MAINE	SUPREME	JUDICIAL	COURT	                                    Reporter	of	Decisions	
Decision:	 2017	ME	138	
Docket:	   Cum-16-415	
Argued:	   April	12,	2017	
Decided:	  June	27,	2017	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               GREG	GOODWILL	et	al.		
                                         	
                                        v.		
                                         	
                                BRIAN	BEAULIEU	JR.	
	
	
HJELM,	J.	

      [¶1]		Brian	Beaulieu	Jr.	appeals	from	a	judgment	entered	in	the	District	

Court	(Portland,	Woodman,	J.)	finding	him	liable	to	Greg	Goodwill	and	Victoria	

Goodwill	for	having	made	fraudulent	and	negligent	misrepresentations	about	

certain	 amenities	 in	 a	 house	 that	 he	 sold	 to	 them,	 and	 awarding	 damages	 of	

$10,775.		As	the	sole	issue	on	appeal,	Beaulieu	argues	that	the	court	erred	by	

declining	 to	 reduce	 the	 damage	 award	 by	 the	 amount	 of	 the	 settlement	

between	the	Goodwills	and	the	real	estate	agency	that	listed	Beaulieu’s	house.		

See	 14	 M.R.S.	 §	 163	 (2016).	 	 Because	 Beaulieu	 did	 not	 present	 evidence	 on	

which	 the	 court	 could	 find	 that	 the	 settlement	 was	 for	 the	 same	 injury	 that	

resulted	in	the	judgment	entered	against	him,	we	affirm	the	judgment.		
2	

                                   I.		BACKGROUND	

      [¶2]	 	 The	 following	 facts,	 found	 by	 the	 court,	 are	 supported	 by	

competent	 record	 evidence	 and	 undisputed	 by	 the	 parties	 on	 appeal.	 	 See	

Graham	v.	Brown,	2011	ME	93,	¶	2,	26	A.3d	823.		In	April	2013,	Victoria	and	

Greg	 Goodwill	 saw	 a	 real	 estate	 listing	 for	 Beaulieu’s	 house	 located	 in	 South	

Portland.	 	 As	 described	 in	 the	 listing,	 the	 house	 featured	 a	 hot	 tub	 and	 gas	

fireplace	in	the	master	bedroom	area,	and	an	outdoor	kitchen.		The	Goodwills	

visited	the	home	several	times.		On	one	visit	when	Beaulieu	was	also	present,	

the	Goodwills	inquired	about	the	“functionality	of	the	pumps	and	jets	on	the	

hot	 tub,”	 and	 Beaulieu	 told	 them	 that	 the	 fixtures	 were	 in	 working	 order.		

Verbally	 and	 in	 a	 handwritten	 note,	 Beaulieu	 also	 indicated	 to	 the	 Goodwills	

that	 the	 fireplace	 and	 outdoor	 kitchen	 worked	 and	 could	 be	 used	 as	 soon	 as	

the	Goodwills	arranged	for	the	gas	to	be	turned	on.		The	Goodwills	purchased	

the	home	and	moved	in	on	the	day	of	the	closing.			

      [¶3]	 	 After	 they	 purchased	 the	 house,	 the	 Goodwills	 encountered	

problems	with	the	hot	tub,	the	fireplace,	and	the	outdoor	kitchen.		The	water	

heating	system	was	inadequate	to	fill	the	hot	tub	with	warm	water,	and	they	

paid	 $3,900	 for	 a	 heating	 and	 plumbing	 contractor	 to	 install	 a	 new	 water	

heater.		When	the	Goodwills	tried	to	arrange	for	the	gas	service	needed	for	the	
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fireplace	and	outdoor	kitchen,	the	gas	utility	technician	refused	to	install	a	gas	

meter	 because	 the	 pipes	 laid	 by	 Beaulieu	 did	 not	 meet	 code	 requirements.		

The	Goodwills	installed	new	pipes	to	connect	the	gas	line	to	the	home,	work	

that	the	court	determined	to	cost	$4,200.		The	Goodwills	also	discovered	that	

the	gas	fireplace	was	not	vented	and	could	not	be	used	safely	or	legally.		They	

obtained	an	estimate	of	approximately	$6,500	for	the	work	needed	to	fix	that	

problem.			

       [¶4]		In	January	2015,	the	Goodwills	filed	a	complaint	against	Beaulieu,	

alleging	 that	 he	 had	 fraudulently	 or	 negligently	 misrepresented	 the	 working	

condition	of	the	hot	tub,	the	gas	fireplace,	and	the	outdoor	kitchen.		A	bench	

trial	 was	 held	 in	 July	 2016,	 at	 which	 all	 three	 parties	 testified.	 	 Victoria	 was	

asked	 during	 Beaulieu’s	 cross-examination	 whether	 she	 had	 “recovered	

anything	from	anybody	else	regarding	this	situation.”		She	responded	that	she	

had	 recovered	 from	 the	 real	 estate	 agency	 that	 had	 listed	 Beaulieu’s	 house	

“[b]ecause	the	information	in	the	ad	was	not	accurate,	because	those	fixtures	

were	 not	 working.”	 	 When	 she	 testified	 that	 she	 could	 not	 remember	 how	

much	she	had	received	because	the	settlement	occurred	several	years	ago,	the	

Goodwills’	 attorney	 volunteered	 that	 the	 settlement	 was	 for	 $5,000.	 	 In	 his	
4	

summation,	Beaulieu	argued	that	the	Goodwills’	award	should	be	reduced	by	

the	$5,000	they	received	from	the	real	estate	agency.		

          [¶5]		In	a	judgment	issued	on	August	8,	2016,	the	court	concluded	that	

Beaulieu	 was	 liable	 for	 tortiously	 misrepresenting	 the	 condition	 of	 the	

outdoor	 kitchen	 and	 the	 fireplace.	 	 The	 court	 did	 not	 find	 him	 liable	 with	

regard	 to	 the	 hot	 tub,	 however,	 because	 the	 court	 found	 Beaulieu	 had	 not	

represented	 to	 the	 Goodwills	 that	 the	 hot	 water	 supply	 was	 adequate	 but	

rather	 had	 “truthfully	 answered	 the	 only	 questions	 [the	 Goodwills]	 asked	

about	the	tub,	regarding	the	jets	and	pump.”		The	court	awarded	damages	of	

$10,775	 for	 the	 expense	 of	 rendering	 the	 fireplace	 and	 outdoor	 kitchen	

operational.1	 	 The	 court	 declined	 to	 reduce	 the	 award	 by	 the	 amount	 of	 the	

Goodwills’	 settlement	 with	 the	 real	 estate	 broker,	 explaining	 that	 the	 court	

“was	 not	 presented	 with	 evidence	 that	 [the	 Goodwills]	 were	 asserting	 the	

same	damages	against	the	brokerage	as	they	asserted	in	this	action.”	

          [¶6]		Beaulieu	timely	appealed.			




     1	 	 The	 damages	 awarded	 by	 the	 court	 took	 into	 account	 a	 judgment	 issued	 for	 Beaulieu	 on	 his	

counterclaim,	where	he	alleged	that	the	Goodwills	owed	him	$125	pursuant	to	an	agreement	under	
which	they	would	sell	an	item	of	his	property	that	he	left	behind	at	the	residence.			
                                                                                        5	

                                   II.		DISCUSSION	

	     [¶7]		Beaulieu	asserts	that	pursuant	to	14	M.R.S.	§	163,	he	was	entitled	

to	a	$5,000	setoff	against	the	amount	of	damages	the	court	ordered	him	to	pay	

to	the	Goodwills,	based	on	their	settlement	in	that	amount	with	the	real	estate	

agency	 that	 listed	 his	 house.	 	 The	 Goodwills	 do	 not	 challenge	 the	 premise	 of	

Beaulieu’s	 contention,	 which	 is	 that	 section	 163	 applies	 to	 a	 case	 of	 this	

nature.	 	 Rather,	 the	 question	 presented	 to	 us	 is	 whether	 Beaulieu	

demonstrated	to	the	trial	court	that	there	is	an	identity	of	injury	addressed	in	

the	 settlement	 and	 the	 judgment	 that	 entitles	 him	 to	 a	 setoff	 pursuant	 to	

section	163.	

      [¶8]	 	 Section	 163	 “provid[es]	 a	 mechanism	 of	 mandatory	 set-off	 of	 the	

consideration	 paid	 to	 the	 injured	 party	 by	 one	 tortfeasor	 in	 settlement	 or	

release	 of	 all	 claims	 against	 the	 amount	 received	 in	 a	 subsequent	 verdict	

against	 one	 or	 more	 of	 the	 other	 tortfeasors.”	 	 Emery	 Waterhouse	 Co.	 v.	 Lea,	

467	A.2d	986,	996	(Me.	1983).		The	statute	provides	in	pertinent	part:	

             Whenever	a	person	seeks	recovery	for	a	personal	injury	or	
      property	 damage	 caused	 by	 2	 or	 more	 persons,	 the	 settlement	
      with	or	release	of	one	or	more	of	the	persons	causing	the	injury	is	
      not	 a	 bar	 to	 a	 subsequent	 action	 against	 the	 other	 person	 or	
      persons	also	causing	the	injury.	
      	
             Evidence	 of	 settlement	 with	 a	 release	 of	 one	 or	 more	
      persons	causing	the	injury	is	not	admissible	at	a	subsequent	trial	
6	

      against	the	other	person	or	persons	also	causing	the	injury.		After	
      the	jury	has	returned	its	verdict,	the	trial	judge	shall	inquire	of	the	
      attorneys	for	the	parties	whether	such	a	settlement	or	release	has	
      occurred.	 	 If	 such	 settlement	 or	 release	 has	 occurred,	 the	 trial	
      judge	 shall	 reduce	 the	 verdict	 by	 an	 amount	 equal	 to	 the	
      settlement	 with	 or	 the	 consideration	 for	 the	 release	 of	 the	 other	
      persons.		
      	
14	 M.R.S.	 §	 163	 (emphasis	 added).2	 	 The	 statutory	 setoff	 is	 therefore	 a	

damages	 determination	 that	 the	 court	 must	 make	 in	 applicable	 cases	 after	 a	

verdict	 has	 been	 rendered.3	 	 The	 setoff	 is	 required	 in	 all	 instances	 to	 which	

section	 163	 applies	 except	 where	 the	 released	 party	 is	 later	 determined	 at	

trial	 not	 to	 bear	 causative	 fault.	 	 Mockus	 v.	 Melanson,	 615	 A.2d	 245,	 248	

(Me.	1992).		


     2	 	 The	 statute	 bars	 the	 admission	 of	 evidence	 of	 the	 settlement	 at	 the	 trial	 of	 the	 nonsettling	

defendant.	 	 14	 M.R.S.	 §	 163	 (2016).	 	 Despite	 this	 provision,	 Beaulieu	 developed	 evidence	 of	 the	
settlement	during	his	cross-examination	of	Victoria.		Then,	not	only	did	the	Goodwills’	attorney	not	
object,	but	he	provided	additional	information	to	the	court	about	the	terms	of	the	settlement.		Thus,	
the	 parties	 chose	 to	 present	 the	 settlement	 evidence	 during	 the	 trial	 instead	 of	 doing	 so	 in	 the	
manner	prescribed	by	the	statute,	which	is	after	the	court	has	adjudicated	the	pending	claims.		See	
id.		Because	in	a	nonjury	proceeding,	such	as	this,	the	risk	of	unfair	prejudice	to	any	party	from	the	
improper	manner	of	presenting	the	settlement	evidence	is	remote	in	any	event,	the	process	that	the	
parties	chose	to	use	is	not	material	to	our	analysis.	

   Additionally,	 section	 163	 obligates	 the	 trial	 court	 to	 inquire	 of	 the	 parties	 whether	 there	 has	
been	 a	 settlement	 between	 the	 claimant	 and	 any	 other	 responsible	 person	 or	 entity.	 	 Here,	 the	
parties	 themselves	 initiated	 the	 presentation	 of	 that	 information	 to	 the	 court,	 making	 it	
unnecessary	for	the	court	to	make	the	requisite	inquiry.		No	party	has	challenged	that	process,	and	
because	 the	 parties	 had	 full	 opportunity	 to	 present	 the	 court	 with	 information	 bearing	 on	 the	
settlement,	 there	 can	 be	 no	 prejudice	 caused	 by	 any	 departure	 from	 this	 aspect	 of	 the	 statutory	
process.	

     3		In	his	answer	to	the	complaint,	Beaulieu	did	not	plead	setoff	as	an	affirmative	defense.		He	has	

not	 waived	 the	 benefit	 of	 section	 163,	 however,	 because	 in	 cases	 where	 the	 statute	 applies,	 its	
invocation	is	mandatory.		See	Mockus	v.	Melanson,	615	A.2d	245,	248	(Me.	1992).	
                                                                                          7	

       [¶9]	 	 Just	 as	 a	 party	 raising	 an	 issue	 that	 constitutes	 an	 avoidance	 of	

liability	or	that	reduces	damages	bears	the	burden	of	proof	on	that	issue,	see	

Fitzgerald	v.	Hutchins,	2009	ME	115,	¶	20	n.6,	983	A.2d	382;	King	v.	Town	of	

Monmouth,	1997	ME	151,	¶	7,	697	A.2d	837,	the	party	seeking	to	benefit	from	

a	section	163	setoff	must	demonstrate	the	existence	of	circumstances	allowing	

for	the	setoff.		This	means	that	Beaulieu	was	required	to	demonstrate	that	“the	

injury”	 that	 was	 the	 subject	 of	 the	 Goodwills’	 settlement	 with	 the	 real	 estate	

agency	 was	 also	 “the	 injury”	 for	 which	 damages	 were	 awarded	 to	 the	

Goodwills	in	the	judgment	entered	against	him.		The	existence	and	nature	of	a	

prior	 settlement	 for	 the	 same	 injury	 is	 a	 question	 of	 fact	 that	 the	 proponent	

must	establish	by	a	preponderance	of	the	evidence.		Cf.	Union	River	Assocs.	v.	

Budman,	 2004	 ME	 48,	 ¶	 19,	 850	 A.2d	 334	 (stating	 that	 the	 “existence	 of	 an	

accord	 and	 satisfaction	 is	 a	 question	 of	 fact”).	 	 We	 will	 overturn	 the	 court’s	

finding	that	led	to	its	rejection	of	Beaulieu’s	claim	for	a	setoff	only	if	Beaulieu	

“can	 demonstrate	 that	 a	 contrary	 finding	 is	 compelled	 by	 the	 evidence.”		

Gravison	v.	Fisher,	2016	ME	35,	¶	31,	134	A.3d	857	(quotation	marks	omitted).		

       [¶10]	 	 The	 only	 evidence	 regarding	 the	 scope	 of	 the	 settlement	

agreement	 between	 the	 Goodwills	 and	 the	 real	 estate	 agency	 was	 developed	

during	 Victoria’s	 trial	 testimony.	 	 When	 Beaulieu	 examined	 her,	 asking	
8	

whether	she	“recovered	anything	from	anybody	else	regarding	this	situation,”	

she	 responded	 that	 she	 had	 settled	 with	 Beaulieu’s	 real	 estate	 agency	

“[b]ecause	the	information	in	the	ad	was	not	accurate,	because	those	fixtures	

were	not	working.”		(Emphases	added.)				

       [¶11]	 	 In	 its	 judgment,	 the	 court	 found	 Beaulieu	 liable	 for	

misrepresentations	 relating	 to	 only	 two	 of	 the	 three	 amenities	 at	 issue:	 the	

fireplace	 and	 outdoor	 kitchen.	 	 Beaulieu	 was	 found	 to	 be	 not	 liable	 for	 any	

problem	 with	 the	 third	 amenity,	 namely,	 the	 hot	 tub.	 	 In	 contrast,	 Victoria’s	

testimony	 indicated	 that	 the	 settlement	 was	 for	 problems	 with	 all	 three	

fixtures:	she	agreed	that	the	settlement	arose	from	“this	situation”—meaning	

the	 same	 set	 of	 claims	 asserted	 against	 Beaulieu—and	 she	 stated	 that	 the	

dispute	 with	 the	 real	 estate	 agency,	 resolved	 by	 the	 settlement,	 related	 to	

problems	with	“those	fixtures	[that]	were	not	working,”	which	would	include	

the	hot	tub.		

       [¶12]	 	 The	 sole	 description	 of	 the	 settlement	 presented	 to	 the	 court	

therefore	 demonstrates	 that	 the	 settlement	 covered	 an	 injury—namely,	 the	

defective	 operation	 of	 the	 hot	 tub—for	 which	 Beaulieu	 was	 found	 to	 be	 not	

liable.	 	 In	 rejecting	 Beaulieu’s	 argument	 that	 he	 was	 entitled	 to	 a	 setoff,	 the	

court	 reasoned	 that	 he	 had	 not	 demonstrated	 that	 the	 claim	 the	 Goodwills	
                                                                                            9	

“were	asserting”	against	him	was	identical	to	the	claim	that	they	had	settled	

with	 the	 real	 estate	 agency.	 	 This	 miscasts	 the	 basis	 for	 a	 section	 163	 setoff,	

which	 is	 a	 settlement	 for	 the	 same	 injury—as	 distinguished	 from	 the	 same	

claim—for	which	the	non-settling	party	was	later	found	liable.		The	erroneous	

characterization	 of	 the	 inquiry	 is	 harmless,	 however,	 because	 Victoria’s	

testimony	 established	 that	 the	 injury	 addressed	 in	 the	 settlement	 went	

beyond	that	for	which	the	court	held	Beaulieu	liable.		Because	as	a	matter	of	

law	Beaulieu	was	not	entitled	to	the	setoff,	the	court	did	not	err	by	declining	

to	reduce	the	amount	of	the	judgment	by	the	amount	of	the	settlement.		

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	      	    	      	      	
	
Peter	M.	McGee,	Esq.	(orally),	South	Portland,	for	appellant	Brian	Beaulieu,	Jr.		
	
David	 J.	 Van	 Dyke,	 Esq.	 (orally),	 Lynch	 &	 Van	 Dyke	 P.A.,	 Lewiston,	 for	
appellees	Greg	Goodwill	and	Victoria	Goodwill	
	
	
Portland	District	Court	docket	number	CV-2015-32	
FOR	CLERK	REFERENCE	ONLY	
	
