Brown v. Superior Insulation LLC

STATE OF MAINE SUPERIOR COURT
OXFORD, ss. CIVIL ACTION
DOCKET NO. CV-23-019
BENJAMIN BROWN,
Plaintiff

ORDER ON DEFENDANT’S
MOTION TO DISMISS

V.

SUPERIOR INSULATION LLC, THOMAS
A. DUBE CONSTRUCTION-PLUS, INC.
d/b/a DUBE PLUS, and PRO-TECH
CONTRACTING, LLC,

et eee” Se” Sees” Meare ee Se ee ee ee ee

Defendants

Before the Court is Defendant Thomas A. Dube Construction-Plus, Inc. d/b/a Dube Plus’s
(“Dube Plus”) Motion to Dismiss Count TV of Plaintiff Benjamin Brown’s complaint against it.
For the following reasons, the motion is granted.

FACTUAL ALLEGATIONS

In July of 2022, Brown entered into an agreement with Defendant Superior Insulation LLC
for the insulation of Brown’s home in Woodstock, Maine. Compl. ff 9-15. Superior Insulation
installed fiberglass and spray foam insulation at the Woodstock property. /d. f{[ 17-18. Brown
subsequently notified Superior Insulation of multiple insulation defects, for which Superior
Insulation took responsibility. fd YJ 19-20. To correct the defects, Superior Insulation hired
Defendant Pro-Tech Contracting, LLC to perform demolition services. Jd. J] 21-22.

A pricing dispute arose during the process of curing the insulation defects, fd. | 46. When
Superior Insulation failed to pay certain deposits to secure work, Brown had to make several
payments out of pocket. fd 47-48. Superior Insulation took the position that it would not

consider paying any additional amounts unless and until an independent contractor was engaged

to provide estimates. /d 449. Superior Insulation then retained Dube Plus as the independent
contractor. fd § 50. After going fo the Woodstock property, Dube Plus communicated directly
with the Plaintiff “in order to threaten Plaintiff that Plaintiff should agree to Dube’s estimates;
however, Dube (a) greatly reduced several components of its estimate significantly below industry
standard yet (b) indicated that Dube would not do the work.” Jd 4 52 (emphasis in original).
Superior Insulation and Dube Plus “colluded to deprive Plaintiff of the reasonable value of the
services needed to remedy the multiple problems caused by [Superior] Insulation LLC.” Jd. 753.

On April 25, 2023, Brown filed a 4-count complaint alleging breach of the implied
warranty of workmanlike quality against Superior Insulation and Pro-Tech (Count J), breach of the
implied warranty of merchantability against Superior Insulation (Count IJ), violation of 10 M.R.S,
§ 1482 against Superior Insulation (Count II), and violation of the Unfair Trade Practices Act
against Superior Insulation and Dube Plus (Count IV). Dube Plus’s Motion to Dismiss dated May
11, 2023, seeks its dismissal from Count IV of the complaint for failure to state a claim pursuant
to Maine Rule of Civil Procedure 12(b)(6).

STANDARD OF REVIEW

“A motion to dismiss tests the legal sufficiency of the complaint, the material allegations
of which must be taken as admitted.” Packgen, Ine. v. Bernstein, Shur, Sawyer & Nelson, P.A.,
2019 ME 90, { 16, 209 A.3d 116 (citations and quotation marks omitted), When deciding a motion
to dismiss pursuant to M.R. Civ. P. 12(b)(6), this Court reviews the complaint “in the light most
favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges
facts that would entitle the plaintiff to relief pursuant to some legal theory.” /d. (quoting Jn re
Wage Payment Litig., 2000 ME 162, 3, 759 A.2d 217). “A dismissal is only proper when it

appears beyond doubt that [the] plaintiffis entitled to no relief under any set of facts that [it] might

prove in support of [its] claim.” /d. (alterations in original) (quoting Moody v. State Liquor &
Lottery Conum'n, 2004 ME 20, § 7, 843 A.2d 43). “Maine is a notice pleading state, and only
requires a short and plain statement of the claim to provide fair notice of the cause of action,”
Johnston v. Me, Energy Recovery Co., Lid. P’ship, 2010 ME 52, J 16, 997 A.2d 741 (internal
quotation marks omitted).
DISCUSSION

Dube Plus moves this Court to dismiss Plaintiff's claim for violation of the Maine Unfair
Trade Practices Act (““UTPA”) for failure to state a claim upon which relief may be granted, MLR.
Civ. P. 12(b)(6). A party may maintain a private right of action under the UTPA pursuant to
Section 213, which provides, in relevant part:

1, Court action, Any person who purchases or leases goods, services or
property, real or personal, primarily for personal, family or household purposes and
thereby suffers any loss of money or property, real or personal, as a result of the
use or employment by another person of a method, act or practice declared unlawful
by section 207... may bring an action... for actual damages, restitution and for
such other equitable relief, including an injunction, as the court determines to be
necessary and proper.

5 M.LR.S. § 213(1). Section 207 declares uniawful “[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce.” Jd. § 207. To be unfair, the
act or practice “(1) must cause, or be likely to cause, substantial injury to consumers; (2) that is
not reasonably avoidable by consumers; and (3) that is not outweighed by any countervailing
benefits to consumers or competition.” Safe v. Weinschenk, 2005 ME 28, { 16, 868 A.2d 200. A

deceptive act or practice is “a material misrepresentation, omission, act or practice that is likely to

mislead consumers acting reasonably under the circumstances.” Jd. § 17.

Broken down, Brown must allege that he purchased the services at issue for personal,
family or household purposes and suffered a loss of money or property as a result of Dube Plus’s
unfair or deceptive act to survive the pending motion to dismiss. The requirement that a plaintiff
suffer a loss as a result of the defendant’s act operates as a limitation on the private right of action.
McKinnon vy, Honeywell Int'l, Inc., 2009 ME 69, 4 21, 977 A.2d 420; Bartner v. Carter, 405 A.2d
194, 201 (Me. 1979). A plaintiff therefore cannot establish his claim by proving “merely that the
representations had a capacity or tendency to deceive.” Bartner, 405 A.2d 201 (internal quotation
marks omitted), Actual loss is required, and that loss must be substantial. AfcKinnon, 2009 ME
69, | 21, 977 A.2d 420. “The plain language of the statute denies relief for plaintiffs who do not
demonstrate injury from the alleged deceptive or unfair practice.” Jd (quoting Tungate vy.
MacLean-Stevens Studios, Inc., 1998 ME 162, 9 13, 714 A.2d 792).

The Complaint does not allege the necessary facts to entitle the Plaintiff to relief under the
UTPA and survive the Motion to Dismiss. Brown did not purchase or lease Dube Plus’s services;
rather, Superior Insulation retained Dube Plus as an independent contractor to provide estimates.
Nor does the Complaint allege that Brown suffered a loss of money or property as a result of Dube
Plus’s conduct. Dube Plus merely provided Brown with an estimate. Brown did not accept the
estimate, pay Dube Plus any funds, or rely upon that estimate to reach agreement with Superior
Insulation to cure the defects. Compl. 4] 49-53. The Plaintiff has therefore failed to establish a
private right of action against Dube Plus under the UTPA.

The entry is:

Defendant Thomas A. Dube Construction-Plus, Inc. d/b/a Dube Plus’s Motion to Dismiss

Count IV as to Dube Plus is GRANTED.

Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this Order on Defendant’s

Motion to Dismiss on the civil docket by a notation incorporating it by reference.

Date: July 28, 2023 ( Oo
‘Jenhifer A. Archer

‘WiiStice, Maine Superior Court

WILLEAM C. FUCKER
MARC R. SCHEER
GREGORY G, PETERS
FRANK P. SPINEELA, Jr.
DEAN B. EGGERT
MICHAEL R, MORTIMER
KATHEEEN €, PEAHL
RICHARD THORNER
CHARLES F, CLEARY
CHRISTINE GORDON
TODD J. HATHAWAY
ALISON M. MINUTELEE
MICHAEL J. TIERNEY
DONNA J, BROWN
ROSIN BD. MELONE

WADLEIGH, STARR & PETERS, P.L.L.C.

Aftorneys At Law
95 Market Street
Manchester, New Hampshire 03101
Telephone (603) 669-4140
Facsimile (603) 669-6018

WWW .WADLEIGHLAW.COM

Serving New Hampshire since 1899

Direct Diak (603) 206-7219
tchadwick@wadleighlaw.com

May 31, 2023

Michelle Racine, Clerk
Oxford County Superior Court

P. O, Box 179

South Paris, ME 04281

Re: Docket No. CV-2023-00019
Benjamin Brown v. Superior Insulation, LLC, Thomas A. Dube
Construction-Plus, Inc., d/b/a Dube Plus, and Pro-Tech
Contracting, LLC
Dear Clerk Racine:

CRAIG S. GONAIS

ALYSIA M, CASSOTIS
CHRISTOPHER P. MCGOWN
STIERNEY M. CHADWICK
STEPHEN N. ZAHARIAS
ABBY TUCKER

ALLISON M, TAMPOSI
STEPHEN M. BENNETT, Of Counsel
ELIZABETH E, EWING
JEFFREY GO, ODLAND
WILLIAM P, REDDINGTON
MICHAEL G. EATON
GRETCHEN M, WADE
AUTUMN A. KISH
CATHERINE C. BOUSQLIEF
EMILY £, PETERSON

* Also admitted in MA, Ri, and ME

In accordance with a telephone message received from the Clerk’s Office, enclosed piease
find Proposed Order on Assented-To Motion for Extension of Time to Answer or Otherwise
Plead of Superior Insulation, LLC, for filing in the above-referenced matter.

Thank you for your courtesy and assistance.

TMC/whd
Enclosure
cc:

Very truly yours,

Tierney M, Chadwick

Jason B. Dennis, Esquire

Christopher D. Hawkins, Esquire
Pro-Tech Contracting, LLC

= HASTINGS LAW OFFICE, pa.

Est. 1847 | Serving Maine and New Hampshire

DAVID R. HASTINGS, II DAVID R. HASTINGS 1847-1896
ANDREW P, PIERCE EDWARD EF, HASTINGS 1879-1939
JASON B. DENNIS HUGH W. HASTINGS 1914-1967
JONATHAN G, BURKE DAVID R. HASTINGS EE 1949-2010

PETER G. HASTINGS [961-2022

May 25, 2023

Oxford County Superior Court
Attn: Michelle Racine, Clerk
P.O. Box 179

South Paris, ME 04281-0179

Re: Benjamin Brown v. Superior Insulation, LLC; Thomas A. Dube Construction-
Plus, Inc. D/B/A Dube Plus; and Pro-Tech Contracting, LEC
Docket No.: CV-2023-00619

Dear Clerk Racine:

Enclosed please find the Plaintiff's Objection to Defendant Dube Plus’s Motion to
Dismiss with.Incorporated. Memo of Law.

Should the Court have any questions or need anything further, please do not hesitate to
contact our office.

Sincerely,

C—
Enel.

Jason B. Dennis
Ce: Client

Christopher D. Hawkins, Esq.
Tierney M. Chadwick, Esq.
Pro-Tech Contracting, LLC.

Physical address: 376 Main Street, Fryeburg, Maine «© 207-935-2061
Mailing address: P.O. Box 290, Fryeburg, ME 04037 «© www-hastings-law.com

LEZABETH M. MACDONALD
JOHN 7, RATIGAN

DENISE A. POULOS

ROBERT M. DEROSIER
CHRISTOPHER L. BOLDT
SHARON CUDDY SOMERS

oo . DOUGLAS M. MANSEIELD
5 Lawyer s KATHERINE B. MILLER
ry , on fg CHRISTOPHER T. HILSON
“Lelie vated te COteents HEID! |. BARRETT. TCHEN
we qo ayy . sepa pen vegan enue JUSTIN L, PASAY
CELEBRATING OVER 35 YEARS OF SERVICE TO OUR CLIENTS ERIC A. MANIER
CHRISTOPHER D, HAWKINS
x . ELAINA L, HOEPPNER
Please Respond to the Exeter Office WILLIAM . WARREN

BRIANA L, MATUSZKO

May [1, 2023

RETIRED
MICHAEL J. DONAHUE
; Tie ay . CHARLES B TUCKER
Michelle Racine, Clerk of Court ROBERT D, CIANDELLA
Oxford County Superior Court NICHOLAS 8, AESCHLIMAN
26 Western Ave.
South Paris, ME 04281

Re: Benjamin Brown v. Superior Insulation, LLC, Thomas A. Dube
Construction-Plus, Inc. d/b/a Dube Plus, and Pro-Tech Contracting LLC
Docket No. CV02023-00019
Dear Ms. Racine;
Enclosed for filing with the court please find the following documents:

1. My appearance for Thomas A. Dube Construction-Plus, Inc. d/b/a Dube Plus.

2. Motion to Dismiss with Incorporated Memorandum of Law of Thomas A. Dube
Construction-Plus, Inc. d/b/a Dube Plus.

3. Proposed order on Motion to Dismiss.

Please let me know if you have any questions regarding these documents.
Very truly yours,
DONAHUE, TUCKER & CIANDELLA, PLLC

Chit 0. KA.

Christopher D. Hawkins
chawkins(@dtclawyers.com

ce: Jason Dennis, Esq, (w/enc)
Superior Insulation, LLC (w/enc)
. Pro-Tech Contracting, LLC (w/enc)

2

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111 Maplewood Avenue, Suite D, Portsmouth, NH 03801
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