Milford Lumber Co. v. RCB Realty, Inc.

NADEAU, J. The defendants, RCB Realty, Inc., Century 21 Team Berube, and Richard Berube, appeal the ruling of the Superior Court (Dalianis, J.) awarding judgment to the plaintiff, Milford Lumber, Inc., under RSA chapter 358-A (1995 & Supp. 2000). We affirm. The relevant facts follow. The defendants were involved in a joint venture along with John Howe in the construction business, and developed the Windsor Heights property in Londonderry. After being approached by Howe, the plaintiff agreed to supply building materials to the defendants, and began doing so in November 1995. At that time, the plaintiff billed the defendants through an account Howe had established for his business, Welcome Home. By the summer months of 1996, while the plaintiff continued supplying lumber, invoices for the products were going unpaid. When the plaintiff telephoned Berube to discuss the payment schedule, Berube indicated that there was a communication problem between Howe and Berube regarding the invoices. It was agreed the invoices would thereafter be sent directly to Berube. The invoices, however, remained in the Welcome Home account. The plaintiffs problems receiving payment did not abate, despite repeated efforts to communicate with both Berube and his wife, Leslie. Whenever the plaintiff contacted Berube, Berube gave assurances that he was in control of the funds and would arrange for full payment. That never happened. In fact, despite repeatedly asking for invoices and assuring payment, Berube eventually asserted that he was not responsible for payment, and the plaintiff should seek payment from Howe. The plaintiff filed a writ of summons, alleging, among other things, breach of contract, negligent misrepresentation, unjust enrichment, and a violation of the Consumer Protection Act, RSA ch. 358-A. The superior court ruled for the plaintiff on all but the unjust enrichment claim, and awarded attorney’s fees pursuant to RSA 358-A:10 (1995). The defendants argue the superior court erred in its application of the Consumer — 17 — Protection Act (Act) in that the Act limits its protections to “consumers,” and does not afford a private right of action to “sellers” such as the plaintiff in this case. We disagree. “On questions of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.” State v. Farrow, 140 N.H. 473, 474 (1995). We begin by considering the plain meaning of the words of the statute. See Snow v. American Morgan Horse Assoc., 141 N.H. 467, 471 (1996). In conducting our analysis “we will focus on the statute as a whole, not on isolated words or phrases.” Id. “[W]e will not consider what the legislature might have said or add words that the legislature did not include.” Petition of Walker, 138 N.H. 471, 474 (1994). The Act provides that “[i]t shall be unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state.” RSA 358-A:2 (1995 & Supp. 2000) (emphasis added). The Act broadly defines who may bring a private action as “[ajny person injured by another’s use of any method, act or practice declared unlawful under this chapter.” RSA 358-A:10 (emphasis added). “Person” also is defined broadly to include “natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entity.” RSA 358-A:l, I (1995). Thus, the defendants’ suggestion that the statute forecloses a seller from a private cause of action is unsupported by a plain reading of the statute’s language. The structure of the statute also militates against the defendants’ assertion that the protection provided by the statute is limited to buyers. Although the legislature listed a number of possible violations, it specifically indicated that the list was non-exhaustive. See RSA 358-A:2 (“[s]uch unfair method of competition or unfair or deceptive act or practice shall include, but is not limited to, the following” examples). Furthermore, while the legislature exempted certain types of transactions from the provisions of the chapter, it did not exempt private causes of action brought by sellers against deceptive buyers. See RSA 858-A:3 (1995 & Supp. 2000). In the past, we have noted the difficulty in determining which commercial actions are covered by the Act. See Barrows v. Boles, 141 N.H. 382,390 (1996). Looking to the Massachusetts courts for guidance, we have found the following test helpful: “The objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce.” Id. (quotation omitted). In Levings v. Forbes & Wallace, Inc., 396 N.E.2d 149 (Mass. App. Ct. 1979), the court examined the similarly worded Massachusetts consumer — 18 — protection statute and explicitly rejected the argument that “only buyers, not sellers, may avail themselves under § 11” of that statute. Levings, 396 N.E.2d at 153. Although section 11 of the Massachusetts statute covers business-to-business transactions, the New Hampshire statute has no separate section for such transactions. It does, however, contain broad language similar to that in Mass. Gen. Laws. Ann. ch. 93A § 11 (West 1997): “Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property .. ..may... bring an action in the superior court____” The Levings court also noted that an abandoned restriction in the original version of the Massachusetts statute specifically limited those who could avail themselves of the statute’s protection to “purchasers and lessees.” Though the New Hampshire statute is similar in many respects to the Massachusetts statute, see Chase v. Dorias,, 122 N.H. 600, 602 (1982), our legislature never restricted who could bring suit under the Act to buyers. Cf Eastern Mountain Platform, Tennis, Inc. v. Sherwin-Williams Co., Inc, 40 F.3d 492, 499 (1st Cir. 1994), cert. denied,, 515 U.S. 1103 (1995) (holding that the New Hampshire legislature’s decision to broadly word the Act instead of adopting a separate section for purely commercial transactions as was done in Massachusetts did not foreclose recovery in business-to-business transactions). Accordingly, we hold that RSA chapter 358-A does not bar .sellers from availing themselves of its protection. We are cognizant that our reading according to the plain meaning of the Act is very broad, and may permit suits beyond what the legislature intended when it promulgated the Act. For instance, when Senator Jacobson commented on the breadth of RSA 358-A:2, which defines what acts would be unlawful, he said “It was the feeling of the Committee [Paragraph 1] was too broad an authority and did not specify clearly what unfair methods of competition were or what were unfair or deceptive acts or practices in the conduct of any business.” N.H.S. JOUR. 222 (1970). Accordingly, the body adopted the non-exhaustive list of examples as to what would be unlawful. The parties offer, and we can find, no additional legislative history that indicates any intention to limit who may bring suit under the Act. Today’s holding, however is narrowed by our decision in Chase. While a seller may bring suit under the Act against a deceptive buyer, the relevant transaction must “take place in a trade or business context,” Chase, 122 N.H. at 602. In order to have prevailed on its Consumer Protection Act claim, the plaintiff must have demonstrated that the buyer defendant’s actions are — 19 — among the unlawful acts proscribed by RSA 358-A:2. “The trial court’s findings of fact and rulings of law will be upheld unless they lack evidentiary support or constitute clear error of law.” Barrows, 141 N.H. at 389 (quotation omitted). In this case, the trial court noted that “the multifaceted business relationships presented by the facts of this case trigger the language of this comprehensive” Act. While the court noted that the defendants’ actions fell within two particularized types of transactions detailed in RSA 358-A:2, III and V, its order makes clear that it considered the acts unlawful under the broader definition of unlawful acts provided in RSA 358-A:2’s introductory paragraph. Specifically, the trial court was concerned that the defendants “kept [their] relationship with Howe intentionally vague and then when it came time to make payment for materials provided by Milford, RCB capitalized upon that vagueness in an attempt to improperly shield itself from liability.” In determining what acts are unlawful under RSA 358-A:2, we look to the federal courts’ interpretation of the Federal Trade Commission Act for guidance. See RSA 358-A:13 (1995). The Federal Trade Commission determines if actions are unfair or deceptive by inquiring: (1) Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5 (1972) (quotation omitted). The trial court properly used this standard to conclude that the defendants’ actions violated the Act. We have held that “[a]n ordinary breach of contract claim does not present an occasion for the remedies under the Consumer Protection Act.” Barrows, 141 N.H. at 390. The defendants, however, did not simply fail to pay invoices. Rather, they made intentionally vague representations regarding their relationship with Howe to facilitate the use of Howe’s account with the plaintiff to procure lumber for the Windsor Heights project. Then, the defendants used those same misrepresentations as a basis for completely disclaiming liability for the goods. It would be harmful for commerce in New Hampshire to allow such unethical and unscrupulous — 20 — activity to occur. The legislature promulgated- the Act to protect citizens engaged in commerce from this type of activity. Accordingly, we affirm the trial court’s application of the Act to the facts of this case. Today’s dissent recognizes the three requirement's for a party to obtain relief under the Consumer Protection Act: the plaintiff must prove that: 1) the defendant is a person;. 2) the defendant used an unfair method of competition or a deceptive act or practice; and 3) the act occurred in trade or commerce. RSA 358-A:2 (1995 & Supp. 2000). While the dissent concedes that the plaintiff easily proved the first and third requirements, it concludes that plaintiff is not protected because the unlawful conduct specified under RSA 358-A:2 protects only buyers from the acts or practices of sellers. This conclusion overlooks the plain statutory language which makes it unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state. . RSA 358-A:2. This broad legislative proscription makes no distinction between buyer and seller. The unique facts of this case place the plaintiff squarely within the legislatively prohibited conduct because during a continuing commercial relationship it was subjected to a course of deceptive acts and practices by the defendants. The defendants assert one additional argument, which we briefly address. They argue the plaintiff failed to adequately plead the specific statutory sections of the Act upon which the superior court based its decision. Under this State’s liberal pleading practices, however, we have held that “where a remedy is given by statute, the statute must be specially declared upon, or, at all events, the facts must be so alleged that the court, on the face of the declaration, can see that the action is founded on the statute.” Fasekis v, Company, 93 N.H. 468, 471 (1945) (quotation omitted). Count III of the plaintiffs writ is entitled “Consumer Protection RSA 358-A Defendants RCB Realty, Inc., Richard C. Berube First Eastern Mortgage Corporation.” It alleges that the defendants solicited business, that they made false representations, and that they used those misrepresentations to later disclaim- liability. We decline to require litigants to plead the exact subsections of the Act that they wish the court to address, especially in light of the Act’s broad language and non-exhaustive list of potentially unlawful acts. See RSA 358-A:2. The defendants raised an argument relative to attorney’s fees in their notice of appeal, but did not brief it. Thus, it is waived. See State v. Mountjoy, 142 N.H. 648, 652 (1998). Affirmed. — 21 — BARRY, J., superior court justice, specially assigned under RSA 490:3, concurred; Gray and Manias, JJ., retired superior court justices, specially assigned under RSA 490:3, concurred; DUGGAN, J., dissented.