MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision:   2014 ME 51
Docket:     Han-13-286
Submitted
 On Briefs: February 27, 2014
Decided:    April 1, 2014

Panel:       ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.


                                  PHILIP C. TOBIN

                                          v.

                                 PHILIP N. BARTER


JABAR, J.

         [¶1] Philip C. Tobin appeals from a judgment entered in the Superior Court

(Hancock County, Cuddy J.) denying his claims for breach of contract, unjust

enrichment, and promissory estoppel against Philip N. Barter. Tobin argues that

the court erred in granting Barter’s motion for a judgment as a matter of law,

notwithstanding the verdict of the jury, which had found that Barter had breached

the parties’ contract and awarded Tobin $10,000. See M.R. Civ. P. 50(b). We

agree and vacate the court’s judgment, and we remand the case to the Superior

Court for reinstatement of the jury’s verdict. See M.R. Civ. P. 50(c).

                                 I. BACKGROUND

         [¶2] The evidence in the record supports the following facts, viewed in the

light most favorable to Tobin as the party opposing the Rule 50 motion. See Lewis
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v. Knowlton, 1997 ME 12, ¶ 6, 688 A.2d 912. In December 2009, Barter, who has

been an artist in Maine for fifty years, hired Tobin to “produce a book for

publication and sale encompassing Barter’s artistic work product over the years.”

The parties entered into a written agreement, which provided that Tobin would

write the “text requisite to presenting the scope of Barter’s many artistic

creations . . . subject to Barter’s final approval” in a book titled Philip Barter,

Forever Maine, and that he would make arrangements with a photography studio

in Ellsworth to obtain print-quality images of Barter’s paintings. The agreement

provided that Tobin would “receive fifty percent (50%) of the net proceeds from

the sale of the aforementioned[] publication” in exchange for his “time and effort

in producing said book for publication.” Additionally, the agreement stated that

Barter would provide Tobin with funds up to $5000 and the photographs of his

artwork “necessary for accomplishing Tobin’s . . . agreed-upon manuscript

responsibilities.” Barter testified that, once the book was published, he anticipated

that the parties would receive “$35,000 each in the first year” of profit from the

sales of the book.

      [¶3] At the outset, Tobin and Barter agreed to select approximately 200

images of Barter’s paintings to include in the book. To start the selection process,

the parties first sent 1490 images of Barter’s paintings to have them digitally

rescanned to improve the image quality. From those images, Barter then selected
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403 images that the photography studio in Ellsworth enhanced to print quality.

While the images were being processed, Tobin consulted with Barter weekly to

notify him of the progress of the image enhancement. Although Barter believed

that the image selection process was incomplete, he selected 208 of the images for

possible inclusion in the book and gave Tobin the titles and dimensional

descriptions of those images.

      [¶4] Using those 208 images, Tobin drafted a manuscript of the book. On

December 13, 2010, Tobin went to Barter’s home in Franklin, gave him a draft of

the manuscript, and informed him that Barter could make changes if “he stayed in

context” of the book’s title. After not having received a response from Barter

Tobin sent a letter to Barter on February 11, 2011, in an attempt to “explain the

tension that has [a]risen between [the parties] with regard to the selection of the

works to be included in the book.” Barter did not respond to the letter.

      [¶5] On August 15, 2011, Tobin filed a complaint in the Hancock County

Superior Court alleging that Barter had breached the parties’ contract, or,

alternatively, that Tobin was entitled to relief on the basis of promissory estoppel

or unjust enrichment. Tobin requested $50,000 in damages. Barter moved for

summary judgment on all three counts, but the court denied the motion, reasoning

that “whether a contract exists and whether a breach has occurred are all questions

of fact for the jury to decide as fact finder.”
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      [¶6] The court held a jury trial on May 13, 2013, during which Tobin,

Barter, and Barter’s wife testified. When Tobin rested his case, Barter moved

pursuant to M.R. Civ. P. 50(a) for a judgment as a matter of law on Tobin’s claim

for breach of contract, arguing that, although the parties agreed that there was a

contract, Tobin had presented no evidence that Barter had breached it. The court

reserved its judgment on the motion to “allow the jury to decide the underlying

factual question subject to the Court’s decision on the Rule 50 motion.” See M.R.

Civ. P. 50(b). Barter did not present any evidence, and renewed his motion for

judgment as a matter of law pursuant to Rule 50(b). The jury returned a verdict in

favor of Tobin, finding that there was an enforceable contract, and that Barter had

breached the contract. The jury awarded Tobin $10,000 in damages.

      [¶7]   The next day, May 14, 2013, the court issued a written decision

granting Barter’s motion for a judgment as a matter of law. The court concluded

that, with respect to the breach-of-contract claim, Tobin and Barter “had a very

different understanding of what their agreement was,” and that Tobin had failed to

present sufficient evidence that the parties had a meeting of the minds necessary to

form a legal contract.    The court also denied Tobin’s unjust-enrichment and

promissory-estoppel claims, concluding that Tobin had failed to present sufficient

evidence of an enforceable promise and of damages. Tobin timely appealed. M.R.

App. P. 2(b)(3).
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                                II. DISCUSSION

      [¶8] On appeal from a judgment entered as a matter of law pursuant to

Rule 50(b), “we examine the jury’s verdict to determine if any reasonable view of

the evidence and those inferences that are justifiably drawn from that evidence

supports the jury’s verdict.” Me. Energy Recovery Co. v. United Steel Structures,

Inc., 1999 ME 31, ¶ 6, 724 A.2d 1248 (quotation marks omitted). A motion for a

judgment as a matter of law after the jury has rendered a verdict “should not be

granted if any reasonable view of the evidence could sustain a verdict for the

opposing party.”   Lewis, 1997 ME 12, ¶ 6, 688 A.2d 912 (quotation marks

omitted). Rather, “[v]iewing the evidence and all justifiable inferences therefrom

in the light most favorable to [the nonmoving party],” the court should grant a

Rule 50(b) motion only if the jury was “rationally compelled” to conclude that the

moving party is entitled to judgment in its favor, and should deny the motion if

“[b]ased on all the evidence, reasonable minds could reach different conclusions

on dispositive questions of fact.” Me. Energy Recovery Co., 1999 ME 31, ¶ 8,

724 A.2d 1248.

      [¶9] To demonstrate that the parties had a legally binding contract, the

plaintiff must establish that there was a meeting of the minds between the parties—

or “mutual[] assent to be bound by all [the] material terms” of the contract.

Sullivan v. Porter, 2004 ME 134, ¶ 13, 861 A.2d 625; see also Restatement
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(Second) of Contracts § 17 & cmt. c (1981). “The existence of an agreement,

involving as it does so intricately the conduct of the parties, is appropriately a

question for the trier of fact.” Agway, Inc. v. Ernst, 394 A.2d 774, 777 (Me. 1978).

      [¶10] In order to obtain relief for a breach of that contract, the plaintiff must

also demonstrate that the defendant breached a material term of the contract, and

that the breach caused the plaintiff to suffer damages. See Me. Energy Recovery

Co., 1999 ME 31, ¶¶ 7-8, 724 A.2d 1248. “Similarly, the question of whether

there has been a breach of contract is a question of fact,” VanVoorhees v. Dodge,

679 A.2d 1077, 1080 (Me. 1996), and “[t]he assessment of damages is within the

sole province of the factfinder,” Down E. Energy Corp. v. RMR, Inc.,

1997 ME 148, ¶ 7, 697 A.2d 417.

      [¶11] Here, the court erred when it entered a judgment in favor of Barter,

notwithstanding the jury’s verdict in favor of Tobin, based on its determination that

there was no “meeting of the minds.” See M.R. Civ. P. 50(b). Barter had informed

the court in making his Rule 50 motion that “both of the parties agreed that there

was a contract.” Additionally, a rational jury could have found that the parties’

agreement was “sufficiently definite to enable [it] to ascertain its exact meaning

and fix exactly the legal liabilities of each party” based on the record evidence.

Sullivan, 2004 ME 134, ¶ 13, 861 A.2d 625. Thus, the court erred in issuing its
                                                                                   7

judgment in favor of Barter as a matter of law. See Me. Energy Recovery Co.,

1999 ME 31, ¶¶ 5-8, 724 A.2d 1248; Agway, Inc., 394 A.2d at 777.

      [¶12] Moreover, the evidence in the record supports the jury’s verdict on the

remaining elements of Tobin’s breach-of-contract claim. A jury rationally could

have found that Barter had materially breached the contract by failing to respond to

Tobin. See Associated Builders, Inc. v. Coggins, 1999 ME 12, ¶¶ 6-7 & n.1,

722 A.2d 1278 (enumerating factors relevant in determining if a failure to render

performance is a material breach); Restatement (Second) of Contracts § 241 (1981)

(same). Additionally, the evidence in the record reasonably supports the jury’s

award of $10,000 in damages to Tobin. See Down E. Energy Corp., 1997 ME 148,

¶ 7, 697 A.2d 417 (stating that a jury is permitted to award damages based on

“judgmental approximation” if the “amount of damages may be determined to a

probability” (quotation marks omitted)).

      [¶13] Because a reasonable view of the evidence supports the jury’s verdict,

we remand the case for entry of a judgment reinstating the jury’s verdict in favor of

Tobin. See M.R. Civ. P. 50(c).

      The entry is:

                      Judgment vacated. Remanded for entry of a
                      judgment reinstating the jury verdict in favor of
                      Tobin.
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On the briefs:

        Philip C. Tobin, appellant pro se

        Peter R. Roy, Esq., Roy, Beardsley, Williams & Granger, LLC,
        Ellsworth, for appellee Philip N. Barter



Hancock County Superior Court docket number CV-2011-54
FOR CLERK REFERENCE ONLY
