Gahagan v. Nadeau

• Court: Superior Court of Maine
• Decided: May 3, 2006
• Docket: PENcv-04-198
• Status: Unpublished

Opinion

STATE O F MAINE SUPERIOR COURT PENOBSCOT, SS. CIVIL ACTION Docket No. CV-04- 198 ,

Arnold G. Gahagan I11 et a]., Plaintiffs

FILED & ENTERED v. Order (Attorney's Fees) SUPERIOR COURT MAY 0 3 2006 Jean Nadeau, Defendant PENOBSCOT COUNTY

With the confirmation of the arbitration award, the plaintiffs seek an award of attorney's fees incurred in connection with their claim against the defendant. The court has reviewed the parties' submissions on the issue. The plaintiffs contend that an award of attorney's fees is authorized statutorily because, they argue, the arbitration award is based on findings that the home construction work performed by defendant was defective. From there, the plaintiffs argue that the arbitrator's findings amounted to a conclusion that the defendant violated the Home Construction Contracts Act, 1C)M.R.S.A. 5 1486 et seq., which, pursuant to section 1490 of the HCCA is prima facie evidence that the defendant also violated the Unfair Trade Practices Act, 5 M.R.S.A. 5 205-A et seq., which, in turn, allows an award of attorney's fees under section 213(2) of the UTPA. There are two problems with this syllogism. First, as section 1490 of the HCCA provides, a violation of that Act is only prima facie evidence of an unfair trade practice. This means that a successful HCCA claim satisfies the claimant's burden of production in pursuing a companion UTPA claim. A proven HCCA violation does not establish an unfair trade practice or even generate a presumption of unfairness. Here, a review of the arbitrator's award reveals that the plaintiffs and defendants pursued a series of complaints in arbitration and that they were successful with some claims and unsuccessful with others. However, the mere failure to satisfy a warranty is not a breach of the UTPA; rather, there must be unfairness or deception that characterizes the respondent's conduct. See Suminski v. Maine Applicance Warehouse, 602 A.2d 1173, 1174 (Me. 1992). That level of culpability is not evident in the record. More fundamentally, the HCCA governs the terms of home construction contracts. Here, the essence of the plaintiffs' claims against the defendant relates not to the terms of the agreement but to the quality of the construction work performed by the defendant. "In order to recover damages for a violation of the UTPA the homeowner must show a loss of money or property that resultsfrom the violation. 5 M.R.S.A. $ 213." See William Mushero, Inc. v, Hull, 667 A.2d 853, 855 (Me. 1995). Here, the record does not establish that any violation of the HCCA caused the plaintiffs to lose money or property. Rather, they claim damages resulting from incomplete and defective performance. None of any such problems asserted by the defendant arise from any violation of the HCCA itself.

The entry shall be: For the foregoing reasons, the plaintiffs' request for an award of attorney's fees is denied.

Dated: May 3,2006 05/03/2006 MAINE JUDICIAL INFORMATION SYSTEM ksmit h PENOBSCOT COUNTY SUPERIOR COURT rnj x x i 048 CASE PARTY ADDRESS BOOK ARNOLD G GAHAGAN I11 ET AL VS JEAN NADEAU UTN:AOCSsr -2004-0100460 CASE #:BANK-CV-2004-00198 ................................................................................ ARNOLD G. GAHAGAN, I11 PL ATTY WEEKS, PAUL A . T e l # (207) 262-7199 ATTY ADDR:82 COLUMBIA STREET BANGOR ME 04401

ESTELLE L . GAHAGHAN ATTY WEEKS, PAUL A . Tel# (207) 262-7199 ATTY ADDR:82 COLUMBIA STREET BANGOR ME 04401

JEAN NADEAU ATTY BEAROR, EDMOND Tel# (207.) 947-4501 ATTY ADDR:84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401

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