Carver v. Shellfish U.S.A.

• Court: Superior Court of Maine
• Decided: February 11, 2003
• Docket: KNOcv-00-034
• Status: Unpublished

Opinion

STATE or MAINE

Knex, 5.0, Clerks Office

SUPERIOR COURT STATE OF MAINE SUPERIOR COURT , f np CIVIL ACTION KNOX, ss. FEB 11 2003 DOCKET NO. CV-00-034

RECEIVED AND TILED WILLIAM|CARVER d/b/§ysan Guillette, Clerk

JRA - KNO- aft [3.003

BILL’S PU. MP AND TANK SERVICE,

' Plaintiff and

Counterclaim Defendant Vv. DECISION AND ORDER

SHELLFISH U.S.A. and WILLIAM ATWOOD,

Defendants and DONALD L. GARBRECHT

' Counterclaim Plaintiffs LAW LIBRARY

. FEB 13 2003 L Introduction.

This matter is before the court on the complaint of William Carver (Carver), d/b/a Billfs Pump and Tank Service, in which the plaintiff alleges that the defendants, Shellfish U.S.A. (SUSA) and its principal, William Atwood (Atwood), breached a contract for: Carver to install a fuel pump system on SUSA’s property in Tenants Harbor. Carver claims that he performed work and provided materials in furtherance of this contract but that SUSA has failed to pay him. He has expressed this grievance in a two-count complaint, the first alleging breach of contract, the second, unjust enrichment.

The|defendants have responded to this complaint with a counterclaim in which

they acknowledge having retained the plaintiff to make improvements on their property but that he failed to do so in a timely, workmanlike manner which resulted in loss of pro its to the defendant. SUSA also alleges that Carver entered on to its property

on or about February 22, 1999, without license or privilege, and tampered with SUSA’s

fuel equipment and that this act was committed with malice. Last, SUSA claims that

Carver left the defend SUS Counts II, Il, the con § 7551-B. count V bes count VI, t that they 1 The II. Som remove un to renovat Thebeau (1 tanks and 1 Ins new tank a tank indep rest. There which wot would be i

of 1997 tha

equipment at the site which he has failed to take away despite a notice from ant to do so.

A’s counterclaim contains six counts. Count I alleges breach of contact. III and IV cite Carver’s trespass on the defendants’ property and, as to count nplaint asks for the award of the special damages provided for in 14 M.R.S.A. Also as to the alleged trespass, the defendants seek punitive damages via ecause, they say, the plaintiff committed this tort with malice. Finally, in he defendants seek a lien on the property they say Carver left on their site so ray sell it.

case was tried without a jury and is in order for disposition.

Findings of Fact and Conclusions of Law.

letime in 1997, William Atwood, SUSA’s principal, decided that he needed to derground fuel tanks and replace the fuel pumping systems as part of a plan e his shellfish buying plant in Tenants Harbor. To that end he and Scott [hebeau), the plant manager, decided to hire Carver to remove the old fuel apgrade the fuel system.

eptember of 1997, Carver removed a fuel tank as agreed’ but did not install a s Atwood had determined that he could do that himself by purchasing a new endently and having his regular employees prepare the site where it would 2after, Thebeau asked Carver for a proposal to perform the rest of the work iid entail running pipes from the new tank to a new fueling station which nstalled. Carver responded and the parties ultimately agreed in late October

t the plaintiff would do this job on a tire and materials basis.

’ The parties

agree that Carver was paid for removing this old fuel tank.

In F with new The new p new pump

Bef for the stat the granit employees hangers fo hangers in gauge, an pumping s so that the

Whi _ by late Spr

work. Acc

> C

ebruary of 1998, Carver attached the new tank to the old pumps on the wharf palvanized pipes. He also installed anti-siphoning valves on this new tank.’

ipes, however, were to be temporary as different pipes would be used for the

ing station when it was installed.

bre the new pipes and pumping station could be installed, electrical service ion had to be established and hangers for the new pipes had to be drilled into pilings of the pier. As to the latter, again Atwood believed his own could undertake this work so that the responsibility for installing the

r the pipes Carver would install became the defendants’. However, the

stalled by these workers were, in Carver’s judgment, too small, of insufficient

1 too far apart to support the pipe he had purchased to run to the new

tation. Accordingly, he asked, and Atwood agreed, to correct this problem work could proceed.

le the testimony conflicts as to when the appropriate hangers were installed, ‘ing of 1998, however, Carver had been told that the site was ready for his

ordingly, he arranged for the delivery of materials to the wharf so he could

complete the job. These materials were delivered on various occasions through August

of 1998. Two that he wa

dissatisfied

Acco

to this aspe

) circumstances, however, prevented Carver from proceeding. The first was s busy with the demands of other jobs. The second was that he was still with the installation of the hangers which, in his view, were inadequate.

rding to Carver’s account, which the court finds to be the most accurate as

ct of the parties’ dispute, he was called in early September and told that the

? Carver clai The defendar

ms he has not been paid for his time and materials for this work which amount to $3,064. \ts agree and acknowledge the plaintiff is entitled to a judgment in this amount.

proper hangers had been installed but replied that he could not come to do the work for - two to three weeks because of other job demands. At about this time, Atwood became frustrated jwith the slow progress of his project and called Carver’s wife to complain. He next directed Thebeau to find another contractor to complete the job.

Because Atwood had called his wife, Carver went to the SUSA wharf where he met with Thebeau who told him that Atwood was going to find someone else to finish the project, Thebeau also told Carver that Atwood might “calm down” upon which he would call/Carver to come finish the job.

In December, Carver and Thebeau spoke about paying Carver for his work and materials up to that point and about the delivery of the remaining material required to complete the job. Thebeau assured Carver that he would be paid and, on December 18, 1998, Carver had the last shipment of material delivered to SUSA’s wharf, having sent Thebeau an invoice on December 14 for his labor and materials, including those that would be delivered on the 18". On the 18", Thebeau told Carver that Atwood had no intention of paying his bill but that he would try to intercede so that it would be paid.

In late December of 1998 or early January of 1999, Thebeau, at Atwood’s direction, began to look for a new contractor to finish the project of installing pipes and new fuel pumps. Ultimately, Thebeau found G.R. Adams, Inc. (Adams) to complete the job who, on January 21, 1999, gave a price quote of $22,310 to perform the work.

Thebeau asked Adams to make an effort to “purchase” the material that Carver had left on site for their work. Thebeau Dep. T., p. 27. Moreover, Atwood instructed

Adams to use this equipment in the job and sent Adams Carver's invoice with the list of

° ‘Thebeau’s testimony as to these events differs from Carver’s, but the court finds that the plaintiff’s testimony is the more reliable as to this part of the parties’ disagreement.

material he had delivered. Apparently, Adams chose not to use the equipment and it remains at|SUSA’s wharf in a warehouse.

On February 22, 1999, Carver returned to SUSA’s wharf to visit Thebeau to see if arrangements had been made to pay him or if the work had been-completed. He had no interview with Thebeau because he learned he was not there. Instead, he climbed on

_to the top of the new tank and tampered with the valve there. As a result, when it came time to us¢ the pumps the following day, they would not draw fuel from the tank. That situation remained through the next day until the valves were ultimately repaired. Because the fuel pumps were inoperable for two days it meant that not only did the fishermen not fuel there those two days, they also did not sell their marine products to SUSA. Asia direct result, SUSA lost $1,500 a day in lost income, for a total of $3,000. It was also required to pay Maritime Energy at least $32.50 for repairs.’

In finding that Carver tampered with the valve on the defendants’ fuel tank, the court acknowledges that while it has accepted his testimony on other points of contention] in this case, it does not do so here. The court reaches this factual conclusion because it accepts as true the testimony of Mark Brackett who saw Carver on top of SUSA’s tank on the date in question as though he were working on it. The court also accepts Brackett’s testimony to the effect that later, when the two men spoke, Carver told him that he had worked for Bill [Atwood] in the past and hadn’t been paid, that Atwood would have a problem getting fuel for a while, and that he had done

something |to a valve.

4 According to the court’s trial notes, Maritime Energy’s employee was at SUSA for one and a half hours but was paid|portal to portal. By the court’s familiarity with Knox County, that would add an hour to the bill, assuming the employee came from Rockland. Counsel for the defendants advised the court that Marriner wag paid $13 per hour for this job. $13 x 2.5 = $32.50.

Moreover, Carver had a motive for harming Atwood’s business. He believed Atwood had been unpleasant with his wife, had discharged him from a job and, contrary to Thebeau’s assurances, had not paid him for all his work and the material he had delivered. As well, Carver testified that he cannot provide a good reason why he went on top of the tank that day.

So, even though the plaintiff has presented testimony that it would be difficult and time-consuming to tamper with the valve on this tank so that it would stop the flow of fuel, the court finds that the plaintiff intentionally did so. He has considerable expertise in this area, was familiar with the tank, and had more than a few minutes to act.

On March 25, 1999, Atwood’s attorney wrote to Carver advising him that he is not to enter on any of Atwood’s properties without his express consent. He also told Carver that he has to remove equipment he had stored at SUSA’s building by April 20, 1999, by making prior arrangements to do so. The letter further advised Carver that if he failed to remove the equipment, he would be charged $100 per month storage fee and that a lien would be placed on his property to assure payment.

The court finds that the plaintiff and the defendants had a contract for the former to install piping and fuel pump apparati at SUSA’s wharf in Tenants Harbor. The contract was on a time and materials basis; that is, SUSA was to pay Carver for the time he devoted to the project and for the materials he delivered.

Although SUSA was interested in having this project move ahead in an orderly way, it imposed no time limits within which the work was to be performed. Instead, the court finds that the delay in performance was the fault of both parties: SUSA’s for

its failure to install appropriate pipe hangers by the Summer of 1998, Carver’s for his

commitme position to

Whi

nt to other jobs. In any case, after September of 1998, both parties were in a

perform but SUSA had elected to terminate the contract.

le SUSA may have had adequate justification to end its relationship with

Carver, such an act does not excuse SUSA from paying Carver for the labor he provided

and the m plaintiff is in Februar}

The through th material b property a over the pi

then deter

though it v nor any ev

material or

aterials he delivered. In particular, as the defendants have agreed, the

entitled to be paid for the work he performed and the materials he provided

y of 1998 which total $3,064.

reafter, the plaintiff, at the defendants’ behest, delivered $9,063 in materials 1e Summer of 1998 and in December of that year. Once delivered, this ecame the defendants’ property, as it acknowledged via the use of the s its own by offering it to Adams to use when that company agreed to take roject. Frustrated in this effort to derive some use of the equipment, SUSA mined it would turn back to Carver and have him remove the material, even vas no longer his. Indeed, the defendants have offered no explanation in law ridence to support its position that it did not have to pay Carver for this

that he was obliged to recover it and remove it from the work site.

From all this, the court concludes that as to count I of the complaint, the plaintiff

has establis

latter bread

shed that he had a time and materials contract with the defendants which the

hed and that the plaintiff was damaged thereby in the total sum of $12,127.

With respect to count II of the complaint which relies on unjust enrichment as the

theory of recovery, it must be pointed out that, “[u]njust enrichment describes recovery

for the value of the benefit retained when there is no contractual relationship i

Paffhausen

concluded

v. Balano, 1998 ME 47, J 6, 708 A.2d 269, 271. Because the court has

that the relationship between Carver and SUSA was a contractual one, the

breach of v this case, a:

As ¢ rationale o failed to es

performan,

vhich provides a remedy, the principle of unjust enrichment is inapplicable in

nd judgment cannot be entered for the plaintiff on count II.

othe counterclaim, the court finds that, based on the factual findings and

ffered herein which relates to count I of the complaint, the defendants have

tablish that the plaintiff breached the parties’ contract. As noted, the delay in

ce can be ascribed to both parties, but that the plaintiff was in a position to

perform the work required within a reasonable time after the site was prepared for pipe

installation getting thi According] A si the defend with the p may not ch its benefit. The with the v Common I these two another’s p loss of use TORTS, §§ 2

what occur

1. Moreover, as noted, there was no evidence, other than Atwood’s interest in s job done, that this was a contract in which “time was of the essence.”

y, judgment will be entered for the plaintiff on count I of the counterclaim.’

milar result obtains as to count VI. As discussed, infra, the material on which

ants seek a lien is SUSA’s. It purchased the material as part of its contract

laintiff and must now pay him for its delivery. It follows, of course, that it

arge Carver a storage fee for this property, nor may a lien be placed on it for

remaining four counts of the counterclaim, II-V, concern Carver’s tampering

alve on SUSA’s new fuel tank. Counts II and IV are entitled, respectively,

.aw Trespass and Trespass to Personal Property. However denominated,

counts are akin to a trespass to chattel, that is, the intentional misuse of ersonal property via physical contact with that property which results in the of that property by its rightful possessor. See RESTATEMENT (SECOND) OF 16-218, 221 (1965). According to this court’s factual findings, that is precisely

red here and SUSA is entitled to the full measure of damages occasioned by

> At oral arg, and materials

lument, counsel for SUSA agreed that it could not prevail on count I as the parties had a time

contract which could have been terminated by either.

8 the impairment to its chattel. Id., § 218, comment g. Such damages amount to $3,032.50

which represents SUSA’s lost income from the fuel pump being out of service for two days, and the cost of repairs.

In count V, SUSA asks the court to award it punitive damages, presumably for

the plaintiff's intentional tampering with its tank valve. As the court has previously found, Carver intentionally interfered with SUSA’s property for the purpose of disrupting| its business operations. The motivation to do so was malicious, namely to harm Atwood for the manner in which he treated Carver’s wife, for discharging him from this jb, and for not paying him for the work he had done. In the court’s view, the defendant has established by clear and convincing evidence that these acts by Carver, and his motivations in carrying them out, amount to “express” or “actual” malice.

Tuttle v. Raymond, 494 A.2d 1353, 1361 (ME. 1985). Accordingly, the court awards the

defendants

In a circumstan moment” r

to SUSA b

$1,000 in punitive damages.

rriving at this figure, the court has considered the plaintiff’s financial ces and finds that the decision to undertake this vandalism was “spur of the ather than a planned attack on SUSA’s fuel operations. Last, the harm done

y Carver’s acts was modest and easily repaired. Accordingly, the court

concludes that “the degree of reprehensibleness” of Carver’s conduct was modest so that the award of punitive damages ought to be modest also. See Harris v. Soley, 2000 ME 150, { 31-33, 756 A.2d 499, 508-09.

In count III, the defendant asks the court to apply Title 14 M.R.S.A. § 7551-B to the claim concerning Carver's tampering with the fuel tank valve, presumably for the purpose of recovering the special damages authorized by that statute. In the court's

view, this law cannot be applied'to the facts in this case.

The another w

civil action

first line of this statute reads, “A person who intentionally enters the land of

ithout permission and causes damage to property is liable to the owner in a

...” 14MLR.S.A. § 7551-B(1) (emphasis supplied). One who enters land “in

the possession of another without a privilege to do so created by the possessor’s consent

or otherwis

e,” is a trespasser. Collomy v. School Administrative Dist. No. 55, 1998 ME 79,

§ 6, 710 A.2d 893, 895 (quoting RESTATEMENT (SECOND) OF TORTS, § 329 (1965)). Thus,

one who wishes to rely on this statute must first establish that the person who caused

damage was a trespasser, that is, one who had no permission or consent to enter.

A business invitee is not a trespasser because the conduct of the possessor would

allow the invitee to believe that the possessor is willing to permit this person to enter if

he desires

a business

to do so. RESTATEMENT (SECOND) OF TORTS, § 332 (1965). Thus, if Carver was

invitee on February 22, 1999, then he was not trespassing, i.e., entering

SUSA’s land! without permission, and the statute cannot apply.

On that date, Carver entered SUSA’s property to inquire about being paid for the

work he

id there. So, even though his services had been terminated, his visit to

SUSA’s wharf was on a legitimate business errand as to which he could reasonably

believe tha would try

this place «

t his entry would be allowed. This is because Thebeau had told him that he to intercede with his boss and get Carver paid. Thus, a visit to Thebeau at

of business was for a purpose which Carver could reasonably believe would

be accepted as it related to the work done there and was “integrally connected” with

SUSA’s bu

court must

siness. Poulin v. Colby College, 402 A.2d 846, 849 (Me. 1979). Accordingly, the

conclude that when Carver entered SUSA’s property on this date, he was an

10 invitee and not a trespasser. Indeed, the defendant has presented no evidence or

argument to the contrary.

From all this, as noted, the court must conclude that 14 M.R.S.A. § 7551-B is

j

inapplicable to this controversy and the defendants are not to be awarded the special damages authorized by this statute. III. Conclusion.

The|clerk is directed to make the following entries:

A. Judgment is ENTERED for the plaintiff on count I of the complaint and he is AWARDED damages in the sum of $12,127.

B. Judgment is ENTERED for the defendants on count II of the complaint.

C. Judgment is ENTERED for the plaintiff (counterclaim defendant) on counts I and VI of the counterclaim.

D. Judgment is ENTERED for the defendants (counterclaim plaintiffs) on counts II and IV of the counterclaim and they are AWARDED damages in the sum of $3,032.

E. Judgment is ENTERED for the plaintiff (counterclaim defendant) on count III of the counterclaim.

F, Judgment is ENTERED for the defendants (counterclaim plaintiffs) on count V of the counterclaim. Punitive damages of $1,000 are AWARDED to the defendants (counterclaim plaintiffs).

So ordered.

Dated: February_(0, 2003 MAA Lv ( eee eee _—

John R. Atwood Justice, Superior Court

6 The statute, 14 M.R.S.A. § 7551-B, is consistent with general tort law which has abandoned the notion of trespass ab initio which would have characterized the lawful entry on land as a trespass if the tortfeasor thereafter commits a tortious act. RESTATEMENT (SECOND) OF TORTS, § 214(2), comment e (1965).