Sweet v. Breivogel, Docket: Han-18-196

• Citation: 201 A.3d 1215
• Decision Date: 29 January 2019
• Docket Number: Docket: Han-18-196
• Parties: John SWEET II v. Carl E. BREIVOGEL et al.
• Court: Supreme Judicial Court of Maine (US)

201 A.3d 1215

John SWEET II

v.Carl E. BREIVOGEL et al.

Docket: Han-18-196

Supreme Judicial Court of Maine.

Argued: December 11, 2018

Decided: January 29, 2019

Christopher E. Pazar, Esq. (orally), and William J. Kennedy, Esq., Drummond & Drummond, LLP, Portland, for appellants Carl E. and Elizabeth A. Breivogel

Daniel A. Pileggi, Esq. (orally), Acadia Law Group LLC, Ellsworth, for appellee John Sweet II

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

HUMPHREY, J.

[¶1] In this appeal involving a dispute over payment for the construction of a traditional timber frame home, we consider the connection between the Home Construction Contracts Act (HCCA) and the Unfair Trade Practice Act (UTPA), take this opportunity to underscore the significance of the statutory requirement that construction contracts be formalized in writing, and affirm the judgment. See 5 M.R.S. § 213(1), (2) (2017) ; 10 M.R.S. §§ 1487, 1490 (2017).

I. BACKGROUND

[¶2] The following facts are drawn from the court's judgment and are supported by competent evidence in the record. See Gravison v. Fisher , 2016 ME 35, ¶ 3, 134 A.3d 857.

[¶3] John Sweet II is a sole proprietor who specializes in the construction of traditional timber frame homes, which involve a high level of labor, time, and craftmanship. In February 2013, Carl E. and Elizabeth A. Breivogel contacted Sweet through his construction-business website and inquired about building "an enclosed, [weathertight] frame home" on land they own on Mount Desert Island.

[¶4] In March 2013, the Breivogels traveled to Maine and met with Sweet at his self-constructed timber frame home. During that visit, the Breivogels viewed Sweet's workshops as well as two other timber frame homes that Sweet had constructed. While the parties did not reach any agreements that day, Sweet did provide the Breivogels with some information about the relative costs of the homes they visited. Specifically, he told the Breivogels that it would cost approximately $ 500,000 to build a 28' x 30' completed home like his and $ 400,000 to construct the 32' x 32' home they visited that was little more than a "dried shell" or "weathertight" home.¹

[¶5] After that meeting, the parties continued to communicate via email. In one exchange dated March 26, 2013, the parties began to discuss the costs associated with building a saltbox style² timber frame home. The Breivogels asked Sweet whether it would be possible to build a home of this style for $ 275,000, not including the septic system for which the Breivogels would make other arrangements. Sweet responded that it was possible, but difficult to be certain at that early stage of the discussion because "the devil[']s in the details."

[¶6] From that point forward, the parties did not share the same understanding of the scope and cost of the work Sweet was to perform. Sweet believed that the Breivogels wanted him to construct an enclosed, weathertight timber frame home—including only a frame, walls, roof, insulation, doors, windows, chimney, and exterior shingles. In contrast, the Breivogels believed that they had requested a fully completed home, ready for occupancy, costing no more than $ 275,000.

[¶7] In April 2013, the Breivogels authorized Sweet to begin construction; however, the parties never signed a contract. When the Breivogels inquired when the parties would formalize the terms of the project, Sweet insisted that he had never signed a written contract in over thirty years of business. The parties did, however, arrange that the Breivogels would be billed biweekly and pay for all materials and any labor at $ 32 an hour.

[¶8] Sweet and his team began construction of a dried shell structure in the summer of 2013 and completed the work in December of that year. Throughout the project, Sweet sent numerous emails to the Breivogels containing photographs depicting the progress on their home. He also provided biweekly invoices; despite these frequent communications, however, Sweet's overall record-keeping process throughout the project was highly informal.

[¶9] After December, both parties understood that work on the home would progress beyond the dried shell phase. At that point, the Breivogels determined, without informing Sweet, that they would have Sweet continue to work on the project, but would initiate legal action against him after they obtained a certificate of occupancy. They intended to seek damages for payments made in excess of $ 275,000. The Breivogels continued to pay Sweet until May 4, 2014. Construction of the home was completed and the Breivogels received their certificate of occupancy on May 15, 2014.

[¶10] In total, Sweet billed the Breivogels $ 602,250.98 for materials and services. The Breivogels had paid $ 601,195.75. After the Breivogels refused to tender any further payments, Sweet placed a $ 51,953.94 lien on the home for unpaid labor and brought this action against the Breivogels for that amount plus interest.³ The Breivogels asserted counterclaims for negligence, breach of contract, fraud, negligent misrepresentation, breach of the implied warranty of workmanship, and a violation of the UTPA.

[¶11] The Superior Court (Hancock County, R. Murray, J. ) concluded that Sweet was entitled to the money that he had already received from the Breivogels for the home under the theory of quantum meruit; however, the court also determined that Sweet had actually overcharged the Breivogels by $ 640.77 for the work performed by a tiler. With respect to the Breivogels' counterclaims, the court concluded that they failed to establish that Sweet was negligent, had breached any contractual obligation to perform in a workmanlike manner, or had breached any implied warranty relating to workmanship. It also determined that Sweet did not commit fraud or negligent misrepresentation. However, the court did find that Sweet violated the HCCA by failing to furnish a written contract, which was prima facie evidence of a UTPA violation.

[¶12] The Breivogels filed a motion for amended and additional findings of fact and conclusions of law. The court declined to amend the factual findings, but awarded the Breivogels $ 3,832.43 in costs and $ 30,000 in attorney fees as permitted by the UTPA. The Breivogels timely appealed. M.R. App. P. 2A(a), 2B(c).

II. DISCUSSION

[¶13] The Breivogels contend that the Superior Court erred in (1) determining that they did not meet their burden of proof as to their counterclaims for fraud, negligent misrepresentation, and breach of contract; (2) calculating the damages recoverable under the UTPA stemming from Sweet's violation of the HCCA; and (3) awarding an insufficient amount of attorney fees. We disagree and affirm the trial court's judgment in full.

A. The Breivogels' Counterclaims

[¶14] Because, at trial, the Breivogels had the burden of proof on each of their counterclaims and the Superior Court concluded that they failed to meet their burden, we must determine whether, on appeal, they have demonstrated that "a contrary finding is compelled by the evidence." Gravison, 2016 ME 35, ¶ 31, 134 A.3d 857 (quotation marks omitted); see also Young v. Lagasse , 2016 ME 96, ¶ 8, 143 A.3d 131 ; Rice v. Cook , 2015 ME 49, ¶ 11, 115 A.3d 86 ; St. Louis v. Wilkinson Law Offices, P.C., 2012 ME 116, ¶¶ 16, 19, 55 A.3d 443. Because the Breivogels moved for amended and additional findings of fact and conclusions of law pursuant to M.R. Civ. P. 52, we "review the original findings and any additional findings made in response to the motion for findings to determine if they are sufficient, as a matter of law, to support the result and if they are supported by the evidence in the record." Bayberry Cove Childrens' Land Tr. v. Town of Steuben, 2013 ME 35, ¶ 5, 65 A.3d 1188 (quotation marks omitted).

[¶15] The evidence did not compel the court to issue findings necessary for the Breivogels to prevail on their counterclaims. See Gravison, 2016 ME 35, ¶ 31, 134 A.3d 857. The court was entitled to find, as it did, that throughout the construction process, the parties held different understandings of the work to be performed and the total cost of the project. The court was also entitled to find that, because of this difference in understanding, the parties did not form an express contract. Therefore, the court did not err in concluding that the Breivogels failed to prove that Sweet committed fraud, negligent misrepresentation, or breach of contract. See Young, 2016 ME 96, ¶ 8, 143 A.3d 131 ; Rice , 2015 ME 49, ¶ 11, 115 A.3d 86 ; St. Louis , 2012 ME 116, ¶ 16, 55 A.3d 443 ; see also Gordon v. Cheskin , 2013 ME 113, ¶ 12, 82 A.3d 1221 ("Factual findings should not be overturned in an appellate proceeding simply because an alternative finding also finds support in the evidence.") (quotation marks omitted).

B. Damages

[¶16] The Breivogels also contend that the court abused its discretion in its award of damages in this case. Because the court found that there was no contract between the parties, it applied the principles of quantum meruit and concluded that the Breivogels had suffered a "relatively slight loss of money in the amount of $ 640.77" under the UTPA. The Breivogels argue that the court's application of this legal principle was misplaced because the parties never reached a common understanding of the material terms of the project and because Sweet's violations of the HCCA and UTPA warranted a larger award of damages. We will vacate an award of damages only when there is no competent evidence in the record to support it. Woodworth v. Gaddis , 2012 ME 138, ¶ 9, 58 A.3d 1109.

1. Quantum Meruit

[¶17] Quantum meruit is appropriate where there is no formal written contract but a contract implied in fact can be inferred from the parties' conduct. See Paffhausen v. Balano , 1998 ME 47, ¶ 9, 708 A.2d 269. In these circumstances, quantum meruit requires that "(1) services were rendered to the defendant by the plaintiff; (2) with the knowledge and consent of the...