John Sweet II v. Carl E. Breivogel

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 18
Docket: Han-18-196
Argued: December 11, 2018
Decided: January 29, 2019

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


JOHN SWEET II

v.

CARL E. BREIVOGEL et al.


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.
2

[¶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

1
In their testimony, Sweet and his son, John Sweet III, explained that a “dried shell” or
“weathertight” home refers to a building that has a traditional timber frame, a roof, and exterior
walls, but does not have electricity, plumbing, fixtures, or completed rooms. Because cutting into the
timbers after the frame is complete compromises the home’s structure and integrity, a dried shell is
often built with an overall plan for the completed home in mind. In contrast, a completed home ready
for occupancy includes features such as a kitchen, functioning bathrooms, light fixtures, and internal
walls for rooms.
3

[¶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,

2 A saltbox style home is “a house . . . having two stories in front and one at the rear, and a gable

roof with a much longer slope at the rear.” Saltbox, Webster’s New World College Dictionary (5th ed.
2016).
4

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.
5

[¶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

3 Although the record is sparse with regard to the basis for this amount, Sweet testified that he

filed the lien to recover money owed to him for his own labor and for work performed on the project
by the plumbing contractor.
6

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,
7

¶ 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,
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.
9

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

defendant; and (3) under circumstances that make it reasonable for the plaintiff

to expect payment.” Id. ¶ 8 (citations and quotation marks omitted). Although

contract formalities do not exist with respect to an implied contract, there must

be a reasonable expectation of compensation for goods or services rendered.

See id. ¶ 9. A party may recover under quantum meruit even where “there was

not a clear accession on both sides to one and the same terms” if it is clear from

the circumstances that the services were not intended to be gratuitous. Id.

(quotation marks omitted).

[¶18] In this case, while it is clear that the parties did not sign a contract

or share an exact understanding of the scope and terms of construction, the

court’s application of quantum meruit was appropriate. The parties engaged in

months of discussions and planning before the project began and remained in

fairly constant communication throughout every phase of construction. In
10

particular, the binders of emails and hundreds of photographs admitted in this

case, combined with evidence of the Breivogels’ numerous site visits, support

the court’s conclusion that the Breivogels were aware of and assented to

Sweet’s performance of the work on their property. The Breivogels could have

terminated the project at any time, but instead continued working with Sweet,

despite admitted misgivings, and accepted the full benefit of Sweet’s services in

the form of a completed timber frame home ready for occupancy. Given the

court’s findings, to allow the Breivogels to accept the benefit of Sweet’s work

without paying the value of materials and services undercuts the purpose of

quantum meruit: to allow recovery for services rendered when the words or

conduct of the recipient created an expectation of compensation. See id. The

Breivogels permitted Sweet to continue the project beyond the dried shell

phase—the point at which the Breivogels realized that Sweet had a different

understanding of the scope and cost of construction—and allowed him to

continue working until their home was fit for occupancy.

[¶19] Moreover, contrary to the Breivogels’ arguments challenging the

court’s assessment of the reasonable value of the work Sweet completed, the

court did not err in its determination of damages. Based on the testimony of

the parties and Sweet’s expert witness, the evidence of multiple requested
11

upgrades and demands for luxury-quality materials, and the biweekly invoices

in evidence, the court did not abuse its discretion in determining that Sweet

was entitled to $600,554.98, which had already been paid by the Breivogels,

nor in concluding that the Breivogels overpaid by $640.77 for the tiler’s work.

2. Recovery Under the UTPA

[¶20] The Breivogels further argue that they are entitled to greater

recovery under the UTPA. See 10 M.R.S. § 1490; see also 5 M.R.S. § 213(1), (2).

Contrary to their arguments, the court understood correctly the interplay

between the HCCA and UTPA and properly applied the law in this case.

[¶21] The court found, and neither party disputes, that the agreement to

build the Breivogels’ home falls within the ambit of the HCCA. 10 M.R.S. § 1487.

The HCCA is intended to combat the problems of “faulty home construction,”

see L.D. 1044 (113th Legis. 1987), and requires that “[a]ny home construction

contract for more than $3,000 in materials or labor must be in writing.”

10 M.R.S. § 1487. While there is no remedy specified under the HCCA, a

violation of the HCCA is considered prima facie evidence of a violation of the

UTPA, which does provide for specific remedies, including restitution and

attorney fees. See 10 M.R.S. § 1490(1); see also 5 M.R.S. § 213(1), (2);

VanVoorhees v. Dodge, 679 A.2d 1077, 1082 (Me. 1996); Parker v. Ayre,
12

612 A.2d 1283, 1284-85 (Me. 1992). To recover under the UTPA, a party must

demonstrate “a loss of money or property as a result of a [UTPA] violation.”

Parker, 612 A.2d at 1285 (quotation marks omitted). Key inquiries into

whether the homeowners have suffered a financial or tangible loss are whether

the materials claimed to be furnished by the plaintiff were in fact furnished and

whether the prices were fair and reasonable. See id. In other words, in order

to recover under the UTPA, the homeowners must demonstrate that they did

not receive the value that should have been conferred. See id.

[¶22] The Breivogels are not entitled to additional recovery under the

UTPA because they failed to demonstrate that they did not receive value for

their payments for Sweet’s services. The court properly relied on Parker, a case

that, as the court noted, mirrors the facts and legal analysis applicable in the

Breivogels’ case. Like the homeowner in Parker, the Breivogels (1) proved

violations of the HCCA and UTPA, but failed to identify any injury or

demonstrate a substantial loss of money or property resulting from the

violations—i.e. a loss stemming specifically from Sweet’s failure to memorialize

the parties’ agreement in writing—and (2) received the benefit of the materials

and services provided by Sweet. Id. at 1284-85; see also Tungate v.
13

MacLean-Stevens Studios, Inc., 1998 ME 162, ¶¶ 9-11, 714 A.2d 792. Therefore,

they are not entitled to additional damages under the UTPA.

C. Attorney Fees

[¶23] Finally, the Breivogels argue that the Superior Court abused its

discretion in awarding them only $30,000 in attorney fees when they requested

over three times that amount. Because the trial court is in the best position to

observe the unique nature and tenor of the litigation as it relates to a request

for attorney fees, we review the grant of fees for abuse of discretion and any

underlying factual findings for clear error. See Roussel v. Ashby, 2015 ME 43,

¶ 10, 114 A.3d 670.

[¶24] “[A]n award of attorney fees pursuant to the UTPA is recoverable

only to the extent that it is earned pursuing a UTPA claim.” William Mushero,

Inc. v. Hull, 667 A.2d 853, 855 (Me. 1995). Because “courts have no authority to

award attorney’s fees to a litigant in the absence of statutory authorization or

agreement by the parties,” Poussard v. Commercial Credit Plan, Inc.,

479 A.2d 881, 883 (Me. 1984), to recover fees, claimants must “apportion their

attorney fees between the claims for which fees may be awarded and the claims

for which there is no [statutory] entitlement to fees,” Advanced Constr. Corp. v.

Pilecki, 2006 ME 84, ¶ 30, 901 A.2d 189. Many claimants do this by submitting
14

affidavits and billing records tailored to show the court the connection between

the fees requested and the UTPA claim; however, there are cases in which the

fee and non-fee claims arise from common facts and are so deeply entwined

that separation is impossible. See id. ¶ 32.

[¶25] Here, the Breivogels did not distinguish between their fee and

non-fee claims. Instead, they asserted that they were entitled to recover the full

amount of their attorney fees because all of the claims and counterclaims in the

case were inextricably entwined with, and stemmed from, the UTPA violations.

Contrary to this argument, the court properly exercised its discretion in

determining a reasonable award of attorney fees based on its reasoned

application of the factors enumerated in Homeward Residential, Inc. v. Gregor,

2017 ME 128, ¶ 15, 165 A.3d 357, particularly the Breivogels’ limited degree of

success.4 The court did not err in awarding to the Breivogels fees for Sweet’s

4
When determining what constitutes reasonable attorney fees, the trial court considers the
following factors:

(1) the time and labor required; (2) the novelty and difficulty of the questions
presented; (3) the skill required to perform the legal services; (4) the preclusion of
other employment by the attorneys due to acceptance of the case; (5) the customary
fee in the community; (6) whether the fee is fixed or contingent; (7) the time
limitations imposed by client or circumstances; (8) the degree of success; (9) the
experience, reputation and ability of the attorneys; (10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.

Homeward Residential, Inc. v. Gregor, 2017 ME 128, ¶ 15, 165 A.3d 357 (quotation marks omitted).
15

UTPA violation and for the Breivogels’ successful defense of Sweet’s claim for

additional payments, or in declining to award them fees for the counterclaims

on which Sweet prevailed and for which attorney fees are not recoverable. See

Roussel, 2015 ME 43, ¶ 10, 114 A.3d 670. We are not persuaded by the

Breivogels’ bare assertions that all of the claims and counterclaims in this case

are inextricably linked, and we affirm the Superior Court’s award of fees.

[¶26] In counterpoint to the Breivogels’ challenge to the sufficiency of

the attorney fees award in this case, the court’s judgment underscores the

importance of the statutory requirement of having written contracts in home

construction projects subject to the HCCA. 10 M.R.S. § 1487. In projects of this

magnitude, especially in an industry as specialized as the construction of

traditional timber frame homes, the absence of a written contract can lead to

unfulfilled expectations, immense confusion between homeowners and

contractors, and costly litigation. It is clear from the record that Sweet and the

Breivogels did not share the same understanding of the scope and cost of this

project, a failing that could have been clarified by a written agreement.

However, Sweet’s violations of the HCCA and UTPA were properly remedied by

the court. Not only must Sweet pay his own attorney fees, he must also pay

$30,000 of the Breivogels’ fees, a substantial penalty for his serious violations,
16

and, in addition, he has lost his lien claim of $52,478.35 for allegedly

uncompensated work.

The entry is:

Judgment affirmed.



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


Hancock County Superior Court docket number CV-2014-52
FOR CLERK REFERENCE ONLY