MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	156	
Docket:	   BCD-15-578	
Argued:	   September	14,	2016	     	
Decided:	  October	18,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                                NDC	COMMUNICATIONS,	LLC	
                                          	
                                         v.	
                                          	
                                   KENNETH	CARLE	III	
	
	
SAUFLEY,	C.J.	

        [¶1]		Following	a	bench	trial	on	NDC	Communications,	LLC’s	complaint	

and	 Kenneth	 Carle	 III’s	 counterclaim,	 which	 arose	 from	 a	 construction	 and	

land	 development	 dispute,	 the	 court	 (Murphy,	 J.)	 entered	 a	 judgment	 against	

Carle,	 in	 the	 amount	 of	 $336,681.24,	 in	 the	 Business	 and	 Consumer	 Docket.		

Carle	 appeals,	 arguing	 that	 his	 due	 process	 rights	 were	 violated	 during	 the	

post-trial	 process	 and	 that	 there	 was	 insufficient	 evidence	 to	 support	 the	

judgment.	 	 Specifically,	 Carle	 argues	 that	 the	 court	 failed	 to	 provide	 him	 a	

credit	 due	 of	 approximately	 $25,000,	 rendering	 the	 judgment	 against	 him	

inaccurate	by	that	amount.		We	affirm	the	judgment.1	


    1		We	conclude	without	further	discussion	that	the	court	did	not	err	in	denying	Carle’s	motion	for	

relief	from	an	order	that	was	not	a	final	judgment.		See	M.R.	Civ.	P.	60(b)	(“On	motion	and	upon	such	
terms	as	are	just,	the	court	may	relieve	a	party	.	.	.	from	a	final	judgment.”)	(emphasis	added).	
2	

                                  I.		BACKGROUND	

      [¶2]		The	parties	in	this	matter	engaged	in	an	unusually	complex	set	of	

agreements	 in	 the	 context	 of	 the	 development	 of	 a	 piece	 of	 land	 in	

Kenduskeag.	 	 All	 of	 the	 work,	 purchases	 of	 equipment,	 and	 monetary	

exchanges	 were	 undertaken	 without	 a	 written	 contract.	 	 When	 the	 parties’	

working	relationship	broke	down,	NDC	filed	a	complaint	asserting	that	it	was	

owed	 substantial	 funds	 from	 Carle,	 and	 Carle	 counterclaimed	 against	 NDC	

seeking	contract	remedies	and	other	relief.	

      [¶3]	 	 At	 the	 conclusion	 of	 the	 bench	 trial,	 the	 court	 made	 extensive	

written	findings	in	a	thirteen-page	order.		The	court	concluded	that	Carle	was	

liable	to	NDC,	but	it	determined	that	the	state	of	the	relatively	chaotic	record	

was	 such	 that	 it	 could	 not,	 without	 further	 argument	 from	 the	 parties,	

determine	 the	 exact	 amount	 still	 owed	 by	 Carle.	 	 Indeed,	 the	 parties	

themselves	could	not	tell	the	court	with	any	clarity	what	was	owed	to	whom.		

Accordingly,	 the	 court	 sought	 post-trial	 arguments.	 	 In	 so	 doing,	 the	 court	

asked	NDC	to	submit	an	“affidavit”	summarizing	specific	evidence	and	setting	

forth	a	calculation	of	damages.		The	court	explicitly	ordered	that	the	affidavit	

was	 to	 include	 only	 evidence	 that	 had	 been	 admitted	 at	 trial	 and	 that	 Carle	

could	submit	opposing	argument.		After	receiving	the	parties’	post-trial	filings,	
                                                                                       3	

the	 court	 entered	 judgment	 enforcing	 a	 mechanic’s	 lien	 against	 Carle	 in	 the	

amount	of	$336,681.24,	and	requiring	Carle	to	convey	title	to	an	excavator	to	

NDC.	

                                   II.		DISCUSSION	

        [¶4]		Carle	first	argues	that	his	due	process	rights	were	violated	by	the	

post-trial	procedures	employed	by	the	court,	asserting	that	the	court	provided	

NDC	 an	 opportunity	 to	 present	 evidence	 that	 Carle	 could	 not	 challenge.	 	 We	

are	 not	 persuaded.	 	 Although	 the	 court	 sought	 NDC’s	 post-trial	 argument	

through	the	filing	of	an	“affidavit,”	it	explicitly	ordered	that	the	affidavit	could	

include	only	evidence	that	had	been	presented	during	the	trial.		The	purpose	

and	 function	 of	 the	 affidavit	 was	 to	 present	 argument	 summarizing	 the	

evidence	of	damages,	not	to	present	new	evidence.	

        [¶5]		To	the	extent	that	Carle	is	arguing	that	the	affidavit	did,	contrary	to	

the	 court’s	 order,	 contain	 facts	 not	 presented	 at	 trial,	 we	 are	 similarly	

unpersuaded.	 	 All	 of	 the	 facts	 referenced	 in	 the	 affidavit	 were	 presented	 at	

trial—most	are	found	in	the	multitude	of	exhibits	admitted	at	trial,	and	some	

are	found	in	the	testimony	of	NDC’s	witnesses.		Thus,	the	court	did	not	err	in	

considering	 NDC’s	 affidavit,	 over	 Carle’s	 opposition,	 because	 the	 affidavit	
4	

contained	 only	 factual	 statements	 that	 are	 supported	 by	 the	 record	

evidence—evidence	that	Carle	had	a	full	opportunity	to	challenge	at	trial.	

      [¶6]	 	 Ultimately,	 it	 appears	 that	 Carle	 is	 arguing	 that	 he	 should	 have	

been	allowed	to	cross-examine	NDC’s	representative	regarding	the	argument	

and	 the	 mathematical	 calculations	 included	 in	 NDC’s	 post-trial	 filings.	 	 Carle,	

however,	had	the	opportunity	to	respond	to	the	NDC	affidavit	and	presented	

his	 own	 arguments	 to	 the	 court	 for	 consideration.	 	 He	 was	 simply	 not	

deprived	of	an	opportunity	to	be	heard.	

      [¶7]		Carle	also	challenges	the	sufficiency	of	the	evidence,	arguing	that	

the	judgment	against	him	failed	to	credit	approximately	$25,000	in	payments	

that	he	argues	should	have	been	included	in	the	court’s	calculations.		Contrary	

to	Carle’s	contentions,	there	is	sufficient	evidence	in	the	record	to	support	the	

court’s	 judgment,	 including	 its	 determination	 of	 damages.	 	 See	 In	 re	

Guardianship	of	Hailey	M.,	2016	ME	80,	¶	15,	140	A.3d	478;	see	also	Pelletier	v.	

Pelletier,	 2012	 ME	 15,	 ¶	20,	 36	 A.3d	 903	 (“In	 the	 absence	 of	 a	 motion	 for	

additional	 findings	 of	 fact	 and	 conclusions	 of	 law	 pursuant	 to	 M.R.	

Civ.	P.	52(b),	 we	 will	 infer	 that	 the	 trial	 court	 made	 any	 factual	 inferences	

needed	 to	 support	 its	 ultimate	 conclusion.”).	 	 The	 court’s	 extensive	 factual	

findings	are	supported	in	the	record,	as	are	the	court’s	ultimate	calculations.	
                                                                       5	

	        The	entry	is:	

                            Judgment	affirmed.	
	
	     	     	      	     	      	
	
On	the	briefs:	
	
      Richard	 Silver,	 Esq.,	 Lanham,	 Blackwell	 &	 Baber,	 P.A.,	
      Bangor,	for	appellant	Kenneth	Carle	III	
      	
      F.	David	Walker,	Esq.,	and	Allison	A.	Economy,	Esq.,	Rudman	
      Winchell,	Bangor,	for	appellee	NDC	Communications,	LLC	
	
	
At	oral	argument:	
	
      Richard	Silver,	Esq.,	for	appellant	Kenneth	Carle	III	
      	
      Allison	A.	Economy,	Esq.,	for	appellee	NDC	Communications,	
      LLC	
	
	
	
Business	and	Consumer	Docket	docket	number	RE-2014-03	
FOR	CLERK	REFERENCE	ONLY	
