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Le v. Averill Construction LLC

Superior Court of Maine, Cumberland

December 20, 2018

PHU LE, et al., Plaintiffs
v.
AVERILL CONSTRUCTION LLC a/k/a JEFF AVERILL, et al., Defendants

          Plaintiffs-Thaddeus Day Esq.

          Defendants-Jeffrey Bennett Esq.

          ORDER

          Thomas D. Warren Justice

         Before the court are plaintiffs' request for reconsideration pursuant to Rule 59 -essentially a motion to amend the judgment under Rule 59(e) - plaintiffs' bill of costs, and plaintiffs' application for attorney's fees.

         Rule 59(e) motion

         Plaintiffs' Rule 59(e) motion is denied: (1) Although the court noted that the amount overpaid "may" have been higher, the overpayment found by a preponderance of the evidence was $13, 500. (2) To the extent that plaintiffs' motion for reconsideration relies on Plaintiffs' Ex. 38, that document is hearsay and was not admitted at trial. (3) To the extent that plaintiffs are now asserting a claim for breach of warranty, no such claim is contained in their complaint and would in any event be subsumed by their claim for poor workmanship, which the court addressed. (4) In all other respects the court adheres to the analysis and rulings in its order dated September 11, 2018 and entered on the docket the following day.

         Bill of Costs

         Plaintiffs were prevailing parties on one of their claims and are entitled to recover the filing fee ($150.00) and service costs. 14 M.R.S. § 1502-B(1), (2). The service costs reflected in the court file total $52.30. Plaintiffs are also seeking service costs for their writ of attachment but have not submitted any documentation to substantiate that cost.

         Plaintiffs' attorney is entitled to travel costs in the amount of $48.75. 14 M.R.S. § 1502-B(4).

         With respect to plaintiffs' request for the fees and expenses incurred for their expert witness pursuant to 14 M.R.S. § 1502-C(1), the request is disallowed. Although the court credited Douglas Hall's testimony as to the deficiencies in workmanship he observed, that testimony did not have to come from an expert. It could have come from any competent observer. The court did not find Hall's repair estimate to be credible and excluded a significant amount of Hall's testimony because it had not been properly designated and because it had not otherwise been disclosed to defendants prior to trial.[1]

         Finally, although the quality of plaintiffs' photographs was poor, the court did rely on those in evaluating the evidence, and plaintiffs are entitled to $49.63 for visual aids. 14 M.R.S. § 1502-C(3).

         Attorney's Fees

         Plaintiffs' application for attorney's fees is denied. Plaintiffs originally filed an application for attorney's fees in the form of a July 19, 2018 affidavit from counsel that stated, "To date, the total attorney and legal support staff fees incurred by plaintiffs to prepare for and execute the trial from the time of filing complaint are $18, 433." That affidavit did not specify in any way how many hours had been spent or contain any breakdown of the work that had been performed and for which fees were sought. It did state that the bills would be made available in camera.

         At the time that affidavit was filed, the court had not ruled on the merits of the case. The court's September 11, 2018 order ruled in favor of plaintiffs on their Unfair Trade Practice Act claim but granted judgment for defendants on all the other claims on plaintiffs' complaint. In light of the court's ruling, and because defendants had not responded to plaintiffs' attorney's fee claim, the court instructed plaintiffs to resubmit their fee application ...


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