MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017	ME 232

Docket: BCD-17-102

Argued: September	14,	2017

Decided: December	12,	2017

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

JAY	McLAUGHLIN

v.

EMERA	MAINE	et	al.

SAUFLEY,	C.J.

[¶1]	 Jay	McLaughlin	 allowed	 Emera	Maine	 access	 to	 certain	 roads	 on	

his	property	in	Greenbush	in	order	to	enable	Emera	and	its	agents	to	rebuild	

an	 electrical	 transmission	 line.	 At	 the	 conclusion	 of	 that	 work,	 McLaughlin	

alleged	 that	 his	 property	 had	 been	 damaged	 in	 the	 process	 and	 that	 Emera	

had	 not	 sufficiently	 repaired	 the	 damage.	 McLaughlin	 filed	 claims	 against	

Emera	 and	 its	 contractor,	 Hawkeye,	 LLC, seeking	 several	 million	 dollars	 in	

damages	 at	 trial.	 	The	 court	 (Horton,	J.)	 entered	 a	 judgment	in	 the	 Business	

and	 Consumer	 Docket	 awarding	 McLaughlin	 $66,866.36,	 including	 attorney	

fees	 and	 costs.	 	 McLaughlin	 appealed,	 and	 Emera	 and	 Hawkeye	

cross-appealed.		Subject	to	a	modification	of	the	court’s	award	of	McLaughlin’s	

attorney	fees,	we	affirm	the	judgment.
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I.		BACKGROUND

[¶2]	 In	exchange	for	$31,600,	Jay	McLaughlin	granted	Emera	temporary	

rights	 of	 access	 over	 some	 of	 the	 roads	 on	 his	 approximately	 3,200-acre	

property	in	Greenbush.	 Emera	and	Hawkeye	needed	 that	access	in	 order	 to	

rebuild	 an	 electrical	 transmission	 line	 that	 crossed	 McLaughlin’s	 property.		

The	parties	agreed	that	Emera	would	be	responsible	to	effectuate	any	repairs	

“beyond	normal	wear	and	 tear”	 that	occurred	as	a	result	of	 the	 transmission	

line	rebuild.	 Hawkeye	and	a	subcontractor	completed	substantial	repair	work	

on	 McLaughlin’s	 property.	 McLaughlin	 alleged,	 however,	 that	 those	 repairs	

were	insufficient	and	that	Emera	and	Hawkeye	failed	to	repair	damage	to	the	

surrounding land,	 culverts,	 roads,	 trees, and	 vegetation that	 Emera	 and	

Hawkeye had	caused.

[¶3]	 McLaughlin	filed	a	complaint against	Emera	and	Hawkeye,	alleging

breach	 of	 contract,	 negligence,	 and	 statutory	 and	 common	 law	 trespass.		

Emera	filed	a	cross-claim	against	Hawkeye	seeking	indemnification,	including	

attorney	 fees	 and	 costs,	 pursuant	 to	 an	 indemnification	 provision	 in	 a	

supplier-of-choice	agreement	governing	their	relationship.	

[¶4]	 McLaughlin’s	 complaint	was	 originally	 filed	in	 Penobscot	 County	

on	October 7,	2013.	 After	a	series	of	delays,	 the	case	was	 transferred	 to	 the	
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Business	 and	 Consumer	 Docket.	 The	 record	 reflects a	 lengthy	 discovery	

period	 and	 extremely	 contentious	litigation.	 The	 trial	 consumed	 eight	 days.		

The	court	took	a	view	of	the	property.		Following	trial,	the	parties	filed	a	total	

of	 184	 pages	 of	 proposed	 findings	 of	 fact	 and	 conclusions	 of	 law,	 including	

responses.		

[¶5]		At	the	conclusion	of	the	trial,	the	court	found	that	McLaughlin	had	

failed	to	present	sufficient	or	persuasive	evidence	regarding	the	extent	of	the	

damages	to	his	property.		It	entered	a	judgment	in	favor	of	McLaughlin	on	his	

complaint against	Emera	and	Hawkeye, jointly	and	severally,	in	the	amount	of

$44,866.36	 in	 damages.	 This	 amount	 comprised	 $20,000	 on	 the	 breach	 of	

contract	claim,	$22,000	on	the	negligence	claim,	and	$2,866.36	on	the	trespass	

claim	 pursuant	 to	 14 M.R.S. § 7552 (2016).	 The	 court	 also	 awarded	

McLaughlin	 $20,000	 in	 attorney	 fees	 and	 $2,000	 in	 costs.	 McLaughlin	

appealed	the	judgment. Emera	and	Hawkeye	cross-appealed,	arguing	that	the	

court	erred	in	its	award	of	attorney	fees	to	McLaughlin	because	it	applied	the	

incorrect	version	of	14	M.R.S.	§	7552.

[¶6]	 	 On	 Emera’s	 indemnification	 claim	 against	 Hawkeye,	 the	 court	

found	 in	 favor	 of	 Emera	 in	 the	 entire	 amount	 of	 the	 judgment	 in	 favor	 of	

McLaughlin,	$66,866.36.	 Indicative	of	the	contentious	nature	of	this	litigation,	
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the	court	also	 found	 that	Hawkeye	was	liable	 to	Emera	 for	attorney	 fees	and	

costs	 totaling	 $409,978.46.	 Emera	 and	 Hawkeye	 each	 appealed	this	 award.	

However,	 by	 stipulation	 of	 both	 parties	 prior	 to	 oral	 argument	 in	 this	 case,	

those	appeals	have	been	dismissed.		See	M.R.	App. P. 4(a)(3).	

[¶7]		Thus,	before	us	are	McLaughlin’s	appeal,	in	which	he	asserts that	

the	 court	 erred	 in	 its	 damages	 findings,	 in	 its	 finding	 that	 McLaughlin	 gave	

permission	for	the	use	and	improvement	of	the	spur	road	on	his	property,	and	

in	its	interpretation	of	14 M.R.S.	§ 7551-B (2016);	and	Emera	and	Hawkeye’s	

cross-appeal	on	the	attorney	fees	awarded	to	McLaughlin.	

II.		McLAUGHLIN’S	APPEAL

A. Factual	Findings

[¶8]	 	We are	 unpersuaded on	 this	lengthy	 record that	 the	 trial	 court’s	

damages	findings	are	in	any	way	erroneous.	 There	is	evidence	supporting	the	

court’s	 factual	 findings	 concerning	 McLaughlin’s	 damages,	 and	 the	 evidence	

does	not	compel	different	 findings.	 See Dickens	v.	Boddy,	2015	ME	81,	¶	12,	

119	A.3d	722;	Theberge	v.	Theberge,	2010	ME	132,	¶ 18,	9	A.3d	809.		

[¶9]		Similarly,	the	court’s	finding	that	McLaughlin	gave	permission	for	

the	use	and	improvement	of	 the	spur	 road	is	supported	by	ample	 testimony

and	 other	 evidence,	 and	 the	 court	 was	 free	 to disbelieve	 McLaughlin’s	
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testimony	that	he	did	not	give	permission.1		See	Theberge,	2010	ME	132,	¶	18,	

9	A.3d	809.		The	trial	court’s	findings	are not	clearly	erroneous.

B. Statutory	Trespass

[¶10]	 McLaughlin	also	asserts	 that	 the	court	misinterpreted	14 M.R.S.	

§ 7551-B when	 it	 determined	 that	 Hawkeye	 did	 not	 trespass	 within	 the	

meaning	 of	 the	 statute	 because	 Hawkeye	 had	 permission	 to	 enter	

McLaughlin’s	 property.	 By	 its	 plain	 language,	 section	 7551-B(1)	 applies	 to	

“[a]	person	who	intentionally	enters	the land	of	another	without	permission.”		

This	statutory	language	is	narrower	than	common	law	trespass	as	defined	by	

the	cases	cited	by	McLaughlin,	which	can	apply	to	a	person	who	intentionally	

causes	a	thing	or	third	person	to	enter	land	in	the	possession	of another.		See,	

e.g.,	Medeika	 v.	Watts,	 2008	 ME	 163,	 ¶	 5,	 957	 A.2d	 980.	 	Because	the	 court	

found	that	McLaughlin	failed	to	prove	that	Hawkeye entered	his	land	without	

permission,	 the	 court	 did	 not	 err	 in	 finding	 against	 McLaughlin	 on	 his	

complaint	alleging	only	a	statutory	trespass	claim	as	to	the	road	in	question.

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 1 The	 court	had	evidence	 before	it	 relevant	 to	McLaughlin’s	 credibility.	 	McLaughlin	 has	 been	

convicted	of	theft	by	deception (Class	C),	17-A	M.R.S.	§	354 (2016), and	one	of	his	businesses	was	

convicted	 of	 theft	 by	 unauthorized	 taking (Class	 B),	 17-A	 M.R.S.	 § 353 (2016).	 As	 a	 condition	 of	

probation	 McLaughlin	 was ordered	 to	 disclose	 his	 criminal	 history	 before	 entering	 into	 any	

contracts	with	landowners	or	wood	buyers.	

2		To	the	extent	that	McLaughlin	has	raised	other	matters	in	his	appeal,	we	are	unpersuaded.		
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III.		EMERA	AND	HAWKEYE’S	APPEAL

[¶11] Finally,	 Emera	 and	 Hawkeye	 argue	 that	 the	 court	 erred	 by	

applying the	 new	 version	 of	 14	 M.R.S.	 § 7552(5)	 (2016),	 as	 amended	 by	

P.L. 2015	 ch. 241,	 §	 4	 (effective	 October	 15,	 2015),	 in	 awarding	 $20,000	 in	

attorney	 fees	 to	 McLaughlin,	 rather	 than	 applying the	 earlier	 version	 of

14 M.R.S.	 §	 7552(5)	 (2014),	 which	 limited	 the	 amount	 recoverable	 for	

professional	 fees	 to	 fifty	 percent	 of	 the	 amount	 recovered	 in	 damages	

pursuant	 to	 that	 statute. McLaughlin	 concedes	 that	 the	 court	 applied	 the	

incorrect	version	of	 the	statute	because	his	claim	arose	in	2012	at	 the	latest,	

and	his	complaint	was	filed	in	2013.	 Thus, the	attorney	fee	award	is	limited	to	

fifty	percent	of	the	section	7552	damages of	$2,866.36.		

[¶12]	 	 Because	 we	 affirm	 the	 court’s	 award	 of	 damages	 pursuant	 to	

section	 7552,	 we	 modify	 the	 court’s	 judgment	 by	 reducing	 the	 award	 of	

McLaughlin’s	attorney	fees	from	$20,000	to	$1,433.18.	

The	entry	is:

Judgment	 modified	 by	 reducing	 the	 award	 of	

McLaughlin’s	 attorney	 fees	 from	 $20,000	 to	

$1,433.18.		As	modified,	judgment	affirmed.	
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Joseph	L.	Ferris,	Esq.,	and	Mariann Z.	Malay,	Esq.,	Gross,	Minsky	&	Mogul,	P.A.,	

Bangor,	and	N.	Laurence	Willey,	 Jr.,	Esq. (orally), Willey	Law	Offices,	Bangor,	

for	appellant	Jay	McLaughlin

Jeffrey	T.	Edwards,	Esq.,	Preti,	Flaherty,	Beliveau	&	Pachios,	LLP,	Portland,	and	

Myles	W.	McDonough,	Esq.	(orally),	and	Ryan	B.	MacDonald,	Esq.,	Sloane	and	

Walsh,	LLP,	Boston,	Massachusetts,	for	appellees	Emera	Maine	and	Hawkeye,	

LLC

Business	and	Consumer	Docket	docket	number	CV-2015-14

FOR	CLERK	REFERENCE	ONLY