MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 175 Docket: BCD

- 18

- 358 Argued : October	7,	2019 Decided: December	30,	2019 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ.

FORTNEY	&	WEYGANDT,	INC.

v. LEWISTON	DMEP	IX,	LLC,	et	al.

HJELM ,	J. [ ¶1 ] In three	 cases arising	 from	 a	 set	 of	 commercial	 construction projects , Lewiston	DMEP	IX,	LLC,	et	al.	( collectively, GBT) , 1 a group	of real	estate developer s , appeal	 from a	 combined judgment	 entered in the	 Business	 and Consumer	 Docket	 ( Murphy,	J. ) after	 a consolidated jury

- waived	 trial. In	 the judgment,	t he	trial	court	determined	that , in	addition	to	damages	for	breach	of

contra ct,	the	general	contractor,	Fortney	&	Weygandt,	Inc.	(F&W), was	entitled
to	 remedies ,	 including	 attorney	 fees, pursuant	 to Maine’s	 prompt	 payment

statute s ,	10	M.R.S.	§§	1111

- 1120	(2018) ;	that	F & W	was also entitled	to	attorney

1 Adopting	the	practice	of	the	trial	court	and	the	parties,	w e	refer	to	the	nine	appellants	in	this matter	collectively	as	GBT.		The	appellants	are	Lewiston	DMEP	IX,	LLC;	Auburn	DMEP	IX,	LLC;	Turner DMEP	X,	LLC;	West	Paris	DMEP	X,	LLC;	Oakland	DMEP	IX,	LLC;	Dollar	Texas	Properties	IX,	LLC;	Dollar Texas	Properties	X, LLC;	Dollar Properties	East ,	LLC;	and	GBT	Realty	Corporation.2 fees	 pursuant	 to	 the terms	 of the parties’	 contract ;	 and ,	 addressing	 GBT’s
counterclaim s , that GBT	was	 estopped	 from seeking	 to	enforce a	contractual right	to	liquidated	damages	against	F&W

. We	affirm	the	judgment	with	respect to	 GBT’s	 counterclaims	 for	 liquidated	 damages.	 	 As	 to	 the prompt	 payment remedies allowed	to	F&W ,	we	affirm	in	part but vacate in	part and	remand	for reconsideration	of	damages.		Finally, although	F&W	is	entitled	to	an	award	of attorney	fees	and	costs	pursuant	to	the	prompt	pay ment statutes, w e	vacate the portion of	the	judgment allowing	F&W any	separate recover y	of attorney	fees pursuant	to	the	parties’	contract

. I.		BACKGROUND [ ¶ 2 ] We	 draw	 the	 following	 account	 of	 this	 case	 from	 the	 procedural record	and	from	the	facts	as	found	by	the	trial	court, which	are	sup ported	by competent	evidence	in	the	record

. S ee Vt.	Mut.	Ins.	Co.	v.	Ben

- Ami ,	2018	ME	125, ¶	2,	193	A.3d	178

. [¶ 3 ] In 2014,	 GBT,	 a	 commercial	 real	 estate	 developer based	 in
Tennessee , entered	into	 a	 contract with	 F&W,	 a	 general	 contractor based	in Ohio ,	for F&W	to construct	five retail

- store buildings in	Maine. The terms	of	the parties’	agreement included	a	date	by	which each building	project would reach “substantial	 completion,”	 a	 term	 defined in	 the	 agreement as “sufficiently3 complete	in	accordance	w ith	the	Contract	Documents	so	that	the	Owner	may occupy	 or	utilize	 the	Project	 .	 .	 .	 for	 the	use	 for	which	it	is	intended,	without unscheduled	disruption .” According	to	t he contract	documents , if a project	had not	 reached	 substantial	completion	by	 the	contracted	date, F&W	would	 owe
GBT liquidated	damages calculated	at	a	specific	rate

. [ ¶ 4 ]		For a	number	of reasons,	including unusually	harsh winter weather
conditions	and delays caused by	GBT ’s own conduct ,	n one	of	the	five projects reached	substantial	completion	by the contracted date s . As	delays	arose,	F&W employees	 notified	 GBT and	 requested	 extensions	 of	 the substantial completion dates

. At	the	same	time,	throughout	the	construction	process, F&W employees	also	 submitted	 a	 succession	 of	 revised	 schedules	 to	 GBT	 for	each project,	often	indicating	substantial	completion	dates	that	were	later	than	the contracted	dates. Frequently,	GBT	did	not	respond	to	these	notifications	and updated	schedules. 2 In	s ome	of	its	communications with	F&W ,	however, GBT signaled it s acknowledge ment that	the	substantial	completion	dates	had	been

2 Even	beyond	the	absence	of	any	complaints	by	GBT	about	schedule	changes,	the	timeline for one of the projects

— Lewiston

— was	extended pursuant	to	GBT’s express	request. When	F&W	sent	an upd ated	schedule	in	response	to	that	request,	a	GBT	representative	indicated	agreement	with	the extended	completion	date	and	cautioned	F&W not to	“finish	early.”		When	F&W	asked	GBT	to	issue	a change	order	to	update	the	substantial	completion	date that GBT	it self	requested,	GBT	agreed	to	do so	but	never	actually	issued	the	change	order.4 extended. 3 In	addition,	several	times,	GBT’s	vice	president	of	construction	told F&W	 representatives	 that time	 extensions wo uld be address ed after	 the projects	were	complete,	with	 GBT	 to	issue	a	 final,	no

- cost	change	 order	 that would	extend	the	contracted	substantial	completion	dates	for	all	five	projects. 4 [¶ 5 ] Even	a fter	the	contracted substantial	completion dates had	pass ed and	continuing	as	late	as	August	of	2015, GBT	issued dozens	of	change orders
for the project s, expanding	the	scope of	F&W’s	work for	a	number	of	reasons, including unforeseen	 site	 issues,	 weather	 conditions,	 and changes	 to landscaping	plans. [¶ 6 ] Pr eviously , GBT had entered	into	contracts	 for F&W to construct
nine stores in	 Pennsylvania	 and	 Ohio ,	 which	 would	 be used	 by the	 same
third

- party retailer that was	 to occupy	 the	 Maine	 stores

. The contract documents for	those out
- of

- state projects were	the	same	as	th e	ones used	for the	 Maine	 projects

. Although	 m ost	 of the	 Pennsylvania	 and	 Ohio projects

3 For	example,	on	January	30,	2015,	the	third	of	the	five	contracted	dates,	a	GBT	employee	sent an	 email	 to	 a	 F&W	 employee	 purportedly	 setting	 “new	 dates”	 for	 four	 of	 the	 fi ve projects. F&W employee s understood	these	“new	dates”	to	be	updated	substantial	completion dates.

4 A	contracted	date	of	substantial	completion	could	be	amended	only	through	a	change	order. The change	 order	 form,	 which	 only	 GBT	 could create,	 edit, or	 issue ,	 included	 a	 space	 to	 indicate	 the number	of	days	by	which	the	project	time	would	need	to	be	extended. Several	times,	after	GBT	issued a	 change	 order	indicating	 that	 the	 project	 time	would	 be	 changed	 by	 zero	days,	 F&W	 employees manually	crossed	ou t	the	zero	and	wrote	numbers	in	an	attempt	to	document	time	extensions	that	it believed	GBT	had	agreed	to.		GBT	gave	no	response	to	these	manual	entries.5 reached	substantial	completion	after	the	contracted date s had	passed , GBT	did not	seek	liquidated	damages in any	of those	instances

. [¶ 7 ] As	the result	of G BT’s	apparent	acquiescence	to	time	extensions as manifested	 by	 a	 combination	 of its statements,	 conduct,	 and	 silence ,	 F&W employees	believed	that	GBT	had agreed	to	the	updated	timelines	and	that	GBT would	 not	 seek	 liquidated	 damages if the projects	 reached substantial completion after	 the	 originally

- contracted dates

. Because F&W	 relied	 on its belief	that GBT	was	agreeing	to	these	extensions, F&W continu ed to	work	until August	 of	2015 even	 though GBT	had stopped	making	progress	payments	in J une . For	 the	same	reason,	F&W	did	not insist	 that	GBT	issue	change	orders extending	 the	 contracted	 substantial	 completion	 dates	 as	 delays	 arose

. The court	concluded	that,	g iven	the	totality	of	the	circumstances,	F &W’s	belief that GBT	 had	 agreed	 to	 the	 ex tended	 dates was reasonable	 and justified ,	 as	 was F&W’s	reliance	on	those	changes. [¶ 8 ] Although	GBT	stopped	paying	F&W	in June, it actually had decided to	discontinue	payments two	months	earlier. GBT	did	not,	however, notify	F&W of its decision	at	that	time

. When	F&W ’s p resident contacted	GBT	and asked why the payments	had	stopped	and	whether they would	resume, he received
no	 response. Because	 of	 GBT’s	 nonpayment, F&W	 stopped	 working	 on	 the6 projects	on August	7,	2015,	after	notifying GBT ,	but it remained	ready	and	able
to	 resume	 work if	 GBT	 were	 to	 pay the	 overdue	 invoices	 and	 issue	 change
order s . Instead of	doing	 that , GBT sent	letters	 to	F&W attempting to impose liquidated	damages	calculated on	a per diem	basis from	the	original con tracted substantial	completion	dates. [¶ 9 ]		In	September	and	October	of	2015, F&W commenced	three	separate
actions against	GBT	in	the	Superior	Court	(Kennebec,	Androscoggin,	and	Oxford Counties) , alleging	 breach	 of	 contract and violation	 of	 the p rompt p a yment

statute s ,	and seeking enforcement	of	mechanic’s	liens.		GBT	filed	counterclaims seeking	 liquidated	 damages and damages for	 breach	 of	 contract based	 on alleg ations	that	some	of	F&W’s	work	was incomplete or defective. 5 The	three
matters	were	transferr ed in	the	interim to	the	Business	and	Consumer	Docket. [¶1 0 ] GBT	and	F&W each filed multiple motion s for summary	judgment. After	a	hearing , the	court ( Murphy,	J. ) entered	summary	judgment s in	favor	of
F&W	 on	its claim s for breach	 of	contract ,	concluding as	 a	matter	 of	law that

5 Additionally,	 i n eighteen separate	 but	 related	 matters,	 a	 number	 of	 subcontractors	 filed contract
- and	lien

- related	claims	against	F&W	and	GBT,	and	a	flurry	of	counterclaims	and	crossclaims ensued	among	all	of	the	parties.		Ultimately,	all	claims	except	for	those	solely	between	F& W	and	GBT were	resolved	and	are	not	part	of	this	appeal.7 F&W	 was	 entitled	 to	 payment	 o n all	 of	 its	 unpaid	 invoices

. 6 The	 court	 also entered	 summary	 judgments	 in	 favor	 of F&W on	 portions of GBT’s
counterclaim s that alleg ed defective	or	incomplete work	by	 F&W

. The	court denied the portion of F&W’s	 motion s seeking	 judgments	 on GBT’s counterclaims	 for	 liquidated	 damages ,	 which	 F&W	 asserted were	 barred	 by waiver	 and	 equitable	 estoppel , because	 the	 court conclud ed that there	were
issues	 of	material	 fact c on cerning those	 affi rmative	 defenses. The	 summary judgment	 proceedings also did	 not	 resolve	 F&W’s	 claims	 for an	 award	 of prompt	payment	remedies	or	its	claims	for	enforcement	of mechanic’s	liens. O n this	 appeal,	 neither	 party	 challenges	 any	 aspect	 of	 the	 court’s	 summary jud gment	order. [¶1 1 ] In November	 of	 2017	 and	 January	 of	 2018 ,	 t he	 court held a nine

- day consolidated jury

- waived	 trial	on	 the	remaining	issues

. After being presented	 with the	 testimony	 of	 many	 witnesses	 and	 a	 mountain	 of documentary	exhibits,	the	court	issued	a fifty

- eight

- page combined	judgment containing detailed	findings .		The	court determin ed that F&W	was	entitled	to	a judgment	on GBT’s	counterclaims	for	liquidated	dam ages because ,	th r ough	its

6 This	included	an	invoice	for	amounts	that	GBT	withheld	as	“retainage,”	which	was	a	contractual ten
- percent	withholding	 from	the	amount	due	on	each	progress	payment	made	before	substantial compl etion.8 statements, conduct, and	silence, GBT	had	waived and	was	equitably	estopped from	asserting such claim s ; and that F&W	was entitled	 to penalties, interest, and attorney	fees , all pursuant	to	the p rompt p ayment statute s . 7 [¶1 2 ] GBT	did	not	file	a	motion	for	amended	or	additional	findings , s ee M.R.	Civ.	P.	52(b) ,	or	any	other	post

- judgment	motion. For	its	part, F&W moved
for	 the	 court to	 amend	 the	 judgment, see M.R.	 Civ. P.	 59(e), by	 adding a determin ation that	it	was	entitled	to	attorney	fees	and	costs based not	only on the p rompt p ayment statute s but	 also	 pursuant	 to	 the	 terms	 of	 the	 parties’

contract. Over	GBT’s	objection, the	court granted F&W’s motion and amended the	combined	judgment	accordingly

. [ ¶1 3 ] GBT	appeals to	us from	the	combined	judgment

. II.		DISCUSSION [¶1 4 ]		GBT asserts that	the	trial	court	erred in	three	of	its	determinations:
that the	doctrines	 of equitable	estoppel and waiver barred its	claims against
F&W for liquidated	 damages ; that F&W	 was	 entitled	 to	 prompt	 payment

7 The	court	also	entered	a	judgment	in	F&W’s	favor	on	GBT’s	remaining	counterclaims	alleging incomplete	or	defective	work.		GBT	does	not	challenge	that	portion	of	the	court’s	judgment	on	appeal, and	 we	 do	 not	 discuss	 it	 further.	 	 Additionally,	 al though	 the	 judgment	 left	 F&W’s	 claims	 for enforcement	of	mechanic’s	liens	unresolved,	those	counts	were	dismissed	during	the	pendency	of this	appeal after	we	raised	the	issue	during	oral	argument ,	resulting	in	a	final	judgment	on	the	claims that	are	before us. See Kittery	Point	Partners,	LLC	v.	Bayview	Loan	Servicing,	LLC ,	2018	ME	35,	¶	6, 180	 A.3d	 1091 (“ Absent	 an	 exception	 to	 the	 final	 judgment	 rule,	 a	 trial	 court ’ s	 decision	 is	 not appealable	unless	it	resolves	all	claims	against	all	parties. ”).9 remedies ; and that the	terms	of	the	parties’	contract	allowed F&W	to recover attorney	fees	and	costs

. We	address each	of those	arguments	in	turn.
A. Equitable	Estoppel 8 [¶1 5 ] GBT	 challenges	 the	 sufficiency	 of	 the	 e vidence	 supporting	 the court’s	findings	on	the	elements	of	equitable	estoppel.		We	review	a	judgment entered	on	equitable	estoppel	grounds	“for	clear	error	as	to	factual	findings	and for	 abuse	 of	 discretion	 as	 to	 the	 application	 of	 principles	 of	 equity	 to those facts.” Dep ’ t	of	Health	&	Human	Servs. v.	Pelletier ,	2009	ME	11,	¶	15,	964 A.2d
630

. “An	abuse	of	discretion	may	be	found	where	an	appellant	demonstrates
that	 the	 decisionmaker	 exceeded	 the	 bounds	 of	 the	 reasonable	 choices available	 to	it,	considering	 the	 facts	and	circumstances	 of	 the	particular	case and	 the	 governing	 law.” Sager	 v.	 To wn	 of	 Bowdoinham ,	 2004	 ME	 40,	 ¶	 11, 845 A.2d	567

. [¶1 6 ] Equitable	 estoppel	 is	 an	 affirmative	 defense	 predicated	 on	 the principle that	“[o]ne	who	has	induced	another	 to	believe	what	is	untrue	may
not	later	assert	the	truth.” City	of	Auburn	v. Desgrosseilliers ,	578	A.2d	712,	714

8 Becau se	we	affirm	the	judgment	in	F&W’s	favor	on	GBT’s	counterclaims	for	liquidated	damages based	on	the	doctrine	of	equitable	estoppel,	we	need	not	and	therefore	do	not	reach	GBT’s	contention that	the	court	erred	by	concluding	that	F&W	also	established	its	aff irmative	defense	of	waiver,	which is	the voluntary	or	intentional	relinquishment	of	a	known	right

— here,	the	right	to	seek	liquidated damages. See Blue	Star	Corp.	v.	CKF	Props.,	LLC ,	2009	ME	101,	¶	26,	980	A.2d	1270

.10 (Me.	1990 ) (quotation	marks	omitted) ; see M.R.	Civ.	P.	8(c); Pelletier ,	2009	ME 11,	¶	17,	964	A.2d	630

. The	doctrine “ precludes	a	party	from	asserting	rights which	might	perhaps	have	otherwise	existed , against	another	person	who	has in	 good	 faith	 relied	 upon	 [the party’s] conduct,	 and	 has	 been	led	 thereby	 to change	 his	 position	 for	 the	 worse,	 and	 who	 on	 his	 part	 acquires	 some corresponding	 right .” Pelletier ,	 2009	 ME	 11,	 ¶	 17,	 964 A.2d	 630 ( alteration

o mitted) (quotation	 marks	 omitted) .	 	 “Equitable	 estoppel	 requires	 a misrepresentation	 that	 may	 arise	 through	 a	 combination	 of	 misleading statements,	conduct,	 or	 silence.” Blue	Star	Corp.	v.	CKF	Props.,	 LLC ,	2009	ME 101,	¶	27,	980	A.2d	1270 (quotation	marks omitted) ; see	Pelletier ,	2009	ME	11, ¶	 18,	 964	 A.2d	 630	 (“A	 misrepresentation	 need	 not	 consist	 solely	 of	 an
affirmative	statement

. .	.	. ”). [¶1 7 ] The	court’s	decision	in	this	case	was	based	on	a	combination	of	all
three forms	 of	 misrepresentations

— state ments,	 conduct,	 and	 silence

— and each	 element	 of	 the	 court’s	 analysis ,	 described	 below, was	 supported	 by	 the
record and	consistent	with	the	law

. [¶1 8 ] First, GBT	made	misleading	 statements .		 For	example, the	court
found	 that a	 GBT	 employee expressly	 told	 F&W	 employees	 that ,	 once	 the projects	 were	 complete, GBT would issue	 a	 final	 change	 order updating the11 substantial	completion	dates

. Further, the	court	found	that on	the	third	of the
five contracted	 substantial	 completion	 dates ,	 another	 GB T	 employee communicated	a	set	of	“new	dates”	to	F &W,	listing	dates that	were well	beyond the	contracted dates

. [¶1 9 ] Second, GBT’s conduct was	 misleading

. As	 the	 court	 found,	 i n almost	all	of	the	parties’ nine	similar out
- of

- state projects that	were	governed by identical	contracts, F&W	did	not	meet the substantial	completion	dates ,	and
GBT did not seek	 to assess	 liquidated	 damages

. Additi on ally, on	 the	 Maine projects, GBT issued many	 change	 orders	 calling	 for	 different	 or	 additional
work t hat F&W was	to	perform after	the contracted	dates had	passed

. [¶ 20 ] Finally, GBT ’s silence in	response	to F&W’s multiple	requests	for
time	extensions was	misleading ,	especially	in	the	context	of GBT’s direction	that F&W	should	not	be	concerned	with the timeline. 9 [¶ 2 1] These	finding s are	supported	by	competent	evidence	in	the	record
and , contrary	 to	 GBT’s	 argument, are	 not	 insufficient	 as	 a	 matter	 of	 law	 to support	 the	court’s	determination	 that , in	various	ways, GBT	misrepresented

9 As	the court	acknowledged , GBT	had	no	contractual duty to	object	to	F&W’s	requests	for	time extensions. Although “[e]quitable	estoppel	based	on	a	party ’ s	silence	will	only	be	applied	when	it	is shown	by	clear	and	satisfactory	proof	that	the	party	was	silent	when	he	had	a	duty	to	s peak , ” Dep ’ t of	Human	Servs.	v.	Bell ,	1998	ME	123,	¶	8,	711	A.2d	1292 (alterations	 omitted) (quotation	marks omitted) , the	 court	 did	 not	 err	 by	 considering GBT’s	 silence in	 combination	 with other	 relevant evidence	in	determining	that	GBT	had	misrepresented	its	intentions	to	F&W

.12 its	intentions	with regard	to	liquidated	damages. C ompetent	record	evidence , which	we	describe	above, see	supra ¶ 7 , also	supports	the court’s	findings that F&W	relied	on	GBT’s	misrepresentation al	acts	and	omissions and	that F&W’s reliance	was both “justified”

— i.e., reasonable

— and	detrimental

. 10 See,	e.g. , Cty

. Forest	Prods. ,	Inc. v.	Green Mountain Agency ,	Inc. ,	2000	ME	161,	¶¶ 8

- 15,	25

- 28 , 758	A.2d	59. [¶ 22 ] GBT also	 contends that	 the	 court	 could	 not properly apply	 the doctrine	 of	 equitable	 estoppel	 absent	 evidence	 that	 GBT explicitly told	 F&W that	liquidated	damages	would not be	assessed. We are	unpersuaded

. As	the
trial	 court	 found , liquidated	 damages	 were	 inextricably	 linked	 to	 the substantial	 completion	 d ates, so	 the	 combination	 of GBT’s	 misleading
statements	 and its silence	 regarding	 those	 dates	 amounted	 to misrepresentations	about	its	intent	to	assess	liquidated	damages

. See Pelletier ,

10 Given	the	court’s	findings	described	in	the	text,	w e	are	also	unpersuaded	by	GBT’s	argument that	the	court	failed	to	make	sufficiently	detailed	findings	that	F&W	relied to	its	d etriment on	GBT’s misrepresentations. Even	if	the	court’s	express	 findings	were	insufficient,	however,	because GBT failed	to	request	amended	or	additional	findings pursuant	to	Maine	Rule	of	Civil	Procedure	52(b) ,	we would infer	that	the	finding s w ere made because they	are supported	by	the	record	evidence. See Doe v.	Tierney ,	2018	ME	101,	¶	15,	189	A.3d	756 (“[I]n	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	cour t	made	any necessary	 findings	 that	 would	 be	 supported	 by	 evidence	 in	 the	 record	 to	 support	 its	 ultimate conclusion.”).		The	same	is	 true	 for	GBT’s	argument	 that	the	court	should	have	engaged	in	a	more detailed	analysis	to	equitably	adjust	the	substantial	c ompletion	dates.13 2009	ME	11,	¶	18,	964 A.2d	630	(“A	misrepresentation	need	not	consis t	solely
of	an	affirmative	statement

. .	.	. ”). [¶ 23 ] The	court’s	 findings	do	 not	contain	clear	 error,	 and	its	ultimate determination	 that	 equitable	 estoppel barred	 GBT’s	 claim	 for	 liquidated damages was	well	within its discretion.
B. Prompt	Payment Remed ies [¶ 24 ] GBT next argues	that	the	trial	court	erred by	awarding F&W any remedies	 pursuant	 to Maine’s p rompt p ayment statute s , 10	 M.R.S. §§ 1111

- 1120

. GBT also	 asserts more	 narrowly	 that	 the	 court	 erred	 by including	 the	 unpaid	 retainage	 invoice	 in	 the	 amount	 subject	 to	 prompt payment	remedies	and that ,	pursuant	to	section	1118(3), the	court	should	have
excluded	 from the	calculation	of those	 remedies at	least the amount t hat	 the court	 found	 GBT had	 with held	 in	 good	 faith

. On	 an	 appeal	 addressing	 a judgment	 on	 a	 statutory	 prompt	 pay ment claim,	w e	 review issues	 of	law	 de
novo	and	the	trial	court’s factual	findings	for	clear	error. Bernier	v.	Merrill	Air Eng’rs ,	2001	ME	17, ¶	7,	770	A.2d	97 ; see Cellar	Dwellers,	Inc.	v.	D’Alessio ,	2010 ME	 32,	 ¶	 17,	 993	 A.2d	 1 (reviewing	 factual	 findings	 bearing	 on	 the	 issue	 of prompt	payment	remedies	for	clear	error).14 [¶ 25 ]		It	was	undisputed	that	GBT	withheld	payment	on	several	invoices
f

or	progress	payments	and	retainage	beyond	the	twenty

- day	limit	prescribed by	the	prompt	payment	statutes .		In	total,	those unpaid	amounts approached $1.5	 million. Through the combination	 of	 the summary	 judgment and
determinations reached after	 the	 trial , the	 court concluded that	 F&W	 was
entitled to	be	paid	for	all	of	those	invoiced	amounts and	that	GBT	did	not	have a	good	faith	basis to	withhold	payments	based	on	any contention that	F&W’s work	 was	 incomplete	 or	 defective. Although ,	 for	 that	 reason, the	 co urt committed	 no	 error	 in	 determining	 that	 F&W wa s	 entitled generally to remedies	created	by	the	prompt	pay ment statutes, including	on	the	retainage payment	withheld, we	conclude	that	the	court did err	in a	different aspect	of its analysis

. The	error arises	because the	court failed	 to	consider	 the	mitigating effect	of	its	finding	that	GBT	had ,	in	good	faith, withheld	$498,000	as	liquidated damages	that	it	claimed	w ere contractually	owed	by	F&W

. [¶ 26 ]		The	prompt	payment	statute s are a	collection	of	r ules	governing payment between	 or among	 parties	 to	 construction	 contracts in	 a	 way	 that “augment [s] damages	that	are	traditionally	available	for	contract	or	quantum
meruit	 claims.” Jenkins,	 Inc.	 v.	Walsh	 Bros. ,	 Inc. ,	 2001	ME	 98,	 ¶ 2 4 ,	 776	 A.2d15 1229 .		The statutory remedies can	comprise interest,	penalties,	and	attorney
fees. See 10	M.R.S.	§§	1113,	1118. [¶ 27 ] Section	1113	governs	payments	by	“owner [ s ] ”	to	“contractor [ s ] .” 11 Here,	 GBT	was	 the	 owner	 of	 the	 properties ,	and F&W	was	a	contractor. See
10 M.R.S.	§	1113(3),	(6). A bsent	some	 other	agreement	between	 the	parties, section	1113(3) requir es an owner to pay	an	invoice within	twenty	days	after
either the	billing	period	ends	or	the	invoice	is	delivered ,	whichever	is	later

. If	a payment is not	made before	the	applicable	deadline ,	“ the	owner	shall	pay	the contractor	interest	on	any	unpaid	balance	due	beginning	on	the	21st	day , ” 10 M.R.S.	§	1113(4) ,	and	p enalties are	to	be	awarded	in	“ an	amount	equal	to	1% per	 month of	 all	 sums	 for	 which	 payme nt	 has	 wrongfully	 been	 withheld , ”
10 M.R.S.	§	1118(2). In	addition,	t he	“sub stantially	prevailing	party ” is	entitled to	an	award of attorney	 fees	and	expenses. 10	M.R.S.	 §	1118(4 ) ; see	Jenkins , 2001	ME	98,	¶	31,	776	A.2d	1229	(explaining	that	the attorney	fees	remedy	is available	only	to	a	party	who	succeeds	in	demonstrating	its	entitlement	to	the other	prompt	payment	remedies). [¶ 28 ] In	some	circumstances, however, an owner - obligor is	statutorily
entitled	 to withhold	 payment s without	 incurring	 liability	 pursuant	 to	 the

11 Title 10	M.R.S.	§	1114	(2018)	governs	payments	by	a “ contractor ” to	a “ subcontractor ” or	by	a subcontractor	to	a “ material	supplier. ” See 10	M.R.S.	§	1111	(2018)	(defining	those	terms).16 prompt	payment	statutes

. “ A payment	is	not	deemed	to	be	wrongfully	withheld
if	it	bears	a	reasonable	relation	to	the	value	of any claim	held	in	good	faith	by the	owner,	contractor	or	subcontractor	against	which an	invoicing	contractor, subcontractor	or	material	supplier	is	seeking	to	recover	payment. ”		10	M.R.S. § 1118(3) (emphasis	added) ; s ee Cellar	Dwellers , 2010	ME	32,	¶ 18 ,	993	A.2d	1 (“[T] he	 availability	 of	 prompt	 payment	 remedies	 depends	 upon	 whether payment	has	been wrongfully withheld. ”	(emphasis	added)	(quotation	marks omitted)); Jenkins ,	2001	ME	98,	¶	24,	776	A.2d	1229

. T he	statute also provides
that an owner may	withhold	payment	“ in whole	or	in	part	under	a	construction
contract	in	an	amount equal l ing the	value	of	any	good	faith	claims	against	an invoicing	contractor,	subcontractor	or	material	supplier

. ” 10	M.R.S.	§	1118( 1 ). [¶ 29 ] W e	 are unpersuaded	 by	 GBT’s	 argument s that	 the	 trial	 court should	 not	 have	imposed any prompt	 payment	 statute	 remedies ,	 or	 that	 the
court	 should	 have ex cluded	 the	 unpaid	 retainage	 invoice from the	 amount subject	 to	 prompt	 payment	 remedies

. E ven if	we	were persuaded	 by	 GBT’s argument that	 F&W was	 required	 to	have	performed	in	accordance	with	 the contract	 in	 order	 to	 be	 entitled	 to	 prompt	 payment	 remedies	 pursuant	 to section	1113,	the	court found that	F&W	did	so perform

— a	finding	that was	not17 clearly	 erroneous. 12 Additionally , in	 its	 summary	 ju dgment	 order, t he	 trial court	determined	as	matter	of	law	that	F&W	was	entitled	to	damages	based	on the	full	amount	of	all	of	the	unpaid	invoices,	including	the	retainage

. GBT	has

no t challenge d that	conclusion , thereby vitiating its contention that	F&W	failed to	prove	 that	it	completed	 the	steps	necessary	 to	be	entitled	 to	the	retainage withheld	and	that	the	court	therefore	erred	by	considering	that	withholding	to be	“wrongful.” We	also	decline	to	disturb	the	trial	court’s	determination	that
G BT’s	claims alleging	defective	or	incomplete	work were	not	held	in	good	faith. [¶ 30 ] This	 leaves	 GBT’s	 assertion	 that	 the	 court	 erred	 by imposing prompt	pay ment remedies on the entire amount	that	GBT	withheld when the
court	found	that some	of	that	amoun t	was	withheld	based	on	GBT’s	good

- faith
belief that	 it	 was	 entitled	 to	 recover	 liquidated	 damages from	 F&W. More specifically,		t he	court found	that , even	though	GBT	was	ultimately	unsuccessful on	 the	merits, GBT with held $498,000	as	liquidated	damages i n good	 faith

. 13

12 Section	 1114(3)	 requires	 a	 contractor	 to	 pay a	 subcontractor,	 or	 a	 subcontractor	 to	 pay	 a material	supplier,	within	a	specific	time	“ when	a	subcontractor	or	material	supplier	has	performed in	accordance	with	 the	provisions	of	a	contract .”		Section	1113	does	not	contain	similar	language. Given	the	c ourt’s	finding	that	F&W did perform	pursuant	to	the	contract,	we	need	not	address	the question	of	whether,	despite	that	difference	in	the	statutes,	the	same	requirement	should	be	imposed in	disputes	governed	by	section	1113.

13 Those	determinations	were not	incompatible	because	GBT	could	have	believed	in	good	faith that	its	claims	for	liquidated	damages	were	legitimate	even	though,	on	the	merits,	it	ultimately	did not	prevail	on	those	claims.18 Despite	that finding,	the	court	ultimately conclude d that	F&W	was	entitled	to prompt	 payment	 remedies calculated	 on	 the	 basis	 of all payments that GBT withheld

— including the amount	 withheld in	 good	 faith as	 liquidated damages

— because the total	 “amount	 withheld	 far	 exceed[ed]	 the	 [value]	 of [GBT’s]	potential	liquidated	damages	[claims]

. ” [¶ 3 1] This conclusion is	affected	by an	erroneous	application of	sections 1118(1)	and	1118(3). T hose statutory provisions do	not	provide	for	the	court

to simply weigh the value	of	a	claim held	in	good	faith against the total amount withheld and then ,	where	the	two	are	not	in	some	measure	of balance ,	impose prompt	pay	remedies based	on	the	total	amount	withheld

. Further,	there	need
not	 be	 a direct connection	 between	 the contractor’s charges	 for	 goods	 and
services	 set	 out	 in	 the	 invoices	 and	 the reason	 why	 the obligor	 withh eld payment. See 10 M.R.S.	 §	 1118(1). Here,	 for	 example,	 the	 amount	 that	 GBT withheld	 was	 not	 based	 on	 a	 good	 faith	 dispute	 abo ut	 the	 charges	 in	 the
invoices themselves ,	 but	 rather was	 grounded	 in an	 extrinsic	 claim	 against F&W	arising	from	the	projects	at	issue. [¶ 32 ] Instead, pursuant	to	the	statutes, “[p] enalties	may	not	be	imposed

. .	. on any amount	withheld	that	bears	a	reasonable	relation	to	the	value	of any claim	held	in	good	faith .” Jenkins , 2001	ME	98,	¶ 2 4 ,	776	A.2d	1229 ( emphas e s19 added) (quotation	 marks	 omitted) ; see 10	 M.R.S.	 §	 1118(3); Cellar	 Dwellers , 2010	ME	32,	¶	20,	993	A.2d	1. Consequently, the	 trial	court	 should	have ,	in some	way,	accounted	for the	value	of	GBT’s	liquidated	damages	claims held	in good	 faith when	 considering the	 amount that	 is subject	 to	 prompt	 payment
statute	remedies available	to	F&W

. [¶ 33 ] For	these	reasons, w e	vacate	th e portion	of	the	judgment denying GBT	 any statutory	accommodation	based	 on	 the	 amount it withheld	in	good faith	in	the court’s determination of damages	to	which	F&W	is	entitled	pursuant to	the	prompt	pay ment statutes, and we remand	for	the	cou rt	to	reconsider	and
recalculate that	portion	of	the	award

. C. Attorney	Fees	Pursuant	to	the	Contract [¶ 34 ] Finally,	GBT	argues	 that	 the	court	erred	when	it	concluded	 that , apart	from	an	award	of	attorney	fees	that	is	available	pursuant	to	the	prompt
pay statu t es, F&W	was also entitled	to	attorney	fees	pursuant	to	the	terms	of the	 parties’	 contract. 14 “ We	 review	 the	 meaning	 of	 a	 contract	 de	 novo	 and interpret	 an	 unambiguous	 provision	 according	 to	 the	 plain	 meaning	 of	 its

terms. ” Kondaur	Capital	Corp.	v. Hankins ,	2011	ME	82,	¶	19,	25	A.3d	960

.

14 Although	the	court	concluded	that	F&W	is	entitled	to	its	att orney	 fees	and	expenses,	at	oral argument	 the	parties	indicated	 that	they	had	not	 yet	 filed	submissions	addressing	 the	amount	of awardable	fees	and	expenses.20 [¶ 35 ] The	contract	documents	provide d	for	a	tiered	approach	to	“dispute mitigation	or	resolution

. ” The	first	of	the	dispute	resolution	mechanisms wa s for	 the	 parties	 to	 engage	 in “good	 faith	 direct	 discussions.” I f a	 dispute remained unresolved	 after	 those	 discussions,	 the	 parties	 were	 to	 engage	 in
mediation. The	 contract went	 on	 to	 provide that,	 i f	 the	 issue was still
unresolved ,	 the	parties then were	 to	submit	 the	matter	 to	a	“binding	dispute resolution	procedur e,” prescribed specifically	as	arbitration. 15 T he arbitration provisions	of	the	parties’ contract	stated: 12.4		BINDING	DISPUTE	RESOLUTION		If	the	matter	is	unresolved after	 submission	 of	 the	 matter	 to	 a	 mitigation	 procedure	 or	 to mediation,	the	Parties	shall	submit	the	matter	to the	binding	dis pute resolution	procedure	selected	below

. Arbitration using the c urrent	 Construction	 Industry Arbitration	 Rules	 of	 the	 AAA	 or	 the	 Parties	 may	 mutually agree	 to	 select	 another	 set	 of	 arbitration	 rules.	 	 The administration	of	the	arbitration	shall	be	as	mutually	agreed by	 the	Parties.		 If	 the	Parties	cannot	agree,	 then	it shall	be administered	by	AAA. 12.4.1		The	costs	of	any	binding	dispute	resolution	procedures and	 reasonable	 attorneys’	 fees	 shall	 be	 borne	 by	 the non - prevailing	Party,	as	determined	by	the	adjudicator	of	the dispute. 12.4.2.		VENUE		The	venue	of	any binding	dispute	resolution procedure	 shall	 be	 the	 location	 of	 the	 Project,	 unless	 the Parties	agree	on	a	mutually	convenient	location.

15 The	parties’	submissions	on	appeal	suggest	that,	notwithstanding	this	contractual	provision, th ey	did	not	avail	themselves	of	the	binding	dispute	resolution	process.21
(Emphases	added.) [¶ 36 ] The	 contract	 therefore	 unambiguously states	 that	 the nonprevailing	 party	 will	 bear attorney fees	 and costs	 related	 to	 “binding dispute	 resolution	 procedures , ” with “ the binding	 dispute	 resolution procedure” contractually	 specified	 to	 be	 arbitration. T h e	 attorney	 fees provision contained	in	th is “binding	dispute	resolution” section of	the	cont r act plainly	does	not	contemplate	an	award	of	attorney	fees	outside	the	context	of
arbitration ,	and	t he	trial	court	therefore	erred	when	it concluded	otherwise. 16 This,	however,	does	not	affect	the	court’s	determination	that	F&W’s	is	entitled
to	 its	 attorne y	 fees	 and	 costs	 pursuant	 to	 separate	 authority,	 namely,	 the prompt	pay ment statute s . I I I. CONCLUSION [¶ 37 ] In	its	thorough	analysis,	the	court	did	not	err or	abuse it s discretion by	 concluding that GBT	 was equitably estopped	 from recovering liquidated damages	against	F&W. We	therefore	affirm,	in	full,	the	judgment	in	F&W’s	favor

16 The court	noted	in	its	order	amending	the	judgment that GBT	itself	had	sought	to	recover	its attorney	 fees	and	expenses	pursuant	to	the	provisions	of	the	contract

. Nonetheless,	t he issue	has been	preserved	 for	 our	consideration	because GBT	objected	 to	F&W’s	post

- trial	motion	 to	amend seeking	such	an	award , the	court	granted	F&W’s	motion	on	the	merits , and GBT	has	argued	the	point on	appeal. See Verizon	New	Eng

. ,	Inc.	v.	Pub.	Utils. Comm’n ,	2005	ME	16,	¶	15,	866	A.2d	844 (“ An	issue is	raised	and	preserved	if	there	was	a	sufficient	basis	in	the	record	to	alert	the	court	and	any	opposing party	to	the	existence	of	that	issue .”	(quotation	marks	omitted)).22 on	 GBT’s	 counterclaims	 for	 liquidated	 damages. We	 affirm	 the judgment awarding	F&W prompt	payment	remedies except to	the	extent	that the remedy ordered	by	the	cour t fail ed to	account	for the	value	of	GBT’s	liquidated	damages claims that the	 court found GBT with held in	 good	 faith. We	 remand	 for reconsideration	of	that	aspect	of	the	judgment. Finally,	we vacate	the	portion of	the	judgment	awarding	attorney	fees	and costs	to	F&W	pursuant	to	the	terms of	the	parties’	contract ,	leaving	the	court	to	assess	attorney	fees	and	costs only as	allowed	by	the	prompt	pay ment statutes

. The	entry	is: Judgme nt	 affirmed	in	 part	 and	 vacated	 in	 part. Remanded	for further	proceedings as	described herein

.

Michael	R.	Bosse,	Esq.,	and	Conor	M.	Shankman,	Esq. (orally) ,	Bernstein	Shur, Portland,	for	appellant	Lewiston	DMEP	IX,	LLC,	et	al. David	 P.	 Very,	 Esq.,	 Norman,	 Hanson	 &	 Detroy,	 LLC,	 Portland,	 Gavin	 G. McCarthy,	 Esq.,	 Pierce Atwood	 LLP,	 Portland,	 and	 Michael	 L.	 Fortne y ,	 Esq. (orally) ,	Stark	&	Knoll,	Akron,	Ohio,	for	appellee	Fortney	&	Weygandt,	Inc.

Business	and	Consumer	Docket	docket	numbers	RE

- 2015

- 06,	RE

- 201 5

- 11,	and	CV

- 2015

- 74 F OR C LERK R EFERENCE O NLY