MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	25

Docket: Pen-19-107

Argued: January 8,	2020

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. The	 trial	 court’s	 factual	

findings	were	supported	by	the	evidence	and	the	court	made	no	legal	errors	in	

deciding in	favor	of	the	Rancourts.		We	affirm	the	decision	of	the	Superior	Court.	

 * Although	 Justice	 Alexander participated	 in	 the	 appeal,	 he	 retired	 before	 this	 opinion	 was	

certified.
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I.		BACKGROUND

[¶2]	 	 The	 trial	 court	 made	 the	 following	 factual	 findings, which	 are	

supported	by	the	record.	 See	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 their 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’	adjustments	
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further	“compromised	 the	safety	and	durability	of	 the	house”	and	“increased	

the	hazard	of	catastrophic	failure.”	

[¶4]		After	living	in	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	 “blueprints”	 of	 the	 house.

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]	 	The	house’s	 deficiencies	 first	 came	 to	light shortly	 after	the	 sale.

Although	 the house	was	 “substantially	 flawed	 from	 the	 tip	 of	 the	 roof	 to	 the	

drainage	 system	 underneath,” the Rancourts	 “were	 as	 surprised	 as	 the	
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Wuestenbergs to	 learn	 of	 the	 existence	 and	 magnitude	 of	 the	 deficiencies	

identified	after the	transaction.” (Emphasis	added.)

[¶6]	 	 The	 Wuestenbergs	 sought	 to	 pursue mediation	 shortly after	

discovering	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	

house’s	 sale	 and	 defects. As	 amended	 in	 2016,	 the	 complaint	 included	 the	

following	 counts:	 (1) Fraud—False	 Representation	 and	 Active	 Concealment;	

(2)	 Fraud—Failure	 to	 Disclose	 Known	 Defects;	 (3)	 Fraud—Material	

Misrepresentation	 as	 to	 Existence	 of	 Gardner	 Plans;	 (4)	 Negligent	

Misrepresentation;	 (5)	 Breach	 of	 Implied	 Warranty	 of	 Workmanlike	

Construction;	(6)	Breach	of	Implied	Warranty	of	Habitability;	(7) Negligence;	

(8)	 Strict	 Liability;	 (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,	the	court	granted	summary	judgment	

for	the	Rancourts	on	Counts	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	granted	
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judgment	in	favor	of	the	Rancourts	on	Counts	1-4, 7, and	9-11. Following	the	

court’s	 denial	 of	 the	 Wuestenbergs’ motion	 for	 further	 findings	 of	 fact,	 the	

Wuestenbergs	timely	appealed.	 See M.	R.	App.	P.	2B.

II.		DISCUSSION

[¶8]	 Our	review is	confined	to the	trial	court’s	explicit findings,	see	Ehret,	

2016	ME	43,	¶	12,	135	A.3d	101;	M.R.	Civ.	P.	52(b),	which	we	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 whether	the	Rancourts	

possessed the requisite knowledge with	respect	to the	Wuestenbergs’	claims.	

The	 court’s	 findings	 that	 the Rancourts lacked	 the	 requisite	 knowledge	 are	

amply	 supported	 in	 the record, which	 includes	 hundreds	 of	 exhibits	 and	

transcripts	from	fifteen days of	trial.	 The	Wuestenbergs’	individual	arguments	

are	addressed	in	turn.
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A. Count	 1	 (Fraud—False	 Representation	 and	 Active	 Concealment)	 &

Count 2	(Fraud—Failure	to	Disclose	Known	Defects)

[¶10] The	 Wuestenbergs	 first	 argue	 that	 the	 trial	 court	 denied	 their	

claims	 for false	representation	and	failure	 to	disclose 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)	 failed	 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).		

[¶11]	 The	sellers’	 knowledge	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.” (Emphasis	added.)		As	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	due	
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regard	 to	 the	 trier	 of	 fact’s	 determinations	 on	 credibility,	 weight	 and	

significance	of	evidence.”	 Id.		

[¶12] Recounting	 Mr.	 Rancourt’s	twenty-two	 hours	 of	 testimony, the	

trial	court	observed,	“To	describe	the	examination	of	Mr.	Rancourt	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	

of	 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)

[¶13]	 	 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.		Liability	for	material	misrepresentation	requires	that	a	defendant	have	

knowingly	 or	 recklessly made a	 false	 representation	 of	 a	 material	 fact. See	
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Letellier	v.	Small,	400	A.2d	371,	376	(Me. 1979). The	Wuestenbergs	argue	that	

the	court made	erroneous	factual	findings	and	erred	in	denying	this	claim.

[¶14]	 	 However,	 there	 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)

[¶15] 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	

transaction	in	which	he	has	a	pecuniary	interest,	supplies	 false	information	 for	the	

guidance	of	others	in	their	business	transactions,	is	subject	to	liability	for	pecuniary	
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a	 duty,	 pursuant	 to	 33	 M.R.S.	 §	 173(5) and	 the	 disclosure	 form,	 “to	 use	

reasonable	care	to	inform	themselves” and	disclose known	risks.

2

[¶16]	 	 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 the	“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,	 these findings 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,	 270-71 &	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.”	 (Emphasis	added.)		The	Rancourts	posit	 that	 the	statute must	bar any	negligent	

misrepresentation	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.
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D. Count	11	(Breach	of	Contract—Purchase	and	Sale	Agreement)

[¶17] 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	suffer	

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).		

[¶18]	 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 “everyone	

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	record.
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III.	 CONCLUSION

[¶19]	 	 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,	 “[The]	 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,	the	trial	court’s findings were

supported	 by	 the	 record.	 	 Accordingly,	 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

FOR	CLERK	REFERENCE	ONLY

 3 We	 are	 unpersuaded	 by	 the	 Wuestenbergs’	 argument	 regarding	 the	 Maine	 Unfair	 Trade	

Practices	Act (Count	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	(Count	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.”).