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Ahlgren v. Fabian, corrected 1-14-99
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:1999 ME 6
on Briefs:December 22, 1998
Decided:	January 6, 1999




	[¶1]  Defendant, Kevin Fabian, appeals from a judgment on a jury
verdict entered in the Superior Court (Kennebec County, Mills, J.) in favor of 
plaintiff, Frederick L. Ahlgren, finding defendant negligent in the
construction of plaintiff's house.  This litigation began as a small claims
action and was appealed to the Superior Court for a jury trial. Contrary to
defendant's contentions, the court did not err in instructing the jury on a
claim of negligence. See Russell v. Accurate Abatement, Inc., 1997 ME 98, ¶
4, 694 A.2d 921, 923. The facts alleged by plaintiff in his small claims
statement of claim and presented by him at trial could properly generate
both a negligence claim for failure to perform in a workmanlike manner and
a breach of contract claim. See  Paine v. Spottiswoode, 612 A.2d 235, 238-
39 (Me. 1992); Strickland v. Cousens Realty, Inc., 484 A.2d 1006, 1007 (Me.
1984).  Moreover, defendant was placed on notice at the beginning of the
trial that the court considered negligence an issue and he did not object.
Thus, defendant implicitly consented to the issue being tried and was not
prejudiced by the instruction.  See Clarke v. DiPietro, 525 A.2d 623, 625-26
(Me. 1987); DiBiase v. Universal Design & Builders, Inc., 473 A.2d 875, 877-
78 (Me. 1984).  Further, the court did not err in upholding the jury award in
the amount of $2,860.  Although M.R. Civ. P. 80L(d)(2) limits the judgment
amount to $1,400, the rule was adopted for the following purpose: "Rule
80L(d)(2) limits the amount of judgment that may be entered to reflect the
jurisdictional limitations of the Small Claims Act, 14 M.R.S.A. §§ 7481,
7482.  The limit controls regardless of the size of the jury's verdict." M.R.
Civ. P. 80L advisory committee's note, Me. Rptr., 498-509 A.2d LX (effective
February 15, 1986). The statutory limit in effect at the time plaintiff filed his
statement of small claim in 1996 was $3,000 rather than $1,400.  See P.L.
1993, ch. 401, § 3 (effective June 21, 1993) (codified as amended at 14
M.R.S.A. § 7482 (Supp. 1998)).  Defendant's other contentions were not
properly preserved and, in any event, lacked merit. 
	The entry is:
				Judgment affirmed.

For plaintiff: Frederick L. Ahlgren 2 Peninsula Drive Oakland, ME 04963 Attorney for defendant: Robert E. Sandy, Jr., Esq. Sherman & Sandy P O Box 499 Waterville, ME 04903-0499