MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 25 Docket: Pen

- 19

- 107 Argued : Jan uary 8 ,	20 20 Decided: February	25,	2020 Panel: SAUFLEY,	C.J.,	and	MEAD, GORMAN , JABAR,	and	HUMPHREY,	JJ. *

MICHAEL	WUESTENBERG	et	al.

v. HARRY	J.	RANCOURT III et	al.

JABAR ,	J. [¶1] The	 plaintiffs, Michael	 and	 Rosemarie	 Wuestenberg , appeal	 the Superior	 Court’s (Penobscot	 County, Mallonee,	 J. ) decision	 in	 favor	 of defendants, Harry	and	Stephanie	Rancourt , following	a fifteen

- day bench	trial
on	 the Wuestenbergs’	 claims	 against the	 Rancourts arising	 from	 the Wuestenbergs’	 purchase of	 the	 Rancourts’ house

. T he	 trial	 court’s	 factual findings	were	supported	by	the	evidence	and	the court	made	no	legal	error s in deciding in	favor	of	the	Rancourts .		W e	affirm	the	decision	of	the	Superior	Court.

* Although	 Justice Alexander participated	 in	 the	 appeal,	 he	 retired	 before	 this	 opinion	 was certified.2 I.		BACKGROUND [¶ 2 ] The trial court made	 the	 following	 factual	 findings, which	 are supported	by	the	record. S ee Vermont	Mut.	Ins.	Co.	v. Ben

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

. Because the	trial	court	denied	the	Wuestenbergs ’ motion	for
further factual findings , see M.R.	Civ.	P.	52(b),	we	consider	only	the	findings	and conclusions	explicitly	rendered	by	the	court. See Ehret	v.	Ehret , 2016	ME	43, ¶ 12,	135	A.3d	101

. [¶ 3 ] The	Rancourts ,	though	“millwrights	by	trade,”	have	carried	on	a	side business	 of	 building	 and	 selling	 houses for	 a	 number	 of years. In	 the	 early 2000s,	the Rancourts	built a	family	home for	themselves that	was	not intended
to	 be	 sold	 as part	 of th eir business ,	 using	 design	 plans ,	 called	 the	 “Gardner plans,”	that they purchased	from	a	southern	architectural	firm

. The	court	found that	 the	 Gardner	 plans	 were	 designed	 for	 home	 construction	 in	 the	 south, “where	 the	 snow load	 a	 house	 must	 bear	 is	 substantially	 less	 than	 that	 in northern	 New	 England;	 as	 a	 result,	 the	 house	 would	 have	 been	 structurally inadequate	even	had	it	been	built	exactly	as	.

. . designed. As	finally	built,	the house	deviated	from	[the	Gardner]	plans in	ways	that	further	compromised	its design	integrity.”		Additionally,	the	court	found	that	the	Rancourts’	adjustments3 further	“compromised	 the	safety	and	durability	of	 the	house”	and	“increased the	hazard	of	catastrophic	failure.” [¶ 4 ] A fter living	i n	the	house	for more	 than	a	decade and raising	their

son there , in	March	2013 the	Rancourts decided	to	sell their	home and entered
into a	 purchase	 and	 sale agreement	 with	 the	 Wuestenbergs. The	 original agreement	 required	 that	 the	 Rancourts	 provide	 “bluepr ints”	 of	 the h ouse . Although	unclear to	 the	Rancourts at	 the	 time	 the	agreement	was	entered, it was	later	understood that	the	“blueprints”	referred	to the	Gardner	plans

. The Gardner	plans’ whereabouts	were	unknown	to	the	Rancourts , however, and	the parties	agreed	 to substitute building	 specifications

. The	Gardner	plans	were later	discovered	and	 turned	over	during	 the	course	of	litigation. Despite the fourteen	 pre

- closing	 inspections that the agreement allowed ,	 the Wuestenbergs	had only one inspection performed before	the	sale	was	finalized

. The	 home	 inspector	 discovered	 and	 reported	 a	 few	 minor	 items	 needing potential	remediation,	but	listed	“None”	next	to	Material	Defects. [¶ 5 ] T he h ouse’s	 deficiencies	 first	 came	 to	light shortly	 after the	 sale

. Although	 the h ouse	was	 “substantially	 flawed	 from	 the	 tip	 of	 the	 roof	 to	 the drainage	 system	 underneath , ” the Rancourts	 “were	 as	 surprised	 as the4 Wuestenbergs to	 learn	 of	 the	 existence	 and	 magnitude	 of	 the	 deficiencies
identified after the	trans action.” (Emphasis	added.) [¶ 6 ] T he	 Wuestenbergs sought	 to	 pursue mediation shortly after
discover ing the	defects

. Unfortunately,	the	Rancourts	were living	and	working
out	 of	 state at	 the	 time	 and	 did	 not	 receive the	 Wuestenbergs’	 mediation requests until	 they	 returned	 a	 few	 months	 later. The Wuestenbergs filed a complaint	 in Superior	 Court in	 July	 2014 , alleging counts	 arising	 from	 the
h ouse’s	 sale	 and	 defects

. As	 amended	 in	 2016,	 the	 complaint	 included the following c ounts :	 (1) F raud

— F alse R epresentation	 and A ctive C oncealment; (2) F raud

— F ailure	 to D isclose K nown D efects;	 (3) F raud

— M aterial
M isrepresentation	 as	 to E xistence	 of	 Gardner P lans;	 (4) N egligent
M isrepresentation;	 (5) B reach	 of I mplied W arranty	 of W orkmanlike
C onstruction ;	(6) B reac h	of I mplied W arranty	of H abitability;	(7) N egligence; (8) S trict L iability;	 (9)	 Violation	 of	 the	 Unfair	 Trade	 Practices	 Act	 (UTPA); (10) Punitive	 Damages;	 and	 (11)	 Breach	 of	 Contract

— Purchase	 and	 Sale Agreement

. During	the	pretrial	process,	t he	court	granted	summary	judgment for	the	Rancourts	on C ounts	5,	6,	and	8. [¶ 7 ] The court held a fifteen

- day bench	trial on	the	remaining	counts in
2018. On January	15,	2019,	 the	court	issued	 extensive	 findings	 and	granted5 judgment	in	favor	of	the	Ranc ourts	on Counts	1

- 4 , 7 , and	9

- 11

. Following	the
court’s	 denial	 of	 t he	 Wuestenbergs ’ motion	 for	 further	 findings	 of	 fact, t he Wuestenbergs	timely	appeal ed

. See M.	R.	App.	P.	2B.
II.		DISCUSSION [¶ 8 ] Our review is	confined	to th e	trial	court’s	explicit findings , s ee Ehret , 2016	ME	43,	¶	12,	135	A.3d	101 ; M.R.	Civ.	P.	52(b) ,	which	w e	review “ for	clear

error and	will	affirm

.	 .	 . if	 they	are	 supported	by	competent	evidence	in	 the
record , even	 if	 the	 evidence	 might	 support	 alternative	 findings	 of	 fact.”
Handrahan	 v.	 Malenko ,	 2011	 ME	 15,	 ¶	 13,	 12	 A.3d	 79 (quotation	 marks omitted)

. As	the	party	with	the	burden	of	proof	at	trial,	the	Wuestenbergs must establish on	this	appeal that contrary	findings	were	compelled	by	the	evidence.
See id

. [¶ 9 ] The	 Wuestenbergs	 purport	 to	 raise	 a	 number	 of	 issues	 in	 this appeal,	but	they	can	be	reduced	to the pivotal	issue of w hether	the Rancourts possessed the requi site knowledge with	respect	to the	Wuestenbergs’	claims

. T he	 court’s	 findings that the Rancourts lacked	 the	 requisite	 knowledge are amply	 supported	 in	 th e record , which	 includes hundreds	 of	 exhibits	 and transcripts	from fifteen days of	trial

. The Wuestenbergs’ individual	arguments
are	addressed	in	turn.6 A. Count	 1 ( Fraud

— False	 Representation	 and	 Active	 Concealment) & Count 2 ( Fraud

— Failure	to	Disclose	Known	Defects ) [¶1 0 ] T he	 Wuestenbergs first argue	 that	 the	 trial	 court	 denied	 their
claims	 for f alse r epresentation	and f ailure	 to d isclose based	on	an	erroneous finding	 that	 the	 Rancourts	 lacked	 the	 requisite	 knowledge of	 the	 home’s defects

. Specifically, the	Wuestenbergs	contend	 that the	Rancourts (1)	made false	representations	and	actively	concealed	certain	defects	in	 the	home,	and (2)	 fa iled	 to	 disclose known structural deficiencies resulting	 from	 their
construction	 of	 the	 home

. On	 both	 counts	 they	 contend	 that	 the Rancourts committed	common	law	fraud	and	violated 33 M.R.S. § 173(5) (2018)

. [¶ 1 1] The	sellers’	 k nowledge of	 the	defects is	a	necessary	element	 for
both	counts.		Pursuant	to 33	M.R.S.	§	173(5) ,	the	Rancourts	were	required to disclose	to	the	Wuestenbergs “[a]ny known defects. ” (E mphasis	added

. ) A s	the trial	court	noted, “ the	contested	elements	of	each	claim	concern	the	state	of [the Rancourts’] knowledge	of	these	shortcomings .” To	prove Counts	1	and	2 ,	the Wuestenbergs	needed	to	show	that	the	Rancourts	had	knowledge	of	the	falsity of	 their	 representations. See Francis	v. Stinson ,	2000	ME	173,	¶ ¶ 38

- 39 ,	760 A.2d	209

. “It	is	primarily	for	the	factfinder	to	judge	the	credibility	of	witnesses and	 to	consider	 the	weight	and	significance	of	any	other	evidence. ” Tonge	v. Waterville	Realty	Corp., 448	A.2d	902,	905	(Me.	1982)

. We	therefore “ give	due7 regard	 to	 the	 trier	 of	 fact ’ s	 determinations	 on	 credibility,	 weight	 and significance	of	evidence.” Id. [¶1 2 ] Recounting Mr.	 Rancourt’s twenty
- two hours	 of	 testimony , the trial court	observed, “To	describe	the	examination	of	Mr.	R ancourt	as	thorough would	be	understatement	to	the	point	of	falsehood.” The	trial	court	found	his testimony	to be	credible	and	reinforced	by	other	evidence,	observing	that	“Mr. Rancourt	never	directly	admitted	having	spoken	falsely	or	concealed	evidence

o f	 flaws	 in	 the	 house.” Further	 “bearing	 on	 the	 court’s	 assessment	 of
Mr. Rancourt’s	testimony	[was]	his	stubborn,	mistaken,	insistence	that	he	had built	the	house	‘to	Code.’” The trial court ’s explicit	finding that	the	Rancourts

“ did	not	have	the knowledge	and	understanding	critical	to	each	cause	of	action ” is	supported by	competent	evidence in	the	record

. B

. Count	3	( Fraud

— Material	Misrepresentation ) [¶1 3 ] The	 Wuestenbergs	 next	 argue	 that	 the	 court made	 erroneous factual	 findings	as	 to whether the Rancourts understood	what	was	meant	by “blueprints”	and whether	 they	had	 knowledge	 of	 the location	 of	 the	Gardner plans. L iability	for	material	misrepresentation	requires	that	a	defendant	have knowingly	 or	 recklessly ma de a	 false	 representation	 of	 a	 material	 fact

. S ee8 Letellier	v.	Small ,	400	A.2d	371,	376	(Me. 1979)

. T he	Wuestenbergs	argue	that
the	court made	erroneous	factual	findings	and	erred	in	denying	this	claim

. [¶1 4 ] However,	 t here	 was	 no	 error	 in	 the	 court’s finding	 that	 the “Rancourts	did	not	understand	they	were	being	asked	at	the	time	of	the	sale	for the	[Gardner]	plans

.	.	. or,	if	they	did	understand	it,	they	did	not	know	where those	 plans	 were.” The	 trial	 court	 “conclude[d]	 the	 Rancourts	 were	 to	 be believed	when	they	testified	they	looked	for	the	Gardner	Plans	and	could	not find	them.” Even	if ,	as	the	Wuestenbergs	suggest, the	evidence	might	support alternative	 findings	 of	 fact , the trial court’ s	 findings regarding	 the	 Gardner plans are	 well

- supported	 by	 competent	 evidence	 in	 the	 record	 and	 not

erroneous. See Handrahan ,	2011	ME	15,	¶	13,	12	A.3d	79

. C. Count	4 (Negligent	Misrepresentation) & Count 7 ( Negligence ) [¶1 5 ] The	 Wuestenbergs ,	 once	 again	 contending	 that the	 court made erroneous	findings	regarding the	Rancourts ’	knowledge of	the home’s defects
and risks , next	 argue	 that	 the	 court erred	 in	 denying	 their	 claims for negligence

. 1 More	specifically,	the	Wuestenbergs	assert	that	the Rancourts	had

1 We	have	adopted	section 552 (1)	of	the	Restatement	(Second)	of	Torts	(1977) as	the	appropriate standard	for	negligent	misrepresentation	claims. See Rand	v.	Bath	Iron	Works ,	2003	ME	122,	¶	13, 832	A.2d	771 .		The	standard	is	defined	as	follows: One	who,	in	 the	course	 of	his	business,	profession	or	employment,	or	in	any	other trans action	in	which	he	has	a	pecuniary	interest,	supplies	 false	information	 for	the guidance	of	others	in	their	business	transactions,	is	subject	to	liability	for	pecuniary9 a	 duty ,	 pursuant	 to 33	 M.R.S.	 §	 173(5) and	 the d isclosure f orm , “ to	 use reasonable	care	to	inform	themselves ” and	disclose known	risks

. 2 [¶1 6 ] The	 trial	 court	 did	 not	 reach	 the	 issue	 of	 whether	 there	 was	 a
breachable duty	in	this	case,	because	it	determined that	the	Rancourts “did	not possess	the	knowledge	the	Wuestenbergs	blame[d]	them	for	not	providing,	and they	 had	 no	 reason	 to	 know	 it	 in	 light	 of	 their	 uneventful	 interaction	 with inspecting	authorities , ” including th e	“ failure	of

.	.	. the	building	inspector

.	.	. or of	any	other	inspecting	or	licensing	authority [] to	call	the	Rancourts ’ work	into question	 as	 the	 house	 was	 being	 built

. ” Once	 again,	 th ese finding s are supported	by	competent	record	evidence

.

loss	caused	 to	 them	by	 their	justifiable	reliance	upon	 the	information,	if	he	 fails	 to exercise	 reasonable	 care	 or	 competence	 in	 obtaining	 or	 communicating	 the information. Id .	(quoting	Restatement	(Second)	Torts	§	552(1)) (emphasis	omitted) .		In	applying	this	standard, “the	fact

- finder ’ s	primary	task	is	to	ascertain	whether	the	defendant ’ s conduct	was	reasonable.” Id

. The	 Rancourts	 assert	 that	 this	 cause	 of	 action	 is	 precluded	 by	 the	 economic	 loss	 doctrine. See Oceanside	 at	Pine	 Point	 Condo.	 Owners	 Ass'n	 v.	 Peachtree	Doors,	 Inc

. ,	 659	 A.2d	 267,	 2 70

- 71 &	n.4 (Me. 1995)

. We	need	not	reach the	issue	because the trial court	found	that	the	Wuestenbergs ’	own negligence	would	have	precluded	any	recovery	because	they “ declined	an	opportunity	 for	diligent evaluation,	an	opportunity	which	was	explicitly	recorded	in	their	purchase	and	sale	agreement and which	they	read	and	evaluated	before	signing .”

2 As	previously	discussed, 33	M.R.S.	§	173(5) (2018) required	the	Rancourts	to	disclose	“[a]ny known defects.” (E mphasis	added

. ) The	Rancourts	posit	 that	 the statute must	bar any	negligent misreprese ntation	claim	for	defects that they	allegedly	“should	have	known ” of. We	need	not reach this	issue either, because	the	trial	court	also	found	that	the	Rancourts	had	no	reason	to	know	of	the defects.10 D. Count	11	( Breach	of	Contract

— Purchase	and	Sale	Agreement ) [¶1 7 ] Finally,	 the	 Wuestenbergs	 argue	 that the	 trial	 court	 erred	 in denying	their	claim for	breach	of	contract when	it	found	that “the	absence	of mediation	 was	 not	 predicated	 on	 a	 refusal	 or	 any other	 conduct	 by	 [the Rancourts]	that	constituted	a	breach	of	contract

. ” To obtain	relief	for	a	breach of	 contract,	 the	 plaintiff must	 “ demonstrate	 that	 the	 defendant	 breached	 a material	term	of	the	contract,	and	that	the	breach	caused	the	plaintiff	to	su ffer damages. Similarly,	the	question	of	whether	there	has	been	a	breach	of	contract is	a	question	of	fact .” Tobin	v.	Barter ,	2014	ME	51,	¶	10, 89	A.3d	1088 (quotation marks	omitted). [¶1 8 ] The mediation	clause	stated in	pertinent part that “ [i] f	a party	does not	agree	 first	 to	go	 to	mediation,	 then	 that	party	will	be	liable	 for	 the	other party’s	legal	fees	in	any	subsequent	litigation	.	.	.	in	which	the	party	who	refused to	go	to	mediation	loses	.	.	.	.” The	trial	court	expressly	found	that “everyo ne acted	 in	 good	 faith	 and	 no	 one	 did	 anything	 wrong. .	 .	 .	 [T] he	 absence	 of mediation	 was	 not	 predicated	 on	 a	 refusal	 or	 any	 other	 conduct	 by [the Rancourts] that	constituted	 a	breach	 of	 contract .” This ,	 too, is	 supported	by competent evidence	in	the	rec ord.11 III. CONCLUSION [¶1 9 ] Contrary	 to	 the	 Wuestenbergs’	 arguments, 3 the	 court’s	 explicit findings	were	comprehensive,	detailed,	and	adequately	supported	by	evidence in	the	record, including	testimony	and	exhibits from	the fifteen

- day bench	trial.
As the	 trial	 court	 expressed,	 “[ T he]	 finding	 that	 there	 was	 no	 actionable misconduct	by	the	Rancourts	does	not	minimize	the	monetary	and	emotional cost	of	the	dispute	to	the	parties.” Nevertheless,	th e	trial	court’s finding s w ere supported	 by	 the	 record.	 	 A ccordingly,	 the	 court	 committed	 no	 error

. See Handrahan , 2011	ME	15,	¶ 13,	12	A.3d	79

. The	entry	is: Judgment	affirmed.

Timothy	C.	Woodcock,	Esq. (orally) ,	and	David	C.	Pierson,	Esq.,	Eaton	Peabody, Bangor,	for	appellants	Michael Wuestenberg	and Rosemarie	Wuestenberg David	A.	Goldman,	Esq. (orally) ,	Norman,	Hanson	&	Detroy,	LLC,	Portland,	for appellees	Harry	J.	Rancourt,	III , and	Stephanie	J.	Rancourt

Penobscot	County	Superior	Court	docket	number	CV

- 2014

- 129 F OR C LERK R EFERENCE O NLY

3 We are	 unpersuaded	 by the	 Wuestenbergs’	 argument	 re garding	 the Maine	 Unfair T rade P ractices A ct ( C ount	9) , see 5	M.R.S.	§§	205

- A

– 214 (2018) , because	the	trial	court	found	that	the	sale of	the	house	was	not	related	to	the Rancourts’ business. The punitive	damages claim ( C ount	10) fails because	 there	 was	 no	 underlying	 tort

. See Tuttle	 v.	 Raymond ,	 494	 A.2d	 1353, 1361	 (Me.	 1985) (“[P]unitive damages	 are	 available	 based	 upon	 tortious	 conduct	 only	if	 the	 defendant	acted	with malice. ”).