Titcomb v. Saco Mobile Home Sales, Inc.

• Decision Date: 26 July 1988
• Citation: 544 A.2d 754
• Parties: Frederick TITCOMB and Kent Lewis d/b/a Titcomb & Lewis v. SACO MOBILE HOME SALES, INC.
• Court: Maine Supreme Court

Page 754

544 A.2d 754

Frederick TITCOMB and Kent Lewis d/b/a Titcomb & Lewis v. SACO MOBILE HOME SALES, INC.

Supreme Judicial Court of Maine.

Argued June 13, 1988.

Decided July 26, 1988.

Donald Carter, Kettle, Carter, Henegar, Levandoski & Anderson, William L. Vickerson (orally), Levenson & Vickerson, Portland, Heidi E. Johnson, Heidi E. Johnson Legal Offices, Westbrook, for plaintiffs.

David R. Ordway (orally), Ordway & Delicata, Biddeford, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and HORNBY, JJ.

McKUSICK, Chief Justice.

Defendant Saco Mobile Home Sales, Inc., appeals a judgment entered by the Superior Court (Cumberland County) on a jury verdict awarding $10,000 to plaintiffs Frederick Titcomb and Kent Lewis d/b/a Titcomb & Lewis, for their substantial performance of an agreement to obtain a real estate subdivision permit for defendant from the Planning Board of the City of Saco. That judgment reflected verdicts reached by two juries: The first in March 1986 established defendant's liability to plaintiffs and awarded damages of $10,000, and, after the Superior Court had ordered a new trial on damages only, the second in July 1987 again awarded plaintiffs $10,000. We reject defendant's appellate contentions attacking the findings of the first jury. Because we find sufficient evidence in the record to support the damages awarded by that first jury, on plaintiffs' cross-appeal we vacate the order for a new trial and remand for the Superior Court to reinstate the initial damages award and to enter judgment nunc pro tunc thereon.

During the 1970s when this dispute arose, plaintiffs were in the business of developing subdivision plans for landowners interested in obtaining municipal subdivision permits. In the spring of 1975 an employee of plaintiffs contacted Gordon O'Donnell, president of Saco Mobile Home Sales, Inc., to see if the company was interested in developing a 14-acre lot it owned in Saco. Although skeptical about whether plaintiffs could get a subdivision permit for the project, defendant paid plaintiffs $1,000 for a feasibility study of the lot's subdivision potential. When that study produced positive results, the parties agreed that plaintiffs would develop a subdivision plan and attempt to obtain a permit for the plan from the Planning Board. That agreement was set down in writing at that time but that document has since been lost. The parties, although agreeing that a written contract once existed, disagree as to whether their agreement expressly conditioned defendant's obligation to pay for plaintiffs' services on plaintiffs' own personal success in obtaining the subdivision approval or simply on the issuance of the permit by the Planning Board following plaintiffs' substantial performance of the work leading up to that issuance. ¹

After entering into the contract plaintiffs began work on the project, creating a survey plan and attending numerous meetings of the Board. The project bogged down, however, during the spring of 1977 because of plaintiffs' inability to provide the Board with a satisfactory drainage plan for the site. After a meeting between the parties in the summer of 1977--about the substance of which the parties also disagree--plaintiffs suspended their efforts to obtain the permit. The Planning Board, however, on February 20, 1979, gave final approval to the subdivision plan for the site as it had been modified by an engineer who, unaffiliated with plaintiffs, had been hired by defendant to resolve the drainage problem.

On March 31, 1982, plaintiffs filed in the Superior Court a two-count complaint seeking damages for breach of contract or in the alternative for unjust enrichment. ² After two years of inactivity by the parties, the Superior Court on June 18, 1984, granted plaintiffs' motion to retain the case on the pending docket. Following an extensive period of discovery the case was set for trial on March 17, 1986. On March 14 defendant moved for a continuance because of the absence of certain witnesses; the court denied the motion the same day. The case went to trial on March 18, and on March 19 the jury returned a verdict finding specially that the contract was not contingent on plaintiffs' full performance of its terms, that plaintiffs had in fact substantially performed under the contract, that they had not voluntarily withdrawn from the contract, and that plaintiffs' damages amounted to $10,000. On March 20 the court entered a judgment for plaintiffs on that first jury verdict.

Defendant made a timely motion for a new trial, which the court granted solely on the issue of damages. That new trial took place on July 6-7, 1987, and the jury again returned a $10,000 damages award. Defendant appealed and plaintiffs cross-appealed.

I.

As an initial matter defendant contends that the presiding justice at the first trial erroneously allowed the jury first to determine the substance of the disputed agreement without being provided the original document, and second to resolve as a factual matter whether the parties intended the contract to allow payment even if plaintiffs did not personally obtain the subdivision approval for defendant from the Saco Planning Board. We find no error in either ruling by the presiding justice, let alone the obvious error defendant is required to show because of its failure to call either of the alleged errors to the trial court's attention. See Hull v. L & A Montagnard Social Club, Inc., 498 A.2d 597, 598 (Me.1985); Dongo v. Banks, 448 A.2d 885, 889 (Me.1982).

On the first point, M.R.Evid. 1002 establishes that "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute." Rule 1004 sets out a number of exceptions, the only one at issue here being for when "[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith...." M.R.Evid. 1004(1). See also Graybar Elec. Co. v. Sawyer, 485 A.2d 1384, 1387 (Me.1985). Here the parties agree that in 1975 they entered into the written contract that was the subject of the lawsuit. As to what became of that contract, Kent Lewis testified that he was unable to find his copy and that when he asked Gordon O'Donnell, president of Saco Mobile Home Sales, for the document, he stated that he also could not find it. That uncontradicted testimony was adequate under Rule 1004(1) to establish that the original document had been lost other than through plaintiffs' bad faith. The presiding justice therefore correctly allowed plaintiffs to prove the content of that lost document through the oral testimony of those familiar with it. See Field & Murray, Maine Evidence § 1004.0 (1987).

On defendant's second unpreserved contention, we determine that the court properly sent to the jury, rather than reserving for itself as a legal issue, the question whether the contract by its terms required plaintiffs to perform fully its requirements before receiving payment, or whether plaintiffs could recover simply for their substantial performance of the contract--in other words, whether the contract was entire or severable. It is clear that "[t]he proper interpretation of ambiguous contractual language is to be determined by the trier of fact," Hare v. Lumbermens Mut. Cas. Co., 471 A.2d 1041, 1044 (Me.1984), although the court reserves for itself as a question of law whether a contract provision is or is not ambiguous. Pelletier v. Jordan Assoc., 523 A.2d 1385, 1386 (Me.1987). Here the court properly determined that an ambiguity existed in the contract terms and allowed the jury to resolve that ambiguity on the basis of the trial testimony.

The parties recognize that the central dispute in the case is whether the contract required plaintiffs to obtain the permit fully by their own efforts as a condition to being paid, or whether the contract permitted payment if plaintiffs substantially performed the work necessary for permit approval despite the fact that others actually completed the final aspects of the project. Since the parties did not agree on which statement of their contractual obligations accurately reflected their agreement, and since the document setting forth the terms of that agreement had been lost, an ambiguity as a matter of law existed on that point, and the court properly allowed the jury to resolve the ambiguity based upon the testimony of witnesses. Cf. Dehahn v. Innes, 356 A.2d 711, 716 (Me.1976) (severability of an oral contract is a question of fact for factfinder).

II.

Defendant also objects that insufficient evidence supports the following three factual determinations made by the first jury in its special verdict: (1) that the contract allowed recovery simply for plaintiffs' substantial performance of its terms, (2) that plaintiffs had in fact substantially performed the contract's terms, and (3) that plaintiffs had not voluntarily withdrawn from the contract. Each of those determinations is a factual matter properly reserved in this case to the jury. We review those determinations only for whether competent record evidence supports them, and here hold that...