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Bar News - September 17, 2004 NH Supreme Court 3JX Panel Orders Orders issued by the 3JX panels of the New Hampshire Supreme court are without precedential effect and may not be cited for an proposition of law or as an example of the proper resolution of any issue. 2003-0426 The court on August 24, 2004, issued the following order: The plaintiff, John P. Brown, Jr., Ph.D, appeals a decision of the trial court dismissing his claim based upon an alleged violation of the Consumer Protection Act against the defendants, Steven D. Ness, Ph.D and West Central Behavioral Health, Inc. See RSA ch. 358-A (1995 & Supp. 2003). We affirm. The standard of review for a motion to dismiss is whether the facts as pled are sufficient under the law to constitute a cause of action. Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 450 (2002). The court must rigorously scrutinize the complaint to determine whether, on its face, it asserts a cause of action. Id. In doing this, the facts alleged in the plaintiff’s complaint are assumed to be true and all reasonable inferences are construed in the light most favorable to the plaintiff. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 412 (2002). If the allegations in the writ constitute a basis for legal relief, we must hold that the trial court improperly granted the motion to dismiss. Konefal v. Hollis/Brookline Coop. School Dist., 143 N.H. 256, 258 (1998). The plaintiff’s writ included the following allegations. Between 1988 and 1991, the plaintiff provided psychiatric treatment to Eileen Barton. In 1993, Barton began psychiatric treatment with defendant Ness. During this time, Ness was employed as a director by defendant West Central Behavioral Health, Inc. In 1994, Barton filed a complaint with the New Hampshire Board of Examiners of Psychology and Mental Health Practice (board) alleging professional misconduct on the part of the plaintiff. In 1995, the board held a hearing regarding the allegations against the plaintiff at which Ness testified. As a result of the hearing, the board suspended the plaintiff’s certificate to practice psychology. On or about June 21, 1999, as a result of a settlement agreement in a different proceeding between Ness and the board, the plaintiff learned that Ness had been having a sexual relationship with Barton. In the settlement agreement, Ness admitted that his intimate relationship with Barton began in the summer of 1994 and continued during and after the plaintiff’s hearing before the board. At this same time, Ness was also providing therapy to Barton. Ness also admitted that he had provided misleading testimony at the plaintiff’s hearing regarding his own therapeutic relationship with Barton, and regarding his handling of boundary issues in the treatment of his own patients. The plaintiff’s count alleging violation of the Consumer Protection Act stated that the defendants "engaged in unfair methods of competition and unfair and deceptive acts or practices within the meaning of this statute, causing significant damages to [the plaintiff]." The count further alleged that "Dr. Ness’ conduct relating to the [b]oard’s hearing on [the plaintiff’s] certificate constituted unprofessional and dishonorable conduct, and his misleading and deceptive testimony contributed to the revocation of [the plaintiff’s] certificate to practice psychology, thereby eliminating [the defendants’] only competitor in Newport." The writ concluded: "Due to the willful nature of defendants’ unfair and deceptive conduct, plaintiff is entitled to recover treble damages, costs and reasonable [attorney’s] fees pursuant to RSA 358-A:10 (I) . . . ." Whether the plaintiff has a cause of action under the Consumer Protection Act is a matter of statutory construction; accordingly, we must begin our analysis by considering the plain meaning of the words of the statute. Snow v. American Morgan Horse Assoc., 141 N.H. 467, 471 (1996). In so doing, we will focus on the statute as a whole, not on isolated words or phrases. Id. The Consumer Protection Act provides, in relevant part: "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." RSA 358-A:2. 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." RSA 358-A:1, IV. The language of the Consumer Protection Act is clear and unambiguous. According to the plain language of the statute, the relevant transaction must take place in the conduct of any trade or commerce. See Milford Lumber v. RCB Realty, 147 N.H. 15, 18 (2001). The principal prohibition of the New Hampshire Consumer Protection Act "operates against unfair or deceptive acts or practices ‘in the conduct of any trade or commerce.’" 35 H. Alperin & R. Chase, Massachusetts Practice: Consumer Law § 4:5, at 257-58 (commenting on Massachusetts statute that is, in relevant part, identical). Thus, "if the acts of a person or business entity are not undertaken while conducting trade or commerce, that person or entity is not subject to the Act and its various remedial provisions, no matter how unfair or deceptive those acts may have been." Id. Here, the relevant transaction asserted by the plaintiff as violating the Consumer Protection Act was Ness’ misleading and deceptive testimony at the board’s hearing on the plaintiff’s certificate to practice psychology. Providing misleading or deceptive testimony at a disciplinary hearing does not involve "the advertising, offering for sale, sale, or distribution of any services [or] any property . . . [or] any other article," and thus does not fall within the statute’s definition of "trade" or "commerce." See RSA 358-A:1, IV. Because the relevant transaction did not take place in the conduct of any trade or commerce, see Milford Lumber, 147 N.H. at 18, it does not come within the ambit of the Consumer Protection Act. Because we hold that the Consumer Protection Act does not provide a cause of action for the plaintiff, we need not address the other issues raised by the defendants. Accordingly, the trial court properly granted the defendants’ motion to dismiss. Affirmed. ********************************************************** 2003-0691 The court on August 30, 2004, issued the following order: The plaintiff, Frank Marino, appeals the September 30, 2003 order of the Franklin District Court (Thornton, J.) dismissing his eviction action against his tenant, the defendant, Elizabeth Mendez. The trial court ruled that the plaintiff’s notice to quit was improper because it "fails to give proper time frames." On June 9, 2004, we issued an order retaining jurisdiction of the appeal and remanding to the trial court to set forth the statutory, regulatory, contractual or other grounds for its legal conclusions. The trial court has since filed its explanatory order. Following its review of its proceedings as well as the pleadings and relevant law, the trial court concludes that it may have mistakenly applied the notice period applicable to an eviction proceeding for non-payment of rent, even though the eviction proceeding at issue was for a reason other than non-payment of rent. See RSA 540:3 (1997). We concur. Accordingly, we reverse the trial court’s decision and remand for further proceedings consistent with this order. Reversed and remanded.
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