MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 2 ME 6 Docket: Ken

- 21

- 69 Submitted

On	B riefs : October	20,	2021 Decided: January	25,	2022 Panel: MEAD, GORMAN,	JABAR , HUMPHREY,	HORTON , and CONNORS , JJ.

ATLANTIC	HOME SOLUTIONS,	INC.

v. QUANG	PHAM

HORTON ,	J. [¶1] Atlantic	Home	Solutions,	Inc.	(Atlantic)	appeals	from	a	judgment	of the	District	Court	 (Augusta, Rushlau,	J. )	in	 favor	of	Quang	Pham	on	Atlantic’s claim against	 Pham for	 recovery	 of	 personal	 property pursuant	 to 14	M.R.S. § 7071	(2021)

. T he	court	decided that	Atlantic	was	not	entitled	to	judgment because	the	mo dular home , appliances , and	heating unit that	Atlantic	sought	to recover	 had	 become part	 of	 Pham’s	 residential	 lot	 and	 had	 ceased	 to	 be personal	 property subject	 to	 recovery	 under	 the	 statute

. We	 af firm	 the judgment.
I.		BACKGROUND [¶ 2 ] After a n	evidentiary hearing on	Atlantic’s	complaint , the	court	found the	following	facts,	which	are	supported	by	competent	evidence	in	the	record.2 See Bayberry	 Cove	 Child.’s	 Land	 Tr.	 v.	 Town	 of	 Steuben ,	 2013	 ME	 35,	 ¶	 5, 65 A.3d 1188

. In	September	2017,	Atlantic	entered	into	a written contract	with Pham	 to sell	 Pham	 a	 modular	 home along	 with	 a	 heating	 unit	 and	 several appliances .		The	home	was	to	be	installed	on	land	that	Pham	owned	in	Chelsea , where	 Pham	 hoped	 to	move	 from	 his	 home	in	Massachusetts

. The	 contract required	payment	as	a	prerequisite	to	delive ry	of	the	home and p rovided	that title	to	the	home	would	pass	from	Atlantic	to	Pham	only	upon	either	payment in	full or a	financial	institution’s acceptance	of	a	retail	installment	contract

. 1 [¶ 3 ] A contractor	built	a	foundation, installed a	well and	septic	system , and completed other site	work on	Pham’s	land

. Although	Pham	had	neither paid Atlantic	 directly nor	 entered	 into	 a	 retail	 installment	 contract,	 Atlantic arranged	 for	 the	 home	 to	 be delivere d	 and	 installed in	 June 2018

. A subcontractor transported two units to the	 site	 on	 trailers and	lifted	 them onto	 the	 foundation	 with	 a	 crane

. Each	 unit	 comprised	 half	 of	 the	 home’s structure	and	roof. The	units	were	joined	together	and nailed	to	sills	that	had

1 The	 contract	 also	 contained	 a	 provision	 requiring	 that	 “any	 and	 all	 controversies	 or	 claims arising	out	of	or	in	any	way	relating	to [the	contract] be	settled	solely	by	Arbitration	in	accordance with	the	applicable	rules	of	the	American	Arbitration	Association	then	in	effect	and	that	judgment upon	 the	award	entered	 by	arbitrators	 be	entered	in	and	enforceable	 by	any	 court	 of	 competent jurisdiction.”		The	effect of	 the	arbitration	provision	upon	Atlantic’s	claim	under 14	M.R.S.	§ 7071 (2021) is	not	before	us	because	neither	party has invoked the	provision

. “ ‘ [A]	party	may,	by	engaging in	litigation,	implicitly waive its	contractual	right	to arbitrate

. ’ ” Saga	Comm c’ ns o f	New	Eng

. ,	Inc. v. Voornas , 2000	ME	156,	¶ 12,	756	A.2d	954 ( q uoting Navieros	 Inter

- Americanos,	S.A.	v.	M/V	Vasilia Express , 120 F.3d 304 , 316 ( 1st Cir.	1997) ).3 been	 bolted	 to the	 foundation

. The	 electrical appliances	 were	installed and connected	 to the	 lot’s	 electrical	 source , and	 the	 plumbing appliances	 were connected	to	the	lot’s water	supply	and septic	system. Further finish	work was needed to	seal	the	joints	where	the	units met

. [¶ 4 ] After	installation,	disputes	arose	between	Pham	and	Atlantic	about the	quality and completeness	of	 the	home and	its	installation

. Pham	has	not paid	 anything	 toward	 the	 purchase	 price , and	 he	 did	 not enter	 into a	 retail installment	contract. [¶ 5 ] Atlantic filed	a complaint	under 14	M.R.S.	§	7071 s eeking a	judgment and	writ	of	possession	authorizing	Atlantic to take possession	of	the	modular home, the appliances , and the heating	unit by	disassembling	and	disconn ecting them	and	removing	them	from	Pham’s	property .		The	disassembly	and	removal process,	 which would	 take approximately	 one day , would	 involve using	 a reciprocating	saw	to	cut	through the	fasteners	used	to	a ttach the	modular	units to	the	foundation	and to each	other ; disconnecting the wires	and	severing	the pipes	to the	lot’s	electrical ,	water , and	septic	hookups ; and lifting	the separated modules,	along	with	the	appliances	and	heating	unit, onto	trailers

. [¶ 6 ]		The	trial	court held	an evidentiary	hearing , at	which	one	of	Atlantic’s owners	and	Pham	testified and	offered	exhibits	admitted	in	evidence, and	then4 issued	a	judgment	in	Pham’s	favor .		The	court determin ed that	14	M.R.S.	§	7071, which	 governs	 “[a]ctions	 to	 recover	 personal	 prope rty,”	 did	 not	 provide Atlantic	with	an	avenue	for	relief	because	the	modular	home	and other	items had	 become	 part	 of	 Pham’s	 real	 estate	 and	 therefore	 no	 longer constitute d personal	 property. 2 This	 determination	 was	 based	 on	 findings	 that (1)	 the modular home and	other	items w ere “physically	annexed	 to	 the	real	estate”; (2) the y and	the	real	estate had	become united	in “a	common	enterprise,	in	this case	 human	 habitation”;	 and	 (3)	 both	Atlantic	 and	 Pham	 “intended	 [for]	 the modular	home	to	be	permanently	attached	to	the	real	estate.” See,	e.g. , Hartford
Nat ’ l	Bank & Tr

. Co.	v.	Harvey ,	420	A.2d	230,	235

- 36	(Me.	1980)

. [¶ 7 ] Atlantic	 timely	appeals. 3 See 14	M.R.S.	 §§ 1901 , 7071(8)	 (2021); M.R.	App.	P.	2A,	2B(c).
II.		DISCUSSION [¶ 8 ] B ecause	 14	 M.R.S.	 §	 7071	 applies	 only	 in	 actions	 that	 concern personal	 property, Atlantic	 could	 not	 obtain	 relief	 under	 that	 statute	 if the modular	home and	other	items lost their character	as	personal	property	when

2 The	court	noted	that	the	question	of	whether	other	remedies	might	be	available	to	Atlantic	was not	before	it.

3 Before	filing	its	notice	of	appeal,	Atlantic	moved	for	additional	legal	conclusions	and	to	alter	or amend	the	judgment.		The	court	granted	the	motion	in	part,	striking	part	of	its	initial	reasoning,	but declined	to alter its	dispositive	finding s .5 they became affixed	to	Pham’s	land. See Harvey ,	420	A.2d at	232

- 36 (examin ing whether	 a	 mobile	 home	 constituted	 personal	 property	 for	 purposes	 of
section 7071’s predecessor). Section	 7071 itself does	 not	 define “ personal property, ” but	we	have	long	held	that a three

- part test applies “ for	deter mining whether	personalty	has	become	part	of	the	realty	on	which	it	rests

. ” Harvey , 420	A.2d	at	235.		The	criteria	are whether (1 )	[ the	personalty] is	physically	annexed,	at	least	by	juxtaposition, to	the	realty	or	some	appurtenance	thereof,	(2)	it	is	adapted	to	the use	to	which	the	land	to	which	it	is	annexed	is	put,	or	the	chattel and	 the	 real	 estate	 are	 united	 in	 the	 prosecution	 of	 a	 common enterp rise,	and	(3)	it	was	so	annexed	with	the	intention	on	the	part of	 the	 person	 making	 the	 annexation	 to	 make	 it	 a	 permanent accession	to	the	realty. Id

. (alteration	 and	 quotation	 marks	 omitted). The	 third	 criterion, that the

annexor intended	 for the	 accessi on to be	 permanent, 4 holds	 “[s]pecial prominence , ” Boothbay Harbor	Condos.,	 Inc.	v.	Dep’t	of	Transp. ,	382	A.2d	848, 854	(Me.	1978) ,	and raises a	question	of	fact ,	the	court’s	resolution	of	which	we review	 for	 clear	 error , s ee Harvey ,	 420	 A.2d	 at	 236; Forrest	 Assocs.	 v. Passamaquoddy	Tribe ,	2000	ME	195,	¶	9,	760	A.2d	1041

. We	review	the	trial

4 “The controlling	 intention	 as	 to	 whether	 [personalty]	 becomes	 a	 part	 of	 the	 real	 estate	 by accession	is	.	.	.	that	of	the	annexor.” Bangor

- Hydro	Elec

. Co.	v.	Johnson ,	226	A.2d	371,	378	(Me. 1967) ; see Far	West	Modular	Home	Sales,	Inc.	v.	Proaps ,	604	P.2d	452, 454

- 55	(Or.	Ct.	App.	1979) (“[W]hen annexation	is	made	by	an	owner	of	realty,	an	intent	to	affix	may	more	readily	be	found.	.	.	.	The	fact that	 here	 the	 vendor	 physically	 placed	 the	 unit	 on	 defendants’	 property	 does	 not	 detract	 from defendants’	status	as the	annexing	party.”).6 court’s	application	of	the	law	de	novo. See Paffhausen	v.	Balano ,	1998	ME	47, ¶ 5,	708	A.2d	269

. [¶ 9 ]	 	Atlantic	 argues	 that the court	 erred	 b y	 declining	 to	 find	 that	 the home	retained	its	character	as	personal	property because the parties	agreed, via	their contract , that	title	would	pass	to	Pham	only	upon	either	payment	in full	or	acceptance	of	a	retail	installment	contract. 5 The argument derives from languag e in Sutton	v.	Frost , 432	A.2d	1311	(Me.	1981) .		There, we	addressed	a dispute	over	the	ownership	of	a	prefabricated	building	that	a tenant built	on leased	land	for	use	as	a	real	estate	office before	the	land	was	sold

. Id. at 1313.
W e	noted	the	general	rule	that	“ buildings	of	a	permanent	character	are	a	part of	 the	 realty	 and	 belong	 to	 the	 owner	 of	 the	land	 on	which	 they	 stand ” and explained	 further	 that	 “[a] building of	a	permanent	character can	be	held	by another as	 personal property with	 the	 right	 of	 removal	 only under	 some agreement,	express	or	implied,	with	the	owner	of	the	land. ” Id. We vacated the trial	 court’s	 summary	 judgment	 in favor	 of the purchasing	 landowner , concluding	that	disputes	of	material	 fact	existed	as	to	whether an agreement that	 the	 building	 would	 remain	 the	 personal	 property	 of	 the tenant existed

5 Atlantic	also	argues	that	the	court	should	have	determined	that	the	home	retained	its	character as	personal	property	simply	because	it	would	be	possible	to	dis as semble	the	home	in	approximately the	same	amount	of	time	that	was	req uired	to	assemble	it.		We	are	not	persuaded	by	this	argument and	we	do	not	address	it	further.7 between	 the tenant and	 the	 original	 landowner ,	 and	 if	 so,	 whether	 the purchasing land owner	had	actual notice	of	that	agreement. Id. at 131 5

. [¶1 0 ]		Contrary	to	Atlantic’s	argument, Sutton was	an	application	of

— not a	 departure	 from

— the	 standards	 expressed	 in Harvey and	 earlier	 cases .	 	 In Harvey , the	 plaintiff ’s	 predecessor

- in

- interest sold	 a	 mobile	 home	 to the defendants,	and	a n installment contract	p rovided	that	the	home	“was	to	remain at	all	 times	personal	property” and	 that	 the	plaintiff could repossess	it	upon default	by	the defendants

. 420	A.2d at	232 (quotation	marks	omitted) .		After the	defendants	 failed	to	make	payments,	the	plaintiff	 filed	a	complaint	under the	predecessor	to	section	7071,	14	M.R.S.A.	§	6012	(1980 ). 6 Harvey ,	420	A.2d
at	 23 2

- 3 3 ,	 233 n.2

. On	 appeal,	 after	 reiterating	 the	 three

- par t standard for determining	whether	the	mobile	home	had	become	“ so	related	to	land	on	which
it	rest [ed] as	to	become	a	part	of	the	land ,”	we remanded	for	the trial	court to apply	 th at standard	 because	 the	 initial	 record	 had	 not	 been	 developed	 to include	 any evidence	 about	 “ the	 nature	 of	 the	 mobile	 home ’ s	 physical attachment	 to	 the	 land [,] i.e., whether	 utilities	 were	 connected,	 whether	 a foundation	was	built	and	the	vehicle	placed	thereon,	whether	the	wheels	were still	in	 place,	 and	 so	 forth .” Id. at	 23 4

- 36. We also	 specifically	 rejected	 the

6 Section 6012	was	replaced	by	section	7071	in	2009 , s ee P.L.	2009,	ch.	245,	 §§	5

- 6	 (effective Sept. 12, 2009),	but	the	substance	of	the	statute that	is	relevant	to	this	appeal remained	the	same.8 plaintiff’s	argument	 that	 the	contract	provision	stating	 that	 the	mobile	home was	to	remain	personal	property	was	dispositive : The	contract	may	establish	 the	original	intention	of	both	parties, but	it	does	not	necess arily	establish	whether	or	not,	in	breach	of the	 contract,	 the	 defendants	 may	 have	 subsequently	 affixed	 the mobile	 home	 to	 land	 with	 intention	 to	 make	 it	 a	 permanent accession	to	the	land. Whether	defendants	subsequently	so	acted remains	 a	 question	 of	 fac t	 to	 be	 decided	 on	 the	 basis	 of	 all	 the relevant	circumstances.
Id. at	236. [¶1 1 ] In Sutton , one	of	the	central	factual	issues was similar: whether	the tenant	who	had	annexed	the	building	to	the	real	estate	had	done	so based	on	an agreement that	the	annexation	would	be	permanent	and would thereby	pass title	to	the	building	to	the	owner	of	the	real	estate. 432	A.2d	at	1315. We	did not	 overrul e Harvey in	 discussing	 that	 issue. In	 fact,	 we	 cited Harvey with approval,	 stating	 that the	 factors	 for	 “ determining	 whether	 an	 implied agreement	 exists	 that	 a	 building	 remain	 personalty	 are

.	 .	 . the	 same	 factors involved	in	determining	whether	any	personalty	has	become	part	of	the	realty on	which	it	rests. ” Id. at	1314	n.4. T he	import	of	our	decision	in Sutton is	that evidence	 of	 an	 agreement	 that	 personalty annexed	 to another’s	land	 remain
per sonalty	 is	 relevant	 to	 the question of	 the	 annexor’s	 intent but	 not determinative	of	the	question

. Id. at	1313

- 1 5 .		Other	evidence	relevant	to	that9 fact

- sensitive question includes evidence concerning “ the	structure	and	mode of	attachment,	the	purpose	and use	for	which	the	annexation	has	been	made [,] and	 the	relation	and	use	of	 the	party	making	it. ” 7 Id. at	1314	n.4	 (quot ation marks	omitted ) ; see	Harvey ,	420	A.2d	at	235

- 36	(rejecting the argument	“ that the	issue	of	the	parties ’ intention [was] conclusively	settled	by	the	language	in the	contract ”	and	suggesting	 that	evidence	relevant	 to	 the	question	of	intent would	 include	 “ testimony	 about	 the	 nature	 of	 the	 mobile	 home ’ s	 physical attachment	 to	 the	 land [,] i.e.,	 whether	 utilities	 were	 connected, whether	 a foundation	was	built	and	the	vehicle	placed	thereon,	whether	the	wheels	were still	in	place,	and	so	forth ”)

. [¶1 2 ]	 	 Here, the	 trial	 court	 found	 that	 notwithstanding	 the	 contract language	 concerning	 transfer	 of	 title	 upon	 payment,	 both	Atlantic	a nd	Pham “intended	 [for]	 the	 modular	 home	 to	 be	 permanently	 attached	 to	 the	 real
estate.” 8 That	finding	is	supported	by	the	evidence	that	the	modular	home	was

7 Moreover, as	we	explained	in Sutton ,	the	law	favors	an	inference	that	the	annexation	was	not intended	to	be	permanent	where the	parties are landlord	and	tenant , e specially	where the tenant’s building is a	trade	fixture. See	Sutton	v.	Frost ,	432	A.2d	1311,	1313

- 14	(Me.	1981) (“ Where	the	parties are	related	as	landlord	and	tenant,	the	law	tends	to	infer	that	annexations	made	by	the	tenant	are intended	to	be	temporar y,	since	it	is	unlikely	that	the	tenant	meant	to	deprive	himself	of	his	property. T his	inference	is	 especially	 strong	 where	 the	 annexation	is	 a	 trade	 fixture,	i.e.,	 property	 which	 a tenant	 has	 placed	 on	 rented	 real	 estate	 to	 advance	 the	 business	 for	 which the	 realty	 is	 leased. ” (citations	omitted)); see	also 8	Michael	A.	Wolf, Powell	on	Real	Property §	57.05[2][b]	(202 2 ) .		B oth of	those	factors	were	present	in Sutton but	are	absent	here.

8 Atlantic	does	not	challenge	the	court’s	additional	findings	that	the	home and	other	items	were “physically	annexed	to	the	real	estate” and	that	the y	and	the	real	estate	had	become united in	pursuit10 installed	 for	Pham’s	use	as	a	residence	on	Pham’s	property , not	 for	Atlantic’s continued	use;	th at	the	contract	required	payment	as	a	prerequisite	to	delivery of	the	home;	that	the	home	was	nailed	to	a	pre

- dug	foundation	and	connected to	utilities	and	a	well	with	durable	materials;	that	finish	work	was	required	to seal	 the	 joints	 where	 the	 two	 units met;	 and	 that	 Atlantic	 had	 never disassembled	a	modular	home	that	it	had	installed	pursuant	to	a	sales	contract. Although	 each	 case	 is	 fact

- specific,	 other	 courts	 have	 reached	 or	 affirmed similar	 findings	based	on	similar	evidence. See ,	e.g. , Far	West	Mo dular	Home Sales,	 Inc.	 v.	 Proaps ,	 604	 P.2d	 452,	 454

- 55	 (Or.	 Ct.	 App. 1979) ; Prospecting Unlimited,	Inc.	v.	Norberg ,	376	A.2d	702,	705	(R.I.	1977) ; Hall	v.	U.S.	Bank	Tr.,
N.A. ,	 No. 1:14

- cv - 615,	 2014	 U.S.	 Dist.	 LEXIS	 190150, at *13

- 15	 (W.D.	 Mich.
Oct. 14, 2014)

. [¶1 3 ]		Because	the	trial	court	did	not	misapply	the	law	and	its	findings are	supported	by	the	record	evidence,	we	affirm	the	judgment.		We	note	that our	specific	conclusion	means	only that	Atlantic	cannot	obtain	relief	pursuant to	 section	 7071,	 which	 authorizes	 the District	 Court to	 order	 the	 return	 of personal	property. See 14	M.R.S.	§	7071( 6 ).		We	are	not	here	called	upon	(nor able,	on	the	record	before	us)	to	examine	whether	Atlant ic	could obtain	relief

of the “common	 enterprise ”	 of	 “ human	 habitation

. ” See	 H artford	 Nat ’ l	 Bank & Tr

. Co.	 v.	 Harvey , 420 A.2d	230,	235	(Me. 1980) .		These	findings	are	supported	by	the	record.11 by	pursuing other remedies. See 14	M.R.S.	§ 7071(10)	(“ The	remedy	provided
in [ section 7071] is	a	remedy	in	equity	and	is	in	addition	to	and	not	in	lieu	of another	remedy. ”)

. The	entry	is: Judgment	affirmed.

Jason	 Dionne,	 Esq.,	 Dionne	 Law,	 P.A.,	 Auburn,	 for	 appellant	 Atlantic	 Home Solutions , Inc. Q uang	Pham	did	not	file	a	brief

Aug usta	District	Court	docket	number	SA

- 2019

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