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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 98-652
MILFORD LUMBER COMPANY, INC.
v.
RCB REALTY, INC. & a.
September 28, 2001
Brennan, Caron, Lenehan & Iacopino, of Manchester (Donald C. Crandlemire on the brief and orally), for the plaintiff.
Law Office of William E. Aivalikles, P.A., of Nashua (William E. Aivalikles on the brief and orally), for the defendants.
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 plaintiff’s 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 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 "[a]ny 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:1, 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 358-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 protection statute and explicitly rejected the argument that "only buyers, not sellers, may avail themselves under