.
Cont’l Cas., 52
Md.App. at 402; see also Borowski v. Vitro
Corp., 634 F.Supp. 252, 258 (D.Md. 1986),
rev’d on other grounds, 829 F.2d 1119 (4th
Cir. 1987).
Bleich

v.

Florence

Crittenton

Md.App. 123, 146-47 (1993).

Servs.

of

Baltimore,

Inc.,

98

Mr. Bowen argues that, as managing
46

member, he was Group 2’s officer or agent.
Acting

in

that

capacity,

he

cannot

(ECF No. 89, at 15).
be

held

liable

for

interfering with the contract or business relationship between
the Group 2 and Plaintiff.

Bleich, 98 Md.App. at 147 (citations

omitted).
Moreover,

were

Mr.

Bowen

subject

to

liability

for

intentional interference, Plaintiff’s claim nevertheless fails.
Mr.

Bowen

contends

that,

absent

evidence

that

he

acted

for

personal gain or without intent to further Group 2’s interests,
Plaintiff cannot maintain his interference claim.
147-48.

See id. at

To establish the tort of intentional interference, the

underlying conduct must be wrongful or malicious, “quite apart
from

its

effect

on

the

plaintiff's

business

relationships.”

Alexander & Alexander Inc. v. B. Dixon Evander & Assocs., Inc.,
336 Md. 635, 657 (1994).

The Court of Appeals of Maryland

defines wrongful conduct as “common law torts and violence or
intimidation, defamation, injurious falsehood or other fraud,
violation of criminal law, and the institution or threat of
groundless civil suits or criminal prosecutions in bad faith.”
Id. (citation and internal quotations omitted).
a

claim,

committed

Plaintiff
specific

must

forecast

wrongful

acts.

offers conclusory allegations.
Bowen

acted

out

of

evidence

Thus, to state
that

Plaintiff,

Mr.

however,

Bowen
only

There is no evidence that Mr.

self-interest
47

or

fraudulently

transferred

Group 2’s proprietary software to Deven.

Although Plaintiff

asserts that “[i]t would be impossible for Deven to offer [the
EMA software] to customers unless [Mr. Bowen] moved the EMA
asset from Group 2 to Deven” (ECF No. 93, at 10), Plaintiff’s
only offers Deven’s website in support of his contention (see
ECF No. 92-10).
Mr.

Bowen’s

At this point, Plaintiff’s argument regarding

improper

motives

and

conveyance is mere speculation.

a

purported

fraudulent

Accordingly, summary judgment

will be entered against Plaintiff and in favor of Mr. Bowen on
Count VII.
8.
In

Fraudulent Conveyance (Count VIII)
Count

VIII,

Plaintiff

alleges

that

Mr.

Bowen

formed

Deven “for the purpose of receiving assets from [Group 2].
.

[Mr.

Bowen]

and

Group

2

transferred

and

. .

conveyed

substantially all of the assets of Group 2, thereby rendering it
insolvent and unable to satisfy a money judgment in favor of
Plaintiff and making Plaintiff’s ownership interest in Group 2
worthless.”

(ECF No. 58 ¶ 55).

Plaintiff asserts that “[Mr.

Bowen] and Group 2 transferred Group 2’s assets to Deven with
the intent to hinder, delay or defraud Plaintiff and remove said
assets from Plaintiff’s reach.”

(Id. ¶ 57).

Maryland’s Uniform

Fraudulent Conveyance Act (“MUFCA”), Md. Ann. Code, Com. Law §
15–201, et seq., provides a remedy if a creditor demonstrates
that

a

conveyance

was

made

without
48

fair

consideration

and

either: (1) was committed by a person or entity who is or will
be rendered insolvent by the conveyance (id. § 15–204); (2) was
committed by a person or entity engaged or about to be engaged
in a business or transaction for which the property remaining in
his hands after the conveyance is an unreasonably small capital
(id. § 15–205); or (3) was committed by a person or entity who
intends

to

or

believes

that

he

will

incur

debts

beyond

his

ability to pay when he undertakes the conveyance (id. § 15–206).
MUFCA also imposes liability for conveyances made with actual
intent to hinder, delay, or defraud present or future creditors,
irrespective of whether there was fair consideration for the
transfer in § 15–207.
Deven moved for summary judgment on Count VIII (ECF No.
88), and Plaintiff withdrew Count VIII as to Deven “[i]n light
of the absence of evidence provided in discovery.”
94).

(ECF No.

It is not clear whether Plaintiff intended his claim for

fraudulent conveyance in Count VIII to apply to Group 2 and Mr.
Bowen as well.10

The only remedies available under MUFCA are

that the creditor may seek to set aside the conveyance or levy
or garnish the property transferred by the conveyance.

See Md.

Ann. Code, Com. Law § 15–209; Frain v. Perry, 92 Md.App. 605,

10

Group 2 and Mr. Bowen adopt and incorporate by reference
Deven’s motion for summary judgment on Count VIII.
(ECF Nos.
87, at 1 n.2; 89, at 1 n.2; 97, at 4 n.2; 99, at 1 n.1).
49

619

n.7

creditor

(“Once
may

a

conveyance

either

have

is

the

held

to

conveyance

be

fraudulent,

set

aside,

or

the
may

disregard the conveyance and attach or levy execution upon the
property conveyed.”), cert. denied, 328 Md. 237 (1992).

Cases

interpreting the statute have expanded the realm of available
remedies

to

include

suits

for

money

judgments

against

the

transferee when he or she “allows or causes the property to
depreciate

in

value

or

parts

with

the

property

without

sufficient consideration or puts it beyond the reach of the
court.”

Damazo v. Wahby, 269 Md. 252, 257 (1973).

No case,

however, has authorized a money judgment against the transferor,
or an agent of the transferor, for violations of MUFCA.

See

Bassi & Bellotti S.P.A. v. Transcon. Granite, Inc., No. DKC-081309, 2011 WL 856366, at *9 (D.Md. Mar. 9, 2011).

Here, Group 2

and

Deven

Mr.

Bowen

are

the

purported

transferors.

is

the

alleged transferee, and Plaintiff has withdrawn the fraudulent
conveyance claims in Count VIII against Deven.
Furthermore, as discussed above, Plaintiff has failed to
produce evidence of a fraudulent conveyance from Group 2 and Mr.
Bowen to Deven.

Plaintiff’s claim for fraudulent conveyance

against Group 2, Mr. Bowen, and Deven cannot withstand summary
judgment review, and judgment will be entered against Plaintiff
on Count VIII.

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III. Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Group 2 will be granted in part and denied in part.
The motions for summary judgment filed by Deven and Mr. Bowen
will be granted.

The cross-motions for summary judgment filed

by Plaintiff will be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

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