Plaintiff-Robert Kline, Esq.
Defendant-Kenneth Pierce, Esq.
D. Warren, Justice.
the court is a motion for attachment and trustee process by
plaintiff Joseph Hogan. Hogan seeks an attachment in the
amount of $25, 000 against defendant Paul Follansbee based on
claims of breach of contract, negligent misrepresentation,
professional negligence, and violations of the Unfair Trade
court may approve attachment and trustee process if it finds,
based on the affidavits submitted, that it is more likely
than not that the plaintiff will recover judgment, including
interest and costs, equal to or greater than the sum of the
attachment and any available insurance or security.
M.R.Civ.P. 4A(c), 4B(c). In this case Hogan's motion is
based on his verified complaint, bis supplemental affidavit,
and the attached documents. His motion asserts that there is
no available insurance or other security, and Follansbee has
not contested that assertion.
claims arise from a contract under which Follansbee undertook
to do restoration work on a classic wooden powerboat. The
work included the installation of a "5200 bottom,
" the removal of some dry rot, and
Hogan complains that Follansbee had the boat in his shop from
October 2012 until January 2018, the emails in the record
show that a contract for the restoration work was not signed
until February 2016. Moreover, that contract (Ex. E to
Verified complaint) was a "time and materials"
agreement that did not contain an agreed completion date.
Indeed, it stated that restoring a wooden boat is "an
artistic venture" and that "determining a finish
date for art is difficult." The contract also did not
set a total contract price or any upper price limit. It
specified only that Follansbee would charge $60.00 for labor
and would seek progress payments, based on work performed and
on anticipated future work, as he went along.
Follansbee worked on the boat from January 2016 to early June
2016, asking for and receiving progress payments totaling
approximately $28, 000. At that point Follansbee's work
apparently ceased until October 2016. The record does not
reflect that Hogan objected at that time.
on the resumption of work in October and what he described as
payment needed to continue work, Follansbee requested $9500
in December 2016. Follansbee thereafter wrote an email in
early January suggesting that, until that amount was paid, he
was not going to continue working on the boat.
took exception to Follansbee's email and said he thought
Follansbee understood he would be paid $5000 in late December
and another $5000 in mid-January. Hogan complained in that
email that the boat had not been finished the preceding
summer and asked whether Follansbee wanted to Hogan to
reclaim the boat or whether Follansbee would "keep going
without further delay."
Hogan paid the $5000 in mid-January (he had previously also
paid $5000 in late December) and work apparently resumed.
When Follansbee asked for another $6000 in March, however,
Hogan responded that he thought $40, 000 would be enough to
complete the project (he had at that time paid $38, 375) and
asked for an estimate to complete the job. Hogan says that he
thought that this would induce Follansbee to complete the
work, but he did not hear from Follansbee again until January
2018, when Follansbee said he was planning to start work on
Hogan's boat again later that month and asked for $ 2500
"so I can get started." In response, Hogan told
Follansbee not to proceed and reclaimed his boat.
is a dispute between the parties as to whether Follansbee had
orally promised or represented that boat would be finished in
2016. On the existing record the court cannot determine that
Hogan is more likely to prevail on that issue. Overall,
Follansbee appears to have approached the project in a
dilatory manner, but Hogan was at various times equally
dilatory in acquiescing to the delay.
Hogan is not seeking an attachment based on the delay in the
work. Instead, Hogan has offered an estimate by another boat
restorer that Follansbee was only halfway through the job and
that the value of the work he had performed was only $13, 000
- instead of the $38, 375 that Hogan had paid. Hogan is thus
seeking an attachment for $25, 000 that he contends he
legal terms, the court understands Hogan is contending that
Follansbee violated an implied warranty in the repair
contract that the work would be performed in a reasonably
skillful and workmanlike manner. See Gosselin v. Better
Homes Inc.,256 A.2d 629, 639-40 (Me. 1969). There is
some authority for the proposition that the warranty of
reasonable workmanship includes the concept that the