SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	 2018	ME	81	
Docket:	   Som-17-352	
Argued:	   March	7,	2018	
Decided:	  June	19,	2018	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  ALEXANDER.	J.	
	
	
                                AVIS	RENT	A	CAR	SYSTEM,	LLC	
                                              	
                                             v.	
                                              	
                                      DARRON	BURRILL	
	
	
HUMPHREY,	J.	

         [¶1]		Darron	Burrill	appeals	from	a	partial	summary	judgment	entered	

in	favor	of	Avis	Rent	A	Car	System,	LLC,	on	Avis’s	claim	for	breach	of	contract	

in	 the	 District	 Court	 (Skowhegan).1	 	 Burrill	 challenges	 the	 court’s	 (Fowle,	 J.)	

determination,	issued	as	a	partial	summary	judgment,	that	he	is	liable	to	Avis	

for	 breach	 of	 contract	 and	 the	 court’s	 (E.	Walker,	 J.)	 determinations	 of	

damages	 and	 attorney	 fees,	 awarded	 after	 an	 evidentiary	 hearing.	 	 Avis	

cross-appeals,	 challenging	 the	 court’s	 failure	 to	 award	 it	 pre-	 and	

post-judgment	 interest.	 	 We	 affirm	 the	 partial	 summary	 judgment	 as	 to	

    1	
     	 The	 caption	 of	 the	 court’s	 order	 on	 Avis’s	 motion	 for	 partial	 summary	 judgment	 lists	 the	
District	Court	location	as	Augusta	while	the	text	of	the	order	states	that	the	hearing	on	the	motion	
was	 held	 at	the	 District	 Court	 in	 Skowhegan.	 	 Because	 this	 matter	 was	 docketed	as	 a	 Skowhegan	
case,	we	assume	that	the	reference	to	Augusta	was	a	clerical	error.			
2	

liability	 for	 breach	 of	contract	 but	 vacate	 the	 award	 of	 damages	 and	 remand	

for	further	proceedings.		

                                   I.		BACKGROUND	

       [¶2]		The	following	facts	relating	to	liability	are	taken	from	the	parties’	

statements	of	material	fact	and	reflect	the	record	as	viewed	in	the	light	most	

favorable	to	Burrill	as	the	nonprevailing	party.		See	Oceanic	Inn,	Inc.	v.	Sloan’s	

Cove,	 LLC,	 2016	 ME	 34,	 ¶	 25,	 133	A.3d	 1021.	 	 Facts	 relating	 to	 Avis’s	 alleged	

damages	are	as	found	by	the	court.			

       [¶3]	 	 On	 November	 20,	 2012,	 Burrill,	 a	 Maine	 resident,	 rented	 a	 2012	

Ford	Mustang	from	an	Avis	location	in	Las	Vegas,	Nevada.		Burrill	executed	a	

Rental	 Agreement	 and	 Addendum	 and	 declined	 the	 loss	 damage	 waiver	

protection	 that	 was	 offered	 to	 him.	 	 By	 declining	 the	 loss	 damage	 waiver,	

Burrill	agreed	to	be	responsible	for	“all	loss	of	or	damage	to	the	car	regardless	

of	cause,	or	who,	or	what	caused	it.”		That	same	day,	the	vehicle	was	damaged	

when	it	was	involved	in	an	accident	in	Las	Vegas.		

       [¶4]	 	 According	 to	 Avis,	 the	 accident	 caused	 damages	 to	 the	 vehicle	

totaling	$15,342.57.		Avis	sent	demands	for	payment	to	Burrill	on	January	16,	

2013,	April	3,	2013,	and	August	14,	2014,	but	Burrill	failed	or	refused	to	pay.			
                                                                                                         3	

        [¶5]	 	 Avis	 filed	 a	 complaint	 against	 Burrill	 in	 the	 District	 Court	 on	

July	20,	2015,	 alleging	 breach	 of	 contract	 and	 negligence	 and	 seeking	

damages.		On	March	31,	2016,	after	discovery	was	concluded,	Avis	moved	for	

partial	 summary	 judgment	 to	 establish	 liability	 on	 the	 claim	 for	 breach	 of	

contract.	 	 The	 court	 (Fowle,	J.)	 held	 oral	 argument	 on	 the	 motion	 on	

September	29,	2016.			

        [¶6]		In	its	order	granting	Avis’s	motion	for	partial	summary	judgment,	

the	 court	 noted	 the	 parties’	 agreement	 that	 the	 case	 is	 controlled	 by	 Nevada	

substantive	law	and	 Maine	 procedural	law.2		The	court	then	determined	that	

there	were	no	genuine	issues	of	material	fact	that	(1)	the	parties	entered	into	

a	valid	and	enforceable	rental	contract;	(2)	Burrill	breached	that	contract;	and	

(3)	 “although	 the	 parties	 do	 dispute	 the	 extent	 of	 the	 damages	 sustained	

during	the	course	of	the	accident	.	.	.	damages	did	indeed	occur.”		As	a	result,	

the	 court	 concluded	 that	 there	 were	 no	 genuine	 issues	 of	 material	 fact	 as	 to	

the	elements	of	the	claim	for	breach	of	contract	and	that	Avis	was	entitled	to	

partial	 summary	 judgment	 on	 the	 issue	 of	 liability	 as	 a	 matter	 of	 law.	 	 The	




   2		 The	 rental	 agreement	 did	 not	 include	 a	 choice-of-law	 provision,	 but	 because	 the	 rental	
agreement	was	executed	in	Nevada	and	the	accident	took	place	in	Nevada,	Nevada	substantive	law	
applied.	 	 See	 Restatement	 (Second)	 of	 Conflict	 of	 Laws	 §	 188	 (Am.	 Law	 Inst.	 1971);	 see	 also	
State	Farm	Mut.	Auto	Ins.	Co.	v.	Koshy,	2010	ME	44,	¶	46,	995	A.2d	651.			
4	

court	 granted	 the	 motion	 on	 October	 5,	 2016,	 and	 ordered	 a	 hearing	 on	

damages.3			

	         [¶7]		In	dispute	at	the	damages	hearing	on	May	18,	2017,	was	whether	

the	 affidavit	 of	 damages	 executed	 by	 an	 Avis	 claims	 examiner	 included	

inadmissible	 hearsay.	 	 Several	 documents	 were	 attached	 to	 the	 affidavit:	 the	

rental	 agreement;	 a	 vehicle	 valuation	 report	 prepared	 for	 Avis	 by	 J.D.	 Power	

and	 Associates;	 a	 bill	 for	 towing	 the	 damaged	 vehicle;	 and	 a	 record	 of	 the	

vehicle’s	 salvage	 value.	 	 Burrill	 objected	 to	 the	 admission	 of	 the	 affidavit	 on	

the	 ground	 that,	 other	 than	 the	 rental	 agreement,	 the	 attachments	 were	 not	

“business	records”	pursuant	to	the	hearsay	exception	in	M.R.	Evid.	803(6).		At	

the	hearing,	the	court	(E.	Walker,	J.)	accepted	the	affidavit	with	its	attachments	

de	bene	and	did	not	then	rule	on	its	admissibility.		Avis	then	called	a	witness	to	

testify	about	the	amount	of	damages,	but	Burrill	objected	because	the	identity	

of	the	testifying	witness	had	not	been	disclosed	prior	to	the	hearing.		Because	

the	witness	Avis	had	previously	identified	to	Burrill	was	unable	to	attend,	Avis	

brought	 a	 different	 witness	 to	 the	 hearing.	 	 The	 court	 declined	 to	 accept	 the	

testimony	of	the	witness	present.		Before	the	hearing	concluded,	Avis	offered	a	

repair	 estimate	 as	 evidence	 of	 damages	 if	 the	 court	 determined	 that	 the	

     3	 	 The	 day	 before	 the	 damages	 hearing,	 Avis	 moved	 to	 dismiss	 its	 negligence	 claim.	 	 The	 court	

granted	the	motion	at	the	hearing.			
                                                                                                                5	

attachments	 to	 the	 affidavit—specifically	 the	 vehicle	 valuation	 report—were	

inadmissible.	 	 Again,	 Burrill	 objected	 on	 the	 basis	 of	 hearsay,	 and	 again	 the	

court	took	the	submission	de	bene,	reserving	its	ruling	on	its	admissibility.			

        [¶8]	 	 In	 its	 order	 on	 damages,	 the	 court	 determined	 that	 the	

attachments	 to	 the	 affidavit,	 although	 containing	 hearsay,	 satisfied	 the	

business	 records	 exception.	 	 The	 court	 devoted	 most	 of	 its	 discussion	 to	 the	

vehicle	 valuation	 report.4	 	 The	 report	 was	 not	 prepared	 by	 the	 affiant,	 but	

instead	 by	 a	 third	 party,	 J.D.	 Power	 and	 Associates.	 	 The	 valuation	 report	

purported	 to	 provide	 the	 market	 value	 of	 the	 vehicle	 prior	 to	 the	 loss	 by	

taking	 into	 account	 the	 value	 of	 comparable	 vehicles	 with	 similar	 mileage	

located	in	a	similar	geographic	area,	as	well	as	any	damage	to	the	vehicle	prior	

to	the	loss.		The	affiant	certified	that	the	report	was	kept	in	the	regular	course	

of	Avis’s	business,	that	the	affiant	maintained	the	report	as	part	of	her	duties	

as	a	claims	examiner	for	Avis,	and	that	it	was	made	reasonably	soon	after	the	

incident.	 	 The	 court	 determined	 that	 there	 was	 sufficient	 foundation	 for	 the	

admissibility	of	the	affidavit	and	all	of	the	attachments.			




   4		The	rental	agreement	stated	that	in	the	event	of	damage,	the	renter	of	the	vehicle	“will	pay	our	

estimated	 repair	 cost,	 or	 if,	 in	 our	 sole	 discretion,	 we	 determine	 to	 sell	 the	 car	 in	 its	 damaged	
condition,	 you	 will	 pay	 the	 difference	 between	 the	 car’s	 retail	 fair	 market	 value	 before	 it	 was	
damaged	and	the	sale	proceeds.”			
6	

       [¶9]		Based	on	the	information	in	the	affidavit,	the	court	concluded	that	

the	 damages	 and	 fees	 claimed	 by	 Avis	 were	 reasonable	 and	 granted	 Avis	 its	

requested	 amount	 of	 $15,342.57.	 	 It	 also	 granted	 Avis	 attorney	 fees	 totaling	

$5,985.00	 and	 costs	 in	 the	 amount	 of	 $433.24.	 	 The	 court	 declined	 to	 award	

Avis	pre-	or	post-judgment	interest.			

       [¶10]		Burrill	appealed,	challenging	both	the	grant	of	Avis’s	motion	for	

partial	 summary	 judgment	 and	 the	 award	 of	 damages.	 	 Avis	 cross-appealed,	

challenging	the	court’s	failure	to	award	 it	interest	 and	costs	in	the	amount	it	

requested.			

                                     II.		DISCUSSION	

A.	    Breach	of	Contract	

	      [¶11]	 	 Burrill	 first	 challenges	 the	 court’s	 grant	 of	 partial	 summary	

judgment	on	the	issue	of	breach	of	contract.		“We	review	a	trial	court’s	grant	

of	 a	 summary	 judgment	 de	 novo,	 considering	 the	 evidence	 in	 the	 light	 most	

favorable	to	the	nonprevailing	party.		Summary	judgment	is	properly	granted	

if	 the	 record	 reflects	 that	 there	 is	 no	 genuine	 issue	 of	 material	 fact	 and	 the	

movant	is	entitled	to	a	judgment	as	a	matter	of	law.”		Oceanic	Inn,	2016	ME	34,	

¶	25,	133	A.3d	1021	(citation	omitted)	(quotation	marks	omitted).	
                                                                                          7	

       [¶12]		In	order	for	a	plaintiff	to	succeed	in	a	claim	for	breach	of	contract,	

Nevada	law	requires	a	plaintiff	to	show	“(1)	the	existence	of	a	valid	contract,	

(2)	a	breach	by	the	defendant,	and	(3)	damage	as	a	result	of	the	breach.”		Saini	

v.	 Int’l	 Game	 Tech.,	 434	 F.	 Supp.	 2d	 913,	 919-20	 (D.	 Nev.	 2006)	 (citing	

Richardson	v.	Jones,	1	Nev.	405,	408	(1865)).		

	      [¶13]	 	 The	 parties	 agreed	 on	 the	 following	 material	 facts:	 (1)	 Burrill	

rented	 a	 car	 from	 Avis	 on	 November	 20,	 2012;	 (2)	 the	 vehicle	 was	 damaged	

on	 November	 20,	 2012,	 when	 it	 was	 involved	 in	 an	 accident	 in	 Las	 Vegas;	

(3)	in	 the	 rental	 agreement,	 Burrill	 had	 waived	 the	 loss	 damage	 protection	

and	therefore	agreed	to	be	“responsible	.	.	.	for	all	loss	of	or	damage	to	the	car	

regardless	 of	 cause,	 or	 who,	 or	 what	 caused	 it”;	 (4)	 Avis	 sent	 Burrill	 several	

demands	 for	 payment	 of	 the	 alleged	 damages	 prior	 to	 the	 lawsuit;	 and	 (5)	

Burrill	 failed	 or	 refused	 to	 pay	 the	 amount	 demanded.	 	 Because	 Burrill	

admitted	that	the	car	was	damaged	in	an	accident	while	it	was	rented	under	

his	 name	 in	 a	 contractual	 arrangement	 that	 made	 him	 responsible	 for	 any	

damage	 to	 the	 car,	 and	 acknowledged	 that	 he	 refused	 to	 pay	 the	 amount	

demanded	 by	 Avis,	 there	 was	 no	 genuine	 issue	 of	 material	 fact	 that	 Burrill	
8	

breached	 the	 rental	 agreement	 by	 failing	 to	 pay	 Avis	 after	 the	 car	 was	

damaged.5			

	       [¶14]	 	 Because	 there	 were	 no	 genuine	 issues	 of	 material	 fact	 as	 to	

(1)	the	existence	of	a	valid	contract;	(2)	breach	of	that	contract;	and	(3)	some	

amount	 of	 damage	 as	 a	 result	 of	 the	 breach,	 we	 affirm	 the	 grant	 of	 Avis’s	

motion	for	partial	summary	judgment	as	to	liability.		See	M.R.	Civ.	P.	56(c)	(“A	

summary	judgment,	interlocutory	in	character,	may	be	rendered	on	the	issue	

of	 liability	 alone	 although	 there	 is	 a	 genuine	 issue	 as	 to	 the	 amount	 of	

damages.”).	

B.	     Damages	

	       [¶15]		Although	there	was	no	genuine	issue	of	material	fact	that	damage	

did	 indeed	 occur,	 the	 parties	 disputed	 the	 extent	 of	 the	 damages,	 prompting	

the	 court	 to	 order	 a	 hearing	 to	 determine	 the	 specific	 amount	 of	 damages.		

Burrill	argues	that	the	court	erred	and	abused	its	discretion	when	it	admitted,	

pursuant	to	the	business	records	exception	to	the	hearsay	rule,	the	affidavit	of	

   5	 	 The	 trial	 court’s	 analysis	 of	 the	 breach	 element	 focused	 largely	 on	 the	 question	 of	 whether	

Burrill’s	girlfriend,	who	the	parties	agree	was	driving	the	vehicle	at	the	time	of	the	accident,	was	an	
unauthorized	 driver	 according	 to	 the	 terms	 of	 the	 rental	 agreement.	 	 The	 court	 rejected	 Burrill’s	
contention	 that	 a	 conversation	 he	 allegedly	 had	 with	 an	 Avis	 clerk	 prior	 to	 renting	 the	 vehicle	
created	 genuine	 issues	 of	 material	 fact	 on	 the	 ground	 that	 evidence	 regarding	 the	 alleged	
conversation	would	be	barred	by	the	parol	evidence	rule.		See	Klabacka	v.	Nelson,	394	P.3d	940,	949	
(Nev.	2017).		This	remains	Burrill’s	main	argument	on	appeal.		It	is	a	red	herring,	however.		Even	if	
Burrill’s	girlfriend	was	an	authorized	driver,	he	is	still	contractually	responsible	for	the	damage	to	
the	car.		By	failing	to	pay	for	the	damage	after	Avis	sent	demands	for	payment,	Burrill	breached	the	
contract.			
                                                                                                                9	

an	Avis	representative	and	its	attachments6	as	the	sole	evidence	of	the	amount	

of	damages.		See	M.R.	Evid.	803(6).7	

	       [¶16]	 	 “When	 admission	 of	 evidence	 under	 the	 business	 records	

exception	 to	 the	 hearsay	 rule	 is	 challenged,	 we	 review	 a	 trial	 court’s	

foundational	findings	to	support	admissibility	for	clear	error	and	its	ultimate	

determination	 of	 admissibility	 for	 an	 abuse	 of	 discretion.”	 	 JPMorgan	 Chase	

Bank,	N.A.	v.	Lowell,	2017	ME	32,	¶	8,	156	A.3d	727	(quotation	marks	omitted).		

“Business	 records	 are	 hearsay	 and	 therefore	 inadmissible	 pursuant	 to	 M.R.	

Evid.	 802	 unless	 they	 meet	 the	 requirements	 of	 the	 business	 records	

exception	 in	 M.R.	 Evid.	 803(6).”	 	 KeyBank	 Nat’l	 Ass’n	 v.	 Estate	 of	 Quint,	

2017	ME	 237,	 ¶	 14,	 176	 A.3d	 717	 (quotation	 marks	 omitted).	 Rule	 803(6)	

provides	for	the	admissibility	of	a	business	record	if	

        (A)	 	 The	 record	 was	 made	 at	 or	 near	 the	 time	 by—or	 from	
        information	transmitted	by—someone	with	knowledge;	
        	
        (B)	 	 The	 record	 was	 kept	 in	 the	 course	 of	 a	 regularly	 conducted	
        activity	of	a	business,	organization,	occupation,	or	calling,	whether	
        or	not	for	profit;		
        	

    6		Burrill	did	not	object	to	the	admission	of	the	rental	agreement	as	a	business	record.			


   7	 	 Although	 we	 apply	 Nevada	 contract	 law	 in	 this	 case,	 the	 local	 law	 of	 the	 forum	 governs	 the	

admissibility	of	evidence.		See	Restatement	(Second)	of	Conflict	of	Laws	§	138;	see	also	Beaulieu	v.	
Beaulieu,	265	A.2d	610,	612	(Me.	1970);	Holyoke	v.	Estate	of	Holyoke,	110	Me.	469,	477,	87	A.	40,	45	
(Me.	 1913).	 	 We	 therefore	 apply	 the	 Maine	 Rules	 of	 Evidence	 when	 determining	 whether	 the	
business	records	exception	applies	to	the	attachments	to	the	affidavit.	
10	

        (C)		Making	the	record	was	a	regular	practice	of	that	activity;	
        	
        (D)	 	 All	 these	 conditions	 are	 shown	 by	 the	 testimony	 of	 the	
        custodian	 or	 another	 qualified	 witness,	 or	 by	 a	 certification	 that	
        complies	 with	 Rule	 902(11),	 Rule	 902(12)	 or	 with	 a	 statute	
        permitting	certification;	and		
        	
        (E)	 	 Neither	 the	 source	 of	 information	 nor	 the	 method	 or	
        circumstances	of	preparation	indicate	a	lack	of	trustworthiness.		
        	
        [¶17]	 	 Here,	 the	 affiant	 sought	 to	 certify	 the	 business	 records	 by	

affidavit	 pursuant	 to	 Rules	 803(6)(D)	 and	 902(11).	 	 “[S]ubdivision	 11	 of	

Rule	902	 makes	 it	 possible	 to	 lay	 the	 foundation	 for	 domestic	 business	

records	 without	 the	 need	 to	 call	 a	 live	 witness.”8	 	 Field	 &	 Murray,	 Maine	

Evidence	§	902.11	at	554	(6th	ed.	2007).			

        [¶18]	 	 A	 person	 certifying	 the	 records	 pursuant	 to	 Rule	 902(11)	 must	

still	 be	 a	 qualified	 witness,	 however.	 	 See	 M.R.	 Evid.	 803(6),	 902(11).	 	 As	 we	

have	 previously	 explained,	 “[a]	 qualified	 witness	 is	 one	 who	 was	 intimately	


    8	 	 M.R.	 Evid.	 902(11)	 requires	 that	the	 party	 seeking	 to	 certify	 business	 records	 in	accordance	

with	the	rule	must,	before	the	trial	or	hearing,	provide	the	adverse	party	with	reasonable	written	
notice	 of	 the	 intent	 to	 offer	 the	 record	 and	 must	 make	 the	 record	 and	 certification	 available	 for	
inspection.		The	purpose	 of	the	notice	requirement	is	to	ensure	that	the	adverse	party	“has	a	fair	
opportunity	 to	 object	 to	 the	 authenticity	 of	 the	 record	 or	 on	 the	 basis	 of	 hearsay.”	 	 See	 M.R.	
Evid.	902(11).		There	is	no	indication	in	the	record	whether	notice	was	provided,	but	at	the	outset	
of	 the	 hearing,	 Burrill	appeared	to	 have	 been	 aware	 of	 Avis’s	 plan	to	 use	 the	 affidavit	as	proof	 of	
damages.		Neither	at	the	hearing	or	to	us	has	Burrill	objected	to	the	affidavit	based	on	lack	of	notice	
pursuant	to	M.R.	902(11);	his	objections	were	and	are	to	the	attachments	to	the	affidavit.		The	rule	
provides	 that,	 “[i]n	 the	 event	 of	 an	 adverse	 party’s	 objection	 to	 a	 record	 offered	 under	 this	
paragraph,	 the	 court	 may	 in	 the	 interests	 of	 justice	 refuse	 to	 accept	 the	 certification	 under	 this	
paragraph	 and	 require	 the	 party	 offering	 the	 record	 to	 provide	 appropriate	 foundation	 by	 other	
evidence.”		M.R.	Evid.	902(11).		The	court	did	not	do	so	at	the	hearing,	and	on	appeal,	Burrill	does	
not	challenge	the	court’s	failure	to	do	so.			
                                                                                       11	

involved	in	the	daily	operation	of	the	business	and	whose	testimony	showed	

the	firsthand	nature	of	his	knowledge”	but	who	“need	not	be	an	employee	of	

the	 record’s	 creator.”	 	 Estate	 of	 Quint,	 2017	 ME	 237,	 ¶	 15,	 176	 A.3d	 717	

(quotation	 marks	 omitted).	 	 Where	 records	 are	 created	 by	 one	 business	 and	

then	 transmitted	 to	 another,	 the	 records	 will	 be	 admissible	 pursuant	 to	 M.R.	

Evid.	803(6)	 “if	 the	 foundational	 evidence	 from	 the	 receiving	 entity’s	

employee	 is	 adequate	 to	 demonstrate	 that	 the	 employee	 had	 sufficient	

knowledge	of	both	businesses’	regular	practices	to	demonstrate	the	reliability	

and	trustworthiness	of	the	information.”		Beneficial	Me.	Inc.	v.	Carter,	2011	ME	

77,	 ¶	13,	 25	 A.3d	 96.	 	 In	 order	 to	 satisfy	 the	 requirements	 for	 the	 business	

records	 exception	 in	 the	 circumstances	 of	 this	 case,	 the	 witness	 must	

demonstrate	knowledge	that	

      • the	producer	of	the	record	at	issue	employed	regular	business	
        practices	 for	 creating	 and	 maintaining	 the	 records	 that	 were	
        sufficiently	 accepted	 by	 the	 receiving	 business	 to	 allow	
        reliance	on	the	records	by	the	receiving	business;	
        	
      • the	producer	of	the	record	at	issue	employed	regular	business	
        practices	for	transmitting	them	to	the	receiving	business;	
	
      • by	 manual	 or	 electronic	 processes,	 the	 receiving	 business	
        integrated	 the	 records	 into	 its	 own	 records	 and	 maintained	
        them	through	regular	business	processes;		
	
      • the	record	at	issue	was,	in	fact,	among	the	receiving	business’s	
        own	records;	and	
12	

	
      • the	receiving	business	relied	on	these	records	in	its	day-to-day	
          operations.		
          	
Estate	of	Quint,	2017	ME	237,	¶	16,	176	A.3d	717	(quotation	marks	omitted).	

	       [¶19]		Here,	the	certification	of	the	Avis	representative	failed	to	provide	

the	 foundational	 predicate	 necessary	 for	 admission	 in	 evidence	 of	 the	

attached	vehicle	valuation	report.		See	Deutsche	Bank	Nat’l	Trust	Co.	v.	Eddins,	

2018	 ME	 47,	 ¶	13,	 182	 A.3d	 1241.	 	 The	 affiant	 certified	 that	 the	 vehicle	

valuation	report	was	(1)	a	business	record	kept	within	Avis’s	claim	file	for	the	

incident;	 (2)	maintained	 as	 part	 of	 her	 duties	 as	 a	 claims	 examiner	 for	 Avis;	

(3)	 kept	 in	 the	 regular	 course	 of	 Avis’s	 business	 and	 as	 part	 of	 its	 regularly	

conducted	 activity;	 and	 (4)	 made	 reasonably	 soon	 after	 the	 incident.		

However,	because	the	affiant	did	not	certify	that	she	had	any	knowledge	of	J.D.	

Power	 and	 Associates’s	 regular	 business	 practices,	 she	 failed	 to	 lay	 a	 proper	

foundation	 for	 the	 report	 pursuant	 to	 Rule	 803(6),	 and	 the	 court	 abused	 its	

discretion	 by	 admitting	 the	 document	 in	 evidence.	 	 See	 id.	 ¶	14.	 	 For	 these	

same	 reasons,	 the	 affiant	 failed	 to	 lay	 a	 proper	 foundation	 for	 the	 towing	

invoice	and	salvage	proceeds	documentation9	as	well.10			



    9		As	Burrill	points	out,	even	if	the	salvage	proceeds	documentation	were	admissible,	that	record	

is	meaningless	without	the	market	value	of	the	vehicle	provided	in	the	vehicle	valuation	report.			
                                                                                                             13	

        [¶20]	 	 Further,	 the	 affidavit	 was	 used	 to	 accomplish	 more	 than	 is	

contemplated	 by	 Rule	 902(11).	 	 In	 addition	 to	 Avis’s	 attempt	 to	 lay	 the	

foundation	for	the	admission	of	the	attachments	pursuant	to	Rule	803(6),	the	

affidavit	 set	 forth	 the	 basis	 for	 other	 portions	 of	 the	 damages	 award	 as	 well.		

Not	 only	 did	 the	 affiant	 provide	 the	 amount	 allegedly	 due	 for	 the	 damage	 to	

the	 vehicle	 itself	 and	 the	 towing	 fee,	 she	 also	 listed	 a	 loss-of-use	 fee	 of	

$1,238.79,	 title	 and	 license	 fees	 in	 the	 amount	 of	 $101.80,	 and	 an	

administrative	fee	of	$150.00.		Although	the	rental	agreement	stated	that	the	

signatory	to	the	agreement	would	be	required	to	pay	for	such	fees	in	the	event	

of	damage	to	the	vehicle,	none	of	the	other	attachments	purported	to	provide	

a	 basis	 for	 the	 specific	 amounts	 of	 those	 fees.	 	 A	 certification	 submitted	

pursuant	to	Rule	902(11)	can	only	lay	the	foundation	for	a	business	record;	it	

is	 not	 a	 device	 to	 provide	 a	 basis	 for	 damages	 that	 are	 not	 included	 in	 the	

attached	business	records.11		See	Field	&	 Murray,	Maine	Evidence	§	902.11	at	


   10	 	 The	 affiant	properly	 certified	the	 rental	 agreement,	 however.	 	 The	 rental	 agreement,	 unlike	

the	 vehicle	 valuation	 report,	 the	 towing	 invoice,	 and	 the	 salvage	 proceeds	 documentation,	 was	
prepared	 by	 Avis	 and	 meets	 the	 requirements	 of	 Rules	 803(6)	 and	 902(11).	 	 Because	 it	 was	 not	
prepared	 by	 a	 third	 party	 and	 because	 the	 affiant	 laid	 the	 proper	 foundation	 pursuant	 to	 Rule	
902(11),	 the	 rental	 agreement	 would	 be	 admissible.	 	 Although	 the	 rental	 agreement	 informs	 the	
signatory	of	the	types	of	fees	and	costs	he	or	she	will	incur	in	the	event	of	damage	to	or	loss	of	the	
vehicle,	 it	 does	 not	 provide	 the	 specific	 amounts	 of	 those	 fees	 and	 costs.	 	 The	 rental	 agreement	
alone	therefore	cannot	provide	a	basis	for	the	damages	award	sought	by	Avis.	
   11		Therefore,	paragraphs	3	and	4	of	the	affidavit—which	provide	the	total	amount	of	damages	

suffered	by	Avis	and	a	list	of	fees	and	costs	that	comprise	that	total—are	not	certifications	pursuant	
to	Rule	902(11)	and	are	thus	inadmissible	hearsay.		See	M.R.	Evid.	801(c),	802.			
14	

554.	 	 Because	 Avis	 presented	 no	 admissible	 evidence12	 as	 to	 the	 amount	 of	

damages,	it	failed	to	prove	it	was	entitled	to	the	damages	awarded	to	it.			

        [¶21]	 	 According	 to	 Nevada	 contract	 law,	 when	 a	 plaintiff	 has	

established	 liability	 on	 behalf	 of	 the	 defendant	 in	 a	 claim	 for	 breach	 of	

contract	 but	 has	 failed	 to	 provide	 proof	 for	 the	 specific	 amount	 of	 damages,	

the	plaintiff	is	entitled	only	to	nominal	damages.13		See	Gramanz	v.	T-Shirts	&	

Souvenirs,	 894	 P.2d	 342,	 347	 (Nev.	 1995);	 Commercial	 Cabinet	 Co.	 v.	 Mort	

Wallin	 of	 Lake	 Tahoe,	 737	P.2d	 515,	 517	 (Nev.	 1987)	 (explaining	 that	 “[a]	

plaintiff	who	proves	a	right	to	damages	without	proving	the	amount	as	well	is	

only	 entitled	 to	 nominal	 damages”);	 Richardson,	 1	 Nev.	 at	 408.	 Because	 Avis	

established	 liability	 on	 behalf	 of	 Burrill	 but	 failed	 to	 prove	 the	 amount	 of	

actual	 damages,	 we	 vacate	 the	 court’s	 award	 of	 damages	 and	 remand	 with	

instructions	for	the	court	to	award	Avis	nominal	damages	in	accordance	with	

Nevada	 law.	 	 Further,	 given	 that	 Avis	 will	 be	 entitled	 to	 an	 award	 of	 only	

    12		Avis	also	offered	a	repair	estimate	at	the	conclusion	of	the	damages	hearing	“if	the	fair	market	

value	 report	 were	 to	 be	 rejected.”	 	 The	 repair	 estimate,	 like	 the	 fair	 market	 value	 report,	 was	
prepared	 by	 a	 third	 party.	 	 There	 was	 no	 reference	 to	 the	 repair	 estimate	 in	 the	 affidavit	 of	
damages,	nor	did	an	Avis	representative	testify	to	any	personal	knowledge	of	the	business	practices	
of	the	company	that	prepared	the	repair	estimate.		Therefore,	the	repair	estimate	would	likely	have	
been	 inadmissible	 hearsay	 as	 well.	 	 See	 Deutsche	 Bank	 Nat’l	 Trust	 Co.	 v.	 Eddins,	 2018	 ME	 47,	
¶	14,	182	A.3d	1241.			
   13	 	 Nominal	 damages	 are	 defined	 as	 “[a]	 trifling	 sum”	 and	are	 “awarded	 for	 the	 infraction	 of	 a	

legal	 right,	 where	 the	 extent	 of	the	 loss	 is	not	shown.”	 	 Nominal	 Damages,	 Black’s	Law	 Dictionary	
(10th	ed.	2014)	(quotation	marks	omitted).		“The	obtaining	of	nominal	damages	will	also,	in	many	
cases,	entitle	a	plaintiff	to	costs.”		Id.	(quotation	marks	omitted).	
                                                                                     15	

nominal	 damages,	 we	 vacate	 the	 award	 of	 attorney	 fees	 to	 Avis	 to	 allow	 the	

court	on	remand	to	 determine	whether	 and	to	what	 extent	attorney	fees	are	

proper	in	this	case	pursuant	to	the	rental	agreement.			

      [¶22]	 	 Finally,	 we	 reach	 the	 issue	 raised	 in	 Avis’s	 cross-appeal	 of	

whether	 the	 court	 erred	 when	 it	 failed	 to	 award	 it	 interest	 pursuant	 to	 the	

express	terms	of	the	rental	agreement.		Because	Nevada	contract	law	applies	

in	this	case,	Nevada	law	also	governs	the	recovery	of	interest.		See	Roc-Century	

Assocs.	v.	Giunta,	665	A.2d	220,	221	(Me.	1995);	see	also	Restatement	(Second)	

of	 Conflict	 of	 Laws	 §	 207	 &	 cmt.	 e	 (Am.	 Law	 Inst.	1971).	 	 On	 remand,	 we	

instruct	 the	 court	 to	 apply	 Nevada	 law	 to	 determine	 whether	 and	 to	 what	

extent	interest	should	be	awarded	to	Avis.	

      The	entry	is:	

                    Partial	 summary	 judgment	 affirmed.	 	 Award	 of	
                    damages	 vacated.	 	 Remanded	 for	 further	
                    proceedings	consistent	with	this	opinion.	
                    	
                              	   	      	    	      	
	
ALEXANDER,	J.,	dissenting.	
	
	   [¶23]		I	concur	in	the	Court’s	holding	affirming	the	trial	court’s	grant	of	

partial	summary	judgment	determining	that	Darron	Burrill	is	liable	for	breach	

of	 contract	 as	 a	 result	 of	 his	 allowing	 an	 unauthorized	 driver	 to	 damage	 a	
16	

vehicle	 owned	 by	 Avis	 Rent	 a	 Car	 System,	 LLC.	 	 With	 liability	 decided,	 the	

Court	 recognizes	 that	 there	 are	 no	 genuine	 issues	 of	 material	 fact	 that	 there	

was	“some	amount	of	damage	as	a	result	of	the	breach.”		Court’s	Opinion	¶	14.		

      [¶24]	 	 The	 amount	 of	 damage,	 including	 some	 amounts	 that	 do	 not	

appear	 to	 be	 disputed,	 is	 established	 by	 the	 affidavit	 submitted	 by	 the	 Avis	

claims	 representative.	 	 The	 Court	 references	 M.R.	 Evid.	 902(11)	 to	 suggest	

that	 Avis	 may	 have	 given	 insufficient	 notice	 of	 its	 intention	 to	 rely	 on	 the	

affidavit	 to	 prove	 a	 point	 without	 calling	 a	 live	 witness.	 	 Court’s	 Opinion	

¶	17	n.8.	 	 As	 the	 Court’s	 opinion	 recognizes,	 Avis	 was	 prepared	 to	 present	 a	

live	 witness	 to	 support	 its	 damages	 evidence,	 but	 the	 live	 witness	 was,	

erroneously	in	my	view,	excluded	by	the	trial	court.		Court’s	Opinion	¶	7.	

      [¶25]	 	 The	 Court	 approves	 the	 use	 of	 the	 affidavit,	 recognizing	 that,	

pursuant	 to	 M.R.	 Evid.	 902(11),	 it	 is	 possible	 to	 lay	 the	 foundation	 for	

admission	 of	 a	 business	 record,	 M.R.	 Evid.	 803(6),	 without	 a	 live	 witness.		

Court’s	 Opinion	 ¶	20.	 	 I	 respectfully	 dissent	 from	 that	 part	 of	 the	 Court’s	

opinion	holding	that	portions	of	the	affidavit	and	supporting	exhibits	provided	

by	the	Avis	claims	representative,	who	was	assigned	to	value	the	claim	and	be	

a	 custodian	 of	 the	 records	 related	 to	 the	 claim,	 do	 not	 qualify	 as	 business	
                                                                                     17	

records	pursuant	to	M.R.	Evid.	803(6),	and	thus	may	not	support	award	of	any	

damages	in	this	matter.			

	     [¶26]	 	 “Business	 records	 are	 hearsay	 and	 therefore	 inadmissible	

pursuant	to	M.R.	Evid.	802	unless	they	meet	the	requirements	of	the	business	

records	exception	in	M.R.	Evid.	803(6).”		KeyBank	Nat’l	Ass’n	v.	Estate	of	Quint,	

2017	ME	237,	¶	14,	176	A.3d	717.		 When	admission	of	evidence	as	a	business	

record	 is	 challenged,	 we	 review	 the	 trial	 court’s	 foundational	 findings	 to	

support	 admissibility	 for	 clear	 error	 and	 its	 ultimate	 determination	 of	

admissibility	for	an	abuse	of	discretion.		JPMorgan	Chase	Bank,	N.A.	v.	Lowell,	

2017	ME	32,	¶	8,	156	A.3d	727;	Midland	Funding	LLC	v.	Walton,	2017	ME	24,	

¶	18,	155	A.3d	864.	

      [¶27]		M.R.	Evid.	Rule	803(6)	authorizes	the	admissibility	of	a	business	

record	if	

      (A)	 	 The	 record	 was	 made	 at	 or	 near	 the	 time	 by—or	 from	
      information	transmitted	by—someone	with	knowledge;	
      	
      (B)	 	 The	 record	 was	 kept	 in	 the	 course	 of	 a	 regularly	 conducted	
      activity	of	a	business,	organization,	occupation,	or	calling,	whether	
      or	not	for	profit;		
      	
      (C)		Making	the	record	was	a	regular	practice	of	that	activity;	
      	
      (D)	 	 All	 these	 conditions	 are	 shown	 by	 the	 testimony	 of	 the	
      custodian	 or	 another	 qualified	 witness,	 or	 by	 a	 certification	 that	
18	

       complies	 with	 Rule	 902(11),	 Rule	 902(12)	 or	 with	 a	 statute	
       permitting	certification;	and		
       	
       (E)	 	 Neither	 the	 source	 of	 information	 nor	 the	 method	 or	
       circumstances	of	preparation	indicate	a	lack	of	trustworthiness.		
       	
       [¶28]	 	 The	 purpose	 of	 the	 business	 records	 exception	 is	 “to	 allow	 the	

consideration	 of	 a	 business	 record,	 without	 requiring	 firsthand	 testimony	

regarding	 the	 recorded	 facts,	 by	 supplying	 a	 witness	 whose	 knowledge	 of	

business	 practices	 for	 production	 and	 retention	 of	 the	 record	 is	 sufficient	 to	

ensure	the	reliability	and	trustworthiness	of	the	record.”		Beneficial	Me.	Inc.	v.	

Carter,	 2011	 ME	 77,	 ¶	 12,	 25	 A.3d	 96.	 	 Important	 for	 this	 case,	 “[t]he	 affiant	

whose	 statements	 are	 offered	 to	 establish	 the	 admissibility	 of	 a	 business	

record	.	.	.	need	not	be	an	employee	of	the	record’s	creator.”		Id.	¶	13.		Thus,	“if	

the	 records,”	 in	 this	 case	 vehicle	 valuation	 records,	 “were	 received	 and	

integrated	 into	 another	 business’s	 records	 and	 were	 relied	 upon	 in	 that	

business’s	day-to-day	operations,	an	employee	of	the	receiving	business	may	

be	a	qualified	witness.”		Id.	

       [¶29]	 	 A	 qualified	 witness	 must	 demonstrate	 knowledge	 that	 the	

producer	 of	 the	 record	 used	 regular	 business	 practices	 to	 create	 the	 record;	

the	 receiving	 business	 integrated	 the	 record	 into	 its	 own	 records	 and	

maintained	 them	 through	 regular	 business	 processes;	 and	 the	 receiving	
                                                                                           19	

business	 relied	 on	 these	 records	 in	 its	 day-to-day	 operation.	 	 See	 id.	 ¶	 14.		 If	

the	affiant	demonstrates	the	requisite	knowledge,	records	created	by	another	

source,	 applying	 its	 regular	 business	 practice,	 will	 be	 admissible	 pursuant	 to	

M.R.	Evid.	803(6).		Id.	

       [¶30]	 	 The	 Avis	 representative’s	 affidavit	 of	 damages	 bases	 its	

information	 on	 several	 sources,	 not	 just	 the	 J.D.	 Power	 report	 focused	 on	 by	

the	 Court.	 	 There	 is	 no	 dispute	 that	 the	 Avis	 representative	 assembled	 and	

possessed	the	business	records	and	that	she,	herself,	calculated	the	damages	

amounts	asserted	by	Avis	and	found	by	the	trial	court.		

       [¶31]		The	Avis	records	include	a	copy	of	an	invoice	for	$155	for	towing	

charges	incurred	by	 Avis.		A	copy	of	that	invoice	is	included	in	the	appendix.		

Other	 than	 a	 generalized	 hearsay	 objection,	 there	 is	 no	 dispute	 indicated	 in	

the	 record	 that	 the	 towing	 charge	 was	 incurred,	 that	 Avis	 was	 billed	 for	 the	

charge,	 that	 the	 bill	 was	 paid,	 or	 that	 the	 bill	 was	 made	 a	 part	 of	 Avis’s	

business	 records	 in	 the	 regular	 course	 of	 Avis’s	 business.	 	 Accordingly,	 the	

towing	 charge	 being	 part	 of	 Avis’s	 business	 records,	 there	 was	 no	 apparent	

basis	to	object	to	the	trial	court’s	use	of	the	$155	towing	charge	in	calculating	

the	total	damages	amount.		
20	

	     [¶32]		There	also	appears	to	be	no	dispute	about	the	calculation	of	the	

salvage	proceeds	for	the	vehicle	in	the	amount	of	$6,905.			

	     [¶33]		The	primary	dispute	relates	to	the	calculation	of	the	fair	market	

value	 of	 the	 vehicle	 at	 the	 time	 of	 the	 loss,	 which	 the	 claims	 representative	

asserted	was	$20,601.98.		This	claim	is	based	on	a	J.D.	Power/Mitchell	Vehicle	

Valuation	 Report	 attached	 as	 Exhibit	 B	 to	 the	 Avis	 representative’s	 affidavit.		

This	 report	 demonstrates	 that	 it	 is	 based	 on	 a	 review	 of	 documentary	

evidence,	 including	 vehicle	 valuations	 for	 comparable	 vehicles	 available	 for	

sale	in	the	Las	Vegas	area.		These	valuations	are	drawn	from	AutoTrader.com,	

Cars.com	 and	 other	 sources,	 including	 dealer	 contacts.	 	 Most	 of	 the	 report	

appears	 to	 reflect	 document-based	 reviews,	 necessary	 considering	 the	 very	

fast	 time	 for	 preparation	 of	 the	 valuation	 report	 provided	 to	 the	 Avis	 claims	

representative.			

      [¶34]	 	 The	 trial	 court	 found	 that	 the	 Avis	 representative	 reasonably	

relied	 on	 the	 J.D.	 Power	 report	 in	 reaching	 her	 conclusions	 regarding	 the	

vehicle	valuation	and	that	the	vehicle	valuation	report	was	admissible	as	part	

of	 the	 Avis	 business	 records	 pursuant	 to	 M.R.	 803(6)	 after	 finding	 that	 “the	

Affidavit	 provide[d]	 a	 sufficient	 foundation	 for	 the	 reliability	 and	

trustworthiness	of	the	report.”		The	court	based	that	finding	on	the	following	
                                                                                      21	

observations:	 the	 vehicle	 valuation	 report	 was	 made	 within	 two	 days	 of	 the	

accident;	 preparing	 and	 maintaining	 such	 a	 report	 would	 be	 in	 the	 ordinary	

course	of	business	for	a	claims	representative	at	a	car-rental	company,	whose	

job	it	is	to	create	 a	complete	 and	reliable	record	of	the	damage	to	 a	car;	and	

nothing	 indicated	 that	 the	 report	 was	 prepared	 in	 an	 unusual	 or	

untrustworthy	 way.	 	 The	 court	 also	 referenced	 the	 inclusion	 of	 J.D.	 Power’s	

valuation	methodology	in	the	report,	which	the	court	found	to	be	“rigorously	

objective	 and	 mathematical,	 and	 transparent	 about	 its	 sources	 of	

information.”			

      [¶35]	 	 In	 reality	 it	 appears	 that	 the	 valuation	 report	 damages	 number	

was	determined	largely	by	subtracting	the	undisputed	salvage	proceeds	from	

the	 valuations	 of	 comparable	 vehicles	 offered	 for	 sale	 in	 the	 Las	 Vegas	 area,	

identified	by	an	internet	review.			

      [¶36]		Burrill	has	not	demonstrated	that	the	trial	court	clearly	erred	in	

its	 findings.	 	 The	 Avis	 representative	 certified	 that	 the	 valuation	 report	 was	

“prepared	 at	 the	 request	 of	 and	 on	 behalf	 of	 Avis”	 and	 that	 the	 report	 was	

“kept	within	the	claim	file	for	this	incident;	maintained	as	part	of	[her]	duties	

as	 a	 Claims	 Examiner	 for	 Avis;	 kept	 in	 the	 regular	 course	 of	 Avis’s	 business	

and	part	of	its	regularly	conducted	activity;	that	it	was	made	at	or	reasonably	
22	

soon	after	the	incident;	and	that	the	copy	is	an	exact	duplicate	of	the	original.”		

Because	the	trial	court	did	not	err,	and	because	the	valuation	report	fits	within	

this	 Court’s	 articulation	 of	 the	 purpose	 of	 the	 business	 records	 exception	 to	

the	hearsay	rule,	it	was	within	the	court’s	discretion	to	admit	the	affidavit	in	

its	entirety.		See	Midland	Funding	LLC,	2017	ME	24,	¶	18,	155	A.3d	864.			

       [¶37]		As	the	trial	court	stated:	“Avis	may	not	be	in	the	vehicle	valuation	

business,	but	its	car	rental	activities	require	reliable	means	of	valuating	cars,”	

especially	in	instances	where	its	rental	cars	sustain	damage.		The	Avis	claims	

examiner	 appropriately	 requested	 a	 third	 party	 in	 the	 vehicle	 valuation	

business	to	create	a	report	on	the	vehicle’s	valuation	prior	to	damage	from	an	

accident.	 	 The	 report	 was	 “kept	 within	 the	 claim	 file	 for	 [each]	 incident”	 and	

“kept	 in	 the	 regular	 course	 of	 Avis’s	 business	 and	 part	 of	 its	 regularly	

conducted	activity.”		Although	litigation	may	be	possible	in	some	instances	of	

damage	 to	 Avis’s	 rental	 cars,	 a	 vehicle	 valuation	 report	 commissioned	

immediately	 after	 a	 vehicle	 has	 been	 damaged	 cannot	 be	 considered	 to	 have	

been	 “prepared	 in	 anticipation	 of	 litigation”	 by	 an	 advocate	 in	 the	 same	 way	

that	a	forensic	report	prepared	by	 an	 expert	 advocating	for	one	party	would	

be.		See	State	v.	Tomah,	1999	ME	109,	¶	10,	736	A.2d	1047.			
                                                                                       23	

	     [¶38]	 	 The	 Court’s	 application	 of	 the	 business	 records	 exception	 to	

reject	 all	 of	 Avis’s	 claimed	 damages	 and	 direct	 an	 award	 of	 only	 nominal	

damages	 disregards	 the	 damages	 not	 addressed	 in	 the	 J.D.	 Power	 report,	

including	 the	 apparently	 undisputed	 $155	 towing	 charge.	 	 Court’s	 Opinion	

¶	41.	 	 Thus,	 rather	 than	 nominal	 damages,	 damages	 of	 at	 least	 $155	 are	

established	 without	 regard	 to	 the	 propriety,	 or	 impropriety,	 of	 the	 claims	

representative’s	utilizing	the	J.D.	Power	report	in	making	her	calculations.	

	     [¶39]	 	 As	 to	 that	 report,	 the	 trial	 court	 correctly	 found	 that	 the	 Avis	

representative	 properly	 utilized	 that	 valuation	 report,	 with	 its	 method	 of	

calculation	 explicitly	 documented	 and	 based	 largely	 on	 documentary	

information	available	in	business	records,	vehicle	valuation	reports,	or	on	the	

internet	 through	 websites	 such	 as	 AutoTrader.com	 and	 Cars.com—material	

that	 appears	 to	 be	 regularly	 and	 widely	 utilized	 in	 calculating	 car	 valuations	

and	car	appraisals	in	today’s	internet	age.			

      [¶40]	 	 Burrill	 does	 not	 challenge	 the	 amount	 of	 damages	 awarded;	 he	

only	 challenges	 the	 admission	 of	 the	 claims	 representative’s	 affidavit	 in	 its	

entirety	as	a	basis	for	the	award.		Because	the	trial	court	did	not	err	or	abuse	

its	 discretion	 in	 determining	 that	 the	 affidavit	 and	 its	 attachments	 satisfied	

M.R.	 Evid.	 803(6),	 this	 Court	 should	 affirm	 the	 award	 of	 damages	 in	 the	
24	

amount	of	$15,342.57,	or	a	lesser	amount	that	includes	the	undisputed	towing	

charge,	 and	 the	 undisputed	 salvage	 proceeds	 deducted	 from	 the	 comparable	

vehicle	valuation	based	on	apparently	undisputed	document	reviews.	

        [¶41]		Burrill	also	challenges	the	court’s	award	of	attorney	fees	to	Avis.		

He	 does	 not	 challenge	 the	 amount	 of	 the	 award	 but	 argues	 that	 because	 this	

Court	 should	 determine	 that	 the	 court	 erred	 in	 granting	 Avis’s	 motion	 for	

partial	 summary	 judgment,	 it	 should	 also	 vacate	 the	 attorney	 fees	 award	 as	

well.		Because	this	Court	should	affirm	the	grant	of	partial	summary	judgment	

and	 the	 award	 of	 damages,	 it	 should	 also	 affirm	 the	 award	 of	 attorney	 fees.		

See	 Estate	 of	 Gagnon,	 2016	 ME	 129,	 ¶¶	 15-16,	 147	A.3d	356.	 	 The	 rental	

contract	provided	for	attorney	fees	in	the	event	of	a	breach.		Avis	submitted	an	

attorney	 fee	 affidavit	 outlining	 the	 charges.	 	 It	 was	 within	 the	 trial	 court’s	

discretion	 to	 grant	 the	 attorney	 fees	 in	 the	 amount	 included	 in	 the	 attorney	

fees	affidavit.			

	       	       	       	    	      	

Walter F. McKee, Esq., and Henry E.M. Beck, Esq. (orally), McKee Law, P.A.,
Augusta, for appellant Darron Burrill

Cheryl J. Cutliffe, Esq. (orally), Basham & Scott, LLC, Brunswick, for appellee
Avis Rent A Car System, LLC


Skowhegan District Court docket number CV-2015-152
FOR CLERK REFERENCE ONLY	
