The opinion
STATE OF MAINE SUPERIOR COURT
YORK, ss. Civil Action
Docket No. CV-13-0275
KENNETH R. LAVIN and
NANCY J. LAVIN,
Plaintiffs,
MEMORANDUM OF DECISION
v. AND FINAL JUDGMENT
R. L. CHASE BUILDING MOVERS, INC.,
a/k/ a CHASE BUILDING MOVERS, INC.,
and CHRISTOPHER CHASE
Defendants.
Plaintiffs Kenneth and Nancy Lavin filed this action against Defendants R. L.
Chase Building Movers, Inc. (a/k/ a Chase Building Movers, Inc.) and Christopher
Chase claiming damages arising from work done on their barn in 2012. They base
their claims on allegations of breach of contract, breach of warranty, fraud, and
violation of the Home Construction Contract Act, 10 M.R.S. §§ 1486 et seq. Defendants
assert counterclaims for breach of contract, quantum meruit, unjust enrichment, and
violation of the Prompt Payment Act, 10 M.R.S. §§ 1111 et seq. A two-day bench trial
was held on April 12 & 13, 2017. Based on the testimony and evidence presented at
trial, and taking into consideration the post-trial submissions of counsel, the court finds,
concludes, orders and adjudges as follows.
I. Findings of Fact
The Lavins own property at 1682 Post Road in Wells, Maine. On the property is
a house with outbuildings, including an attached shed ("Shed") and a barn ("Barn").
At the time the property was purchased in 2011, the Barn, which was used exclusively
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for storage, was in need of repair. Some work had been done on the Barn in the past,
but it retained a traditional, timber-frame structure.
In early May 2012, Nancy Lavin ("Lavin") placed an advertisement on Craig's
List seeking a contractor to repair the Barn. Defendant Christopher Chase ("Chase")
answered the advertisement. Chase is the sole shareholder and agent of Chase
Building Movers, Inc., a Maine corporation engaged in the business of residential
construction and maintenance services located in Wells, Maine. In May 2012, the
business was known as R. L. Chase Building Movers, Inc. Chase's company advertises
as one of its services "Barn/Timber Frame Restoration."
Lavin and Chase met on May 5, 2012. They discussed the prospective work.
Their respective recollections of the details of their conversation differed in a number of
material ways.
According to Lavin' s testimony, Chase assured her that he and his crew had
experience with barns and had the knowledge and experience to do the job. She
understood that Chase would start the work within a few weeks; that, once begun, the
job would take two to three weeks to complete; that labor would be charged at the rate
of $40 per hour; that Chase and a crew of up to two additional men would do the work;
that Chase had insurance; and that Chase was a current or former town official. She
testified that Chase had assured her there was no need for a written contract; and that
because she understood Maine law to require a written contract for jobs costing more
than $3,000, she assumed that this work would cost less than $3,000.
Regarding the work to be done, Lavin testified that the rotted sill of the north
wall needed to be replaced, and she thought Chase was only going to replace the sill.
She testified that Chase drew a rough sketch with a couple of lines; that he took no
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measurements; and that there was no other description of the work. In hiring Chase to
do the job, it was her intent to "save the barn as a barn."
According to Chase's testimony, he agreed that Lavin indicated the north wall
sill was rotted and needed to be replaced. They attempted to inspect the north wall
from inside the Barn but were unable to do so because it was filled to capacity with
stored items-"full of everything," was how Chase described it. They went around
the back of the Barn to view the wall from the outside. Rot was plainly visible on the
exterior wall. Chase said he pulled off a number of rotted shingles to get a closer view
of the wall's condition. He drew a rough sketch of the Barn's footprint. There is
writing on the sketch, which states in part: "Replace 6' x 6' sill with p.t." and "Replace
studs as needed." (Exhibit 7). It was clearly his understanding that the job involved
more than just replacing the sill, and also required removing and replacing part of the
north wall.
He testified that Lavin and he orally agreed that he would do the job; that he
would charge for labor at the rate of $45 per hour, which was his standard rate; that this
only included construction labor and did not include anything else, such as clean up or
disposal unless requested; that Lavin would pay for or provide all materials; that they
did not discuss a written contract; that they did not discuss the figure of $3,000 for the
work; that she would remove the items stored in the Barn before he started work; and
that when the building permit was issued and the barn cleaned out he would be there
within two weeks to start work.
Chase did not start the job until later in 2012. He went back one or two more
times within a month after the initial May 5t1t meeting, once with his stepson. The
items stored in the Barn had not been removed. Lavin contacted Chase in July, and
again in August. On each occasion Chase told her he was too busy at that time with
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other work to do her job. In the August conversation, Chase told her he would be
unable to get to the job until the fall.
On October 16, 2012, Chase came over to inquire about the status of a building
permit. Upon learning that Lavin had not yet obtained one, Chase went to the town
offices and applied for a permit. The application described the project as: "[R]eplace
37 linear feet of wall and plates to match original;" the cost of the work was shown as
$10,000. (Exhibit 2.)
On October 19, 2012, Lavin went to the town offices to retrieve the building
permit. The permit bears her signature. It described the work as: "Replace 37 linear
feet of existing garage wall and sill plates to match original. Total of 370 Sq. Ft."
(Exhibit 4.) It described the cost of work as $10,000. The cost of the permit was
$90.50.
Chase began the job on October 18, 2012. At times there was a crew of up to
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five men, including Chase, present on the job.
At Lavin's request, Chase used materials that she had on hand, including a
number of 2' x 8' boards and %" plywood sheets. During the course of the work, Lavin
purchased additional building material and supplies from Morse Hardware and
Lumber totaling approximately $ 2,993.33.
Chase and his crew removed a ten-foot high section of the north wall, up to the
second floor. A couple of posts on the north side of the building that supported the
second floors were partially rotted, particularly near the base. Chase disconnected the
two carrying beams supporting the second floor of the Barn, and replaced the posts up
to that point with new posts consisting of laminated 2' x 8' boards acquired from Lavin.
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Chase hired several workers for this job from another company, Frame to Finish, at a cost of
$4,865.
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The north wall was replaced in a modern, "stick-built" fashion with materials furnished
by Lavin. An exterior door, which she provided, was installed at Lavin' s request.
Many of the original barn boards comprising the north wall siding were rotted in
whole or part, especially from the lower portion of the wall. Other boards were in
mixed condition. On the whole, the evidence does not establish that it is more likely
than not that boards removed from the north wall (or west wall) as a whole had
significant value.
Chases' crew was on site working during the period from October 18th to October
26 1\ 2012. Lavin was present every day of the work except for one day when she was
out of town. During the course of the work she was frequently in the vicinity of the
Barn. She had a full opportunity to, and did, regularly view the work and interact
with the crew. She took photos of the work in progress. As things came up during
construction, Lavin discussed them with Chase and his crew.
During the job Chase discovered that the sill under the west wall was also rotted.
According to his testimony, which the court found credible, he informed Lavin and she
authorized him to repair the sill and wall. Chase replaced the sill and, as he had done
on the north side of the Barn, removed and replaced a section of the west wall. Lavin
disputes that she authorized the full extent of the work Chase and his crew undertook
on the west wall. There was no written agreement about the change in the scope of the
work. At no time did she request the work be stopped or that the terms of Chase's
engagement be renegotiated. Her presence at the property throughout the time the
work was underway gave her the opportunity to do so.
On Friday October 26, 2012 Chase presented Lavin with a bill for $7,740. The
amount of the bill reflected 172 hours of labor at $45 per hour up through October 25th.
Lavin did not pay the bill that day, despite Chases' insistence. According to her
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testimony, because she believed the amount of the bill was going to be $3,000 based on
her May 5th conversation with Chase, she had not deposited sufficient funds in her
account to pay the full amount of the bill.
The following Monday, October 29th, Chase returned and presented Lavin with
another, updated bill which included the additional 16 hours of labor (at $45 per hour,
totaling $720), which reflected work on the previous Friday, October 26th. The total
bill, including this additional time, was $8,460. If the rate for labor was charged at $40
per hour, the total bill, including these additional 16 hours of labor, would have been
$7,520.
Lavin paid Chase $5,000 on October 29, 2012.
Chase removed his crew and equipment from the job site on October 29, 2012.
At the time the work had been substantially finished. The joints on two posts on the
north wall required minimal modification, primarily for aesthetic purposes. This
would have involved installation of a metal plate or bracket at minimal expense, and
was not essential for structural soundness. Since he was being paid on an hourly basis,
and payment was being refused for work already performed, Chase considered this
refusal to terminate his work. He did not clean up the site for the same reason.
Plaintiffs are dissatisfied with Chase's work. They view the "stick-built"
construction as compromising the structural and aesthetic integrity of the Barn.
As far as the quality and soundness of Chase's work is concerned, the court finds
the testimony of Defendants' expert, Keith Kallberg, to be more credible and persuasive
than the testimony of Plaintiffs' experts. Based on the testimony of Mr. Kallberg,
together with other record evidence, the court finds it is more likely than not as follows:
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• The new construction in the NE corner of the Barn abuts the Shed but
is not affixed or attached thereto; and that prior to Defendants' work
on this job that was also the case, i.e. the Shed and the Barn abutted
one another but were not affixed or attached.
• The gap near the NE corner of the Barn is, in fact, a gap between two
pre-existing parts of the old Shed and not a gap between the Shed and
Defendants' new construction on the Barn.
• This gap predated Defendants' work on the job.
• As of October 2014, the Barn was plumb and level, and the Shed was
not; and the record evidence does not establish any change in these
respective states.
• The Barn is structurally sound.
• The junctions of the Barn's cross beams with Post F and Post I, as so
identified in Exhibit 1, are structurally adequate. This is also
consistent with the testimony of Helen Watts, who opined that even if
these junctions were not historically authentic or aesthetically
preferable, and even if they were considered "temporary", they are
nonetheless structurally adequate.
• The second floor of the barn is not level, and does not extend fully to
the north wall. Both of these conditions predated, and were not
exacerbated by, Defendants' work.
Even though the two junctions at Post F and Post I appeared "temporary" in
nature, they are structurally sound and could be completed in relatively simple,
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inexpensive fashion by adding a steel or metal plate and/ or "L". The evidence does
not establish specifically how much this would cost.
The evidence as a whole does not establish that it is more likely than not that the
"overhang" observed under the north wall, beginning at the NW corner and decreasing
as it runs to the NE wall, was a result of building movement attributable to Defendants'
work. Nor does the evidence establish that it is more likely than not that the north
wall of the Barn has moved as a result of Defendants' work. There is no evidence that
Defendants' work resulted in any specific violation of local ordinances or building
codes. There was no discussion or agreement about the particular style of construction
that Chase was to employ. The court infers from, among other things, the facts that
Lavin furnished the building materials for the job, was present on a daily basis to
observe the work being done, and expected to pay less that $3,000 that there is no
reasonable basis to find that Chase was expected to repair the barn in the traditional
timber-frame style.
II. Conclusions of Law
A. Plaintiffs' Claims
1. Count I-Breach of Contract
Establishment of an express contract requires that the parties mutually assent "to
be bound by all its material terms; the assent must be manifested in the contract, either
expressly or impliedly; and the contract must be sufficiently definite to enable the court
to determine its exact meaning and fix exactly the legal liabilities of the parties."
Forrest Assocs. v. Passamaquoddy Tribe, 2000 ME 195, § 9, 760 A.2d 1041; VanVoorhees v.
Dodge, 679 A.2d 1077 (Me. 1996); Roy v. Danis, 553 A.2d 663 (Me. 1989)); see also Horton
& McGehee, Maine Civil Remedies§ 10-3(b) (4th ed. 2004) (mutual assent requires "minds
of the parties must have met on all material terms.")
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There was no meeting of the minds with respect to all material terms of an
express oral contract, including the contract price, the time for commencing and
completing the work, and the scope of the work.
Lavin believed that the initial scope of the work included replacing the rotted sill
under the Barn's north wall, and maybe a small portion of the shingles on the lower
part of the wall. It was her understanding that Chase would hire no more than two
additional men and charge at the rate of $40 per hour. It was her understanding that
the work would be started within a few weeks and, once commenced, completed within
two to three weeks; and the total cost of the work would not exceed $3,000.
That was not Chase's understanding or intent. He understood the initial scope
of the work to include not only replacement of the sill but also tearing out and replacing
a large section of the north wall up to the second floor. It was his understanding that
he would charge time and materials at the rate of $45 per hour; and that the work
would commence once Lavin obtained the building permit and cleaned out the Barn.
Plaintiffs have not met their burden of proving the existence of an express oral
contract.
2. Count II-Breach of Warranty
Based on the testimony of Defendants' expert, the court has found it is more
likely than not that Chase's work was not defective and was done in a workmanlike
manner; and that the barn is structurally sound. While Chase's work may not have
satisfied Lavin' s aesthetic expectations, there is no basis in the record to conclude that
any such warranty was given or was reasonable in the circumstances. Plaintiffs have
not met their burden of proving a breach of warranty.
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3. Count III-Fraud
A person is liable for fraud if he makes a false representation of a material fact
with knowledge of its falsity (or in reckless disregard of whether it is true or false) for
the purpose of inducing another person to act or to refrain from acting upon it, and the
other person justifiably relies upon the representation to her detriment. Barr v. Dyke,
2012 ME 108 <_[ 6, 49 A.3d 1280; Rand v. Bath Iron Works Corp., 2003 ME 122 <_[ 9, 832 A.2d
771. Fraud must be proven by clear and convincing evidence. Picher v. Roman
Catholic Bishop of Portland, 2009 ME 67, <_[ 56, 974 A.2d 286.
Plaintiffs have not met this burden. While there was a lack of communication
and understanding about the nature and cost of the work, Plaintiffs have not
established by clear and convincing evidence that Chase knowingly or recklessly made
false representations of material facts upon which Plaintiffs relied to their detriment.
4. Count IV-Home Construction Contract Act
Maine law provides that a "home construction contract for more than $3,000 in
material or labor must be in writing and must be signed by both the home construction
contractor and the homeowner or lessee" and must satisfy a number of statutorily
prescribed provisions. 10 M.R.S. § 1487. Defendants violated the HCCA, and concede
as much.
Even though there was a clear violation of the HCCA, it does not appear that the
statute offers an effective remedy to Plaintiffs in this instance. The HCCA itself
provides no remedies, but rather declares a violation to be prima facie evidence of a
violation of the Unfair Trade Practices Act, Title 5, chapter 10 ("UTPA"). 10 M.R.S. §
1490(1) (violation of the HCCA "shall constitute prima facie evidence of a violation of the
Unfair Trade Practices Act, Title 5, chapter 10.").
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Section 213(1) of the UTP A provides that a person who purchases services or
property primarily for personal, family or household purposes "and thereby suffers any
loss of money or property, real or personal," as a result of a method or practice that violates
the UTPA may bring an action for "actual damages, restitution and for such other
equitable relief, including an injunction, as the court determines to be necessary and
proper." 5 M.R.S. § 213(1) (emphasis added). Plaintiffs have not met their burden of
proving it more likely than not that they have suffered a loss of money or property
resulting from a method or practice that violates the UTP A.
First, the damage to Plaintiffs' personal property (e.g., sewing machines, molds
and/ or other items stored in the Barn) is not a loss that resulted from a "method, act or
practice" that violates the UTP A. Id. The HCCA violation itself is not a proximate
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cause of the damage to the personal property.
Second, the evidence as a whole supports the conclusion that Plaintiffs have not
suffered a loss of money or property resulting from Chase's failure to comply with the
statutory requirement for a written contract or from the work Chase performed.
Plaintiffs have not proven it is more likely than not that the Barn has less value now
than it had prior to Chase's work. The court has found it is more likely than not that
the Barn is structurally sound; that the rotted portions of the sill and wall have been
replaced; that Chase's work was not deficient; and that the work was substantially
complete with the exception of two minor modifications (adding a metal plate or
bracket) to the Post I and Post F joints, the value of which has not been specifically
established. It is neither reasonable nor credible to expect based on the instant record
2
Even if Chase or his crew were responsible for the damages alleged to Lavin's personal
property in the Barn, Plaintiffs have not asserted an alternate theory of recovery upon which
relief can be granted.
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that the scope of work included restoration of the Barn in an historically authentic
manner using timber-framed construction.
For the foregoing reasons, judgment will be entered for Defendants on all counts
of the complaint.
B. Defendants' Counterclaims
Defendants' have asserted counterclaims based on breach of contract; quantum
meruit; unjust enrichment; and violation of the Prompt Payment Act, 10 M.R.S. §§ 1111
20.
1. Count I-Breach of Contract
For the reasons discussed above in Section II(A)(l), Defendants also have failed
to prove it more likely than not that there was a meeting of the minds as to all material
terms of an express oral contract. The counterclaim for breach of contract fails.
2. Count II-Quantum Meruit
A claim in quantum meruit seeks to recover for labor, services or materials
provided pursuant to an implied contract, which is inferred from the conduct of the
parties. Runnells v . Quinn, 2006 ME 7 'l110, 890 A.2d 713; Pafjhausen v. Balano, 1998 ME
47,916,708 A.2d 269. A quantum meruit claim may lie when an express contract is void
for lack of mutual assent. Horton & McGehee, Maine Civil Remedies§ 11-2(a)(2) (4th ed.
2004). Failure to comply with the Home Construction Contract Act does not bar
recovery under a quantum meruit theory. See Runnells, 2006 ME 7 91 9, 890 A.2d 713.
The evidence establishes that Defendants provided labor to rebuild portions of
the Barn; that this work was done for the Lavins with their knowledge and consent; and
that it was provided under circumstances that make it reasonable for Chase to expect
payment. Runnells, 2006 ME 7 9110, 890 A.2d 713; Paffhausen, 1998 ME 47, 916, 708 A.2d
269. Defendants commenced the work with Lavin's agreement. She was aware of the
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nature and extent of the work as it progressed. She was aware of the changes in scope
of the work, and she requested some of the changes, such as the installation of the door
in the reconstructed north wall. During the work she did not object or demand that
Chase cease.
The measure of recovery in quantum meruit is the reasonable value of the labor,
materials, goods or services provided. Horton & McGehee, Maine Civil Remedies, § 11
2(a) (4th ed. 2004). In the circumstances, the court finds the $40 per hour rate for labor
on this job was a reasonable rate, and was one that Lavin herself had agreed to pay.
Based on the $40 per hour rate, the reasonable value of Chase's labor for this job was
$7,520. Plaintiffs have paid Chase $5,000. The balance of $2,520 will be awarded to
Chase.
3. Count III-Unjust Enrichment
Defendants have established an implied contract as the basis for recovery under
the theory of quantum meruit. This forecloses their unjust enrichment claim. See
Horton & McGehee, Maine Civil Remedies,§ 7-3(a) (4th ed. 2004) (Unjust enrichment only
a basis for recovery where there is no contractual relationship).
4. Count IV-Prompt Payment Statute, 10 M.R.S. § 1111 et seq.
The Prompt Payment Statute does not create an independent cause of action, but
does provide remedies to one who prevails on a contract or quantum meruit claim.
Jenkins, Inc. v. Walsh Bros., 2001 ME 98, <JI 31, 776 A.2d 1229, 1239. The remedies under
the statute, however, are not without limitation. The court finds that Plaintiffs have
disputed and withheld payment of the balance owed in good faith, and therefore
should not be subject to penalties and fees otherwise assessable under this statute. See
10 M.R.S. § 1114.
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III. Judgment and Order
Accordingly, it is hereby ordered the entry shall be:
1. Judgment for Defendants on Counts I, II, III, and IV of Plaintiffs' Complaint;
2. Judgment for Plaintiffs on Counts I, III, and IV of Defendants' Counterclaim;
and
3. Judgment for Defendant on Count II of their Counterclaim in the amount of
$2,520 plus interests and costs.
SO ORDERED.
DATE: May 18, 2017
ENTERF!D ON THE tiOCKET ON: -~,~/ I !( /1?
r r
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CV-13-275
ATTORNEYS FOR PLAINTIFF:
MICHAEL J O'TOOLE
SANDRA L GUAY
WOODMAN EDMANDS DANYLIK AUSTIN
POBOX468
BIDDEFORD ME 04005
ATTORNEY FOR DEFENDANT
THOMAS MCKEON ESQ
RICHARDSON WHITMAN LARGE & BADGER
POBOX9545
PORTLAND ME 04112