STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION PORSC-CV-22-202
RAYMOND UTTARO and PAULA UTTARO,
Plaintiffs, ORDER ON MOTION FOR ATTACHMENT AND TRUSTEE V. PROCESS
JEROME CLEVELAND JR.,
Defendant
Before the court is Plaintiffs' Motion for Attachment and Attachment on Trustee Process.
The motion has been fully briefed. For the following reasons, the comi grants the motion and
allows an attachment in the amount of$424,414.
Background
The following facts are drawn from Plaintiffs' filings, including the complaint, motion,
reply, and attachments thereto:
Plaintiffs Raymond and Paula Uttaro contracted with Defendant Jerome Cleveland Jr. to
construct a home at their property in Naples, Maine for a fixed price of $771,000. The contract
refetred to a set of plans for construction. In relevant part, the contract required a $200,000 down
payment, which Plaintiffs paid; invoices to be issued every two to three weeks with payment
upon receipt; and written change orders to be executed before work that would result in a change
of price was performed. Substantial completion was estimated at November 2021.
Defendant began work building the home on July 7, 2021 but did not send Plaintiffs an
invoice until November 2021, when he sent at least two invoices. The first invoice ("Invoice
1 510") was for $179,720.83 of work encompassed by the contract and plans. The second
("Invoice 512") was for $30,906 of work purported to be outside of the scope of the contract and
plans. The work purporting to be outside the scope of the contract was extra hauling, a rented
jackhammer, changing the driveway from tar to concrete, and reducing the height of walls.
Plaintiffs claim that the first two extra charges were necessaiy to complete the house as agreed
within the scope of the contract by ensuring that the driveway was a usable height and that the
first level would not be largely underground. Raymond Uttai·o requested the third change but was
not informed of the amount of the price increase. Plaintiffs admit Raymond Uttaro agreed to the
fourth change but claim that change only accounts for $1,232 of the $30,906 on Invoice 512.
Upon receiving Invoice 512, Plaintiffs objected to the extra charges. Defendant stopped
work on the building and refused to continue before receiving another $150,000 payment for
materials and subcontractor work. Plaintiffs paid Defendant but conditioned the payment on the
funds' being applied to the $30,906 in extra charges and receipt of documentation of the costs
incurred so far. Work progressed slowly from November 2021. A basic roof was installed on
Februaiy 25, 2022. Defendant then stopped work on the project without having completed the
site work, the septic and well, the windows and doors, the siding, and the roof, and without
having begun interior work. Plaintiffs have entered into a contract to complete the house for the
amount of $946,320. After subtracting $70,000 in improvements over the project contemplated
by the Cleveland contract, the Plaintiffs contends the cost to complete Defendant's project
obligations was $876,320.
In his opposition, Defendant states the following facts:
Plaintiffs continually bypassed Defendant to change the building plans, scope of work,
and materials required. Changes by Plaintiffs account for all of the extra charges on Invoice 512.
2 Plaintiffs continually altered the scope of the project by speaking directly to subcontractors, then
refused to pay for the additional work they requested from subcontractors. Defendant delivered
Plaintiffs a letter on February 10, 2022 indicating that he would stop work on the project due to
Plaintiffs' continuing direct communications with subcontr·actors, false statements regarding
Defendant's business, changes to work and materials, and refusal to pay for additional work
outside of the initial contract. In March 2022, after te1mination, Defendant attempted to send
Plaintiffs an accounting of expenses any payments to date, but it was returned to sender.
Plaintiffs' complaint consists of seven counts: (I) breach of contract, (II) quantum meruit,
(III) unjust enrichment, (IV) violation of the Home Construction Contract Act ("HCCA") and the
Unfair Trade Practices Act ("UTPA"), (V) negligent misrepresentation, (VI) intentional
misrepresentation, and (VII) negligence. Defendant counterclaims with four counts against
Plaintiffs: (I) and (II) defamation, (III) unjust enrichment, and (IV) quantum meruit. Plaintiffs'
motion for attachment is based on Plaintiffs' Count I for breach of contract.
Legal Standard
Maine Rules of Civil Procedure 4A and 4B govern attachment and trustee process.
"[R]ea! estate, goods and chattels and other property may ... be attached and held to satisfy the
judgment for damages and costs which the plaintiff may recover." M.R. Civ. P. 4A(a). With
some exceptions trustee process may be used to secure satisfaction of a judgment for damages
and costs. M.R. Civ. P. 4B(a). Trustee process may be served only if attachment on trustee
process has been approved for a specified amount by order of the comi. M.R. Civ. P. 4B(c).
An order of attachment may only be issued "upon a finding by the court that it is more
likely than not that the plaintiff will recover judgment, including interest and costs, in an amount
equal to or greater than the aggregate sum of the attachment and any liability insurance, bond, or
3 other security,' and any property or credits attached by other writ of attachment or by trustee
process shown by the defendant to be available to satisfy the judgment." M.R. Civ. P. 4A(c). The
court bases its determination on "the merits of the complaint and the weight and credibility of the
supp01ting affidavits." Porrazzo v. Karoftky, 1998 ME 182, ,r 7, 714 A.2d 826. Affiants must
"set forth specific facts sufficient to warrant the required findings." M.R. Civ. P. 4A(i). "Because
prejudgment attachment may operate harshly upon the party against whom it is sought, there
must be strict compliance with the procedures presc1ibed by legislation and implemented by
court rules." Wilson v. De/Papa, 634 A.2d 1252, 1254 (Me. 1993) (citations omitted).
Discussion
The court's analysis of whether attachment should be granted is based on the Plaintiffs'
complaint and the affidavits provided by the parties. Plaintiffs have provided five affidavits: one
each from Raymond Uttaro and Phil LaClaire filed on June 9, 2022, and one each from Raymond
Uttaro, Phil LaClaire, and Attorney Theodore Small filed on September 6, 2022. Defendant
submitted an affidavit of Jerome Cleveland on August 12, 2022. Each affidavit was filed with
exhibits attached. After considering these materials, the court finds that Plaintiffs are more likely
than not to succeed on their claim for breach of contract and that they are entitled to an
attachment.
Plaintiffs argue that Defendant breached the construction contract by not submitting
invoices every two to three weeks, charging extra for costs within the scope of the project, failing
to inform Plaintiffs of price increases associated with work performed, failing to complete the
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION PORSC-CV-22-202
RAYMOND UTTARO and PAULA UTTARO,
Plaintiffs, ORDER ON MOTION FOR ATTACHMENT AND TRUSTEE V. PROCESS
JEROME CLEVELAND JR.,
Defendant
Before the court is Plaintiffs' Motion for Attachment and Attachment on Trustee Process.
The motion has been fully briefed. For the following reasons, the comi grants the motion and
allows an attachment in the amount of$424,414.
Background
The following facts are drawn from Plaintiffs' filings, including the complaint, motion,
reply, and attachments thereto:
Plaintiffs Raymond and Paula Uttaro contracted with Defendant Jerome Cleveland Jr. to
construct a home at their property in Naples, Maine for a fixed price of $771,000. The contract
refetred to a set of plans for construction. In relevant part, the contract required a $200,000 down
payment, which Plaintiffs paid; invoices to be issued every two to three weeks with payment
upon receipt; and written change orders to be executed before work that would result in a change
of price was performed. Substantial completion was estimated at November 2021.
Defendant began work building the home on July 7, 2021 but did not send Plaintiffs an
invoice until November 2021, when he sent at least two invoices. The first invoice ("Invoice
1 510") was for $179,720.83 of work encompassed by the contract and plans. The second
("Invoice 512") was for $30,906 of work purported to be outside of the scope of the contract and
plans. The work purporting to be outside the scope of the contract was extra hauling, a rented
jackhammer, changing the driveway from tar to concrete, and reducing the height of walls.
Plaintiffs claim that the first two extra charges were necessaiy to complete the house as agreed
within the scope of the contract by ensuring that the driveway was a usable height and that the
first level would not be largely underground. Raymond Uttai·o requested the third change but was
not informed of the amount of the price increase. Plaintiffs admit Raymond Uttaro agreed to the
fourth change but claim that change only accounts for $1,232 of the $30,906 on Invoice 512.
Upon receiving Invoice 512, Plaintiffs objected to the extra charges. Defendant stopped
work on the building and refused to continue before receiving another $150,000 payment for
materials and subcontractor work. Plaintiffs paid Defendant but conditioned the payment on the
funds' being applied to the $30,906 in extra charges and receipt of documentation of the costs
incurred so far. Work progressed slowly from November 2021. A basic roof was installed on
Februaiy 25, 2022. Defendant then stopped work on the project without having completed the
site work, the septic and well, the windows and doors, the siding, and the roof, and without
having begun interior work. Plaintiffs have entered into a contract to complete the house for the
amount of $946,320. After subtracting $70,000 in improvements over the project contemplated
by the Cleveland contract, the Plaintiffs contends the cost to complete Defendant's project
obligations was $876,320.
In his opposition, Defendant states the following facts:
Plaintiffs continually bypassed Defendant to change the building plans, scope of work,
and materials required. Changes by Plaintiffs account for all of the extra charges on Invoice 512.
2 Plaintiffs continually altered the scope of the project by speaking directly to subcontractors, then
refused to pay for the additional work they requested from subcontractors. Defendant delivered
Plaintiffs a letter on February 10, 2022 indicating that he would stop work on the project due to
Plaintiffs' continuing direct communications with subcontr·actors, false statements regarding
Defendant's business, changes to work and materials, and refusal to pay for additional work
outside of the initial contract. In March 2022, after te1mination, Defendant attempted to send
Plaintiffs an accounting of expenses any payments to date, but it was returned to sender.
Plaintiffs' complaint consists of seven counts: (I) breach of contract, (II) quantum meruit,
(III) unjust enrichment, (IV) violation of the Home Construction Contract Act ("HCCA") and the
Unfair Trade Practices Act ("UTPA"), (V) negligent misrepresentation, (VI) intentional
misrepresentation, and (VII) negligence. Defendant counterclaims with four counts against
Plaintiffs: (I) and (II) defamation, (III) unjust enrichment, and (IV) quantum meruit. Plaintiffs'
motion for attachment is based on Plaintiffs' Count I for breach of contract.
Legal Standard
Maine Rules of Civil Procedure 4A and 4B govern attachment and trustee process.
"[R]ea! estate, goods and chattels and other property may ... be attached and held to satisfy the
judgment for damages and costs which the plaintiff may recover." M.R. Civ. P. 4A(a). With
some exceptions trustee process may be used to secure satisfaction of a judgment for damages
and costs. M.R. Civ. P. 4B(a). Trustee process may be served only if attachment on trustee
process has been approved for a specified amount by order of the comi. M.R. Civ. P. 4B(c).
An order of attachment may only be issued "upon a finding by the court that it is more
likely than not that the plaintiff will recover judgment, including interest and costs, in an amount
equal to or greater than the aggregate sum of the attachment and any liability insurance, bond, or
3 other security,' and any property or credits attached by other writ of attachment or by trustee
process shown by the defendant to be available to satisfy the judgment." M.R. Civ. P. 4A(c). The
court bases its determination on "the merits of the complaint and the weight and credibility of the
supp01ting affidavits." Porrazzo v. Karoftky, 1998 ME 182, ,r 7, 714 A.2d 826. Affiants must
"set forth specific facts sufficient to warrant the required findings." M.R. Civ. P. 4A(i). "Because
prejudgment attachment may operate harshly upon the party against whom it is sought, there
must be strict compliance with the procedures presc1ibed by legislation and implemented by
court rules." Wilson v. De/Papa, 634 A.2d 1252, 1254 (Me. 1993) (citations omitted).
Discussion
The court's analysis of whether attachment should be granted is based on the Plaintiffs'
complaint and the affidavits provided by the parties. Plaintiffs have provided five affidavits: one
each from Raymond Uttaro and Phil LaClaire filed on June 9, 2022, and one each from Raymond
Uttaro, Phil LaClaire, and Attorney Theodore Small filed on September 6, 2022. Defendant
submitted an affidavit of Jerome Cleveland on August 12, 2022. Each affidavit was filed with
exhibits attached. After considering these materials, the court finds that Plaintiffs are more likely
than not to succeed on their claim for breach of contract and that they are entitled to an
attachment.
Plaintiffs argue that Defendant breached the construction contract by not submitting
invoices every two to three weeks, charging extra for costs within the scope of the project, failing
to inform Plaintiffs of price increases associated with work performed, failing to complete the
project without justification, and demanding payment inconsistent with contract terms.
Defendant responds that he adequately charged and refunded Plaintiffs, that Plaintiffs were in
1 The court notes that neither party has made a showing regarding available insurance. Therefore, the court does not address it as a factor.
4 material breach of the contract by requesting changes directly from the subcontractors, and that
Plaintiffs' breach justified his cessation of work.
The court first considers whether Defendant breached the contract by ceasing work on the
project. A plaintiff asserting a breach of contract action must demonsh·ate breach of a material
term, causation, and damages. Me. Energy Recovery Co. v. United Steel Structures, Inc., 1999
ME 31, ,i 7, 724 A.2d 1248. The parties agree that Defendant did not finish the project. Unless
Defendant's cessation of work was justified, failing to perform his duties under the contract was
breach because finishing construction is a material term of the conh·act and failure to do so
caused Defendants to seek out a new contract to finish the work. Defendant argues that he was
justified in quitting the project because of Plaintiffs' material breach of contract. Defendant
claims Plaintiffs engaged in behavior "including (a) continued direct communications with
suppliers and subconh·actors, (b) false statements regarding Cleveland's business practices, (c)
constant changes to the work and mate1ials, and (d) refusal to pay Cleveland for additional work
outside the initial Contract."' Opposition at 3-4. On the contrary, the record suggests that
Plaintiffs are more likely than not to prevail on this claim.
A material breach occurs when a party fails to perform a duty that is "so material and
important as to justify the injured party in regarding the whole transaction as at an end." Down E.
Energy Corp. v. RMR. Inc., 1997 ME 148, ,i l 0, 697 A.2d 41 7. In the case of a material breach,
the nonbreaching party may cease performance. Id. On the other hand, if a breach is only partial,
the nonbreaching party must still perform its obligations under the contract so that it does not
breach the contract itself. Id. Whether a breach is material is a factual determination. Jenkins,
2Part of Defendant's argument is that damages likely to be awarded for his counterclaim would offset the requested attachment. However, for purposes of a motion for attachment, the court is obliged to disregard an opposing claim. Casco Northern Bankv. New England Sales Inc., 573 A.2d 795, 797 (Me. 1990); New Eng. Inspection v. Casco Bay Steel Structures, 2020 Me. Super. LEXIS 94, *3 (Sept. 11, 2020).
5 Inc. v. Walsh Bros., 2001 ME 98, ,r 13, 776 A.2d 1229. The Law Court has approvingly cited the
Restatement (Second) of Contracts § 241, which lists five factors to consider in determining
whether a breach is material:
(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of the benefit of which he will be deprived; (c) the extent to which the party failing to perform ... will suffer forfeiture; (d) the likelihood that the party failing to perform ... will cure his failure ...; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
Assoc. Builders, Inc. v. Coggins, 1992 ME 12, ,r 6 n.l, 722 A.2d 1278 (quoting Restatement
(Second) of Contracts§ 241 (Am. L. Inst. 1981)). In Associated Builders v. Coggins, the Law
Court found that material breach did not occur where a late payment was not made in bad faith
and did not prejudice the contracting payee.
In this case, the only conduct Defendant alleges Plaintiffs engaged in that the court
believes might rise to the level of material breach is refusing to pay Defendant for extra work
performed after requesting it. The record before the court shows that the parties agree that
Plaintiffs did pay Defendant for the extra charges on Invoice 512 and then Defendant continued
work on the project.
Defendant in his affidavit claims that Plaintiffs thereafter continued to change the plans
directly with the subcontractors including by changing the location of and adding windows,
upgrading the showers, changing the style of the garage door, and seeking cost information about
skylights. Except for a few conclusmy statements in his affidavit, Defendant has not presented
evidence that Plaintiffs unilaterally directed the subcontractors to make these changes. There is
no record that Cleveland directed the Plaintiffs to stop interfering with the contractors. There is
no record that the owners' directions to the subcontractors resulted in any changes that increased
6 the cost of the project. There is no evidence Cleveland presented the Plaintiffs with change
orders identifying increased costs as a result of the changes. Finally, Raymond Uttaro's
September 6 Affidavit denies making continual changes directly with subcontractors and
explains some incidents he believes Defendant mischaracterizes. Based on the affidavits, it does
not appear likely that Plaintiffs were in material breach of the contract in the manner Defendant
describes. Therefore, it is more likely than not, based on this record, that Defendant's cessation
of work on the home would have constituted breach of the contract, resulting in the costs
Plaintiffs incurred to find another contractor and finish construction.
The court now turns to the issue of damages. The Law Court has cited the Restatement
(Second) of Contracts on issues of damages in actions for breach. E.g., Ford Motor Co. v.
Darling's, 2016 ME 171,140,151 A.3d 507;Marchesseaultv. Jackson, 611 A.2d 95, 98 (Me.
1992); Deering Ice Cream Corp. v. Colombo, Inc., 598 A.2d 454,457 (Me. 1991); Anuszewski v.
Jurevic, 566 A.2d 742, 743 (Me. 1989). An injured party has a right to damages based on his
expectation interest, as measured by his loss in value of the other parties' performance caused by
the breach plus any other loss caused by the breach, minus any cost he has avoided by not having
to perform. Restatement (Second) of Contracts§ 347. Comment e, Illustration 12 to§ 347 of the
Restatement (Second) of Contracts is instructive:
A contracts to build a house for B for $100,000, but repudiates the contract after doing part of the work and having been paid $40,000. Other builders would charge B $80,000 to finish the house, but B finds a builder in need of work who does it for $70,000. B's damages are limited to the $70,000 that he actually had to pay to finish the work less the $60,000 cost avoided or $10,000, together with damages for any loss caused by the delay.
Another way to complete the same calculation is: Amount Paid, plus Amount of New Contract,
minus Amount of the Original Contract. (In this illustration, $40,000 plus $70,000, minus
$100,000 equals $10,000.)
7 In this case, the Cleveland contract was for $771,000. There is an additional claim for
$30,906 in changes. While the Plaintiffs dispute those charges, the court cannot find it is more
likely than not they were not legitimate. Therefore, the price to build the house that the parties
contracted was $801,906. The Plaintiffs have paid $350,000. The cost to complete the house that
Cleveland promised to build was $876,320. The court does not find sufficient evidence to
include the extra funds the Plaintiffs claim they will spend on excavation in the order for
attachment. Therefore, by the time their house is built, the Plaintiffs will have spent $1,226,320
($876,320 plus $350,000) for a house that Cleveland agreed to build for $801,906. The
difference is $424,414. 3
Conclusion
On this record, the court fmds that it is more likely than not that Plaintiffs will be entitled
to recover $424,414 from Defendant. Therefore, the court grants the motion for attachment in
that amount.
If necessary, the Plaintiffs may submit an abstract of this order in a recordable fom1at.
The entry is:
Plaintiffs' Motion for Attachment and Attachment on Trustee Process is
GRANTED.
The court grants an attachment and attachment by trustee process in the amount of
$424,414 against the property and assets of Jerome Cleveland Jr., provided,
however, that the first $100 of demand bank accounts held by any one trustee
shall be exempt from Trustee Process issued pursuant to this Order.
' The parties spent some time trying to establish the value of the work completed. Regardless of that value, the only evidence before the court is that the Plaintiffs have to spend $876,320 to complete the house.
8 The clerk may incorporate this Order on the docket by reference. M.R. Civ. P. 79(a).
DATE: /j/ JU}1U7IL Thomas R. McKeon Justice, Maine Superior Court