Bachelder's Construction v. Jo Ann Harris

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
DOCKET NO. CV-18-158

BACHELDER’S )
CONSTRUCTION, INC., )
Plaintiff,

V. DECISION AND ORDER
JO ANN HARRIS,
Defendant.

This case arises from allegations that Defendant Jo Ann Harris (“Harris”)
failed to pay in full for renovations Plaintiff Bachelder’s Construction, Inc.
(“Bachelder’s Construction”) made to her home. After trial, the court concludes that
Bachelder’s Construction is entitled to recovery on a theory of quantum meruit and
is entitled to statutory penalties, attorney fees, and costs under the prompt
payment statute.

PROCEDURAL HISTORY

In a complaint filed on September 10, 2018, Bachelder’s Construction alleged
claims of breach of contract (Count I), unjust enrichment (Count II), quantum
meruit (Count ID, and violation of the prompt payment statute, 10 M.R.S. § 1111 et
seq. (Count IV). The court conducted a bench trial on November 20, 2023, at which
Bachelder’s Construction was represented by counsel and Harris represented

herself. The court received several exhibits in evidence and heard from three
witnesses: (1) Walter Bachelder, Jr. (“‘Bachelder”), who is the owner of Bachelder’s
Construction, (2) his son, also named Walter Bachelder, and (3) Harris.

FINDINGS OF FACT

Bachelder is an experienced contractor who has owned Bachelder’s
Construction for more than 20 years. In 2017, Harris, who had recently moved to
Fryeburg, contacted Bachelder by telephone to arrange for some minor renovations
to her new home. The initial agreement was for Bachelder’s Construction to replace
ten windows and a sliding door. Neither the scope of the work nor the agreed-upon
cost was reduced to writing.!

On August 26, 2017, Harris gave Bachelder a check for $6,300, which
Bachelder used to cover the cost of the new windows he purchased for the project.
Shortly thereafter, Bachelder, assisted by his son and another employee, began
work at Harris’s home. Upon starting the renovations, the men discovered rotted
flooring and rim joists that needed to be replaced. Harris was present at the home
and agreed to expand the scope of work to address the rot. She also agreed to
Bachelder’s suggestion that he replace two additional doors and a small deck.

Again, no written contract was signed regarding these additional renovations.

1 Bachelder testified that he does not always prepare written contracts for
residential construction jobs, but that he provided Harris with a written proposal
before beginning the work. The plaintiff was unable to produce this initial proposal
for trial, however. While the plaintiff did offer into evidence a document labeled
“proposal” (admitted at trial as Plaintiffs Exhibit 2), the court finds, based on the
date of the document and the work referenced therein, that Bachelder prepared this
document as a bill after the agreed-upon work had been completed.

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Bachelder’s Construction finished the agreed-upon renovations in about a
week. Aside from some minor complaints about the crew’s cleanup efforts and a
door latch that was installed upside down, Harris did not raise any concerns about
the quality of the workmanship. Upon completion of the work, Bachelder informed
Harris that she owed $11,089, which Bachelder had calculated as the total cost of
the labor and materials less the $6,300 Harris already paid. To arrive at a final bill,
Bachelder, consistent with industry standards, typically multiplies the price of
materials by 2 or 2 % and then adds 10% to cover supplies.

On September 25, 2017, the day Bachelder’s Construction completed its work,
Harris wrote a check for $11,089 as requested and gave it to Bachelder. Shortly
thereafter, Harris spoke by telephone with her husband? about the costs of the
renovations, and then called Bachelder to tell him that she was canceling the check
as she believed the bill was too high. Two days later, Harris drove to Augusta and
handed Bachelder a check for $1,700 marked with the words “Final Payment.”
Harris believed that the $6,300 she paid previously covered the window installation,
and that $1,700 was all that was owed for the extra work Bachelder’s Construction
did to replace the deck and rotted materials. In fact, those two amounts together,
totaling $8,000, would not even have covered the cost of materials Bachelder
procured to complete the project, which was nearly $10,000. See Pl.’s Ex. 2.

Bachelder, furious that Harris had not paid him the requested amount, never

cashed the $1,700 check. This lawsuit followed.

? Harris and her husband were separated at the time and not living together.
DISCUSSION

Bachelder’s Construction alleges that it is entitled to recover $11,089 for
breach of contract (Count I), or the unjust enrichment conferred on Harris in the
form of its labor and materials (Count II), or the reasonable value of its labor and
materials in quantum meruit (Count III). The plaintiff also requests attorney fees,
court costs, and $7,894.08 in statutory penalties under the Prompt Payment Act.

Bachelder’s Construction bears the burden of proving its claims by a
preponderance of the evidence. Petit v. Key Bank of Maine, 688 A.2d 427, 431 (Me.
1996) (“We have long recognized and applied the general rule that a plaintiff's
burden of proof in a civil action is to establish each factual element of a claim by a
preponderance of the evidence.”).

A. Breach of Contract, Unjust Enrichment, and Quantum Meruit

The court finds that Bachelder’s Construction has not established the
existence of a valid and enforceable contract, which requires “‘a meeting of the
minds of the parties to the contract, i.e. a mutual assent to be bound by its
terms... .” Sarchi v. Uber Techs., Inc., 2022 ME 8, § 15, 268 A.3d 258 (quoting
Ouelletie v. Bolduc, 440 A.2d 1042, 1045 (Me. 1982)). The parties did not agree on

the specific cost of the renovations and never entered into a written agreement.’ See

3 However, the parties understood that the cost would exceed $3,000. The
Home Construction Contracts Act (HCCA), 10 M.R.S. §§ 1486-1490, provides in
pertinent part that a “home construction contract for more than $3,000 in materials
or labor must be in writing,” id. § 1487, subject to civil penalties, id. § 1490. In this
case, Harris did not bring a counterclaim alleging an HCCA violation.
Sweet v. Breivogel, 2019 ME 18, ¥ 15, 201 A.3d 1215 (affirming Superior Court’s
determination that no express contract was formed where “throughout the
construction process, the parties held different understandings of the work to be
performed and the total cost of the project’).

The lack of an enforceable contract does not end the analysis. Instead,
Bachelder’s Construction is entitled to damages under a theory of quantum meruit,
which “involve[s] recovery for services or materials provided under an implied
contract, which is a contract inferred from the conduct of the parties.” Runnells
v. Quinn, 2006 ME 7, { 10, 890 A.2d 718 (citing Paffhausen v. Balano, 1998 ME 47,
{| 6, 708 A.2d 269)).4 “A valid claim in quantum meruit requires: that (1) services be
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 the plaintiff
to expect payment.” Id. (quoting Paffhausen, 1998 ME 47, { 8, 708 A.2d 269).

ce

Quantum meruit may lie when “there was not a clear accession on both sides to one
and the same terms,’ if services are provided ‘under circumstances that negative the
idea that the services were gratuitous.” Paffhausen, 1998 ME 47, § 9, 708 A.2d 269
(quoting Colvin v. Barrett, 118 A.2d 775, 778 (Me. 1955)).

The trial evidence shows that Harris hired Bachelder’s Construction to install

new windows and a door—work for which she knew she would be charged. Harris

4 Because there was a quasi-contractual relationship between the parties,
Bachelder’s Construction cannot recover pursuant to its claim of unjust enrichment,
which “provides damages based on principles of equity, not contract, and awards the
successful party the value of benefits conferred on another when no contract exists.”
Cummings v. Bean, 2004 ME 93, 4 9-10, 853 A.2d 221.
thereafter agreed to expand the scope of the project to include additional doors and
a deck. Under these circumstances, Bachelder’s Construction reasonably expected
payment for the totality of the work and Harris, through her actions, demonstrated
a “concurrent intention’... to compensate” the contractor. Id. (quoting Estate of
White, 521 A.2d 1180, 1183 (Me. 1987)); see also Runnells, 2006 ME 7, 4 11, 890
A.2d 713 (affirming jury verdict for plaintiff on quantum meruit claim where
defendant asked plaintiff to do additional construction work for which plaintiff
reasonably expected payment); Jenkins, Inc. v. Walsh Bros., Inc., 2001 ME 98, { 16,
776 A.2d 1229 (affirming quantum meruit damages awarded to plaintiff who
reasonably expected payment for drywall work to which defendant consented).
Harris’s apparent misunderstanding regarding the full cost of the
renovations does not defeat the plaintiffs claim for recovery. “When such a party to
whom services are rendered ‘knows it and permits it and accepts the benefit, he is
bound to pay reasonable compensation therefor.” Paffhausen, 1998 ME 47, § 9, 708
A.2d 269 (quoting Colvin, 118 A.2d at 778). Permitting Harris to pay only $8,000
would result in Bachelder’s Construction having performed the labor for free,
contrary to the plaintiffs reasonable expectation of payment. To recover under
quantum meruit, the plaintiff need only prove that it “had a reasonable expectation
that [its] work was not gratuitous and that [the defendant] by her words or conduct
justified this expectation.” Jd. { 10 (emphasis in original). Harris’s actions—hiring

Bachelder’s Construction to renovate her home and agreeing to expand the scope of
the project once the plaintiff started the work—justified the plaintiff's expectation
that its labor was not gratuitous.

In quantum meruit, the damages “are based on the [reasonable] value of the
services provided by the plaintiff.” Paffhausen, 1998 ME 47, 4] 7, 12, 708 A.2d 269,
271. Bachelder’s Construction claims that the total cost of the project was $17,389,
meaning that it is entitled to $11,089 in damages (the total cost less the $6,300
already paid). The trial evidence, however, supports a lower award. The document
labeled “proposal” and submitted at trial as Plaintiffs Exhibit 2, which is dated a
day after the plaintiff completed the renovations and references the materials used
to build the deck and replace the rotted trim and rim joists, lists a total cost of
$15,842.53. The court relies on this contemporaneous documentation as reliable
evidence of the value of the plaintiffs services. See id. The court also finds that the
quoted amount is reasonable considering trial testimony and evidence supporting
Bachelder’s calculations. Bachelder’s Construction is accordingly entitled to a
damages award of $9,542.535 on its claim of quantum meruit,

B. Prompt Payment Statute, Attorney Fees, and Costs

Bacheldeyr’s Construction also seeks statutory penalties, attorney fees, and
costs. “The prompt payment statutes are a collection of rules governing payment
between or among parties to construction contracts in a way that ‘augment[s]
damages that are traditionally available for contract or quantum meruit claims.”

Fortney & Weygandt, Inc. v. Lewiston DMEP IX, LLC, 2019 ME 175, ¢ 26, 222 A.3d

5 Calculated by subtracting the $6,300 Harris already paid from $15,842.53.
613 (quoting Jenkins, Inc. v. Walsh Bros., Inc., 2001 ME 98, { 24, 776 A.2d 1229).
The statutory remedies can comprise interest, penalties, and attorney fees. See 10
M.R.S. §§ 1118, 1118.

Section 1113 governs payments by “owner[s]” to “contractor[s].” Here, Harris
is the owner and Bachelder’s Construction the contractor. 10 M.R.S. § 1111@), (6).
Absent some other agreement between the parties, section 1113(8) requires an
owner to pay an invoice within twenty days after either the billing period ends or
the invoice is delivered, whichever is later. If a payment is not made before the
applicable deadline, “the owner shall pay the contractor interest on any unpaid
balance due beginning on the 21st day,” 10 M.R.S. § 11138(4), and penalties are to be
awarded in “an amount equal to 1% per month of all sums for which payment has
wrongfully been withheld,” 10 M.R.S. § 1118(2). In addition, the “substantially
prevailing party” is entitled to an award of attorney fees and expenses. 10 M.R.S.

§ 1118(4); see Jenkins, 2001 ME 98, § 31, 776 A.2d 1229 (explaining that attorney
fees are available only to a party who succeeds in demonstrating its entitlement to
the other prompt payment remedies).

In certain circumstances, “an owner-obligor is statutorily entitled to withhold
payments without incurring liability pursuant to the prompt payment statutes.”
Fortney, 2019 ME 175, { 28, 222 A.3d 6138. “A payment is not deemed to be
wrongfully withheld if it bears a reasonable relation to the value of any claim held
in good faith by the owner . . . against which an invoicing contractor . . . is seeking

to recover payment.” 10 M.R.S. § 1118(8); see Cellar Dwellers, Inc. v. D’Alessio, 2010
ME 382, § 18, 993 A.2d 1 (“[T]he availability of prompt payment remedies depends
upon whether payment has been wrongfully withheld.” (quotation marks omitted));
Jenkins, 2001 ME 98, { 24, 776 A.2d 1229.
1. Statutory Penalty and Interest

The court finds that Bachelder’s Construction has met its burden to establish
its entitlement to statutory prompt payment penalties. The plaintiff invoiced Harris
on September 25, 2017, upon the completion of the project, and, apart from
providing a check for $1,700 noted as “Final Payment,” Harris has not paid the
invoiced amount. The record further demonstrates that Harris did not withhold the
remaining payment in good faith. See 10 M.R.S. § 1118(8). Although Harris may
have had some confusion about the total price, she made a unilateral decision to pay
the plaintiff only a fraction of what he was reasonably owed based on the value of
the services provided. Bachelder’s Construction is therefore entitled to “interest on
any unpaid balance due beginning on the 21st day,” 10 M.R.S. § 1113(4), as well as
“an amount equal to 1% per month of all sums for which payment has wrongfully
been withheld,” 10 M.R.S. § 1118(2).

Because Harris did attempt to make a final payment of $1,700, the amount
wrongfully withheld is $7,842.53 ($9,542.53 - $1,700). The penalties began to accrue
on October 16, 2017, or 73 months ago, when payment was due in full. See 10

M.R.S. § 1118(4). Bachelder’s Construction is thus due a prompt payment penalty of
$5,725.05 ($7,842.53 x .01 x 73), see 10 M.R.S. § 1118(2), plus interest of 10.73% on
$7,842.53, beginning on October 16, 2017, see 10 M.R.S. § 11138(4)8.
2. Attorney Fees

With respect to a prompt payment claim, the Law Court has explained that a
“substantially prevailing party ‘must be awarded reasonable attorney’s fees’
pursuant to 10 M.R.S. § 1118(4) .. ., to ‘provide motivation, in the form of penalties
for noncompliance, for an owner... to make timely payments.” Fortney &
Weygandt, Inc. v. Lewiston DMEP IX, LLC (“Fortney II’), 2022 ME 5, § 21, 267 A.3d
1094 (quoting Jenkins, 2001 ME 98, § 31, 776 A.2d 1229) (emphasis in original).
Such attorney fees are available only with respect to the prompt payment claim. See
Jenkins, 2001 ME § 31, 776 A.2d 1229 (“If a party prevails on its contract or
quantum meruit claims, but fails to meet its burden of establishing the additional
necessary prerequisites to prove a violation of the prompt payment statute, the
remedies in that chapter are not available.”).

In a case such as this one where only one claim entitles the plaintiff to
attorney fees, the plaintiff must attempt to “apportion [its] attorney fees between
the claims for which fees may be awarded and the claims for which there is no
entitlement to fees.” Advanced Constr. Corp. v. Pilecki, 2006 ME 84, §] 30, 901 A.2d
189. However, “when the fee and non-fee claims are related and arise from common
facts, they may be so entwined as to make separation impossible.” Id. { 32; see also

Fortney II, 2022 ME 5, { 21, 267 A.38d 1094 (holding that court may apply the

6 The applicable interest rate is set forth in 14 M.R.S. § 1602-C.

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“common core of facts” rule to review attorney fees requests under the prompt
payment statute).

This is such a case. The quantum meruit and prompt payment claims arose
from the same discrete incident and the court finds that counsel could not
realistically apportion the fees between the claims. Thus, having considered both
the relatedness of the fee and non-fee claims and the result that the plaintiff
obtained, Advanced Constr. Corp., 2006 ME 84, § 34, 901 A.2d 189, the court is
inclined to award the full amount of attorney fees, provided that the requested
amount is reasonable.

Although counsel provided the court with an affidavit of attorney fees at the
conclusion of the trial, the court did not give the defendant an opportunity to lodge
any objections to the contents of that affidavit. Plaintiffs counsel thus has 14 days
from the entry of judgment to file an updated request for attorney fees and costs.
M.R. Civ. P. 54(b)(8). The defendant will thereafter have 14 days to file any written
objection to the reasonableness of the requested fees, and the plaintiff will have 7
days to file a reply.

The entry is:

(1) Judgment for Plaintiff Bachelder’s Construction Inc. in the amount of
$9,542.53 on Count III (quantum meruit); and on Count IV (prompt
payment statute), statutory penalties of $5,725.05 and interest of
10.73% on $7,842.53, beginning on October 16, 2017.

(2) Judgment for Defendant JoAnn Harris on Count I (breach of contract)
and Count II (unjust enrichment).

(3) Plaintiff shall be awarded reasonable attorney fees and costs. Plaintiff
shall submit an updated affidavit as to attorney fees and costs by

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December 27, 2023. Defendant shall file any response by January 10,
2024. Plaintiffs reply, if any, shall be due January 17, 2024.

The clerk is directed to incorporate this order on the docket by reference

pursuant to M.R. Civ. P. 79(a).

DATED: (y)\3 Lh. m7
\elos Julia M. Lipez CS
ur

Justice, Superior Co

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