Reno v. Ramsey

CourtSuperior Court of Maine
DecidedFebruary 26, 2015
DocketSAGcv-13-069
StatusUnpublished

This text of Reno v. Ramsey (Reno v. Ramsey) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reno v. Ramsey, (Me. Super. Ct. 2015).

Opinion

STATE OF MAINE DISTRICT COURT

Sagadahoc, ss. Location: West Bath

MARILYN RENO

Plaintiff

v. Docket No. WESDC-CV-13-069

THOMAS RAMSEY

Defendant

DECISION AND JUDGMENT

This civil case came to trial December 15 and 16,2014, with both parties presenting

evidence in the form of sworn testimony and exhibits .

. Plaintiffpresented her own testimony and that ofher retained expert contractor, Jack

Shaw, and cross-examination of Defendant Thomas Ramsey. Defendant presented his own

testimony and that of Bruce Engert, the code enforcement officer for the Town ofWoolwich,

and Defendant's retained expert, Gerald Mitchell Jr. Joint Trial Exhibits 1-18 were admitted

by agreement as was Plaintiffs exhibit 1 (consisting of a letter from Plaintiffs former attorney

to Defendant dated September 2 7, 2011 ).

After the trial, the parties presented further submissions, after which the court took the

case under advisement.

Based on the entire record, the court adopts the following findings offact and

conclusions oflaw, and renders judgment as set forth below.

1. Plaintiff Marilyn Reno is the owner of a parcel ofreal estate located at 24 Mad

Mountain Road in the town of Woolwich. She acquired that lot and an abutting parcel) in

1997 and 2001. Her initial purpose in acquiring the lots was to obtain a right ofway to access

other property she owned on Mad Mountain Road. However, the Plaintiff subsequently

1 decided to construct a residential dwelling at the 24 Mad Mountain Road lot with the intent of

moving there from her current residence, which she considered too large, given her age and

health. She is a 7 5-year-old widow and ·relies on social security, supplemented by rental

income from other properties she owns in Woolwich. She has family members living in the

immediate neighborhood.

2. Her long-term plan was to build a single story home that would be smaller and

more accessible than her current residence, with the first steps being to clear the lot and install

a septic system. She chose to act as her own general contractor, to hire friends and family

members to do as much of the work as possible, in order to keep construction costs within her

budget.

.3. Plaintiff hired Daniel Colby, a licensed surveyor and septic system designer. Mr.

Colby surveyed a line dividing her parcel into two building lots, and prepared the design for a

subsurface waste disposal system on one of the parcels. His design, attached to a permit

application, was originally dated November 10, 2006. The application, however, was not

submitted to the local codes office for approval at that time.

4. It was not until2010 that Plaintiffbegan to start work, and the applicable code

required a more recent date on the permit application. Mr. Colby therefore reviewed andre-

signed the application on July 23, 2010. The permit was approved by the local code

enforcement officer, Bruce Engert.

5. Work on the project began with Plaintiffhiring several f'!-mily members and friends

to help clear the site, cutting trees and hauling the logs and brush from the location for the

house and the septic system. Plaintiff owned a small backhoe, which her helpers used for this

work.

6. In July or August 2010, the Defendant, who lives nearby, came to the site and

2 offered his services as an excavation contractor. Plaintiff and Defendant have known each

other for many years; Defendant is a good friend of one or more ofthe Plaintiffs sons.

7. The work that the parties specifically discussed and eventually agreed upon called

for Defendant to install a septic system for the home that Plaintiff planned to build on the lot,

and also to install a driveway from the public road to the area where the home would be sited.

Defendant proposed, and the Plaintiff agreed, that he would be paid on a time and materials

basis for his work. Virtually all of the work entailed in installing a septic system and a

driveway requires the use ofmachinery and equipment, so Defendant and Plaintiff agreed on an

hourly rate of $70, including use of machinery and equipment.

8. Although Plaintiff claimed at trial that she never learned of the $70 per hour rate

until September 21, 2010 when the Defendant told her ofthat rate, the notes and records she

maintained from when Defendant began work in August 2010 indicate otherwise. See bottom of

page 1 of Joint Trial Exhibit 8 ($3,500 paid to Defendant for groundwork between 8/12 and

8/31 for 50 hours and calendar entry for October 10, 2010 (payment to Defendant for $530 for

7.57 hours).

9. The parties agree that Defendant gave Plaintiff an oral estimate of the cost of the

septic system, based on the agreed-on hourly rate of $70, but they disagree on what the

estimate was, with Plaintiff testifying she was given a range of $9,000 to $10,000, and

Defendant testifying he gave her an estimate of $12,000 to $15,000. From this, the court infers

he more likely than not gave her two estimates-the lower one initially, and the higher one

after he had actually casted out the time and materials required to complete the system

according to Colby's design specifications, which, among other things, called for considerable

fill due to the slope onto which the system was being located. Neither of the Defendant's

estimates was ever put in writing.

3 10. Each of the Defendant's estimates was, in fact, an estimate, not a firm price, as the

fact that each estimate covered a range indicates. The Defendant's intent in providing both the

initial estimate and the later one, both at Plaintiffs request, was to enable Plaintiff to

understand the likely cost of the septic system.

11. The Plaintiff agreed to hire the Defendant to install the septic system based on his

original, lower estimate. It was only after she agreed to hire him that he developed the higher

estimate, based on a detailed costing-out of the Colby design. Based on what Defendant told

her, the Plaintiff understood the upper end of his estimate to be a "not to exceed" number-

based on what Defendant told her, she reasonably believed that her cost for the septic system

would not exceed $10,000, with the actual cost up to that limit dependent on the actual cost of

Defendant's time and the materials required. However, when he gave her the higher estimate,

it can readily be inferred that she did agree to it, because she continued to make payments to

him, at least for a while.

12. Plaintiff told Mr. Ramsey where she wanted the driveway to be located. Defendant

did not give her any estimate or price for the cost of putting in the driveway, either orally or in

writing.

13. Based on all of the evidence, the court concludes that the oral contract between the

parties regarding the septic system was that Defendant would install a functional septic system

according to the Colby design for a price not to exceed $15,000, with the actual cost up to that

ceiling based on actual time spent at $70/hour and the cost of materials. The oral contract

regarding the driveway, and any other work on the site requested by Plaintiff, was that

Defendant would be paid at $70/hour plus the cost of any materials purchased by him.

14. Mr. Ramsey brought his equipment to the site on August 11th. Mrs. Reno was

present that day and every day thereafter throughout the course of Defendant's work. She

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