The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS Civil Action
Docket No. CV-16-009
ELLIS CONSTRUCTION, INC.,
Plaintiff
DECISION AND JUDGMENT
V.
TOWN OF FAMINGDALE
Defendant
INTRODUCTION
This matter is before the court for decision following a one-day nonjury trial
held on January 9, 2018. In lieu of oral argument after the close of the evidence, the
parties submitted written post-trial briefs, the last of which was received by the court
on January 26, 2018.
The Plaintiff, Ellis Construction, Inc., commenced this action on January 8,
2016 with the filing of a four-count complaint against the Defendant Town of
Farmingdale. On September 21, 2016, the Plaintiff filed its First Amend Complaint
in which it added a fifth count. 1 As amended, the complaint alleges that the
Defendant breached its contract with Ellis Construction to perform Sewer,
Inspection and Maintenance for the Town in 2015-2016 (Count I). The complaint
also seeks recovery under theories of unjust enrichment (Count II) and quantum
meruit (Count Ill). Count IV asserts a violation of the Freedom of Access Act
(FOAA) by virtue of an allegedly unauthorized executive session by the
Farmingdale Select Board. Finally, the Plaintiff seeks remedies under the Maine
Prompt Payment Act - 10 M.R.S. § 1111 et seq. - (Count V).
1
The Plaintiff's Motion to Amend was granted without objection on September 16, 2016.
1
Trial was held on January 9, 2018, at which the court received the testimony
of the following witnesses called by the Plaintiff: Angenette (Angie) Ellis;
Christopher Ellis; Jim Grant, and; Nancy Frost. The Defendant called Benjamin
Sanborn and Rose Webster. Joint Exhibits 1-24, Plaintiff's Exhibits 25-26 and
Defendant's Exhibits 28-30 were admitted into evidence. 2
Based on the evidence presented at trial, and after consideration of the parties'
post-trial written arguments, the court makes the following findings of fact.
FINDINGS OF FACT
In December 2009 Ellis Construction and the Town entered into a "Sewer
Inspection, Repair & Maintenance Contract" for a one-year period "to be
automatically extended for a total of three years unless sooner terminated . . ." (Jt.
Ex. 2). That contract would have expired on December 31, 2013, except that in July
of that year the parties entered into a new agreement to run from July 1 to June 30
for one-year "with the Town option to renew annually up to three (3) years, unless
sooner terminated ...." (Jt. Ex. 1).
Under both the 2009 and 2013 contracts, the Farmingdale Sewer Committee
acted in an advisory capacity to the Select Board and was the designated entity to
"interface with the Contractor [Ellis Construction] for appropriate and timely work
activities ...." Moreover, a member of the Select Board acted as the Board liaison
with the Sewer Committee. The court finds that in 2014 the contract was renewed
without any formal or official action of the Select Board, except by way of
authorizing the payment of the first install!llent of the contract, thereby essentially
exercising the option to renew.
The 2013 contract (Jt. Ex. 1) provided:
2
Plaintiffs Exhibit 27 was marked and used solely for illustrative purpose~.
2
The Town and the Contractor may amend the contract only if all parties
reach agreement upon the revised terms. In the event the parties cannot
reach agreement on the terms of the renewal, the contract shall
terminate at the end of the calendar year, as provided above. At any
time while this contract remains in effect, the Town and the Contractor
may enter into negotiations to revise the scope of work and the labor
and equipment rates, if necessary. Nothing in this contract shall be
interpreted to create an expectation of a continuing or ongoing business
relationship between the Town and the Contractor.
The 2013 contract separately identified the duties of the Plaintiff as
"Inspection and Maintenance," and "Repair." See ii 4 & 5. With respect to the
maintenance portion of the contract, the Town was to pay Ellis a total of $3,300 in
three installments, to wit, July 1, December 31 and June 30. See i 6. Any repair
work "would be completed at the rates specified by the Contractor in this proposal ."
i 5(a). It is the court's understanding that the Sewer Committee and the designated
Plumbing Inspector would "interface" with the Contractor (Ellis) to request that
work be done if needed, and to assess whether Ellis' work performance was
satisfactory. ii 6 & 8. The Plaintiff, through the testimony of Angie Ellis, estimated
that, on average, it was paid $22,000 - $25 ,000 per year for extra work it was
requested to perform by the Town. The court finds that this "extra" work was not
guaranteed under the contract and would only be performed and paid for if requested
by the Town.
In February 2015 an issue developed that involved an invoice from Ellis
Construction that had been approved by the Sewer Committee and the Plumbing
Inspector, but not yet approved for payment by the Select Board. The issue was
brought up at the Sewer Committee's meeting of February 19, 2015, and a discussion
3
ensued about Jim Grant, the Select Board liaison to the Committee. An individual
present at the meeting questioned whether Mr. Grant was communicating well with
contractors for the Town, including Ellis Construction and whether he should cease
serving as Board liaison. Mr. Grant made it clear that he had no intention of stepping
down as liaison and maintained that he had a good relationship with the Committee.
Another member of the Select Board was also present at the meeting and remarked
that it was she who had raised questions about the Ellis Construction invoice as well
as other bills submitted by vendors doing business with the Town. 3 Towards the end
of the meeting, there was a reference to the contract between the Town and Ellis
Construction and whether all Committee members had a copy of it. Chris Ellis of
Ellis Construction was present at this meeting and answered questions about the
mv01ce.
The issue of the invoice submitted by the Plaintiff was again brought up at the
Sewer Committee meeting of March 19, 2015. 4 Mr. Grant and Nancy Frost were
also at this meeting, as was Chris Ellis who tried to answer the questions from the
Select Board members.
At the May 21, 2015 meeting of the Sewer Committee Angie Ellis was present
as was Jim Grant, Board liaison. Mr. Grant "handed out a draft of the Sewer
Maintenance Contract to the Sewer Committee." A copy of the draft was also given
to Angie Ellis. The minutes of the May 21, 2015 meeting reflect the following: "By
giving Angie Ellis a copy of the contract it is agreed that negations [sic] 5 have started
between the Town of Farmingdale and Ellis Construction." A motion was
3
The minutes of the February 19, 2015 Sewer Committee meeting identified "Nancy" as Nancy Grant. The court
believes that the Nancy referred to in the minutes was actually Nancy Frost, a Select Board member who testified
at trial.
4
The invoice in question apparently pertained to the cleaning of the "meter pit."
5
The court treats this as an obvious typographical error, which should read: "negotiations."
4
unanimously passed that the draft copy of the contract was provided to Ellis
Construction "in anticipation of negotiations and renewal and changes."
In an e-mail dated June 4, 2015, Angie Ellis wrote to the secretary of the
Sewer Committee that "Chris [Ellis] has reviewed the draft and is agreeable to the
changes." That e-mail was forwarded to all members of the Sewer Committee as
well as to Select Board members Grant and Frost. 6
At the June 18, 2015 Sewer Committee meeting, all three Select Board
members were in attendance. Angie Ellis, on behalf of Ellis Construction, was also
there. The minutes of that meeting reflect that there was extensive discussion about
the draft Sewer Maintenance contract. It is clear from the minutes, however, that a
final version of the contract was not ready and additional edits to the contract were
being or might be considered and would have to be reviewed and found acceptable
to the Select Board and Ellis Construction. No formal vote was taken on the matter,
but at the end of the discussion the minutes read as follows:
Ben [Sanborn, Acting Chair] stated that after reviewing the contract and
making changes to send to the Select Board and have the Select Board
send out to Ellis and see if Ellis is agreeable to the changes, and if there
are no changes after reviewing the contract then we would recommend
that the Select Board go ahead and renew the contract with Ellis
Construction for the final year. Jim [Grant] will send out a draft of the
Sewer Maintenance contract no later than tomorrow to all members for
their review and any recommended changes.
6
Apparently, when the draft contract was provided to Angie Ellis at the Sewer Committee meeting on May 21,
2015, a deadline of June 5, 2015 was imposed for Ellis Construction to respond.
5
At this meeting of the Sewer Committee there was also further discussion about the
bill from Ellis Construction pertaining to the cleaning of the "meter pit," and why
certain equipment and the number of employees were needed for that particular job.
At the June 24, 2015 meeting of the Farmingdale Select Board, the issue of
the unpaid invoice from Ellis Construction relating to the cleaning of the "meter pit"
was again discussed. The Board voted unanimously to seek legal advice from
counsel as to whether the bill should be paid.7
There was evidence presented at trial that the Select Board requested Ellis
Construction, or its representative, to be present at the Select Board meeting of July
8, 2015 to discuss issues relating to the Sewer Maintenance contract. How this
request was made is unclear to the court. The minutes of the June 24, 2015 Select
Board meeting do not mention such a request, and there was no documentation
submitted to the court that a request for attendance at the July 8 meeting was
forwarded to Ellis Construction. Nevertheless, that such a request was made by the
Select Board and received by Ellis Construction is made clear by the letter dated
July 8, 2015 to the Select Board from Angie Ellis. (Jt. Ex. 13).
Ms. Ellis started her letter by noting that it was "in response to the notification
dated June 26, 2015 requesting the presence of Ellis Construction at the July 8.. select
board meeting to discuss the sewer maintenance contract." She then informed the
Select Board that "Ellis Construction will not be attending the meeting as it is
unnecessary." Ms. Ellis described a meeting with the Select Board as being
"superfluous" since the sewer contract was extensively discussed at the Sewer
Committee meeting and had been "approved" at that time (apparently referring to
the June 18, 2015 Sewer Committee meeting). She informed the Select Board that
7
The issue about this invoice appears to center on whether it included charges for "training" and other items not
permitted by the contract to be charged to the Town such as OSHA certification.
6
it "lacks the expertise to meaningfully discuss issues related to sewer maintenance
and safety ...." She requested that if a meeting was still deemed necessary by the
Board, it should send in writing and by certified mail "an explanation as to the nature
and purpose of the meeting, which will be reviewed by our attorney." Ms. Ellis
asserted that the "select board has a history of targeting our company and questioning
contracts, invoices, business and safety practices which is creating a hostile working
environment." She also questioned whether Ellis Construction was being treated
fairly and equitably by the Town, "especially as our invoices and practices are
discussed at public meetings." Finally, Ms. Ellis informed the Select Board that
Ellis Construction's "past practice" had been to clean the five pump stations during
the week of July 4th, but it was only able to clean three of the pump stations due to
a lack of hydrogen peroxide, "so the town will need to order more."
At the Select Board meeting of July 8, 2015, the letter from Ms. Ellis was
noted in the minutes. The discussion at the meeting, according to the minutes,
centered on sending a letter to Ellis Construction making it clear that "all costs
associated with training and safety necessary to comply with OSHA shall be
provided by the contractor at no cost to the Town," and the letter should be reviewed
and sent "before the Contract is signed."
In the meantime, sometime during the first week of July 2015, Ellis
Construction performed work that included cleaning out the pump stations. Only
three of the stations could be cleaned before Ellis Construction ran out of hydrogen
peroxide. Chris Ellis notified the secretary of the Sewer Committee on July 7, 2015
that more hydrogen peroxide needed to be ordered, and the Chair of the Committee
immediately directed the secretary to place the order. (Jt. Ex. 12). On July 8, 2015,
Ellis Construction submitted an invoice in the amount of $1,100 for the "First
installment of sewer maintenance contract." (Jt. Ex. 24). That invoice was re
submitted numerous times but has never been paid.
7
At the Sewer Committee meeting of July 16, 2015, the status of the Sewer
Maintenance Contract was discussed by the Chair (Ben Sanborn) who stated his
understanding that the matter was at the Select Board but no vote had been taken.
The minutes of the Select Board meeting of August 5, 2015 reflect that "[a]
letter to Ellis construction [sic] regarding an issue on payment structure with OSHA
training was signed and will be sent with the amended contract to them by Certified
mail and regular mail." An undated letter to Ellis Construction was signed by all
three members of the Farmingdale Select Board. (Jt. Ex. 15). The court finds that
this letter, with a proposed amended sewer maintenance contract, was sent to Ellis
Construction on August 6, 2015 and received on August 8, 2015. (Jt. Exs. 16 & 17).
The letter (Jt. Ex. 15) states:
Enclosed is a copy of the proposed 2015 sewer maintenance contract.
If you wish to continue with the third and final year of the contract
please sign and return it to the Town Office.
The letter elaborated on the requirement that costs associated with training and safety
measures necessary to comply with OSHA would not be approved for payment.
The version of the draft contract sent to Ellis Construction on August 6, 2015
apparently contained a provision that was highly objectionable to Ellis
Construction. 8 The minutes of the August 19, 2015 Select Board meeting make
reference to the Town's attorney and the attorney for Ellis Construction reviewing
the contract, and the Sewer Committee Chair (Ben Sanborn) planning to speak with
the Town attorney regarding "some language issues that have been questioned in the
contract." The minutes of that meeting also include some comments by at least one
8
A copy of this proposed contract was not offered or admitted into evidence at the trial.
8
Board member questioning whether the sewer maintenance contract should be
renewed.
The next day, August 20, 2015, the Sewer Committee met and the status of
the sewer maintenance contract was brought up. As reflected in the minutes, there
was considerable discussion about a new provision in the latest version of the
proposed contract that was viewed as violating Maine's Prompt Payment Law.
Ultimately, the Committee voted unanimously to strike the offending language in
the proposed contract.
In the meantime, in an e-mail dated August 18, 2015 and sent to the members
of the Select Board, the Town's attorney "strongly" recommended that the offending
language in §6(a) of the proposed contract be removed. 9 (Jt. Ex. 19). The next time
the subject of the Sewer Maintenance Contract appears in the minutes of either the
Select Board or the Sewer Committee is at the September 16, 2015 Select Board
meeting. 10 The minutes read as follows:
There was a discussion on the pending Sewer Contract, it was sent to
the attorney for her review and also the contractor's attorney, it was felt
that there has been sufficient time for all to review and the Board needs
to know the status of it. Rose [Webster][Town Clerk, Treasurer and
Tax Collector] said that she and Natalie [Jackson][secretary to the
Sewer Committee] call [sic] today and was told that there will be a
representative from Ellis Construction at the Sewer Committee meeting
tomorrow evening and hopefully they will have an answer on the
contract.
9
The language in §6(a) that Ellis Construction found objectionable reads as follows: "If any discrepancies occur
with an itemized bill the contractor shall attend a Select Board meeting and discuss the bill with the Board of
Selectmen. The Farmingdale Board of Selectmen shall have the right to amend any itemized bill that has
discrepancies. The contractor agrees the Board of Selectmen make the final decision on all discrepancies." (Jt. Ex.
19).
10
The court finds that a revised contract without the offending language of section 6(a) was sent to Ellis
Construction sometime between August 20 and September 16, 2015. See Joint Exhibit 18.
9
Nancy Frost made a motion that if the Sewer Maintenance Contract is
not signed tomorrow night, that the contract will be put out to bid.
Wayne Kilgour second
Vote 3/0
The next evening, September 17, 2015, the Sewer Committee met. Ellis
Construction sent a representative to the meeting. Select Board member Nancy Frost
acted as Board liaison. The minutes reflect that Angie Ellis on behalf of Ellis
Construction had signed the Sewer Maintenance contract in front of the town clerk
earlier that day. (Jt. Ex. 4). It was expected that the Sewer Committee Chair would
sign the contract, which he subsequently did. 11 The minutes also reflect that the
contract would be sent to the Select Board for "their signature" on September 23,
2015. There was discussion about what to do with the invoice submitted by Ellis
Construction for the "First installment" on the maintenance contract that had been
submitted in July, 2015. Board liaison Nancy Frost "asked if this means the contract
starts today or does it start in July."
The minutes of the meeting of the Farmingdale Select Board for September
23, 2015 reflect the following:
Nancy Frost- the contractors and the Board need to deal civil with each
other. A letter wrote [sic] by Ellis Construction noted that they did not
like dealing directly with the Selectboard. Nancy said that we had
dragged out [sic] feet on the contract and that she had made a motion
last week that Ellis Construction had to sign the contract by the Sewer
Meeting or that it would be put back out to bid. Ellis Construction did
come in and sign the contract. Rose said that Ben Sanborn, Chairmen
of the Sewer Committee, had come in and signee d [sic] contract as
well.
JoAnn Choate spoke up and said that the committee started working on
the contract about the first of May and here it is October and we are still
11
There does not appear to have been a formal vote by the Sewer Committee recommending approval of the
revised contract with Ellis Construction. While a majority of the Sewer Committee members favored the contract,
support for it was not unanimous on the Committee. See Joint Exhibit 18.
10
going around on this. That Ellis Construction is being held to different
standards than other contractors and not performing as per the contract.
Did the Board see or review any year end sewer maintenance reports
and evaluations, have they been attending the meetings as required by
the contract. Michael St. had work done this winter with a sewer
problem and to date the contractor has not coordinated with the Road
Commissioner to repair the street and the driveway. JoAnn feels that
there are many problems and that problems are just being ignored.
JoAnn also said that she has proof that there are illegal things going on
in the Town that she had spoken to the FBI and verified what Jimi [sic]
had said regarding the taped meeting. That the Selectboard is
responsible to take care of the residents and any decisions that they take
should not be made lightly.
Jim Grant made a motion at 7:05pm to go temporarily into executive
session MRSA §405(6)(D) to discuss the contract.
Nancy Frost second
Vote 3/0
Jim Grant made a motion at 7:27pm to reopen the meeting .
Nancy Frost second
Vote 3/0
Jim Grant made a motion that after extensive conversation in the
executive session and with the new information that the Board will not
reissue the Sewer Contract that it will be going back out to bid and the
current contractors are eligible to bid on it as well.
Nancy Frost second
Vote 3/0
Following the meeting of September 23, 2015, the Select Board sent an
undated letter to Ellis Construction informing it that the Board had voted "to not
renew the Farmingdale Sewer Maintenance Contract with your company for the final
year of three (3) one (1) year contracts." (Jt. Ex. 20) The letter also informed Ellis
Construction that it could submit a proposal if it wanted to be considered "for the
next Sewer Maintenance Contract." The letter was signed by all three members of
11
the Select Board. The Sewer Maintenance Contract that was signed by Angie Ellis
on September 17, 2015 was never signed by the Select Board. In early November
2015, the Sewer Maintenance Contract was awarded to Excalibur. (Jt. Ex. 5). Ellis
Construction commenced this action on January 6, 2016.
At the trial of this matter and throughout the minutes of the Select Board
meetings in 2015 that the court has reviewed, there was reference to some type of
covert FBI investigation in Farmingdale. The references were vague and non
specific and the court has given those references no credence whatsoever in reaching
its Decision and Judgment in this case.
DISCUSSION
A. Breach of Contract (Count I)
"[A]ny action to enforce a contract depends on the existence of the contract
itself ...." Sullivan v. Porter, 2004 ME 134, ~ 12,861 A.2d 625. "To demonstrate
that the parties had a legally binding contract, the plaintiff must establish that there
was a meeting of the minds between the parties - or 'mutual assent to be bound by
all [the] material terms' of the contract." Tobin v. Barter, 2014 ME 51, ~ 8, 89 A.3d
1088. Because the existence of a contract "intricately" involves "the conduct of the
parties" it is a question of fact. Negotiations as to the terms of a future agreement
do not constitute a contract. "Whether the parties are merely negotiating the
contract, or entering into a present contract, is purely a question of intention."
McClare v. Rocha, 2014 ME 4, ~ 20, 86 A.3d 22. The "mutual assent" of the parties
is a critical and essential component to the formation of a contract. Forbes v. Wells
Beach Casino, Inc., 307 A.2d 210,216 (Me. 1973).
The Plaintiff argues that a contract between it and the Town of Farmingdale
for the third year of the Sewer Maintenance Agreement existed as far back as June
4, 2015 when Angie Ellis wrote to the secretary of the Sewer Committee that her
12
husband (Chris) had reviewed the draft contract and was "agreeable to the changes."
The court disagrees that a contract was formed at that point in time.
It is obvious to the court from the minutes of the various meetings of the Sewer
Committee and the Select Board in May and June 2015 that the parties were still in
the negotiation stage of whether to renew the Sewer Maintenance Contract. The
Town was clearly focused on the invoice submitted by Ellis Construction that
appeared to include charges for "training" and compliance with OSHA certification.
The court finds that while Ellis Construction may have been "agreeable" to the initial
proposed contract changes, the Town through the Select Board had not assented to
exercising its option to renew the Agreement at that point. In short, the Select Board
wanted the issue of the invoice and billing practices with Ellis Construction clarified
and settled before it would agree to a contract extension. That issue was still a topic
of discussion by the Select Board at its June 24, 2015 meeting when it voted to seek
legal advice as to whether the pending invoice should be paid.
The court finds that the relationship between Ellis Construction and the Select
Board took a dramatic tum for the worse when Angie Ellis wrote her letter of July
8, 2015 and refused to attend the Select Board meeting on that date. The court has
no doubt that the Select Board was deeply offended by the tone and content of that
letter and found it to be unprofessional and disrespectful. The response of the Select
Board was to propose a change to the contract that, essentially, mandated Ellis
Construction to appear before the Board to discuss any billing discrepancies and
gave the Board the ultimate decision-making authority regarding all such
discrepancies.
Not surprisingly, Ellis Construction objected to that language and refused to
accept it. Thus, there was clearly no "meeting of the minds" or mutual assent at that
point in time (late August- early September 2015). Indeed, the court finds that just
the opposite was true. The parties were not in agreement at all on the terms of the
13
agreement or whether the Town was going to renew the contract for a third and final
year.
That brings the court to the Select Board meeting of September 16, 2015. By
this time the contract had been re-drafted and the offending language in section 6(a)
had been removed. In essence, the Board wanted to know what Ellis Construction
was doing with the proposed contract. The Board had been informed that a
representative of Ellis Construction would be attending the Sewer Committee
meeting the following night "and hopefully they will have an answer on the
contract." At that point, the Board voted "that if the Sewer Maintenance Contract is
not signed tomorrow night, that the contract will be put out to bid."
Angie Ellis did sign the contract the following day on behalf of Ellis
Construction. The issue for the court is whether the Select Board's vote on
September 16, 2015 combined with Angie Ellis' signature on the contract on
September 17, 2015 constituted "[a] mutual assent" to be bound by the contract.
The court does not interpret the Select Board's action on September 16, 2015
as being an intent or assent to be bound by the contract if Ellis Construction signed
it the next day. Rather, the court interprets the Board's action and vote to mean only
that it wanted to know for certain no later than the night of September 17, 2015
whether Ellis Construction was going to sign the contract. The Board's action on
September 16, 2015 did not mean that it had decided and intended to be bound by
the contract if Ellis Construction signed it the next day. In other words, the Board
had not manifested its assent to exercising the Town's option to renew the contract
for the third year. It was simply setting a "drop dead" date when Ellis Construction
had to make up its mind.
Accordingly, the Select Board acted within its authority on September 23,
2015 in declining to exercise the Town's option to renew the Sewer Maintenance
Contract. The Plaintiff has failed to prove the existence of a contract or a breach
14
thereof. Accordingly, judgment will be entered for the Defendant on Count I of the
Amended Complaint.
B. Unjust Enrichment (Count II)
The Plaintiff's claim for unjust enrichment is not precluded simply because
the Defendant is a municipality. Tucci v. City of Biddeford, 2005 ME 7, 1f 14, 864
A.2d 185. To prevail on a claim for unjust enrichment, however, a plaintiff must
show that: (1) it conferred a benefit on the other party; (2) the other party had
appreciation or knowledge of the benefit and; (3) the acceptance or retention of the
benefit was under such circumstances as to make it inequitable for it to retain the
benefit without payment of its value. Forrest Assocs. V. Passamaquoddy Tribe,
2000 ME 195, 1f 14. Unjust enrichment permits recovery for the value of the benefit
conferred "when, on the grounds of fairness and justice, the law compels
performance of a legal and moral duty to pay ...." Paffhausen v. Balano, 1998 ME
47, 1f 6.
The court is satisfied that the Plaintiff has established the elements of unjust
enrichment in this case. The Plaintiff performed the cleaning of the pump stations
in early July 2015 and, according to the testimony of Chris Ellis, continued to
perform work for the Town into September in anticipation that the contract would
be renewed. While the value of that benefit was not itemized in detail, the court
finds that the sum of $1,100 represents a fair value for the benefit conferred on the
Town. Judgment will be for the Plaintiff on Count II of the Amended Complaint in
the amount of $1,100.
C. Quantum Meruit (Count ill)
"To sustain a claim in quantum meruit, a plaintiff must establish that '(1)
services were rendered to the defendant by the plaintiff; (2) with the knowledge and
consent of the defendant; and (3) under circumstances that make it reasonable for
15
the plaintiff to expect payment.",i 2 Forrest Assocs. v. Passamaquoddy Tribe, 2000
ME 195, ~ 11, 760 A.2d 1041 quoting Carvel Co. v. Spencer Press, Inc. 1998 ME
74, ~ 12, 708 A.2d 1033, 1036. See also Jenkins, Inc. v. Walsh Bros., 2001 ME 98,
'115, 776 A.2d 1229. Quantum meruit describes a form of recovery for material or
services provided under an implied or quasi-contract theory of liability. The Law
Court has been "reluctant to impose quantum meruit liability on municipalities when
the services rendered were not authorized by the municipality." Forrest As socs.,
2000 ME 195, '113.
In this case, the court finds that the Plaintiff has failed to prove its entitlement
to recovery under quantum meruit. The court has found that as of July 1, 2015 the
Sewer Maintenance Contract between the Town and Ellis Construction had expired
and had not been renewed. Ellis Construction performed the cleaning of the pump
stations during the week of July 4, 2015 without the benefit of a contractual
relationship with the Town and under circumstances where it knew or should have
known that the renewal of the contract was still undecided by the Select Board.
Unlike its 2009 Sewer Maintenance Contract with the Town, the 2013 contract did
not automatically renew. Rather, Ellis Construction performed that work because it
was its past practice to do it that particular week. Ellis Construction has not shown
that it had a reasonable expectation of payment under an implied or quasi contract
theory. Indeed, the Sewer Maintenance Contract explicitly provides that it must not
be interpreted as creating any expectation of a continuing business relation between
the Town and the Contractor. Accordingly, judgment will be entered for the
Defendant on Count II of the Amended Complaint.
12
These factors are questions of fact. See Paffhausen v. Balano, 1999 ME 169, ,i 9, 740 A.2d 981.
16
D. FOAA Violation (Count IV)
The Plaintiff has alleged that the executive session of the Farmingdale Select
Board on September 23, 2015 was not permitted by 1 M.R.S. §405(6). The Plaintiff
is seeking the imposition of a fine upon the Defendant for a civil violation.13 Title
1 M.R.S. §410 provides:
For every willful violation of this subchapter, the state
government agency or local government entity whose officer or
employee committed the violation shall be liable for a civil violation
for which a forfeiture of not more than $500 may be adjudged.
A penalty for a civil violation under the Maine Freedom of Information Act
1s only enforceable by the Attorney General or some "other appropriate public
official." 17-A M.R.S. §4-B(l). See Lewiston Daily Sun v. School Admin. Dist. No.
43, 1999 ME 143,, 11,738 A.2d 1239; Scola v. Town of Sanford, 1997 ME 119,,
7,695 A.2d 1194.
Judgment will be entered for the Defendant on Count IV of the Amended
Complaint.
E. Prompt Payment Act (Count V)
Maine's Prompt Payment Statute applies to construction contracts, either
written or oral, "to perform or to supply materials for work on any real property."
10 M.R.S. §1111(2). The law requires the "owner" of real property on which work
was performed "to pay the contractor strictly in accordance with the terms of the
construction contract." 10 M.R.S. §1113(1). Penalties and attorney fees are
recoverable pursuant to and in accordance with 10 M.R.S. §1118(2). The term
"owner" includes municipalities. 10 M.R.S. §1111(6).
13
The Plaintiff has not alleged, and no evidence was presented at trial to suggest, that the Select Board took any
"official action" while in executive session on September 23, 2015 . Thus, the Plaintiff has not asked the court to
declare any action of the Select Board "null and void" in accordance with 1 M.R.S. §409(2).
17
"[T]he remedies provided by the prompt payment provisions are intended to
augment damages that are traditionally available for contract or quantum meruit
claims ...." Jenkins, Inc. v. Walsh Bros., 2001 ME 98, 1f 24, 776 A.2d 1229.
Because the prompt payment statute applies to contract or implied contract claims,
it does not, in the court's view, provide relief and its remedies are not available for
an unjust enrichment claim. The court has previously found that the Plaintiff has
not prevailed on its breach of contract and quantum meruit claims. Accordingly,
judgment will be for the Defendant on Count V of the Amended Complaint.
CONCLUSION
The entry is:
Judgment for the Defendant on Counts I, III, IV and V of the First Amended
Complaint.
Judgment for the Plaintiff on Count II of the First Amended Complaint in the
amount of $1,100.
The Clerk is directed to incorporate this Decision and Judgment into the
docket of this case by notation reference in accordance with M.R.Civ .P. 79(a).
Dated: April 12, 2018
Justice, Superior Court
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