New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

NHBA`s 2-volume Practice and Procedure Handbook has evolved into a first-source reference for New Hampshire Practitioners of all levels of experience.

Order with big business buying power.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Bar Journal - September 1, 2002

Milford Lumber Co., Inc. v. RCB Realty, Inc.: Using the Consumer Protection Act to Protect a Seller from the 'Rascality of One of Its Customers'

By:
MILFORD LUMBER COMPANY, INC
 

"[T]he word 'any' in a statute rarely means 'any at all in the universe.' "2

I. INTRODUCTION

In September 2001, contrary to the express language and purpose of the Consumer Protection Act ("CPA"),3  the New Hampshire Supreme Court ruled that a seller had a viable cause of action against a business consumer.4  In Milford Lumber Company, Inc. v. RCB Realty, Inc., Milford Lumber, a business, attempted to collect money owed by an evasive consumer, RCB Realty, which was also a business.5  Milford Lumber alleged, inter alia, a violation of the Consumer Protection Act.6  The court allowed Milford Lumber to recover under the CPA stating that the Consumer Protection Act "does not bar sellers from availing themselves of its protection."7 

The New Hampshire Consumer Protection Act, enacted in 1970, protects consumers from unfair or deceptive business activities.8  Its purpose is "to regulate business practices for consumer protection by making it unlawful for persons engaged in trade or commerce to use various methods of unfair competition and deceptive business practices."9  The New Hampshire Supreme Court has accepted and applied the purpose of the statute as a basis for analyzing cases brought under the CPA.10  The court has further elaborated that the CPA's purpose " 'is to ensure an equitable relationship between consumers and persons engaged in business.' "11 

The Milford Lumber court looked to the inclusive language of New Hampshire Revised Statutes Annotated ("RSA") 358-A:2,12  and of 358-A:10,13  and the broad definition of "person" in 358-A:1, I,14  to hold that sellers are not barred from availing themselves of the protections of the CPA.15  This article considers the court's decision by examining the CPA, principles of statutory construction, and applicable case law.16  More specifically, this article uses a three part analysis to show that by using the CPA to penalize a dishonest consumer, the court: (1) violated the plain meaning of the CPA; (2) ignored the legislative intent of the CPA; and (3) contradicted prior New Hampshire case law. 17

II. BACKGROUND

Milford Lumber Company, Inc. ("Milford Lumber"), a New Hampshire lumber and building supply company, agreed to supply materials for a development being constructed by a joint venture between John Howe, a local builder, and Richard Berube.18  Berube established RCB Realty, Inc. ("RCB Realty") as a New Hampshire corporation.19  RCB Realty had no employees; Berube was its sole shareholder, director, and officer.20 

The invoices for the lumber and supplies were submitted to Howe, but paid by RCB Realty.21  RCB Realty was slow to pay its debts to Milford Lumber.22  Despite Milford Lumber's attempts to work out a payment plan and accommodate business problems among RCB Realty affiliates, the payment problems continued.23 

Milford Lumber sued Berube individually, RCB Realty, Inc., and RCB Realty, d/b/a/ Century 21 Team Berube (business entities collectively referred to as "RCB Realty") in Hillsborough Superior Court.24  The suit alleged breach of contract, negligence/fraudulent misrepresentation, violation of the CPA, and quantum meruit.25  The trial court found that RCB Realty was liable to Milford Lumber on the theories of breach of contract, negligent misrepresentation, quantum meruit, and violation of the CPA,26  but did not find fraud/intentional misrepresentation.27  Relying on statutory interpretation to resolve Milford Lumber's CPA claim,28  the court ruled that the parties' complex business relationships invoked the language of the statute.29  Berube, in his individual capacity, was held responsible for damages that included $71,347.16 in outstanding debt for building supplies, plus interest and costs.30  Additionally, the court awarded reasonable attorney fees of $53,344.00 for claims under the CPA.31 

After the trial court denied RCB Realty's motion for reconsideration, both parties appealed to the New Hampshire Supreme Court. The court accepted two questions on appeal, both regarding whether the trial court properly found that Milford Lumber was entitled to relief under the CPA.32  Specifically, the court considered whether the CPA "limits its protections to 'consumers,' and does not afford a private right of action to 'sellers' such as the plaintiff in this case."33 

III. ANALYSIS

The typical Consumer Protection Act claim involves a victimized consumer who seeks, under the CPA statutory protections, to rectify a wrong imposed by an unscrupulous merchant seller. The CPA establishes that consumers can bring a cause of action against sellers and also allows the Department of Justice, through its Consumer Protection and Antitrust Bureau, to bring class actions, seek injunctive relief, seek civil penalties, and bring criminal prosecutions.34 

Milford Lumber, however, is atypical. In this case, the plaintiff, Milford Lumber, sells building supply products as a business. Thus, Milford Lumber was the seller of the items for sale; namely, the building supplies for RCB Realty's projects; and RCB Realty was the consumer.35  Because Milford Lumber was not a consumer in this instance, it should not have been protected under the consumer protection laws. The Milford Lumber court did not so hold. In an unprecedented opinion, the court concluded that a business seller could be afforded protection under the Consumer Protection Act.36 

The decision, however, was not unanimous.37  The dissent applied a three part test38  and concluded that the second part of the test was not met by the plaintiff.39  The dissent bolstered its argument by: analyzing the plain language of the CPA; criticizing the superior court's ruling for its reliance on isolated words rather than the statute as a whole; examining the legislative intent; noting that the scope of the act was limited, though broadly worded; criticizing the superior court's broad application of sections of the statute; addressing the public policy implications of the decision; relying on prior decisions; and by raising policy concerns about the impact of this decision on business relationships.40  The dissent disagreed with the majority's view that the legislature intended the CPA to protect sellers from deceptive acts by consumers.41  Instead, the dissent concluded that the CPA applies to acts of sellers and does not apply to acts performed by buyers.42  Expressing concern over the majority's view, the dissent noted "today's decision represents a substantial departure from our traditional jurisprudence, in which we have never applied the Act to protect a merchant business from the rascality of one of its customers."43 

The Milford Lumber court's majority decision - to afford a seller protection rather than a consumer, for the first time in the history of the CPA - is troubling. A close examination of RSA 358-A:2, on which the majority first relied, shows that to assert coverage under the CPA a plaintiff must prove: that the defendant is a person,44  that the defendant used an unfair method of competition or any unfair or deceptive act or practice,45  and that the act occurred in the conduct of trade or commerce46  in New Hampshire.47 

RCB Realty clearly fits the definition of a person under the statute. The statute defines "trade" and "commerce" as including "the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this state."48  Although RCB Realty was not the offer or of any services, the CPA's broad view of trade and commerce likely includes RCB Realty's actions. Whether the CPA is the appropriate vehicle for Milford Lumber's claim thus depends on what qualifies as unfair and deceptive, as specified and intended in the CPA.

To understand a party's entitlement under the CPA, it is necessary to consider tools that the New Hampshire Supreme Court uses to assess the meaning of a statute: the plain meaning of the statute; the legislature's intention and purpose as expressed through the words and structure of the act; and the court's prior decisions under that statute. By applying traditional tools of statutory interpretation to this case, this analysis shows that Milford Lumber's actions did not qualify as unfair or deceptive under the constructs of the CPA. The Milford Lumber decision defies the court's traditional jurisprudence and fails to pass analytical muster in all three instances: plain meaning, legislative intent, and prior case law.49 

The Court Misapplied the Plain Meaning of the CPA

The New Hampshire Supreme Court is the final arbiter of the New Hampshire legislature's intent behind a statute.50  When dealing with a matter of statutory construction, the New Hampshire Supreme Court begins its analysis by considering the plain meaning of the words of the statute.51  In exercising its responsibility to apply a statute's plain language, the court applies that language to a particular case without further inquiry, provided that the language of the statute is clear.52 

The Milford Lumber court misapplied a plain meaning analysis to conclude that the CPA has a broad reach, and therefore, that the statute allows a seller to bring a private cause of action under the CPA.53  The court's analysis followed three steps. First, the court emphasized the wording of RSA 358-A:2, which provides that " 'it 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.' "54  Second, the court considered section 358-A:10 to broadly allow " 'any person injured by another's use of any method, act or practice declared unlawful under this chapter' " to bring a private action under the CPA.55  Third, the court relied on the broad definition of "person" in 358-A:1, I, which defines a person as " 'natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entity.' "56 

If the reader considers only the components of the CPA quoted above, it might appear as though the CPA's reach is broad enough to afford protection even to a seller. The statutory language and structure, however, limit the coverage of the CPA.57  Therefore, rather than literally applying the word any, one must examine the plain language and structure of the CPA to determine its applicability to a particular situation.

A key feature of the language and structure of the CPA is a list of thirteen types of unlawful acts covered by the statute.58  Thus, the language of the statute itself suggests what qualifies as unfair or deceptive acts. Figure 1 duplicates the list.

FIGURE 1:

Such unfair method of competition or unfair or deceptive act or practice shall include, but is not limited to, the following:

I. Passing off goods or services as those of another;

II. Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

III. Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another;

IV. Using deceptive representations or designations of geographic origin in connection with goods or services;

V. Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that such person does not have;

VI. Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;

VII. Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

VIII. Disparaging the goods, services, or business of another by false or misleading representation of fact;

IX. Advertising goods or services with intent not to sell them as advertised;

X. Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

X-a. Failing to disclose the legal name or street address of the business under RSA 361-B:2-a;

XI. Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; or

XII. Conducting or advertising a going out of business sale:

(a) Which lasts for more than 60 days;

(b) Within 2 year of a going out of business sale conducted by the same person at the same location or at a different location but dealing in similar merchandise;

(c) Which includes any goods, wares, or merchandise purchased or received 90 days prior to commencement of the sale or during the duration of the sale and which are not ordinarily sold in the seller's course of business;

(d) Which includes any goods, wares, or merchandise ordered for the purpose of selling or disposing of them at such a sale and which are not ordinarily sold in the seller's course of business;

(e) Which includes any goods, wares, or merchandise consigned or the purpose of selling or disposing of them at such sale;

(f) Without conspicuously stating in any advertisement for any such sale, the date such sale is to commence or was commenced;

(g) Upon the conclusion of which, that business is continued under the same name or under a different name at the same location; or

(h) In a manner other than the name implies.

Although the list is non-exhaustive, its contents have significance and give context to the word any. For example, Justice Stephen Breyer,59  in considering the use of the term any, looked to the legislative history of a federal criminal statute pertaining to counterfeit coins.60  The statute says, " 'whoever...possesses any false, forged, or counterfeit coin, with intent to defraud any person' is guilty of a crime."61  Justice Breyer's analysis stated, in part, "[t]he word 'any' in a statute rarely means 'any at all in the universe.' "62  Thus, it is important to consider further the particularized statutory language beyond the broad use of the word any.

The thirteen types of unlawful acts exemplify such particularized statutory language, and serve as representative categories, notwithstanding the "any" language. Each example deals with the provision of goods and services to consumers, and specifically protects buyers from the practices or acts of sellers.63  The concept of the victimized consumer is prevalent in the thirteen examples, thus indicating the appropriate types of protections under the CPA.64 

By upholding the trial court's ruling, which determined that RCB Realty's actions fell within subsections III and V of RSA 358-A:2 (Figure 1) in addition to the broader language of the statute, the New Hampshire Supreme Court did not limit subsections III and V to the victimized consumer.65  Arguably, if examples III and V are extracted from the other examples and read in isolation, it is possible to interpret those two subsections as applicable to buyers. Even so, neither subsection III nor subsection V are likely to apply to actions of consumers. Even if a consumer "caus[ed] [the] likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by another,"66  as described in subsection III, it would not be harmful to a seller, and thus the seller would not need to be protected on this basis. Subsection V specifically refers to goods and services,67  which are functions of sellers, not of consumers.

Isolating subsections III and V also contradicts the court's interpretation of the language and structure of a similar statute, the Dealership Act,68  in which the New Hampshire Supreme Court emphasized the need to consider the statute as a whole.69  As a tool of statutory interpretation, the New Hampshire Supreme Court adheres to the importance of the words of a statute expressed as a whole.70  The court has stated that the plain meaning of a particular provision must be determined in light of the statute as a whole, and has rejected considering parts of the statute in isolation.71 

When considering the interpretation of a statute as a whole, the interplay between general and specific phrases is crucial. The principle of ejusdem generis provides that specific phrases within a statute will limit the general language of that statute.72  The New Hampshire Supreme Court recognizes this concept. For example, the court stated, "[o]ne of the more common applications of the ejusdem generis rule is that where general words are subjoined to specific words, the general words will not include any objects of a class superior to that designated by the specific words."73  That is, when a statute explains a class with more specific examples but then uses a general term to describe a class (e.g. "any"), the general words will not be more inclusive than the types of examples given. This creates internal consistency within a statute.

Subjecting the general words to the limitations of specific words, it is logical that the types of actions listed in the CPA do, in fact, exemplify the actions that the legislature intended to receive coverage under the CPA, even though the general word "any" precedes the more specific examples. The Milford Lumber majority reasoned, however, that if the acts of the buyer were not specifically exempted, then they could be included.74  This could lead to absurd results. But the legislature does not "enact statutory language that would lead to an absurd result."75  The application of the CPA to absolutely any infraction, of any person, involved in any trade or commerce would, however, be absurd. Even so, the Milford Lumber court did not find it absurd to protect sellers under the CPA. The court based its view on their reading of "plain statutory language" in RSA 358-A:2. The court stated that "[t]his broad legislative proscription makes no distinction between buyer and seller."76  The court further noted the significance of the exemptions in RSA 358-A:3, since private causes of action brought by sellers against buyers were not exempt from the list.77  Because there was a "continuing commercial relationship" between the plaintiff and the defendant, the majority reasoned that the seller could, in fact, be protected from the buyer under the CPA.78  To support its holding in Milford Lumber, the court's majority presumed to uphold crucial statutory construction principles.79 

Using customary statutory construction rules, the New Hampshire Supreme Court also presumes that " 'the legislature does not enact unnecessary and duplicative provisions.' "80  Additionally, the court presumes that the legislature does not use superfluous or redundant words.81  If the term "any" were actually intended to mean "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...,"82  then there would be no reason to include the particularized language that follows in the statute, because the examples would be superfluous and redundant. For example, in Snyder v. NH Savings Bank, the New Hampshire Supreme Court reasoned that if the term " 'owner' " were really intended to mean " 'anyone with a recorded interest in the premises,' " the specifications of mortgagors, record owners, and record lien holders in RSA 479:25, II would be redundant.83  Similarly, in Merrill v. Great Bay Disposal Service, Inc., the New Hampshire Supreme Court reasoned that an interpretation of the damages statute consistent with the defendant's position would render redundant or superfluous the listing of specific relatives in the statute, and would violate the ejusdem generis rule: "...where general words are subjoined to specific words, the general words will not include any objects of a class superior to that designated by the specific words."84 

Yet, the court typically assumes that all words in a statute are to be given meaning in its interpretation,85  and has observed "that the legislature is not inclined to 'waste its words.' "86  Thus, the court should have given attention to all of the legislature's words when analyzing the CPA, not just some.

Contrary to the New Hampshire Supreme Court's stated premise of interpreting a statute using plain meaning rules, the Milford Lumber court failed to apply accepted methods of statutory interpretation. It incorrectly isolated words of the CPA and consequently misconstrued the plain meaning of the statute to afford its protections to a merchant seller.

The Court Ignored the Legislative Intent of the CPA

Although the judiciary is the ultimate authority in statutory interpretation,87  "[a]ll judicial approaches to statutory interpretation are framed by the constitutional truism that the judicial will must bend to the legislative command."88  Thus, although judges have flexibility in statutory interpretation, they have less flexibility than they have in common law decisions.

If the language in a statute is clear and unambiguous, its meaning is not subject to modification by judicial construction.89  The court "will not consider what the legislature might have said or add words that the legislature did not include."90  Conversely, if the statutory language is unclear, the court will consider whether the legislature intended for the statute to cover the case at issue.91 

While New Hampshire decisions have confirmed that the words in a statute are the touchstone of the legislature's intention, the court looks further to the legislative intent and the objectives of the legislation to resolve ambiguities.92  The justices should seek "the specific intent of the lawmakers and, once disclosed, it controls any generalized statements elsewhere as to the meaning of the words used."93  Thus, not only is the wording and structure useful for interpreting the plain meaning of a statute such as the CPA, but it is also an indication of the legislature's intent. The legislature's intent is particularly discernible in the title of the Consumer Protection Act, its purpose,94  and the particularized list of the thirteen types of acts covered by the CPA (Figure 1).95 

If the legislature intended the particularized list to include the actions of a deceptive consumer, it could have changed the list to clarify its intent. The legislature has amended and/or revised the CPA many times since 1970,96  and has had the opportunity to add examples which would specifically protect victimized sellers. The legislature is likely aware of the fact that consumers could harm sellers, yet they have chosen not to itemize any examples which indicate that sellers are covered by the CPA.

To discern legislative intent, it is also proper to consider the previous state of the law, the circumstances which led to its enactment, and the problem that it was designed to correct.97  Prior New Hampshire case law has established that protecting consumers from unscrupulous business activities is the foundational purpose of the New Hampshire CPA.98  The CPA "is a comprehensive statute designed to regulate business practices for consumer protection by making it unlawful for persons engaged in trade or commerce to use various methods of unfair competition and deceptive business practices."99  Therefore, in affording greater protection to a victimized consumer,100  a more equitable relationship could be developed between consumers and businesses.101 

The legislature offered interpretative guidelines that further indicate the legislature's intent in enacting the CPA. The CPA states that its interpretation should be guided by the construction given to the analogous Federal Trade Commission Act ("FTCA").102  The FTCA focuses on harms to consumers,103  supporting the proposition that the legislature enacted the CPA to protect consumers.104 

That the legislature intended the CPA to limit its protection to the victimized consumer is further evidenced by its regulatory scheme.105  The CPA is administered and enforced by the Consumer Protection and Antitrust Bureau of the Department of Justice.106  On its web site, the Consumer Protection and Antitrust Bureau states that the bureau "protects consumers from unfair and deceptive business practices in New Hampshire."107  Its series of public information brochures, the Consumer Alerts, are targeted to protecting consumers.108  If the attorney general believes that unlawful trade or commerce, as defined by the chapter, is being or is about to be conducted by any person, the attorney general may bring action against the person.109  Thus, the bureau's focus on consumer victims is an indication of the legislature's intent as to who should receive the CPA's protection.

Even though the legislature made its intent clear through vehicles such as the language and structure of the CPA, and its interpretative and regulatory scheme, the Milford Lumber court expanded the intent in holding that sellers can be protected under the statute.110  Interestingly, the Milford Lumber court acknowledged that its holding was very broad, and that it might go beyond what the legislature intended when the CPA was put into effect.111  The majority explained, however, that a prior decision, Chase v. Dorais narrowed its decision to a trade or business context.112  Believing that the defendants' actions went beyond an ordinary breach of contract claim, the court expressed that "such unethical and unscrupulous activity" should not be allowed to occur in New Hampshire.113 

Arguably, the legislature intended the CPA's provision for attorney fees as a deterrent to unethical behavior, and as a method by which a less powerful consumer could bring suit against a more powerful merchant. Notably, however, the CPA was not Milford Lumber's only outlet for seeking restitution including counsel fees. "Where an individual is forced to seek judicial assistance to secure a clearly defined and established right, which should have been enjoyed without such intervention, an award of counsel fees on the basis of bad faith is appropriate."114  New Hampshire has long recognized the principle that when the judicial proceeding is unnecessary, the fees may be shifted to the responsible party, on the basis of the courts' power to enforce their own decrees.115 

The Milford Lumber majority supported its broad interpretation by considering a Massachusetts case that analyzed whether a Massachusetts consumer protection statute protected only buyers and not sellers.116  In that case, the Massachusetts court found the statute to protect sellers from dishonest buyers in business-to-business transactions.117  The Milford Lumber court stated that because the New Hampshire Act's language was similarly broad, it too should cover business-to-business transactions.118  Based on the First Circuit decision in Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., Inc.,119  the Milford Lumber court further reasoned that the New Hampshire legislature did not limit recovery under the CPA to consumers only, and thus the CPA does not bar sellers from its protection.120 

Although it is not uncommon for the New Hampshire Supreme Court to adopt the legal reasoning of the Massachusetts Supreme Judicial Court,121  in this case the Massachusetts and New Hampshire statutes have a crucial distinguishing factor.122  The Massachusetts statute contains a separate section, added to their consumer protection laws, that covers business-to-business transactions.123  Additionally important is that the original version of the Massachusetts statute limited the statute's protection to "purchasers and lessees," but that language was taken out of the statute.124  Thus, the Massachusetts legislature specifically chose not to bar sellers from recovery under the Massachusetts Consumer Protection Act.

The majority further supported its interpretation of the CPA by stating they could find "no additional legislative history that indicates any intention to limit who may bring suit under the Act."125  Yet, when the purpose of a statute is clear, and has no ambiguity, there is no need to look to legislative history.126  Therefore, the legislative history is unnecessary in this case, because the legislative intent and purpose of the CPA are clearly identified. The wording and structure of the CPA, its title, purpose, interpretative guidelines, and regulatory scheme combine to make the legislature's intent and purpose of the statute clear. Even so, the Milford Lumber court failed to bend its judicial will to the legislative command.127 

The Court Violated Principles of Stare Decisis

The New Hampshire Supreme Court's prior decisions are important because of the well-accepted principle of stare decisis.128  Despite the broad wording of the CPA, prior cases have defined limits on its applicability.129 

In Hughes v. DiSalvo, the New Hampshire Supreme Court determined that the CPA is comprehensive and broad, but that it has limits.130  The court considered the coverage of the CPA and stated that the CPA " 'is a comprehensive statute whose language indicates that it should be given broad sweep...' " but additionally noted that it is " 'not unlimited in scope.' "131  The court identified a three-part test for determining whether the CPA applies to a particular transaction: "the activity involved, the nature of the transaction, and the parties to determine whether a transaction is a personal or business transaction."132 

The Milford Lumber court acknowledged the difficulty in determining which commercial transactions fit under the CPA, and relied on its reasoning in Barrows v. Boles.133  In Barrows, the plaintiff claimed that the defendants acted in an unfair or deceptive manner on numerous occasions, and claimed the protection of the CPA.134  In determining whether or not the defendant's actions were covered under the CPA, the court accepted the Massachusetts Court of Appeals' test for determining whether conduct is unfair or deceptive: " '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.' "135  Even though RCB Realty's actions were unscrupulous and could easily meet the above level of rascality, the CPA protections were not appropriate, based on further analysis of prior decisions.

Chase v. Dorais also addressed the limitations of the CPA's afforded protections.136  The New Hampshire Supreme Court applied the limits to the CPA's coverage by requiring that the underlying transaction occur in trade or business. In Chase, the plaintiff, a car purchaser, sought to bring suit under the CPA against an individual who was selling a car. The court rejected the contention that all transactions should be included in the scope of the CPA, and concluded that the CPA did not apply to the car sale, because it did not take place in a " ' trade or business context.' "137 

Prior case law suggests that the CPA includes transactions between business competitors, as well as those involving ultimate consumers.138  In Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., Inc., the action arose from the Defendant (merchant) selling a paint system with which the plaintiff (consumer) was dissatisfied.139  The Defendant argued that the CPA does not apply to purely commercial transactions.140  The United States Court of Appeals for the First Circuit stated, however, stated that "[t]he Act regulates 'Business Transactions.' "141  While a business-to-business transaction may find protection under the New Hampshire CPA, it is still the consumer of the goods that would be protected, not the provider. In Milford Lumber, the transaction was a business-to-business transaction, but RCB Realty was the consumer of the goods and Milford Lumber was the provider of the goods.142 

A recent New Hampshire Supreme Court case would seem to govern Milford Lumber.143  In Roberts v. General Motors Corp.,144  the court considered whether a party had standing to file suit under the Dealership Act,145  and whether a disputed transaction was within the scope of the Consumer Protection Act.146  The plaintiff in Roberts brought suit after GMC sold an auto dealership to a minority-owned corporation instead of to the plaintiff.147  The plaintiff alleged that GMC violated, inter alia, the Dealership Act and the Consumer Protection Act.148  The court in Roberts relied on language from a Massachusetts ruling to confirm the importance of considering the Dealership Act's purpose, stating:

 

[n]ot every party who can claim an injury as a result of violations of a statute or regulation has standing to bring an action thereunder. This is true even when a literal reading of the statute, without regard to the Legislature's purpose in enacting it, would appear to provide a broader grant of standing....The scope of the grant of authority to bring an action for violation of the statute must be determined with reference to the context of the subject matter of the statute.149 

Also in Roberts, the New Hampshire Supreme Court considered the significance of examples after the use of the term any. The court rejected the plaintiff's argument that the Dealership Act was to be read on its face as providing a remedy to " 'any person' " injured.150  The court instead agreed with the defendant, who countered that the statute must be read as a whole, and therefore, while the statute was broad, further wording specifically limited standing to those persons who had business or property interest injuries.151 

In its analysis of whether protection of the CPA was available to the plaintiff, the Roberts court concluded that the thirteen representative categories govern "transactions for the provision of goods and services to consumers." 152  In considering the limits of the CPA, the Roberts court looked to Massachusetts case law.153  While the court recognized the limitations of the CPA, it applied rules of statutory construction to rule that the CPA was, in fact, limited by the particularized list.154  The court stated "[w]hile the Act itself states that it is not limited only to these specific transactions, see RSA 358-A:2, we agree with the Massachusetts Appeals Court that 'rules of statutory construction lead us to conclude that the phrase "including but not limited to," which precedes the specification, limits the applicability of the Consumer Protection Act to those types of acts therein particularized.' "155  The Roberts court thus acknowledged the statute's broad wording, but read the statute as a whole, and determined that further particularized wording specifically limited the statute.156 

The court's explanation in Roberts, regarding limiting the applicability of the CPA to the types of particularized actions enumerated, rather than including " ' any person' " injured157  is in direct opposition to the court's explanation of reading the CPA broadly in Milford Lumber.158  In Milford Lumber, the court failed to interpret the CPA using the context of the entire act. If the Milford Lumber court had applied reasoning consistent with the court's reasoning in Roberts, the plain language analysis would not have been made without further considering the additional particularized language of the statute. The Milford Lumber decision directly opposed the court's prior reasoning, and exceeded the stated purpose of the CPA to hold that sellers could receive protection under the CPA.

V. CONCLUSION

The Consumer Protection Act is not the appropriate vehicle to right the wrong of a dishonest customer.159  When people do not pay the debts they owe to another, they should be held responsible for their wrongdoing. Milford Lumber's legal remedy is, therefore, just.

Even so, the remedy should not have been under the CPA. That Milford Lumber qualifies as a "person" under the CPA's definition is clear. Likewise, it is clear that the act occurred in the conduct of trade or commerce in New Hampshire. The problem with allowing Milford Lumber's claim to come under the CPA is that RCB Realty's actions do not qualify as the types of unfair and deceptive acts specified and intended in the CPA's coverage, as shown through the plain language, the statute's intent and purpose, and prior case law analyses.

Sellers such as Milford Lumber were not intended to receive the protections of the CPA. The legislature designed the CPA for the protection of consumers, not to make restitution to a seller. Not only is the Milford Lumber decision an interpretative violation, but it is a disservice to consumers. Since the CPA was enacted to level the power between consumers and sellers, affording sellers a consumer's remedy gives them unintended power. If the CPA is misused to apply to sellers, there could be a backlash such as a limitation on damages through the CPA. If a merchant seller is intended to have protections under the Consumer Protection Act, then the legislature should be the branch of the government to affirmatively make that decision.

ENDNOTES

1. Milford Lumber Co. v. RCB Realty, __ N.H. __, __ No. 98-652 (N.H. Sup. Ct. September 28, 2001); 780 A.2d 1259, 1269; 2001 N.H. Lexis 166, 28-29 (Duggan, J., dissenting) (referring to a standard referred to by the majority: "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 world of commerce.' ") (quoting Barrows v. Boles, 141 N.H. 382, 390 (1996)) (quotation omitted); [hereinafter, citations refer to A.2d and Lexis].
2. Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 850 (1992) (considering 18 U.S.C. 485 (1988)) (This article was originally presented as the 1991 Justice Lester W. Roth Lecture at the University of Southern California Law Center on October 31, 1991; Justice Breyer authored this article when he was Chief Judge of the First Circuit Court of Appeals.).
3. N.H. Rev. Stat. Ann. 358-A (1995 & Supp. 2001).
4. Milford Lumber Co. v. RCB Realty, Inc., 780 A.2d 1259, 1262; 2001 N.H. Lexis 166, 7 (2001). Justice Nadeau authored the opinion; Barry, J. Superior Court Justice, specially assigned under RSA 490:3, concurred, did not write separately; Gray and Manias, J.J., retired Superior Court Justices, specially assigned under RSA 490:3, concurred, did not write separately.
5. Id. at 1261; 2001 N.H. Lexis 166 at 2.
6. Id.; 2001 Lexis 166 at 2-3. The advantage of a plaintiff's award under the Consumer Protection Act is an award of attorney fees in N.H. Rev.Stat.Ann 358-A:10 (1995). The statute provides, "[i]f the court finds that the use of the method of competition or the act or practice was a willful or knowing violation of this chapter, it shall award as much as 3 times, but not less than 2 times, such amount. In addition, a prevailing plaintiff shall be awarded the costs of the suit and reasonable attorney's fees, as determined by the court." 358-A:10, I.
7. Milford Lumber Co., 780 A.2d at 1262; 2001 N.H. Lexis 166 at 7.
8. N.H. Rev. Stat. Ann. 358-A (1995 & Supp. 2001).
9. Chase v. Dorais, 122 N.H. 600, 601(1982) (emphasis added); Rousseau v. Eshleman, 128 N.H. 564, 566-67 (citing Chase v. Dorais, 122 N.H. at 601); Gilmore v. Bradgate Assoc., 135 N.H. 234, 238 (1992) (citing Chase, 122 N.H. at 601) (overruled on other issues).
10. See e.g., Chase v. Dorais, 122 N.H. 600, 601 (1982) (stating the purpose of N.H. Rev. Stat. Ann. 358-A (Supp. 1981) and construing it as inapplicable to a private car sale because it did not take place in a trade or business context).
11. Hughes v. DiSalvo, 143 N.H. 576, 578 (1999) (construing N.H. Rev. Stat. Ann. 358-A and holding that isolated sales of property by an owner were not subject to the statute because the purpose of the Consumer Protection Act was to ensure an equitable relationship between consumers and persons engaged in business) (quoting McGrath v. Mishara, 386 Mass. 74, 434 N.E. 2d 1215, 1222 (Mass. 1982)).
12. Milford Lumber Co., 780 A.2d at 1261; 2001 N.H. Lexis 166 at 4 (construing N.H.Rev. Stat. Ann. 358-A:2 (1995 & Supp. 2000)).
13. Id. (construing N.H. Rev. Stat. Ann. 358-A:10 (1995 & Supp. 2000)).
14. Id. (construing N.H. Rev. Stat. Ann. 358-A:1,I (1995)).
15. Id., 780 A.2d at 1262; 2001 N.H. Lexis 166 at 7.
16. See infra nn. 34-159 and accompanying text.
17. See id.
18. Milford Lumber Co. v. Berube et al., Nos. 97-C-116 & 97-C-003, slip op. at 4 (NH Super. Ct. Hillsborough, SS. So. Dist. June 4, 1998).
19. Id. at 4, 5.
20. Id.
21. Id. at 4.
22. Id. at 5.
23. Id. at 6.
24. J. Delianis; Id. at 2.
25. Id. at 3.
26. Id. at Summary, 30.
27. Id. at 18.
28. Id. at 18-19 (writing that the court's purpose in interpreting statutes: is to determine legislative intent, beginning with the language of the statute itself. When that language is plain and unambiguous, [the Court] need not look beyond the statute for further indications of legislative intent. When interpreting statutes, [the Court] ascribes to statutory words and phrases their usual and common meaning, unless the statute itself suggests otherwise.)

(quoting Appeal of Booker, 139 N.H. 337, 341 (1995)).

29. Id. at 20.
30. Id. at 27.
31. Id. at 27-28 (stating that the court awards Milford its "reasonable attorney's fees" and basing its decision on RSA 358 A:2, III and V, and pursuant to RSA 358-A: 10 (1995)); Def.'s Br. 3 (September, 1999); Pl.'s Br. 1 (September, 1999).
32. Def's/Appellant's Notice of Appeal 2-3 (October 1998). Questions one and five from the Notice of Appeal were accepted:

1. Whether the trial court erred, as a matter of law, by invoking the protection of the New Hampshire Consumer Protection Act where the evidence clearly shows that the plaintiff is not a "consumer" within the meaning of the Act and where the Act was not intended to cover the rough and tumble world of commerce.

5. Whether the trial court erred, as a matter of law, in awarding attorney's fees under the Consumer Fraud Statute where the plaintiff was a commercial supplier of lumber and where the court specifically found that fraud did not exist.

The majority briefly addressed an additional argument, not central to this case note. See Milford Lumber Co., 780 A.2d at 1264; 2001 Lexis 166 at 11-12. The defendants argued that the plaintiff failed to plead the statutory sections of the Consumer Protection Act with specificity. Id. Because of New Hampshire's liberal pleading practices and the CPA's broad language, the court declined to require the plaintiff to plead the exact subsections of the Act on which they wanted the court to rule. Id.

33. Milford Lumber Co., 780 A.2d at 1261; 2001 N.H. Lexis 166 at 3.
34. See N.H. Rev. Stat. Ann. 358-A:4 (1995 & Supp. 2001).
35. Milford Lumber Co., 780 A.2d at 1261; 2001 N.H. Lexis 166 at 2.
36. Id. at 1262; 2001 N.H. Lexis 166 at 7.
37. Id. at 1264-69; 2001 Lexis166 at 13-29 (Duggan, J., dissenting).
38. Id. at 1265; 2001 Lexis 166 at 15.
39. Id. at 1265; 2001 Lexis 166 at 15-16.
40. Id. at 1264-69; 2001 Lexis 166 at 13-29.
41. Id.
42. Id. at 1265; 2001 N.H. Lexis 166 at 15-16.
43. Id. at 1269; 2001 N.H. Lexis 166 at 28-29.
44. N.H. Rev. Stat. Ann 358-A:1, I (1995) (defining "person" as "natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entity").
45. N.H. Rev. Stat. Ann. 358-A:2 (1995 & Supp. 2001) (setting out the prohibited conduct using thirteen examples).
46. N.H. Rev. Stat. Ann. 358-A:1, II (1995) (defining "trade" and "commerce" as "the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this state").
47. N.H. Rev. Stat. Ann. 358-A:2 (1995 & Supp. 2001) (making 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.").
48. N.H. Rev. Stat. Ann. 358-A:1, II (1995).
49. This three part analysis is intended to support and further the dissent's position. The analysis uses the dissent's argument as a basis, clusters the dissent's arguments into three analytical categories, and then furthers the argument with additional tools of statutory interpretation.
50. State v. Farrow, 140 N.H. 473, 474 (1995) (concluding a sentencing statute was intended to protect society from first degree murderers) (quoting State v. Woods, 139 N.H. 399, 400 (1995)).
51. Snow v. American Morgan Horse Association, Inc., 141 N.H. 467, 471 (1996) (interpreting language of the Consumer Protection Act, including statutory definitions of trade and commerce).
52. Abner J. Mikva & Eric Lane, An Introduction to Statutory Interpretation and the Legislative Process, 6 (Aspen Law & Business 1997).
53. See Milford Lumber Co., 780 A.2d at 1261-62; 2001 N.H. Lexis 166 at 4.
54. Id. at 1261; 2001 N.H. Lexis 166 at 4 (emphasis added) (citing RSA 358-A:2 (1995 & Supp. 2000)).
55. Id. (emphasis added) (citing N.H. Rev. Stat. Ann. 358-A:10 (1995)).
56. Id. (citing N.H. Rev. Stat. Ann. 358-A:1,I (1995)).
57. See N.H. Rev. Stat. Ann. 358-A (1995 & Supp. 2001).
58. N.H. Rev. Stat. Ann. 358-A:2 (1995 & Supp. 2001).
59. Justice Stephen Breyer is currently a Justice for the Supreme Court of the United States. He authored the article, discussed infra, when he was Chief Judge of the First Circuit Court of Appeals.
60. See Breyer, supra n. 2, at 850.
61. Id.
62. Id. at 851.
63. N.H. Rev. Stat. , Ann. 358-A:2 (1995 & Supp. 2001).
64. See id.; see also, National Basketball Ass'n. v. Motorola, Inc., 105 F.3d 841, 846 (2nd Cir. 1997) (Even though statutory lists may be labeled as non-exclusive, courts will still use them as guides. The second circuit rejected allowing basketball games to fall within the subject matter of federal copyright protection because they do not constitute "original works of authorship" under 17 U.S.C. 102(a). The court reasoned that the section listed eight categories as "literary works," "musical works," and "dramatic works," but did not list any athletic events; and therefore, although the list was non-exclusive, the athletic events were neither similar nor analogous to any of the listed categories; although the games were not protected, the broadcasts were.)
65. Milford Lumber Co., 780 A.2d at 1261; 2001 N.H. Lexis 166 at 4 (construing N.H. Rev. Stat. Ann. 358-A:2, III and V (1995 & Supp. 2000)).
66. N.H. Rev. Stat. Ann. 358-A:2, III (1995 & Supp. 2001).
67. N.H. Rev. Stat. Ann. 358-A:2, V (1995 & Supp. 2001).
68. N.H. Rev. Stat. Ann. 357-C (1984 & Supp. 2001).
69. See Roberts v. General Motors Corp., 128 N.H. 532, 536 (1994) (discussed infra text accompanying nn. 143-157).
70. State v. Farrow, 140 N.H. 473, 474 (1995) (deciding that a sentencing statute should be examined not in isolation, but in the context of the overall statutory scheme).
71. Roberts, 138 N.H. at 536 (discussed infra text accompanying nn. 143-157) (quoting N.H. Div. Of Human Services v. Hahn, 133 N.H. 776, 778 (1990)) (stating "we will focus on the statute as a whole, not on isolated words or phrases").
72. Black's Law Dictionary 535 (Bryan A. Garner ed., 7th ed., West 1990) (defining ejusdem generis as "[a] canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed").
73. Merrill v. Great Bay Disposal Service, Inc., 125 N.H. 540, 543 (1984) (relying on 2A C. Sands, Sutherland Statutory Construction 47.19, at 112 (4th ed. 1973)).
74. Milford Lumber Co., 780 A.2d at 1262; 2001 N.H. Lexis 166 at 5-7.
75. Averill v. Cox, 145 N.H. 328, 332 (2000) (reaffirming the interpretation of the statutory exemption provided by N.H. Rev. Stat. Ann. 358-A: 3, I) (quoting Atwood v. Owens, 142 N.H. 396, 398 (1997)).
76. Milford Lumber Co., 780 A.2d at 1264; 2001 N.H. Lexis 166 at 11.
77. Id. at 1262; 2001 N.H.Lexis 166 at 5. (construing N.H. Rev. Stat. Ann. 358-A:3 (1995 & Supp. 2000)).
78. Id. at 1264; 2001 N.H. Lexis 166 at 11-12.
79. See Milford Lumber Co., 780 A.2d at 1261-62; 2001 N.H. Lexis 166 at 3-7.
80. State v. Powell, 132 N.H. 562, 568 (1989) (avoiding redundancy in a lottery statute by concluding that the word "property" in N.H. Rev. Stat. Ann. 647:1, I referred to the lottery prize money and not the lottery ticket) (quoting DeWees v. N.H. Bd. of Pharmacy, 130 N.H. 396, 403 (1988)).
81. Merrill v. Great Bay Disposal Service, Inc., 125 N.H. 540, 543 (1984) (concluding that in a statute that provides for a limitation on the amount recoverable in a suit by an administrator in some instances, the specific listing of relatives was intended to modify the term "any relatives," and thus was not redundant).
82. N.H. Rev. Stat. Ann. 358-A:2 (1995 & Supp. 2001) (emphasis added).
83. 134 N.H. 32, 39, (1991) (referring to N.H. Rev. Stat. Ann. 479:25, II (Supp. 1990)).
84. 125 N.H. 540, 543 (1984).
85. Town of Wolfeboro (Planning Board) v. Smith, 131 N.H. 449, 453 (1989) (interpreting all of the words of an excavation statute to have meaning, so as to avoid surplusage of words).
86. Glick v. Town of Ossipee, 130 N.H. 643, 645 (1988) (overruling the trial court's decision regarding road maintenance, applying statutory interpretation principles) (quoting Blue Mountain Forest Ass'n. v. Town of Croydon, 117 N.H. 365 372 (1977)).
87. Mayor v. Cooper, 73 U.S. 247, 253 (1867) (stating "It is the right and the duty of the national government to have its Constitution and laws interpreted by its own judicial tribunals. In cases arising under them, properly brought before it, this court is the final arbiter."); State v. Woods, 139 N.H. 399, 400 (1995) ("[o]n questions of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.") (quoting State v. Johnson, 134 N.H. 570, 575 (1991)).
88. Mikva & Lane, supra n. 52 at 4; see also Otto J. Hetzel, Michael E. Libonati & Robert F. Williams, Legislative Law and Statutory Interpretation: Cases and Materials 457 (3rd ed., Matthew Bender & Co., Inc. 2001) (commenting that "[t]he legislature is supreme, but interpretation of statutes is a legitimate judicial function.").
89. Merrill v. Great Bay Disposal Service, Inc., 125 N.H. 540, 542 (1984). (examining RSA 556:13, which stated in pertinent part: "The damages recoverable in such an Action shall not exceed fifty thousand dollars except in cases where the plaintiff's decedent has left either a widow, widower, child, father, mother or any relative dependent on the plaintiff's decedent in which event there shall be no limitation." The court held that the statute unambiguously created two classes of relatives, based on the plain meaning and common usage of the words "either" and "or.").
90. In re Walker, 138 N.H. 471, 474 (1994) (considering the petitioner's request for a review of the denial of her application for benefits under Aid to Families with Dependent Children - Unemployed Parent program) (citing Appeal of Astro Spectacular, Inc., 138 N.H. 298 (1994)).
91. Mikva & Lane, supra n. 52 at 5.
92. Greenhalge v. Town of Dunbarton, 122 N.H. 1038, 1040 (1982) (considering the phrase "growing wood and timber" under RSA 79:10 (Supp. 1979) to be undefined in the statute and unclear on its face, and thus using legislative intent to hold that Christmas trees were not within the statutory definition of timber and not subject to the yield tax).
93. In re Coastal Materials Corp. (N.H. Dept. of Resources and Economic Development), 130 N.H. 98, 103 (1987) (construing N.H. Rev. Stat. Ann. 12-E and determining that 12-E clearly expressed the legislature's intent that all mining operations in the state were subject to the commissioner's regulatory authority) (citing Chagnon v. Union-Leader Corp., 104 N.H. 472, 477 (1963)).
94. Chase v. Dorais, 122 N.H. 600, 601 (1982).
95. See supra text accompanying nn. 58-71 .
96. N.H. Rev. Stat. Ann. 358-A (1995 & Supp. 2001) (listing revisions and/or amendments in 1973, 1975, 1979, 1981, 1984, 1985, 1986, 1994, 1996, 1997, 1999, 2000, and 2001).
97. In re Coastal Materials Corp., 130 N.H. at 103.
98. Chase, 122 N.H. at 601.
99. Id.
100. See id.
101. Hughes v. DiSalvo, 143 N.H. 576, 578 (1999).
102. N.H. Rev. Stat. Ann. 358-A:13 (1995). The relevant part is Section 5(a)(1) of the FTCA. 15 U.S.C. 45(a)(1).
103. Id., 45. Unfair methods of competition unlawful; prevention by Commission [:] (a) Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade. (1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby unlawful; Peter W. Mosseau and Margaret H. Nelson, New Hampshire Consumer Protection Act: An Overview and Recent Interpretive Trends, 35 N.H. Bar J. 39, 44 (1994) ("The Federal Trade Commission Act focuses on harm to consumers and not businesses. In a 1983 FTC policy statement to Congress, the commission emphasized that in defining the words 'unfair' or 'deceptive', they determine whether consumers had been misled and examine the practice from the consumer's perspective.").
104. See N.H. Rev. Stat. Ann. 358-A:13 (1995).
105. See generally N.H. Rev. Stat. Ann. 358-A.
106. N.H. Rev. Stat. Ann. 358-A:4, I (1995 & Supp. 2001).
107. http://webster.state.nh.us/nhdojConsumer/cpb.html (accessed April 10, 2002).
108. http://webster.state.nh.us/nhdojConsumer/brochures.html (accessed April 10, 2002).
109. N.H. Rev. Stat. Ann. 358-A:4, III (1995 & Supp. 2001).
110. Milford Lumber Co., 780 A.2d at 1262; 2001 N.H. Lexis at 7.
111. Id.
112. Milford Lumber Co., 780 A.2d at 1262-63; 2001 N.H. Lexis 166 at 7-8. (citing Chase, 122 N.H. 600 at 602 (1982)) (discussed infra text accompanying nn. 136-37).
113. Id. at 1263; 2001 N.H. Lexis 166 at 10.
114. Harkeem v. Adams, 117 N.H. 687, 691 (1977) (finding that making a state government department liable for the plaintiff's attorney fees was proper, because of the department's bad faith actions in denying the plaintiff's unemployment compensation action).
115. See id.
116. Milford Lumber Co., 780 A.2d at 1262; 2001 N.H. Lexis 166 at 5-6 (construing Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 396 N.E. 2d 149 (Mass. App. Ct. 1979)).
117. Levings v. Forbes & Wallace, Inc., 396 N.E. 2d 149 (Mass. App. Ct. 1979).
118. Milford Lumber Co., 780 A.2d at 1262; 2001 N.H. Lexis 166 at 6-7.
119. 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).
120. Milford Lumber Co., 780 A.2d at 1262; 2001 N.H. Lexis 166 at 6-7.
121. See e.g., Barrows v. Boles, 141 N.H. 382, 390 (1996) (looking to the Massachusetts court for its test in determining which commercial transactions are covered by the CPA).
122. Milford Lumber Co., 780 A.2d at 1262; 2001 N.H. Lexis 166 at 6. Compare N.H. Rev. Stat. Ann. 358-A with Mass. Gen. Laws Ann. Ch. 93A 11 (West 1997).
123. Mass. Gen. Laws. Ann. Ch. 93A 11 (West 1997).
124. Levings v. Forbes & Wallace, Inc., 396 N.E. 2d 149, 153 (Mass. App. Ct. 1979).
125. Milford Lumber Co., 780 A.2d at 1262; 2001 N.H. Lexis 166 at 7.
126. In re Walker, 138 N.H. 471, 474 (1994) (interpreting a Department of Employment Security statute based on the ordinary meaning of "the doctrine of collateral estoppel," and refused to consider the legislative history to suggest a different legislative intent).
127. Mikva & Eric Lane, supra n. 52 at 4.
128. Black's Law Dictionary at 1414 (defining stare decisis as "[t]he doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation").
129. See e.g. Hughes, v. DiSalvo, 143 N.H. 576 (1999); Barrows v. Boles, 141 N.H. 382 (1996); Roberts v. General Motors Corp., 138 N.H. 532 (1994); Chase v. Dorais, 122 N.H. 600 (1982); Eastern Mountain Platform Tennis, Inc. v. The Sherwin-Williams Company, Inc., 40 F.3d 492 ( 1st Cir. 1994).
130. Hughes, 143 N.H. at 578 (1999).
131. Id. (confirming that N.H. Rev. Stat. Ann. 358-A should not include all transactions) (quoting Roberts v. General Motors Corp., 138 N.H. 532, 538 (1994)).
132. Id. (applying the three-part test to hold that isolated sales of property by an owner are not subject to the state statute).
133. 141 N.H. 382, 390 (1996).
134. Id. (The plaintiff claimed under N.H. RSA 358-A:2 (1989) amended (1994)).
135. Id. (quoting Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 396 N.E. 2d 149, 153 (Mass. App. Ct. 1979)).
136. 122 N.H. 600, 601-02 (1982).
137. 122 N.H. at 602.
138. See Eastern Mountain Platform Tennis, Inc. v. The Sherwin-Williams Company, Inc., 40 F.3d 492, 497 ( 1st Cir. 1994).
139. Id. at 496.
140. Id. at 499.
141. Id. at 499-500.
142. See Milford Lumber Co., 780 A.2d at 1261; 2001 N.H. Lexis 166 at 1-2.
143. See generally Roberts v. General Motors Corp., 128 N.H. 532 (1994).
144. Id.
145. N.H. Rev. Stat. Ann. 357-C (1984 & Supp. 1993).
146. N.H. Rev. Stat. Ann. 358-A (1984 & Supp. 1993).
147. Roberts, 138 N.H. at 534-35.
148. Id. at 535, 538.
149. Id. at 538 (quoting Beard Motors v. Toyota Motor Distributors, Inc., 395 Mass. 428, 431, 480 N.E. 2d 303, 305 (1985)).
150. Id. at 536.
151. Id.
152. Id. at 538 (emphasis added).
153. Id. (determining that the Act did not cover a franchisor's choice of franchisee).
154. Id.
155. Id. (emphasis added) (quoting Mahoney v. Baldwin, 27 Mass. App. Ct. 778, 779-80, 543 N.E. 2d 435, 436 (1989)).
156. Id. at 536.
157. Id.
158. Milford Lumber Co., 780 A.2d at 1261-62; 2001 N.H. Lexis 166 at 4.

159.

Many policy arguments can also be made in critiquing the court's decision. Those arguments, however, are beyond the scope of this article.

The Author

Julee Tate Flood, Class of 2003, Franklin Pierce Law Center, Concord, New Hampshire.

 

 

Click for directions to Bar events.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer