MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 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	

developers, appeal	 from	 a	 combined	 judgment	 entered	 in the	 Business	 and	

Consumer	 Docket	 (Murphy,	J.)	 after	 a	 consolidated	 jury-waived	 trial.	 	In	 the	

judgment,	the	trial	court	determined	that, in	addition	to	damages	for	breach	of	

contract,	the	general	contractor,	Fortney	&	Weygandt,	Inc.	(F&W), was	entitled	

to	 remedies,	 including	 attorney	 fees, pursuant	 to	 Maine’s	 prompt	 payment	

statutes,	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,	we	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

counterclaims,	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	payment statutes,	we	vacate	the

portion of	the	judgment	allowing	F&W	any	separate	recovery	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	supported	by	

competent	evidence	in	the	record.		See	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	 “sufficiently	
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complete	in	accordance	with	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	the	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,	none	of	the	five	projects

reached	substantial	completion	by	the contracted	dates.		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	some	of	its	communications with	F&W,	however,	GBT	

signaled its acknowledgement 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	

updated	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	itself	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 would	 be	 addressed 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	after	the	contracted	substantial	completion dates	had	passed

and	continuing	as	late	as	August	of	2015, GBT	issued	dozens	of	change orders

for	the projects, 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]		Previously, 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	the	ones used	for	

the	 Maine	 projects.	 Although	 most	 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	 five	projects.	 	F&W	

employees 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	out	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.		
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reached	substantial	completion	after	the	contracted	dates had	passed, GBT	did	

not	seek	liquidated	damages	in	any	of	those	instances.

[¶7]	 As	the result	of GBT’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 continued to	work	until	

August	 of	2015 even	 though	GBT	had stopped	making	progress	payments	in	

June.	 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,	given	the	totality	of	the	circumstances,	F&W’s	belief	that	

GBT	 had	 agreed	 to	 the	 extended	 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	president 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	 the	
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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	

orders.		Instead of	doing	 that,	GBT	sent	letters	 to	F&W	attempting to	impose

liquidated	damages	calculated	on	a	per	diem	basis from	the	original	contracted	

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	 prompt	 payment	

statutes,	and	seeking enforcement	of	mechanic’s	liens.		GBT	filed	counterclaims	

seeking	 liquidated	 damages and damages	 for	 breach	 of	 contract	 based	 on	

allegations	that	some	of	F&W’s	work	was	incomplete	or defective.5		The	three	

matters	were	transferred in	the	interim to	the	Business	and	Consumer	Docket.		

[¶10]		GBT	and	F&W	each	filed multiple	motions for	summary	judgment.		

After	a	hearing, the	court	(Murphy,	J.)	entered	summary	judgments in	favor	of	

F&W	 on	its	claims for	breach	 of	contract,	concluding	as	 a	matter	 of	law	that	

 5	 	 Additionally,	 in	 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	 on all	 of	 its	 unpaid	 invoices.

6 The	 court	 also	

entered	 summary	 judgments	 in	 favor	 of	 F&W on	 portions	 of	 GBT’s

counterclaims that	alleged defective	or	incomplete work	by	 F&W.	 The	court

denied	 the	 portion of	 F&W’s	 motions seeking	 judgments	 on GBT’s	

counterclaims	 for	 liquidated	 damages,	 which	 F&W	 asserted were	 barred	 by	

waiver	 and	 equitable	 estoppel,	because	 the	 court	 concluded that there	were	

issues	 of	material	 fact concerning those	 affirmative	 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.		On	

this	 appeal,	 neither	 party	 challenges	 any	 aspect	 of	 the	 court’s	 summary	

judgment	order.

[¶11]	 	 In November	 of	 2017	 and	 January	 of	 2018,	 the	 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	determined that F&W	was	entitled	to	a	

judgment	on	GBT’s	counterclaims	for	liquidated	damages	because,	through	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	

completion.		
8

statements,	conduct,	and	silence,	GBT	had	waived and	was	equitably	estopped	

from	asserting such	claims;	and	that F&W	was entitled	 to	penalties,	interest,	

and	attorney	fees, all	pursuant	to	the	prompt	payment	statutes.

7		

[¶12]		GBT	did	not	file	a	motion	for	amended	or	additional	findings, see

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

determination that	it	was	entitled	to	attorney	fees	and	costs	based not	only	on

the	 prompt	 payment	 statutes 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.		

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

II.		DISCUSSION

[¶14]		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,	 although	 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.”).
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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	Estoppel8

[¶15]	 	 GBT	 challenges	 the	 sufficiency	 of	 the	 evidence	 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.	 Town	 of	 Bowdoinham,	 2004	 ME	 40,	 ¶	 11,	

845 A.2d	567.

[¶16]	 	 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		Because	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	affirmative	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	

omitted) (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 . .	.	.”).

[¶17]		The	court’s	decision	in	this	case	was	based	on	a	combination	of	all	

three	 forms	 of	 misrepresentations—statements,	 conduct,	 and	 silence—and	

each	 element	 of	 the	 court’s	 analysis,	 described	 below, was	 supported	 by	 the	

record and	consistent	with	the	law.		

[¶18]		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 the	
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substantial	completion	dates.	 Further,	the	court	found	that	on	the	third	of	the	

five	 contracted	 substantial	 completion	 dates,	 another	 GBT	 employee	

communicated	a	set	of	“new	dates”	to	F&W,	listing	dates	that	were	well	beyond	

the	contracted	dates.	

[¶19]	 	 Second,	 GBT’s	 conduct was	 misleading.	 	 As	 the	 court	 found,	 in

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. Additionally,	 on	 the	 Maine	

projects, GBT issued many	 change	 orders	 calling	 for	 different	 or	 additional	

work	that 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		

[¶21]		These	findings 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	speak,” 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.
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its	intentions	with regard	to	liquidated	damages.		Competent	record	evidence,	

which	we	describe	above,	see	supra	¶	7, also	supports	the	court’s	findings	that	

F&W	relied	on	GBT’s	misrepresentational	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	 dates,	 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,	we	are	also	unpersuaded	by	GBT’s	argument	

that	the	court	failed	to	make	sufficiently	detailed	findings	that	F&W	relied	to	its	detriment 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	findings were 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	court	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	completion	dates.		
13

2009	ME	11,	¶	18,	964 A.2d	630	(“A	misrepresentation	need	not	consist	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	Remedies

[¶24]		GBT	next	argues	that	the	trial	court	erred	by	awarding F&W	any	

remedies	 pursuant	 to	 Maine’s prompt	 payment	 statutes,	 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 that	 the	

court	 found	 GBT	 had	 withheld	 in	 good	 faith. On	 an	 appeal	 addressing	 a	

judgment	 on	 a	 statutory	 prompt	 payment claim,	we	 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	

for	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	 court	

committed	 no	 error	 in	 determining	 that	 F&W	 was	 entitled generally to	

remedies	created	by	the	prompt	payment 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	were contractually	owed	by	F&W.		

[¶26]		The	prompt	payment	statutes are a	collection	of	rules	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,	 ¶ 24,	 776	 A.2d	
15

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).		Absent	some	 other	agreement	between	 the	parties,	

section	1113(3) requires	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	penalties are	to	be	awarded	in	“an	amount	equal	to	1%	

per	 month	 of	 all	 sums	 for	 which	 payment	 has	 wrongfully	 been	 withheld,”	

10 M.R.S.	§	1118(2).		In	addition,	the	“substantially	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	 payments 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);	see 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.		The	statute also provides	

that	an owner may	withhold	payment	“in	whole	or	in	part	under	a	construction	

contract	in	an	amount	equalling the	value	of	any	good	faith	claims	against	an	

invoicing	contractor,	subcontractor	or	material	supplier.”		10	M.R.S.	§	1118(1).

[¶29]	 	 We	 are unpersuaded	 by	 GBT’s	 arguments that	 the	 trial	 court	

should	 not	 have	imposed any prompt	 payment	 statute	 remedies,	 or	 that	 the	

court	 should	 have	 excluded	 the	 unpaid	 retainage	 invoice	 from the	 amount	

subject	 to	 prompt	 payment	 remedies.	 	Even	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	not	
17

clearly	 erroneous.12 Additionally,	 in	 its	 summary	 judgment	 order,	 the	 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	

not challenged 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	

GBT’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	payment remedies	on the entire amount	that	GBT	withheld	when	the	

court	found	that	some	of	that	amount	was	withheld	based	on	GBT’s	good-faith	

belief that	 it	 was	 entitled	 to	 recover	 liquidated	 damages from	 F&W.	 More	

specifically,		the	court	found	that, even	though	GBT	was	ultimately	unsuccessful	

on	 the	merits,	GBT	withheld $498,000	as	liquidated	damages in	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	court’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 concluded 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].”

[¶31]		This conclusion	is	affected	by an	erroneous	application of	sections	

1118(1)	and	1118(3).		Those	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	 withheld

payment.	 	 See 10 M.R.S.	 §	 1118(1).	 	Here,	 for	 example,	 the	 amount	 that	 GBT	

withheld	 was	 not	 based	 on	 a	 good	 faith	 dispute	 about	 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,	¶ 24,	776	A.2d	1229 (emphases	
19

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, we	vacate	the 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	payment statutes, and	we	remand	for	the	court	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 statutes,	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	attorney	 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	provided	for	a	tiered	approach	to	“dispute	

mitigation	or	resolution.”		The	first	of	the	dispute	resolution	mechanisms	was	

for	 the	 parties	 to	 engage	 in “good	 faith	 direct	 discussions.”	 	 If a	 dispute	

remained unresolved	 after	 those	 discussions,	 the	 parties	 were	 to	 engage	 in	

mediation.	 	 The	 contract	 went	 on	 to	 provide that,	 if	 the	 issue	 was	 still	

unresolved,	 the	parties	then	were	 to	submit	 the	matter	 to	a	“binding	dispute	

resolution	procedure,”	prescribed specifically	as	arbitration.15		The	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	dispute	

resolution	procedure	selected	below.

Arbitration using	 the	 current	 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,	

they	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. The	 attorney	 fees

provision contained	in	this “binding	dispute	resolution”	section	of	the	contract	

plainly	does	not	contemplate	an	award	of	attorney	fees	outside	the	context	of	

arbitration,	and	the	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	 attorney	 fees	 and	 costs	 pursuant	 to	 separate	 authority,	 namely,	 the	

prompt	payment statutes.

III.		CONCLUSION

[¶37]		In	its	thorough	analysis,	the	court	did	not	err or	abuse	its 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,	the	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	court failed to	account	for the	value	of	GBT’s	liquidated	damages	

claims that the	 court	 found	 GBT	 withheld	 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	payment statutes.

The	entry	is:

Judgment	 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.	 Fortney,	 Esq.

(orally),	Stark	&	Knoll,	Akron,	Ohio,	for	appellee	Fortney	&	Weygandt,	Inc.

Business	and	Consumer	Docket	docket	numbers	RE-2015-06,	RE-2015-11,	and	CV-2015-74

FOR	CLERK	REFERENCE	ONLY