Pomerleau v. McCarthy

• Court: Superior Court of Maine
• Decided: November 24, 2009
• Docket: CUMcv-08-408
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-08-408 ' I ;-. • ,J 1'1 /1",1 j : ; - , / TIMOTHY POMERLEAU, Plaintiff

v. ORDER

JEAN MCCARTHY and THOMAS MCCARTHY, Defendant

The court left open for further submission of affidavits on limited issues relating

to damages and, in particular, the amount of damages sought in connection with the

construction contract that were not reimbursed by the Banle In its Decision and Order,

dated July 13, 2009, the court expressly reserved jurisdiction to determine damages

following submission of affidavits. Defendants have submitted an affidavit and a number

of additional documents. Defendants have also tried to supplement their trial testimony.

The court rejects any new testimony. The court has limited its analysis to what was

submitted at trial and expressly requested in the court's Decision and Order.

Under Maine law, "[t]he measure of recovery for defective or incomplete

performance of a construction contract is the difference in value between the value of the

performance contracted for and the value of the performance actually rendered... This

recovery may include the cost to complete the house and repair the defects." Treadwell

v. JD. Construction Co., 2007 ME 150, ~ 26,938 A. 2d 794, 800 (citations omitted). The

McCarthys then are entitled to recover costs which they prove by a preponderance of the

evidence were required to correct defective work and to complete the work called for by

the contract. Here the defendants entered into a home construction contract with the plaintiff

contractor for $830,255 plus an additional $27,500 for road improvement. At the time

the contractor abandoned the project, the Bank had advanced $609,000 from the

construction loan to the contractor. Ultimately, the Bank expended $773, 703.64 of the

total $847,763.78 in construction loan funds and dispersed to the defendants $85,460.46

of the remaining construction loan funds.

The difficulty the McCarthys have in establishing their damages is that the

construction contract does not spell out what will be provided, including the quality and

grade of items. The defendants failed to introduce at trial any exhibits that may have

provided further details of the contract. The McCarthys submitted additional expenses of

$202,947 and additional labor of$85,460; however, it is impossible to determine whether

these additional expenses were anticipated by the construction contract and constitute

costs to complete the work called for by the contract. Plaintiffs carry the burden of proof

on damages and having failed to meet that burden, they are not entitled to all the costs

they believe were caused by defendant's breach of the contract.

The defendants proved by a preponderance of the evidence that they expended

$88,875 to complete the work in accordance with the contract, they expended $6,512.86

with regard to obtaining lien waivers, and they will expend an additional $51,000 to

complete the second garage called for in the contract, for a total of$146,387.86 in

damages. The court will not subtract from this amount the $85,460.46 that was disbursed

to the defendants from the remaining construction loan funds because the court finds that

it is more likely than not that these funds covered either costs of completion of work in

accordance with the construction contract or costs to correct defective work.

2 The entry is:

Judgment for the defendants/counterclaimants in the amount of $146,387.86,

together with interest and reasonable attorneys fees in the amount of $28,825.50 and

costs totaling $1,425.44.

Date: November 24,2009 ~~e A. Wheeler, Justice

3 = COURTS .nd County ,ox 287 le 04112-0287

JEFFREY PETERS ESQ PRETI FLAHERTY BELIVEAU PACHIOS & HALEY PO BOX 9546 PORTLAND ME 04112-9546

IF COURTS and County 30x 287 ine 04112-0287

ERIKA FRANK ESQ 936 ROOSEVELT TRAIL UNIT 4 WINDHAM ME 04062