MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	18	
Docket:	   Han-18-196	
Argued:	   December	11,	2018	      	     	     	    	      	
Decided:	  January	29,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  JOHN	SWEET	II	
                                          	
                                         v.	
                                          	
                              CARL	E.	BREIVOGEL	et	al.	
	
	
HUMPHREY,	J.	

      [¶1]		In	this	appeal	involving	a	dispute	over	payment	for	the	construction	

of	a	traditional	timber	frame	home,	we	 consider	the	connection	between	the	

Home	 Construction	 Contracts	 Act	 (HCCA)	 and	 the	 Unfair	 Trade	 Practice	 Act	

(UTPA),	take	this	opportunity	to	underscore	the	significance	of	the	statutory	

requirement	 that	 construction	 contracts	 be	 formalized	 in	 writing,	 and	 affirm	

the	judgment.		See	5	M.R.S.	§	213(1),	(2)	(2017);	10	M.R.S.	§§	1487,	1490	(2017).			

                                   I.		BACKGROUND	

      [¶2]		The	following	facts	are	 drawn	from	the	court’s	 judgment	 and	are	

supported	 by	 competent	 evidence	 in	 the	 record.	 	 See	 Gravison	 v.	 Fisher,	

2016	ME	35,	¶	3,	134	A.3d	857.			
2	

          [¶3]		John	Sweet	II	is	a	sole	proprietor	who	specializes	in	the	construction	

of	traditional	timber	frame	homes,	which	involve	a	high	level	of	labor,	time,	and	

craftmanship.		In	February	2013,	Carl	E.	and	Elizabeth	A.	Breivogel	contacted	

Sweet	through	his	construction-business	website	and	inquired	about	building	

“an	enclosed,	[weathertight]	frame	home”	on	land	they	own	on	Mount	Desert	

Island.			

	         [¶4]		In	March	2013,	the	Breivogels	traveled	to	Maine	and	met	with	Sweet	

at	 his	 self-constructed	 timber	 frame	 home.	 	 During	 that	 visit,	 the	 Breivogels	

viewed	Sweet’s	workshops	as	well	as	two	other	timber	frame	homes	that	Sweet	

had	 constructed.	 	 While	 the	 parties	 did	 not	 reach	 any	 agreements	 that	 day,	

Sweet	 did	 provide	 the	 Breivogels	 with	 some	 information	 about	 the	 relative	

costs	of	the	homes	they	visited.		Specifically,	he	told	the	Breivogels	that	it	would	

cost	approximately	$500,000	to	build	a	28’	x	30’	completed	home	like	his	and	

$400,000	to	construct	the	32’	x	32’	home	they	visited	that	was	little	more	than	

a	“dried	shell”	or	“weathertight”	home.1			



     1	
     	 In	 their	 testimony,	 Sweet	 and	 his	 son,	 John	 Sweet	 III,	 explained	 that	 a	 “dried	 shell”	 or	
“weathertight”	 home	 refers	 to	 a	 building	 that	 has	 a	 traditional	 timber	 frame,	 a	 roof,	 and	 exterior	
walls,	but	does	not	have	electricity,	plumbing,	fixtures,	or	completed	rooms.		Because	cutting	into	the	
timbers	after	the	frame	is	complete	compromises	the	home’s	structure	and	integrity,	a	dried	shell	is	
often	built	with	an	overall	plan	for	the	completed	home	in	mind.		In	contrast,	a	completed	home	ready	
for	occupancy	includes	features	such	as	a	kitchen,	functioning	bathrooms,	light	fixtures,	and	internal	
walls	for	rooms.			
                                                                                                        3	

	       [¶5]		After	that	meeting,	the	parties	continued	to	communicate	via	email.		

In	one	exchange	dated	March	26,	2013,	the	parties	began	to	discuss	the	costs	

associated	with	building	a	saltbox	style2	timber	frame	home.		The	Breivogels	

asked	 Sweet	 whether	 it	 would	 be	 possible	 to	 build	 a	 home	 of	 this	 style	 for	

$275,000,	not	including	the	septic	system	for	which	the	Breivogels	would	make	

other	arrangements.		Sweet	responded	that	it	was	possible,	but	difficult	to	be	

certain	at	that	early	stage	of	the	discussion	because	“the	devil[’]s	in	the	details.”			

	       [¶6]	 	 From	 that	 point	 forward,	 the	 parties	 did	 not	 share	 the	 same	

understanding	of	the	scope	and	cost	of	the	work	Sweet	was	to	perform.		Sweet	

believed	that	the	Breivogels	wanted	him	to	construct	an	enclosed,	weathertight	

timber	 frame	 home—including	 only	 a	 frame,	 walls,	 roof,	 insulation,	 doors,	

windows,	chimney,	and	exterior	shingles.		In	contrast,	the	Breivogels	believed	

that	they	had	requested	a	fully	completed	home,	ready	for	occupancy,	costing	

no	more	than	$275,000.			

	       [¶7]	 	 In	 April	 2013,	 the	 Breivogels	 authorized	 Sweet	 to	 begin	

construction;	 however,	 the	 parties	 never	 signed	 a	 contract.	 	 When	 the	

Breivogels	inquired	when	the	parties	would	formalize	the	terms	of	the	project,	


    2		A	saltbox	style	home	is	“a	house	.	.	.	having	two	stories	in	front	and	one	at	the	rear,	and	a	gable	

roof	with	a	much	longer	slope	at	the	rear.”		Saltbox,	Webster’s	New	World	College	Dictionary	(5th	ed.	
2016).			
4	

Sweet	insisted	that	he	had	never	signed	a	written	contract	in	over	thirty	years	

of	 business.	 	 The	 parties	 did,	 however,	 arrange	 that	 the	 Breivogels	 would	 be	

billed	biweekly	and	pay	for	all	materials	and	any	labor	at	$32	an	hour.			

	     [¶8]		Sweet	and	his	team	began	construction	of	a	dried	shell	structure	in	

the	 summer	 of	 2013	 and	 completed	 the	 work	 in	 December	 of	 that	 year.		

Throughout	 the	 project,	 Sweet	 sent	 numerous	 emails	 to	 the	 Breivogels	

containing	 photographs	 depicting	 the	 progress	 on	 their	 home.	 	 He	 also	

provided	biweekly	invoices;	despite	these	frequent	communications,	however,	

Sweet’s	 overall	 record-keeping	 process	 throughout	 the	 project	 was	 highly	

informal.			

	     [¶9]	 	 After	 December,	 both	 parties	 understood	 that	 work	 on	 the	 home	

would	 progress	 beyond	 the	 dried	 shell	 phase.	 	 At	 that	 point,	 the	 Breivogels	

determined,	without	informing	Sweet,	that	they	would	have	Sweet	continue	to	

work	 on	 the	 project,	 but	 would	 initiate	 legal	 action	 against	 him	 after	 they	

obtained	 a	 certificate	 of	 occupancy.	 	 They	 intended	 to	 seek	 damages	 for	

payments	made	in	excess	of	$275,000.		The	Breivogels	continued	to	pay	Sweet	

until	May	4,	2014.		Construction	of	the	home	was	completed	and	the	Breivogels	

received	their	certificate	of	occupancy	on	May	15,	2014.			
                                                                                                    5	

       [¶10]		In	total,	Sweet	billed	the	Breivogels	$602,250.98	for	materials	and	

services.		The	Breivogels	had	paid	$601,195.75.		After	the	Breivogels	refused	to	

tender	any	further	payments,	Sweet	placed	a	$51,953.94	lien	on	the	home	for	

unpaid	 labor	 and	 brought	 this	 action	 against	 the	 Breivogels	 for	 that	 amount	

plus	interest.3		The	Breivogels	asserted	counterclaims	for	negligence,	breach	of	

contract,	fraud,	negligent	misrepresentation,	breach	of	the	implied	warranty	of	

workmanship,	and	a	violation	of	the	UTPA.			

       [¶11]		The	Superior	Court	(Hancock	County,	R.	Murray,	J.)	concluded	that	

Sweet	 was	 entitled	 to	 the	 money	 that	 he	 had	 already	 received	 from	 the	

Breivogels	 for	 the	 home	 under	 the	 theory	 of	 quantum	 meruit;	 however,	 the	

court	also	determined	that	Sweet	had	actually	overcharged	the	Breivogels	by	

$640.77	 for	 the	 work	 performed	 by	 a	 tiler.	 	 With	 respect	 to	 the	 Breivogels’	

counterclaims,	the	court	concluded	that	they	failed	to	establish	that	Sweet	was	

negligent,	 had	 breached	 any	 contractual	 obligation	 to	 perform	 in	 a	

workmanlike	 manner,	 or	 had	 breached	 any	 implied	 warranty	 relating	 to	

workmanship.		It	also	determined	that	Sweet	did	not	commit	fraud	or	negligent	

misrepresentation.		However,	the	court	did	find	that	Sweet	violated	the	HCCA	


   3		Although	the	record	is	sparse	with	regard	to	the	basis	for	this	amount,	Sweet	testified	that	he	

filed	the	lien	to	recover	money	owed	to	him	for	his	own	labor	and	for	work	performed	on	the	project	
by	the	plumbing	contractor.			
6	

by	 failing	 to	 furnish	 a	 written	 contract,	 which	 was	 prima	 facie	 evidence	 of	 a	

UTPA	violation.			

        [¶12]		The	Breivogels	filed	a	motion	for	amended	and	additional	findings	

of	fact	and	conclusions	of	law.		The	court	declined	to	amend	the	factual	findings,	

but	awarded	the	Breivogels	$3,832.43	in	costs	and	$30,000	in	attorney	fees	as	

permitted	by	the	UTPA.		The	Breivogels	timely	appealed.		M.R.	App.	P.	2A(a),	

2B(c).			

                                    II.		DISCUSSION	

	       [¶13]	 	 The	 Breivogels	 contend	 that	 the	 Superior	 Court	 erred	 in	

(1)	determining	 that	 they	 did	 not	 meet	 their	 burden	 of	 proof	 as	 to	 their	

counterclaims	for	fraud,	negligent	misrepresentation,	and	breach	of	contract;	

(2)	 calculating	 the	 damages	 recoverable	 under	 the	 UTPA	 stemming	 from	

Sweet’s	 violation	 of	 the	 HCCA;	 and	 (3)	 awarding	 an	 insufficient	 amount	 of	

attorney	fees.		We	disagree	and	affirm	the	trial	court’s	judgment	in	full.			

A.	 	   The	Breivogels’	Counterclaims	

	       [¶14]		Because,	at	trial,	the	Breivogels	had	the	burden	of	proof	on	each	of	

their	counterclaims	and	the	Superior	Court	concluded	that	they	failed	to	meet	

their	burden,	we	must	determine	whether,	on	appeal,	they	have	demonstrated	

that	“a	contrary	finding	is	compelled	by	the	evidence.”		Gravison,	2016	ME	35,	
                                                                                           7	

¶	31,	 134	 A.3d	 857	 (quotation	 marks	 omitted);	 see	 also	 Young	 v.	 Lagasse,	

2016	ME	96,	¶	8,	143	A.3d	131;	Rice	v.	Cook,	2015	ME	49,	¶	11,	115	A.3d	86;	

St.	Louis	 v.	 Wilkinson	 Law	 Offices,	 P.C.,	 2012	 ME	 116,	 ¶¶	 16,	 19,	 55	 A.3d	 443.		

Because	the	Breivogels	moved	for	amended	and	additional	findings	of	fact	and	

conclusions	of	law	pursuant	to	M.R.	Civ.	P.	52,	we	“review	the	original	findings	

and	 any	 additional	 findings	 made	 in	 response	 to	 the	 motion	 for	 findings	 to	

determine	if	they	are	sufficient,	as	a	matter	of	law,	to	support	the	result	and	if	

they	 are	 supported	 by	 the	 evidence	 in	 the	 record.”	 	 Bayberry	 Cove	 Childrens’	

Land	Tr.	v.	Town	of	Steuben,	2013	ME	35,	¶	5,	65	A.3d	1188	(quotation	marks	

omitted).			

	      [¶15]		The	evidence	did	not	compel	the	court	to	issue	findings	necessary	

for	the	Breivogels	to	prevail	on	their	counterclaims.		See	Gravison,	2016	ME	35,	

¶	31,	134	A.3d	857.		The	court	was	entitled	to	find,	as	it	did,	that	throughout	the	

construction	process,	the	parties	held	different	understandings	of	the	work	to	

be	performed	and	the	total	cost	of	the	project.		The	court	was	also	entitled	to	

find	that,	because	of	this	difference	in	understanding,	the	parties	did	not	form	

an	 express	 contract.	 	 Therefore,	 the	 court	 did	 not	 err	 in	 concluding	 that	 the	

Breivogels	 failed	 to	 prove	 that	 Sweet	 committed	 fraud,	 negligent	

misrepresentation,	 or	 breach	 of	 contract.	 	 See	 Young,	 2016	 ME	 96,	 ¶	 8,	
8	

143	A.3d	131;	Rice,	2015	ME	49,	¶	11,	115	A.3d	86;	St.	Louis,	2012	ME	116,	¶	16,	

55	 A.3d	 443;	 see	 also	 Gordon	 v.	 Cheskin,	 2013	 ME	 113,	 ¶	 12,	 82	 A.3d	 1221	

(“Factual	findings	should	not	be	overturned	in	an	appellate	proceeding	simply	

because	an	alternative	finding	also	finds	support	in	the	evidence.”)	(quotation	

marks	omitted).			

B.	   Damages		

      [¶16]		The	Breivogels	also	contend	that	the	court	abused	its	discretion	in	

its	award	of	damages	in	this	case.		Because	the	court	found	that	there	was	no	

contract	between	the	parties,	it	applied	the	principles	of	quantum	meruit	and	

concluded	that	the	Breivogels	had	suffered	a	“relatively	slight	loss	of	money	in	

the	amount	of	$640.77”	under	the	UTPA.		The	Breivogels	argue	that	the	court’s	

application	 of	 this	 legal	 principle	 was	 misplaced	 because	 the	 parties	 never	

reached	 a	 common	 understanding	 of	 the	 material	 terms	 of	 the	 project	 and	

because	Sweet’s	violations	of	the	HCCA	and	UTPA	warranted	a	larger	award	of	

damages.		We	will	vacate	an	award	of	damages	only	when	there	is	no	competent	

evidence	in	the	record	to	support	it.		Woodworth	v.	Gaddis,	2012	ME	138,	¶	9,	

58	A.3d	1109.			
                                                                                       9	

      1.	    Quantum	Meruit	

      [¶17]		Quantum	meruit	is	appropriate	where	there	is	no	formal	written	

contract	but	a	contract	implied	in	fact	can	be	inferred	from	the	parties’	conduct.		

See	 Paffhausen	 v.	 Balano,	 1998	 ME	 47,	 ¶	 9,	 708	 A.2d	 269.	 	 In	 these	

circumstances,	 quantum	 meruit	 requires	 that	 “(1)	 services	 were	 rendered	 to	

the	 defendant	 by	 the	 plaintiff;	 (2)	 with	 the	 knowledge	 and	 consent	 of	 the	

defendant;	and	(3)	under	circumstances	that	make	it	reasonable	for	the	plaintiff	

to	expect	payment.”		Id.	¶	8	(citations	and	quotation	marks	omitted).		Although	

contract	formalities	do	not	exist	with	respect	to	an	implied	contract,	there	must	

be	a	reasonable	expectation	of	compensation	for	goods	or	services	rendered.		

See	id.	¶	9.		A	party	may	recover	under	quantum	meruit	even	where	“there	was	

not	a	clear	accession	on	both	sides	to	one	and	the	same	terms”	if	it	is	clear	from	

the	 circumstances	 that	 the	 services	 were	 not	 intended	 to	 be	 gratuitous.	 	 Id.	

(quotation	marks	omitted).			

      [¶18]		In	this	case,	while	it	is	clear	that	the	parties	did	not	sign	a	contract	

or	 share	 an	 exact	 understanding	 of	 the	 scope	 and	 terms	 of	 construction,	 the	

court’s	application	of	quantum	meruit	was	appropriate.		The	parties	engaged	in	

months	of	discussions	and	planning	before	the	project	began	and	remained	in	

fairly	 constant	 communication	 throughout	 every	 phase	 of	 construction.	 	 In	
10	

particular,	the	binders	of	emails	and	hundreds	of	photographs	admitted	in	this	

case,	combined	with	evidence	of	the	Breivogels’	numerous	site	visits,	support	

the	 court’s	 conclusion	 that	 the	 Breivogels	 were	 aware	 of	 and	 assented	 to	

Sweet’s	performance	of	the	work	on	their	property.		The	Breivogels	could	have	

terminated	the	project	at	any	time,	but	instead	continued	working	with	Sweet,	

despite	admitted	misgivings,	and	accepted	the	full	benefit	of	Sweet’s	services	in	

the	 form	 of	 a	 completed	 timber	 frame	 home	 ready	 for	 occupancy.	 	Given	 the	

court’s	findings,	to	allow	the	Breivogels	to	accept	the	benefit	of	Sweet’s	work	

without	 paying	 the	 value	 of	 materials	 and	 services	 undercuts	 the	 purpose	 of	

quantum	meruit:	to	allow	recovery	for	services	rendered	when	the	words	or	

conduct	of	the	recipient	created	an	expectation	of	compensation.		See	id.		The	

Breivogels	 permitted	 Sweet	 to	 continue	 the	 project	 beyond	 the	 dried	 shell	

phase—the	 point	at	which	the	 Breivogels	realized	that	Sweet	had	a	different	

understanding	 of	 the	 scope	 and	 cost	 of	 construction—and	 allowed	 him	 to	

continue	working	until	their	home	was	fit	for	occupancy.			

	     [¶19]		Moreover,	contrary	to	the	Breivogels’	arguments	challenging	the	

court’s	assessment	of	the	reasonable	value	of	the	work	Sweet	completed,	the	

court	did	not	err	in	its	determination	of	damages.		Based	on	the	testimony	of	

the	 parties	 and	 Sweet’s	 expert	 witness,	 the	 evidence	 of	 multiple	 requested	
                                                                                      11	

upgrades	and	demands	for	luxury-quality	materials,	and	the	biweekly	invoices	

in	 evidence,	 the	 court	 did	 not	 abuse	 its	 discretion	 in	 determining	 that	 Sweet	

was	 entitled	 to	 $600,554.98,	 which	 had	 already	 been	 paid	 by	 the	 Breivogels,	

nor	in	concluding	that	the	Breivogels	overpaid	by	$640.77	for	the	tiler’s	work.			

      2.	    Recovery	Under	the	UTPA	

      [¶20]	 	 The	 Breivogels	 further	 argue	 that	 they	 are	 entitled	 to	 greater	

recovery	under	the	UTPA.		See	10	M.R.S.	§	1490;	see	also	5	M.R.S.	§	213(1),	(2).		

Contrary	 to	 their	 arguments,	 the	 court	 understood	 correctly	 the	 interplay	

between	the	HCCA	and	UTPA	and	properly	applied	the	law	in	this	case.			

      [¶21]		The	court	found,	and	neither	party	disputes,	that	the	agreement	to	

build	the	Breivogels’	home	falls	within	the	ambit	of	the	HCCA.		10	M.R.S.	§	1487.		

The	HCCA	is	intended	to	combat	the	problems	of	“faulty	home	construction,”	

see	L.D.	1044	(113th	Legis.	1987),	and	requires	that	“[a]ny	home	construction	

contract	 for	 more	 than	 $3,000	 in	 materials	 or	 labor	 must	 be	 in	 writing.”		

10	M.R.S.	 §	 1487.	 	 While	 there	 is	 no	 remedy	 specified	 under	 the	 HCCA,	 a	

violation	of	the	HCCA	is	considered	prima	facie	evidence	of	a	violation	of	the	

UTPA,	 which	 does	 provide	 for	 specific	 remedies,	 including	 restitution	 and	

attorney	 fees.	 	 See	 10	 M.R.S.	 §	 1490(1);	 see	 also	 5	 M.R.S.	 §	 213(1),	 (2);	

VanVoorhees	 v.	 Dodge,	 679	 A.2d	 1077,	 1082	 (Me.	 1996);	 Parker	 v.	 Ayre,	
12	

612	A.2d	1283,	1284-85	(Me.	1992).		To	recover	under	the	UTPA,	a	party	must	

demonstrate	 “a	 loss	 of	 money	 or	 property	 as	 a	 result	 of	 a	 [UTPA]	 violation.”		

Parker,	 612	 A.2d	 at	 1285	 (quotation	 marks	 omitted).	 	 Key	 inquiries	 into	

whether	the	homeowners	have	suffered	a	financial	or	tangible	loss	are	whether	

the	materials	claimed	to	be	furnished	by	the	plaintiff	were	in	fact	furnished	and	

whether	the	prices	were	fair	and	reasonable.		See	id.		In	other	words,	in	order	

to	recover	under	the	UTPA,	the	homeowners	must	demonstrate	that	they	did	

not	receive	the	value	that	should	have	been	conferred.		See	id.			

      [¶22]		The	Breivogels	are	not	entitled	to	additional	recovery	under	the	

UTPA	 because	 they	 failed	 to	 demonstrate	 that	 they	 did	 not	 receive	 value	 for	

their	payments	for	Sweet’s	services.		The	court	properly	relied	on	Parker,	a	case	

that,	as	the	court	noted,	mirrors	the	facts	and	legal	analysis	applicable	in	the	

Breivogels’	 case.	 	 Like	 the	 homeowner	 in	 Parker,	 the	 Breivogels	 (1)	 proved	

violations	 of	 the	 HCCA	 and	 UTPA,	 but	 failed	 to	 identify	 any	 injury	 or	

demonstrate	 a	 substantial	 loss	 of	 money	 or	 property	 resulting	 from	 the	

violations—i.e.	a	loss	stemming	specifically	from	Sweet’s	failure	to	memorialize	

the	parties’	agreement	in	writing—and	(2)	received	the	benefit	of	the	materials	

and	 services	 provided	 by	 Sweet.	 	 Id.	 at	 1284-85;	 	 see	 also	 Tungate	 v.	
                                                                                     13	

MacLean-Stevens	Studios,	Inc.,	1998	ME	162,	¶¶	9-11,	714	A.2d	792.		Therefore,	

they	are	not	entitled	to	additional	damages	under	the	UTPA.			

C.	   Attorney	Fees	

      [¶23]	 	 Finally,	 the	 Breivogels	 argue	 that	 the	 Superior	 Court	 abused	 its	

discretion	in	awarding	them	only	$30,000	in	attorney	fees	when	they	requested	

over	three	times	that	amount.		Because	the	trial	court	is	in	the	best	position	to	

observe	the	unique	nature	and	tenor	of	the	litigation	as	it	relates	to	a	request	

for	attorney	fees,	we	review	the	grant	of	fees	for	abuse	of	discretion	and	any	

underlying	factual	findings	for	clear	error.		See	Roussel	v.	Ashby,	2015	ME	43,	

¶	10,	114	A.3d	670.			

	     [¶24]		“[A]n	award	of	attorney	fees	pursuant	to	the	UTPA	is	recoverable	

only	to	the	extent	that	it	is	earned	pursuing	a	UTPA	claim.”		William	Mushero,	

Inc.	v.	Hull,	667	A.2d	853,	855	(Me.	1995).		Because	“courts	have	no	authority	to	

award	attorney’s	fees	to	a	litigant	in	the	absence	of	statutory	authorization	or	

agreement	 by	 the	 parties,”	 Poussard	 v.	 Commercial	 Credit	 Plan,	 Inc.,	

479	A.2d	881,	883	(Me.	1984),	to	recover	fees,	claimants	must	“apportion	their	

attorney	fees	between	the	claims	for	which	fees	may	be	awarded	and	the	claims	

for	which	there	is	no	[statutory]	entitlement	to	fees,”	Advanced	Constr.	Corp.	v.	

Pilecki,	2006	ME	84,	¶	30,	901	A.2d	189.		Many	claimants	do	this	by	submitting	
14	

affidavits	and	billing	records	tailored	to	show	the	court	the	connection	between	

the	fees	requested	and	the	UTPA	claim;	however,	there	are	cases	in	which	the	

fee	 and	 non-fee	 claims	 arise	 from	 common	 facts	 and	 are	 so	 deeply	 entwined	

that	separation	is	impossible.		See	id.	¶	32.			

	       [¶25]	 	 Here,	 the	 Breivogels	 did	 not	 distinguish	 between	 their	 fee	 and	

non-fee	claims.		Instead,	they	asserted	that	they	were	entitled	to	recover	the	full	

amount	of	their	attorney	fees	because	all	of	the	claims	and	counterclaims	in	the	

case	were	inextricably	entwined	with,	and	stemmed	from,	the	UTPA	violations.		

Contrary	 to	 this	 argument,	 the	 court	 properly	 exercised	 its	 discretion	 in	

determining	 a	 reasonable	 award	 of	 attorney	 fees	 based	 on	 its	 reasoned	

application	of	the	factors	enumerated	in	Homeward	Residential,	Inc.	v.	Gregor,	

2017	ME	128,	¶	15,	165	A.3d	357,	particularly	the	Breivogels’	limited	degree	of	

success.4		The	court	did	not	err	in	awarding	to	the	Breivogels	fees	for	Sweet’s	


    4
       When	 determining	 what	 constitutes	 reasonable	 attorney	 fees,	 the	 trial	 court	 considers	 the	
following	factors:	
    		
        (1)	 the	 time	 and	 labor	 required;	 (2)	 the	 novelty	 and	 difficulty	 of	 the	 questions	
        presented;	(3)	the	skill	required	to	perform	the	legal	services;	(4)	the	preclusion	of	
        other	employment	by	the	attorneys	due	to	acceptance	of	the	case;	(5)	the	customary	
        fee	 in	 the	 community;	 (6)	 whether	 the	 fee	 is	 fixed	 or	 contingent;	 (7)	 the	 time	
        limitations	 imposed	 by	 client	 or	 circumstances;	 (8)	 the	 degree	 of	 success;	 (9)	 the	
        experience,	reputation	and	ability	of	the	attorneys;	(10)	the	undesirability	of	the	case;	
        (11)	 the	 nature	 and	 length	 of	 the	 professional	 relationship	 with	 the	 client;	 and	
        (12)	awards	in	similar	cases.	
        	
Homeward	Residential,	Inc.	v.	Gregor,	2017	ME	128,	¶	15,	165	A.3d	357	(quotation	marks	omitted).			
                                                                                   15	

UTPA	violation	and	for	the	Breivogels’	successful	defense	of	Sweet’s	claim	for	

additional	payments,	or	in	declining	to	award	them	fees	for	the	counterclaims	

on	which	Sweet	prevailed	and	for	which	attorney	fees	are	not	recoverable.		See	

Roussel,	 2015	 ME	 43,	 ¶	 10,	 114	 A.3d	 670.	 	 We	 are	 not	 persuaded	 by	 the	

Breivogels’	bare	assertions	that	all	of	the	claims	and	counterclaims	in	this	case	

are	inextricably	linked,	and	we	affirm	the	Superior	Court’s	award	of	fees.			

      [¶26]		In	counterpoint	to	the	Breivogels’	challenge	to	the	sufficiency	of	

the	 attorney	 fees	 award	 in	 this	 case,	 the	 court’s	 judgment	 underscores	 the	

importance	of	the	statutory	requirement	of	having	written	contracts	in	home	

construction	projects	subject	to	the	HCCA.		10	M.R.S.	§	1487.		In	projects	of	this	

magnitude,	 especially	 in	 an	 industry	 as	 specialized	 as	 the	 construction	 of	

traditional	timber	frame	homes,	the	absence	of	a	written	contract	can	lead	to	

unfulfilled	 expectations,	 immense	 confusion	 between	 homeowners	 and	

contractors,	and	costly	litigation.		It	is	clear	from	the	record	that	Sweet	and	the	

Breivogels	did	not	share	the	same	understanding	of	the	scope	and	cost	of	this	

project,	 a	 failing	 that	 could	 have	 been	 clarified	 by	 a	 written	 agreement.		

However,	Sweet’s	violations	of	the	HCCA	and	UTPA	were	properly	remedied	by	

the	court.		Not	only	must	Sweet	pay	 his	own	 attorney	fees,	he	 must	also	pay	

$30,000	of	the	Breivogels’	fees,	a	substantial	penalty	for	his	serious	violations,	
16	

and,	 in	 addition,	 he	 has	 lost	 his	 lien	 claim	 of	 $52,478.35	 for	 allegedly	

uncompensated	work.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	      	     	      	     	
	
Christopher	E.	Pazar,	Esq.	(orally),	and	William	J.	Kennedy,	Esq.,	Drummond	&	
Drummond,	LLP,	Portland,	for	appellants	Carl	E.	and	Elizabeth	A.	Breivogel	
	
Daniel	A.	Pileggi,	Esq.	(orally),	Acadia	Law	Group	LLC,	Ellsworth,	for	appellee	
John	Sweet	II	
	
	
Hancock	County	Superior	Court	docket	number	CV-2014-52	
FOR	CLERK	REFERENCE	ONLY	
