MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2016 ME	175

Docket: BCD-15-481

Argued: May	3,	2016

Decided: December	1,	2016

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

ARUNDEL	VALLEY,	LLC,	et	al.

v.

BRANCH	RIVER	PLASTICS,	INC., et	al.

HUMPHREY,	J.

[¶1]	 	 This appeal	 involves	 a	 complex	 construction	 dispute	 between	

Arundel	Valley,	LLC,	the	developer	of	a	facility	for	a	butter	manufacturer,	and	

Branch	River	Plastics,	Inc.,	a	manufacturer	and	distributor	of	insulated	roofing	

panels.	 After	 a	 six-day	 trial in	 the	 Business	 and	 Consumer	 Docket,	 a	 jury	

found	 in	 Arundel	 Valley’s	 favor	 on	 its	 claims	 that	 Branch	 River	 breached	

implied	 warranties	 by	 supplying	 defective	 roofing	 panels.	 	 Branch	 River	

appeals	 from	 the	 court’s	 (Horton,	 J.)	 denial	 of	 its	 motion	 for	 a	 new	 trial,	

arguing	that	(1)	it	was	unfairly	surprised	by	certain	expert	testimony	at	trial	

and	 (2)	 the	 court	 erroneously	 declined	 to	 adjudicate whether	 Branch	 River	

had	 disclaimed	 implied	 warranties.	 	 Because	 we	 agree	 with	 Branch River’s	
2

second	 contention,	we remand	 the	 case	 for	 the	 court to	 determine whether	

Branch	River’s	purported	disclaimer	of	implied	warranties	was	effective.

I.		BACKGROUND

[¶2]	 	 On	 December	 28,	 2012,	 Arundel	 Valley	 and	 Kate’s	 Homemade	

Butter,	 Inc.,	 filed	 a	 twelve-count	 complaint	 in	 the	 Superior	 Court	

(York County)	against Branch	River	and	other	defendants	alleging,	inter	alia,

defects	in roofing	panels	that	Branch	River	had	manufactured	and	supplied to	

Arundel	 Valley	 for	 a	 construction	 project. Branch River	 was	 named	 as	 a	

defendant	 in	 seven	 counts.

1	 	After the	 case	 was	 transferred	 to	 the	 Business	

and	 Consumer	 Docket,	 the	 court	 (Horton,	 J.)	 ultimately	 entered	 summary	

judgments	 in	 Branch	 River’s	 favor on	 five	 of	 those	 counts.

2 Two counts	

remained for	adjudication	at	trial,	with	Arundel	Valley	as	the	sole	plaintiff	and	

Branch	River	as	 the	sole	defendant.		In	those counts,	Arundel	Valley	claimed	

that Branch	 River	 had	 breached	 the	 implied	 warranties	 of	 merchantability	

 1 The	complaint	contained	five	counts	against	defendants	other	than	Branch	River;	each	of	those	

counts was	eventually	dismissed,	and	none	is	at	issue	on	appeal.		

2 The	 court	 also	 entered	 summary	 judgments	 in	 favor	 of	Branch	 River’s	 owner	 on	 all	 claims	

against	him	and	ruled	that	Kate’s	Butter	was	not	a	proper	plaintiff	in the	action.
3

(Count	 XI)	 and	 fitness	 for	 a	 particular	 purpose (Count	 XII) by providing

defective	roofing	panels.

3

[¶3]	 	 Before	 trial,	 pursuant	 to	 M.R.	 Civ.	 P.	 26(b)(4),	 Arundel	 Valley	

designated James	B.	DeStefano,	a	professional	engineer,	as	an	expert	witness.		

At trial, DeStefano	 testified,	 on	 direct	 examination, about	 two	 types	 of	

manufacturing	defects in	the	panels that	would	affect	the	roof’s performance:	

(1) manufacturing	 defects	 that	 created	 gaps	 between the	 panels,4 and	

(2) manufacturing	 defects	 involving gaps between	 foam	 components inside

each panel.5 Branch	River	did	not	object	to	this	testimony.

[¶4]		During	redirect,	counsel	for	Arundel	Valley	asked	DeStefano	about	

a	 “third	 report,”	 referring	 to	 a	 letter	 from	 DeStefano	 to	 an	 Arundel	 Valley	

representative that	described	“open	joints	between	sections	of	[] foam	within	

the	 panels.”	 	Counsel	 for	 Branch	River	 expressed	 concern	 that	 Branch	 River	

had	 not	 received	 the	 “third	 report,”	and	 that	it	was surprised at	DeStefano’s	

testimony	 describing	 defects	 inside each panel. Arundel	 Valley’s	 attorney	

 3		The	panels	at	issue	are	large	structural	insulated	panels,	or	“SIPs,”	each	of	which	is	composed	

of	 a	 flat	 foam	 core	 covered on	 both	 sides with	 oriented	 strand	 board	 sheathing,	 creating	 an	

insulated	sandwich	panel designed	to	increase	the	energy	efficiency	of	a	structure.

4		DeStefano	 testified,	 “[T]here’s	a	gap	here	between the	 foam	 faces.		But	 you’ll	notice	 that	 the	

skins,	the	[oriented	strand	board]	skins,	are	in	tight	contact.		So	the	installer	putting	this	together,	

even	if	he	was	an	expert	at	it,	could	not	have	physically	gotten	those	panels	any	closer	together.”

5		DeStefano	testified,	“We	found	that	inside	each	individual	panel,	there	was	actually	a	space	or	

a	gap	in	between	the	individual	blocks	of	foam,	and	there	was	no adhesive	bonding	it	together.”
4

argued	 that	 the	 letter	 was	 attached	 to	 a	 pretrial	 motion	 in	 limine and	 that	

Arundel	Valley had	otherwise	made	Branch	River	aware	that	DeStefano	would	

testify	 about	 both	 types	 of	 defects.	 	 After	 some	 discussion,	 Branch	 River’s	

counsel	 said, “if	 you’re	 going to	 represent	 to	 [the	 court]	 that	 you	 produced	

[the	letter] in	some	fashion,	I’ll	accept	that.”

[¶5]	 	The	 court suggested	 that	 counsel	 for	 Arundel	 Valley	 clarify	with

DeStefano	 that	the	letter	 concerned	issues	he had	already	testified	about on	

direct	 examination.	 	The	 letter	was	not offered	 as	 an	 exhibit	 or	 admitted	in	

evidence.	 Branch	 River	 did	 not	 object	 to	 DeStefano’s	 continued	 redirect	

testimony	 about	 the	 “third	 report” or	 the	 defect	 inside	 the	 panels,	 did	 not	

further	address	the	issue	on	recross,	and	did	not	raise	the	issue	again	at	trial.

[¶6]	 	 The	 jury	 heard	 testimony	 during	 trial	 that	(1)	 all	 Branch	 River	

products	 came	 with	 a	 “standard”	 twenty-year	 warranty;	 (2)	 Branch	 River’s	

president	had	 told	Arundel	Valley	it	was	voiding	the	“standard”	warranty	on	

the	panels	after	issues	with	their	installation	first	arose;	(3)	Branch	River	later	

sent	 an	 express	 warranty	 document	 to	 Arundel	 Valley,	 which	 included	 a	

disclaimer	 of	 implied	 warranties;	 and	 (4)	 Arundel	 Valley	 never	 signed	 that	

document.	 	 No document	 containing	 the	 “standard”	 warranty	 that	 Branch	

River	purportedly	voided	was	ever	identified	with	specificity.		Branch	River’s	
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Exhibit	 21,	 a	 document	 that	 contains an	 express	 warranty	 and	 purports	 to	

disclaim	any	implied	warranties,	was	identified	by	Branch	River’s	president	as	

the	express	warranty	document	 that	he	 sent	 to	Arundel	Valley	after	voiding	

the	“standard”	warranty.

[¶7]	 	 On	 the	 fifth	 day	 of	 trial,	 the	 court	 conferred with	 counsel in	

chambers to	 discuss	 jury	 instructions	 and	 a	 verdict	 form.	 	 The	 court	 and	

counsel	placed	 the	results	of	 that	conference	on	 the	record.		After	discussing	

the	 jury	 instructions,	 counsel	 for	 Branch	 River	 moved	 “to	 enforce	 the	

limitation	on	damages	that	is	set	forth	in	the	.	.	.	written	warranty”	and	moved	

to	admit	the	express	warranty	document.		The	parties	and	the	court	discussed	

Branch	 River’s Exhibit	 21,	 which	 was	 eventually	 admitted	 in evidence.	 	The	

court	 then	 specifically	 asked	 Branch	 River	whether	it	was	 going	 to	 argue	 to

the jury that it had disclaimed implied warranties.	 	 Branch River

unequivocally	 said	that	it	was	not	going	 to	do	 so	and	 that	Exhibit	21	 should	

not	even	go	into	the	jury	room.		Branch	River	emphasized	that	Exhibit	21	was	

for	the	court’s	review.		In response,	the	court	stated	that	the	disclaimer	issue	

may	 require	 a	 post-verdict	 ruling	 and	 deferred	 making	 a	 ruling	 on	 Branch	

River’s	motion	at	that	time.
6

[¶8]	 The	 next	 substantive	 discussion	on	 the	 record	about the	express	

warranty	and	disclaimer	came	on	the	final	day	of	trial	after	another	chambers	

conference.		At	the	conclusion	of	that	conference,	and	just	before	the	jury	was	

to	 hear	 the	 arguments	 of	 counsel	 and	instructions	 from	 the	 court,	 the	 court	

raised	the status	of	any	factual	or	legal	issues	regarding	the	express	warranty	

and	made	a	“tentative	legal	ruling”	that	“Branch	River	did	not	have	a	right	to	

impose	a	warranty	 on	Arundel Valley.”	 	The	 court	also	 stated,	 “[M]y	 view	 of	

the	 evidence	 is	 that	 [the	 express	 warranty	 containing language	 disclaiming	

implied	warranties	was]	not	part	of	the	contractual	undertaking	between	the	

parties.”		The	court	then	added:

The	bottom	line	is	I	understand	counsel	have	agreed	that	although	

the	 express	 warranty	 is	 in	 evidence	 and	 can	 be	 mentioned,	

et cetera,	 the	 status	 of	 the	 express	 warranty	 is	 not	 going	 to	 be	

argued	 to	 the	 jury.	 	 In	 other	 words,	 the	 only	 warranty	 issues	 and	

breach	 of	 warranty	 issues	 that	 the	 jury	 is	 going	 to	 be	 asked	 to	

decide	are	the	two	implied	warranty	counts .	.	.	.

(Emphasis	added.)	 The	court	then asked	if	any	party	wished	to	add	anything	

further,	and	the	following	exchange	occurred:

[Branch	River]:		As	we	discussed	in	chambers,	our	position	is	that	

[as]	 a	 matter	 of	 law,	 that	 the	 Plaintiff’s	 .	 .	 .	 acceptance	 was	

irrelevant	 to	 the	 validity	 of	 the	 warranty,	 the	 application	 of	 the	

warranty	to	this	case.		Further,	it	was	the	Plaintiff	.	.	.	that	actually	

demanded	 that	 the	 warranty	 be	 reinstated	 and	 then	 we	 .	 . .	

accepted	 that	 demand	 and	 did,	 in	 fact,	 comply	 with	 the	 request.		

Under	 those	circumstances	.	.	.	we	 take	 the	position	 that	Arundel	
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Valley’s	again	accepting	it	is	not	necessary.		And	I	understand	the	

[c]ourt’s	position.

[Court]:	So	it’s	pretty	clear	to	me	that	to	the	extent	there	are	any	

factual	 issues	 about	 the	 status	 of	 the	 reinstatement,	 the	 parties	

are	not	asking	 the	jury	 to	decide	 those	issues.		Those	are	left	 for	

the	[c]ourt	to	decide.		And	I’m	not	suggesting	there	are	any	factual	

issues.		[Branch	River]	may	be	correct,	that	this	is	a	straight	legal	

issue.	 	 But	 just	 so	 we’re	 all	 on	 the	 same	 page,	 that’s	 my	

understanding,	is	that—and	I’ll	put	it	this	way.		Any	and	all	issues,	

legal	or	factual	about	the	effect	of	the	disclaimer	and	the	status	of	

the	 disclaimer	 are	 being	 left	 for	 the	 [c]ourt	 to	 decide.	 	 Is	 that	

Plaintiff’s	understanding	.	.	.	?

[Arundel	Valley]:		Yes,	Your	Honor.

[Court]:		And	Defendant’s?

[Branch	River]:		Yes.

(Emphasis	added.)		Neither	party	raised	the	disclaimer issue	again	at	trial.

[¶9]	 	After	 receiving	instructions	 on	 the	 two	implied	warranty	 claims,	

the	jury	deliberated	and	returned	a	verdict	in	favor	of	Arundel	Valley,	and	the	

court	entered	a	judgment	on	the	verdict on	July	13,	2015.

6		

[¶10]	 Two	 weeks	 later,	 pursuant	 to	 M.R.	 Civ.	 P.	 59(a),	 Branch	 River	

moved	 for	 a	 new	 trial on	 multiple	 grounds,	 including that (1)	 it	 had	 been	

“ambush[ed]”	 by	 DeStefano’s	 trial	 testimony	 regarding	 defects	 inside	 each	

panel	and (2)	the	court	erroneously	decided	that	Branch	River	had	voided	the

 6		The	jury	awarded	Arundel	Valley	over	$1,000,000	in	damages,	but the	award	was	reduced	by	

the	amount	received	from	the	settling	defendants,	resulting in	a	judgment	of	$660,080.40.
8

express	warranty	containing the disclaimer	of	implied	warranties.

7		The	court	

denied	 Branch	 River’s motion, concluding	 that	 none	 of	 its challenges

warranted a	 new	 trial.	 	 On	 the	 disclaimer	 issue,	 the	 court	 concluded	 that	

“Branch	 River	 was	 not	 entitled	 to	 judgment	 on	 the	 validity	 of	 its	 purported	

disclaimer	of	implied	warranties,	and	its	failure	to	request	jury	instructions	to	

guide	 the	 jury’s	 decision	 on	 whether	 Arundel	 Valley’s	 purchase	 of	 the	 roof	

panels	was	subject	to	the	disclaimer	does	not	justify	overturning	the	verdict.”		

The	 court	 also	 stated,	 “[W]hether	 Branch	 River’s	 disclaimer	 of	 implied	

warranties	was	 valid	as	 to	Arundel	Valley	was,	at	least	in	part,	a	question	of	

fact.		The	jury	could	have	been	duly	instructed	on	this	issue,	but	Branch	River	

did	not	request	any	such	instructions.”		Branch	River	timely	appealed from	the	

denial	of	its	motion	for	a	new	trial.

II.		DISCUSSION

A. Unfair	Surprise

[¶11]		Branch River	contends	that	the	court	erred	by denying	its	motion	

for	 a	 new	 trial	 because	 DeStefano’s	 trial	 testimony	 regarding	 the	

manufacturing	 defect	 that	 caused	 problems	 inside each panel	 “constituted	

unfair	surprise.”	 “Because	the	trial	court	is	in	the	best position	to	assess	the	

 7		Branch	River	does	not	challenge	the	court’s	decision	that	other	grounds	asserted	in	the	motion	

did	not	warrant	a	new	trial.
9

jury’s	reactions	and	motivations,	we	review	its	decision	to	deny	a	motion	 for	

. . . a	 new	 trial	 deferentially.”	 	 Seabury-Peterson	 v.	Jhamb,	 2011	ME	 35,	 ¶	 14,	

15 A.3d	746;	see	State	v.	Daluz,	2016	ME	102,	¶	46,	143	A.3d	800 (noting	that	

such	review	is	deferential	based	on “the	trial	court’s	unique	ability	to	view	the	

fairness	of	the	proceedings”).		We therefore review	the	denial	of	a	motion	for	a	

new	 trial	 for	 a	 “clear	 and	 manifest	 abuse	 of	 discretion.”	 	 Seabury-Peterson,	

2011 ME	35,	¶	14,	15	A.3d	746	(quotation	marks	omitted).

[¶12]	 	The trial	 court	 determined that	Branch	 River	 did	 not	 object	 to	

DeStefano’s	 testimony	 at	 trial; that,	 if	 Branch	 River	 had objected, the	 court	

could	have	taken	steps	short	of	ordering	a	new	trial	to	cure	any	problem;	and	

that,	 in	 any	 event,	 no	 curative	 action	 would	 have	 been	 necessary	 because	

Branch	River	“was	on	notice	of	the	substance	of	the	testimony	at	issue.”		These

determinations are	supported	by	 the	record.	 Although	there	may	have	been

some	 confusion	 among	the	 parties’	 lawyers regarding	 the	 different	 types	 of	

manufacturing	defects	about	which	DeStefano	would	testify,	the	trial	court	did	

not	err	by concluding that	the	record	of	pretrial	proceedings	did not	support	

Branch	 River’s	 contention	 that	 the	 substance	 of	 DeStefano’s	 testimony	

represented an	intentional	or	unfair	surprise.		Under	these	circumstances,	we	

cannot	conclude	that	the	trial	court	abused	its	discretion	when	it	decided	that	
10

Branch	 River’s	 argument	 regarding	 DeStefano’s testimony	 was,	 first,	

unpreserved;	and	second,	unpersuasive	as	a	ground	 for	 ordering	a	new	 trial

pursuant	 to	M.R.	 Civ.	 P.	 59(a).	 	We	 therefore	 do	 not	 disturb	 the	 trial	 court’s	

decision	on	that	issue.

B. Disclaimer	of	Implied	Warranties

[¶13]	 	 If Branch	 River	 effectively	 disclaimed	 all implied	 warranties,	

either	 through	 a	 “standard” warranty	 with	 disclaimers	 that	 was	 part	 of	 the	

parties’	 initial	 contract,	 or	 through	 the	 “express”	 warranty	 identified	 as	

Exhibit	21,	it	could	not,	as	a	matter	of	law, be	held	liable	on	the	two	claims	at	

issue	at	trial:	breach	of	the implied	warranty	of	merchantability	and	breach	of	

the implied	 warranty	 of	 fitness	 for	 a	 particular	 purpose.	 	 See 11	 M.R.S.	

§§ 2-314,	2-315,	2-316 (2015).		Branch	River	argues	that	the	court	withdrew	

from	the	jury	the	issue	of	whether	there	was	an	effective	disclaimer	of	implied	

warranties, failed	 to	 rule	 on	 that	issue	 before	 the	 case	went	 to	 the	jury,	and	

then	 denied	 the	 motion	 for	 a	 new	 trial	 because	 Branch	 River	 had	 failed	 to	

move to	instruct	the	jury	on	that	issue.

[¶14]		Although	the	transcript	is	not	entirely	clear,	we	conclude	that	the	

court	gave	 the	 parties	 the	impression	 that	it,	 not	 the	jury,	would	 decide	any	

legal	 or	 factual	 issues	 concerning	 the	 purported disclaimer	 of	 implied	
11

warranties.		Contrary	to	Branch	River’s	contention,	however, the	appropriate	

relief	in	this	case	is	not	to	order	a	new	trial—Branch	River	asked	the	court	to	

make	a	ruling	on	the	disclaimer	issue	on	the	evidence	already	before	it,	and	a	

ruling	on	 the	purported disclaimer	does	not	 require	a	new	jury	 verdict.	 We	

therefore	vacate	 the	judgment	as	 to	Count	XI	(breach	of	implied	warranty	of	

merchantability)	 and	 Count	 XII	 (breach	 of	 implied	 warranty	 of	 fitness	 for	 a	

particular	 purpose)	 and remand the	 case	 to the	 trial	 court	to	 rule on	 “[a]ny	

and	 all	 issues,	 legal	 or	 factual[,]	 about	 the	 effect	 of	 the	 disclaimer	 and	 the	

status	of	the	disclaimer,”	which	is	the	ruling	the	court	gave	the	impression	it	

would	 make.	 	 The	 court	 may,	 in	 its	 discretion,	 entertain	 further	 argument	

from	the	parties	on	this	issue.

[¶15]	 If	 the	court	 rules,	based	on	 the	evidence	presented	at	 trial, that	

Branch	River	made	no	legally	operative	disclaimer	of	implied	warranties,	the	

court	 must	 re-enter	 the	 judgment	 on	 the	 jury’s	 verdict	 in	 Arundel	 Valley’s	

favor.		If, on	the	other	hand, the	court	rules	that	Branch	River	did	disclaim	the	

implied	warranties	of	merchantability	and	 fitness	 for	a	particular	purpose—

by	 way	 of an	 express	 warranty	 or	 otherwise—it	 must	 enter	 a	 judgment	 in	

Branch	River’s	favor	on	the	two	implied	warranty	counts.
12

The	entry	is:

Judgment	 vacated as	 to	 Count	 XI	 (breach	 of	

implied	warranty	of	merchantability) and	Count

XII	 (breach	of	implied	warranty	of	 fitness	 for	a	

particular	 purpose).	 	 Remanded	 for	 further	

proceedings	 consistent	 with	 this	 opinion.		

Judgment	affirmed	in	all	other	respects.

On	the	briefs:

Catherine	R.	Connors,	Esq.,	and	Michael	 J.	Daly,	Esq.,	Pierce	

Atwood	 LLP,	 Portland,	 for	 appellant	 Branch	 River	 Plastics,	

Inc.

Timothy	J.	Bryant,	Esq.,	and	Jonathan	G.	Mermin,	Esq.,	Preti	

Flaherty	 Beliveau	 &	 Pachios,	 LLP,	 Portland,	 for	 appellee	

Arundel	Valley,	LLC

At	oral	argument:

Catherine	 R.	 Connors,	 Esq.,	 for	 appellant	 Branch	 River	

Plastics,	Inc.

Timothy	J.	Bryant,	Esq.,	for	appellee	Arundel	Valley,	LLC

Business	and	Consumer	Docket	docket	number	CV-2013-15

FOR CLERK	REFERENCE	ONLY