Argued: March 7, 2018
F. McKee, Esq., and Henry E.M. Beck, Esq. (orally), McKee
Law, P.A., Augusta, for appellant Darron Burrill.
J. Cutliffe, Esq. (orally), Basham & Scott, LLC,
Brunswick, for appellee Avis Rent A Car System, LLC.
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Darron Burrill appeals from a partial summary judgment
entered in favor of Avis Rent A Car System, LLC, on
Avis's claim for breach of contract in the District Court
(Skowhegan). Burrill challenges the court's
[Fowle, J.) determination, issued as a partial
summary judgment, that he is liable to Avis for breach of
contract and the court's [E. Walker, J.)
determinations of damages and attorney fees, awarded after an
evidentiary hearing. Avis cross-appeals, challenging the
court's failure to award it pre- and post-judgment
interest. We affirm the partial summary judgment as to
liability for breach of contract but vacate the award of
damages and remand for further proceedings.
The following facts relating to liability are taken from the
parties' statements of material fact and reflect the
record as viewed in the light most favorable to Burrill as
the nonprevailing party. See Oceanic Inn, Inc. v.
Sloan's Cove, LLC, 2016 ME 34, ¶ 25, 133 A.3d
1021. Facts relating to Avis's alleged damages are as
found by the court.
On November 20, 2012, Burrill, a Maine resident, rented a
2012 Ford Mustang from an Avis location in Las Vegas, Nevada.
Burrill executed a Rental Agreement and Addendum and declined
the loss damage waiver protection that was offered to him. By
declining the loss damage waiver, Burrill agreed to be
responsible for "all loss of or damage to the car
regardless of cause, or who, or what caused it." That
same day, the vehicle was damaged when it was involved in an
accident in Las Vegas.
According to Avis, the accident caused damages to the vehicle
totaling $15, 342.57. Avis sent demands for payment to
Burrill on January 16, 2013, April 3, 2013, and August 14,
2014, but Burrill failed or refused to pay.
Avis filed a complaint against Burrill in the District Court
on July 20, 2015, alleging breach of contract and negligence
and seeking damages. On March 31, 2016, after discovery was
concluded, Avis moved for partial summary judgment to
establish liability on the claim for breach of contract. The
court [Fowle, J.) held oral argument on the motion
on September 29, 2016.
In its order granting Avis's motion for partial summary
judgment, the court noted the parties' agreement that the
case is controlled by Nevada substantive law and Maine
procedural law. The court then determined that there were
no genuine issues of material fact that (1) the parties
entered into a valid and enforceable rental contract; (2)
Burrill breached that contract; and (3) "although the
parties do dispute the extent of the damages sustained during
the course of the accident. . . damages did indeed
occur." As a result, the court concluded that there were
no genuine issues of material fact as to the elements of the
claim for breach of contract and that Avis was entitled to
partial summary judgment on the issue of liability as a
matter of law. The court granted the motion on October 5,
2016, and ordered a hearing on damages.
In dispute at the damages hearing on May 18, 2017, was
whether the affidavit of damages executed by an Avis claims
examiner included inadmissible hearsay. Several documents
were attached to the affidavit: the rental agreement; a
vehicle valuation report prepared for Avis by J.D. Power and
Associates; a bill for towing the damaged vehicle; and a
record of the vehicle's salvage value. Burrill objected
to the admission of the affidavit on the ground that, other
than the rental agreement, the attachments were not
"business records" pursuant to the hearsay
exception in M.R. Evid. 803(6). At the hearing, the court
[E. Walker, /.) accepted the affidavit with its
attachments de bene and did not then rule on its
admissibility. Avis then called a witness to testify about
the amount of damages, but Burrill objected because the
identity of the testifying witness had not been disclosed
prior to the hearing. Because the witness Avis had previously
identified to Burrill was unable to attend, Avis brought a
different witness to the hearing. The court declined to
accept the testimony of the witness present. Before the
hearing concluded, Avis offered a repair estimate as evidence
of damages if the court determined that the attachments to
the affidavit—specifically the vehicle valuation
report—were inadmissible. Again, Burrill objected on
the basis of hearsay, and again the court took the submission
de bene, reserving its ruling on its admissibility.
In its order on damages, the court determined that the
attachments to the affidavit, although containing hearsay,
satisfied the business records exception. The court devoted
most of its discussion to the vehicle valuation
report. The report was not prepared by the
affiant, but instead by a third party, J.D. Power and
Associates. The valuation report purported to provide the
market value of the vehicle prior to the loss by taking into
account the value of comparable vehicles with similar mileage
located in a similar geographic area, as well as any damage
to the vehicle prior to the loss. The affiant certified that
the report was kept in the regular course of Avis's
business, that the affiant maintained the report as part of
her duties as a claims examiner for Avis, and that it was
made reasonably soon after the incident. The court determined
that there was sufficient foundation for the admissibility of
the affidavit and all of the attachments.
Based on the information in the affidavit, the court
concluded that the damages and fees claimed by Avis were
reasonable and granted Avis its requested amount of $15,
342.57. It also granted Avis attorney fees totaling $5,
985.00 and costs in the amount of $433.24. The court declined
to award Avis pre-or post-judgment interest.
Burrill appealed, challenging both the grant of Avis's
motion for partial summary judgment and the award of damages.
Avis cross-appealed, challenging the court's failure to
award it interest and costs in the amount it requested.
Breach of Contract
Burrill first challenges the court's grant of partial
summary judgment on the issue of breach of contract. "We
review a trial court's grant of a summary judgment de
novo, considering the evidence in the light most favorable to
the nonprevailing party. Summary judgment is properly granted
if the record reflects that there is no genuine issue of
material fact and the movant is entitled to a judgment as a
matter of law." Oceanic Inn, 2016 ME 34, ¶
25, 133 A.3d 1021 (citation omitted) (quotation marks
In order for a plaintiff to succeed in a claim for breach of
contract, Nevada law requires a plaintiff to show "(1)
the existence of a valid contract, (2) a breach by the
defendant, and (3) damage as a result of the breach."
Saini v. Int'l Game Tech., 434 F.Supp.2d 913,
919-20 (D. Nev. 2006) (citing Richardson v. Jones, 1
Nev. 405, 408 (1865)).
The parties agreed on the following material facts: (1)
Burrill rented a car from Avis on November 20, 2012; (2) the
vehicle was damaged on November 20, 2012, when it was
involved in an accident in Las Vegas; (3)in the rental
agreement, Burrill had waived the loss damage protection and
therefore agreed to be "responsible ... for all loss of
or damage to the car regardless of cause, or who, or what
caused it"; (4) Avis sent Burrill several demands for
payment of the alleged damages prior to the lawsuit; and (5)
Burrill failed or refused to pay the amount demanded. Because
Burrill admitted that the car was damaged in an accident
while it was rented under his name in a contractual
arrangement that made him responsible for any damage
to the car, and acknowledged that he refused to pay the
amount demanded by Avis, there was no genuine issue of
material fact that Burrill breached the rental agreement by
failing to pay Avis after the car was damaged.
Because there were no genuine issues of material fact as to
(1) the existence of a valid contract; (2) breach of that
contract; and (3) some amount of damage as a result of the
breach, we affirm the grant of Avis's motion for partial
summary judgment as to liability. See M.R. Civ. P.
56(c) ("A summary judgment, interlocutory in character,
may be rendered on the issue of liability alone although
there is a genuine issue as to the amount of damages.").
Although there was no genuine issue of material fact that
damage did indeed occur, the parties disputed the extent of
the damages, prompting the court to order a hearing to
determine the specific amount of damages. Burrill argues that
the court erred and abused its discretion when it admitted,
pursuant to the business records exception to the hearsay
rule, the affidavit of an Avis ...