The opinion
STATE OF MAINE SUPERIOR COURT
OXFORD, ss. CIVIL ACTION
DOCKET NO. CV-23-019
BENJAMIN BROWN,
Plaintiff
ORDER ON DEFENDANT SUPERIOR
INSULATION LLC’S PARTIAL
MOTION TO DISMISS
V.
SUPERIOR INSULATION LLC, et al.,
mer Neel” See See” meee! Net” ume” See” ae”
Defendants
Before the Court is Defendant Superior Insulation LLC’s Partial Motion to Dismiss Counts
Ill and IV of Plaintiff Benjamin Brown’s complaint against it. For the following reasons, the
motion is denied,
FACTUAL ALLEGATIONS
In July of 2022, Plaintiff Benjamin Brown entered into an agreement with Defendant
Superior Insulation, LLC for the insulation of Brown’s home in Woodstock, Maine (the
“Woodstock Home}, (Compl. ff] 9-15.) The face of the contract reflects that it is between
Superior Insulation and Rocky Branch Builders but was signed by Benjamin Brown on behalf of
Rocky Branch Builders.' (Mot. to Dismiss Ex. A.)
Superior Insulation installed fiberglass and spray foam insulation at the Woodstock Home,
(id. Tf 16-18.) Brown subsequently notified Superior Insulation of multiple insulation defects, for
which Superior Insulation took responsibility. Ud. Jf 19-20.) To correct the defects, Superior
Insulation hired Defendant Pro-Tech Contracting, LLC to perform demolition services. Ud. Ff] 21-
22.)
1 Rocky Branch Builders is not a party to this action.
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 I), breach of the
implied warranty of merchantability against Superior Insulation (Count ID, violation of 10 M.R.S.
§ 1482 against Superior Insulation (Count HT), and violation of the Unfair Trade Practices Act
against Superior Insulation (Count [V).? Superior Insulation now seeks dismissal of Counts III
and 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, Inc. v. Bernstein, Shur, Sawyer & Nelson, P.A.,
2019 ME 90, { 16, 209 A.3d 1 16 (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.” Jd. (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] plaintiff is 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 Comm’n, 2004 ME 20, ¥ 7, 843 A.2d 43).
The Defendant attached two exhibits to its Motion to Dismiss, a proposal between the
Defendant and Rocky Branch Builders signed by Brown (Exhibit A), and work orders (Exhibit B).
Normally, the Court may only consider facts alleged in the complaint on a motion to dismiss. Greif
v. Indep. Fabrication, Inc., 2019 ME 142, 4.2, 215 A.3d 1289. There is a narrow exception,
* The Plaintiff’s Unfair Trade Practices Claim (Count IV) against Thomas A. Dube Construction-Plus, Inc. d/b/a Dube
Plus was dismissed by Order dated July 28, 2023.
however. /d. “[O]fficial public documents, documents that are central to the plaintiff's claim, and
documents referred to in the complaint may be properly considered on a motion to dismiss without
converting the motion to one for a summary judgment when the authenticity of such documents is
not challenged.” Moody, 2004 ME 20, q 11, 843 A.2d 43. In such case, the attached documents
merge into the pleadings. /¢ 410. “The purpose for this exception is that if courts could not
consider these documents, ‘a plaintiff with a legally deficient claim could survive a motion to
dismiss simply by failing to attach a dispositive document on which it relied.’” /d (quoting
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 Gd Cir. 1993)).
Although it is only labelled a “Proposal,” both parties treat Exhibit A as the operative
contract and neither party disputes its authenticity. As this document is central to the Plaintiff's
claims against the Defendant, it is properly considered by the Court without converting the
Defendant’s motion to dismiss to a motion for summary judgment. /d. 12. Similarly, the Plaintiff
has not objected to or contested the authenticity of the work orders attached as Exhibit B. The
Court may therefore also consider Exhibit B in analyzing the Defendant’s Motion to Dismiss.
DISCUSSION
A. Residential Insulation Contract Statute (Count IID
Superior Insulation moves this Court to dismiss Plaintiff's claim for violation of the
Residential Insulation Contract Statute, 10 M.R.S. § 1482, for failure to state a claim upon which
relief may be granted. See M.R. Civ. P. 12(b)(6). Section 1482 provides that “[n]e person shall
install insulation in any existing residence for compensation without providing the owner or lessee
in advance with a written contract” that “clearly and conspicuously” discloses certain provisions
required by the statute.? 10 M.R.S. § 1482. The statute further provides:
Any person who fails to provide the owner or tenant with an insulation contract,
containing at least the minimum information required by section 1482, prior to this
installation of insulation into an existing residence shall be deemed to have
committed a civil violation for which a forfeiture of not less than $200 for the first
offense and not less than $500 for each subsequent offense shall be adjudged. In
addition to the civil penalty provided in this section, any violation of this chapter
shall constitute a violation of the Unfair Trade Practices act in Title 5, chapter 10.
Id. § 1483.
The Defendant first argues that Section 1482 is inapplicable because it only applies to
situations in which the insulation contractor has contracted directly with the owner or occupier of
the residence and the relevant contract here was between Superior Insulation and Rocky Branch
Builders. The language of Section 1482 does not support the Defendant’s interpretation; rather,
the plain language of Section 1482 places the onus upon the contractor to “providfe]”™ the owner
or lessee of the residence with a contract that meets the requirements of the statute. It does not
limit application to contracts directly between the contractor and the owner or occupier.
The Defendant next argues that Section 1482 is inapplicable because the Plaintiff
was not an “active occupant” of the residence. (Mot. to Dismiss at 4.) The language of the statute
does not support this interpretation, either. Section 1482 does not limit its application to “active
occupants.” In fact, that term is not found anywhere in the statute. Instead, Section 1482 requires
3 “Berson? means an individual, a copartnership, corporation or any other legal entity.” 10 M.R.S. § 1481(2). The
term “residence” is defined as “any existing dwelling structure with 3 or less living units whether leased or owner
occupied.” Jd. § 1481(3). The statute makes expressly clear that “buildings used for commercial or business purposes
shall not be subject to the provisions of this chapter.” /ed. § 1481(3).
4 The term “provide” is defined as “to make available; supply; afford.” Provide, WEBSTER’S NEW WORLD DICTIONARY
(2d College ed, 1980),
the contractor to provide the “owner or lessee” with a contract, without reference to whether the
individual actively resides at the residence.
Finally, the Defendant argues that Section 1482 is inapplicable because “when Superior
viewed the [Woodstock Home] on the property, it did not appear to be a remodel of an existing
residence but rather, an entirely new construction of a home.” (Mot. to Dismiss at 4.) This
argument improperly requests the Court to credit the “facts” stated in the Defendant’s brief. The
facts as set forth in the Complaint, taken in the light most favorable to the Plaintiff, sufficiently
allege that the Woodstock Home was an existing dwelling structure, and therefore a “residence”
within the meaning of 10 M.R.S. § 1481(3). (Compl. f¥ 9-13.)
In light of the foregoing, the Defendant’s Motion to Dismiss Count TIT is denied.
B. Unfair Trade Practices Act (Counts HI and TV)
Superior Insulation seeks dismissal of Counts II and IV on the grounds that the insulation
contract at issue was between two business entities and was not a consumer transaction as required
to maintain a private right of action under the Unfair Trade Practices Act (““UTPA”), 5 M.R.S.
§ 213. Brown contends that the argument is inappropriately premised upon a factual dispute and .
that the language of the UTPA does not support the Defendant’s position.
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 MRS. § 213(1).°
Superior Insulation argues that the Plaintiff cannot maintain his cause of action under the
UTPA because the insulation contract was between two entities, Superior Insulation and Rocky
Branch Builders. It is accurate that the contract, on its face, is between Superior Insulation and
Rocky Branch Builders.® (Mot. to Dismiss Ex. A.) The Complaint alleges that the “Plaintiff
[Brown] entered into an agreement with Defendant for the Defendant to insulate the Woodstock
home,” however. (Compl. 4 15.) It is unclear to the Court who is the appropriate plaintiff: Brown
or Rocky Branch Builders. There is certainly a facial conflict between the allegations in the
Complaint that assert that Brown entered into a contract with Superior Insulation and the contract
attached to the Motion to Dismiss, which reflects that the contract is between Superior Insulation
and Rocky Branch Builders. Such a factual dispute cannot be resolved on a motion to dismiss.
Accordingly, the Defendant’s motion to dismiss Count IV is denied.
C. Attorney’s Fees and Costs
The final argument asserted by the Defendant is that the Plaintiffis not entitled to attorney’s
fees or costs because he failed to “file”’ a written demand for relief at least 30 days prior to filing
> Section 207 declares unlawful “{u]nfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.” /d § 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.” State v, Weinschenk, 2005 ME 28, J 16, 868 A.2d 200. A
deceptive act or practice is ‘a material representation, omission, act or practice that is likely to mislead consumers
acting reasonably under the circumstances,” fd. ¥ 17.
® There is an absence of evidence as to the status of Rocky Branch Buiiders. The Court has no idea whether it is a
sole proprietorship, limited liability company, partnership, or business corporation. Even if Rocky Branch Builders
is a business entity, that fact, alone, does not prevent the Plaintiff (an individual from maintaining an action pursuant
tothe UTPA. Any “person” may maintain an action for damages under the UTPA so long as he purchased the services
“primarily for personal, family or household purposes,” 5 M.R.S. § 213(1). “Person” includes “natural persons,
corporations, trusts, partnerships, incorporated or unincorporated associations and any other legal entity.” Jd.
§ 206(2),
? The Court notes that there is no requirement that a plaintiff “file” a demand for relief.: Rather, a plaintiff is required
to mail or deliver to a prospective defendant a written demand for relief. 5 M.R.S. § 213(1-A).
6
the pending lawsuit. The Court declines to consider this argument as it requires the Court to
speculate as to the existence or nonexistence of certain facts and make a credibility determination
about those facts asserted in the Defendant’s motion and the Plaintiff's opposing memorandum.
The entry is:
Defendant Superior Insulation LLC’s Partial Motion to Dismiss is DENIED.
Pursuant to M.R, Civ. P. 79{a), the Clerk is directed to enter this Order on Defendant
Superior Insulation LLC’s Motion to Dismiss on the civil docket by a notation incorporating it by
reference,
oY
Date: September 21, 2023 el hm
Jennifer AX Archer
Justice; Maine Superior Court
HASTINGS LAW OFFICE, p.a.
Est. 1847 } Serving Maine and New Hampshire
DAVID R. HASTINGS, LE DAVID R. HASTINGS 1847-1896
ANDREW P. PIERCE EDWARD E, HASTINGS 1879-[939
JASON B. DENNIS HUGH W. HASTINGS [914-1967
JONATHAN G, BURK DAVID R. HASTINGS If 1949-2010
PETER G. HASTINGS 1961-2022
August 11, 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, LLC
Docket No.: CV-2023-00019
Dear Clerk Racine:
Enclosed for filing, please find Plaintiff's Objection to Defendant Superior Insulation
LLC’s Partial 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,
Lp. VE
ot
Jason B. Dennis
Encl.
Cc: — 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
WADLEIGH, STARR & PETERS, P.L.L.C.
WILLIAM C, TUCKER Attorneys At Law CRAIG 5, DONAKS
MARE R. SCHEER ALYSIA M, CASSOTES
GREGORY G. PETERS 95 Market Street CHRISTOPHER P. MCGOWN
FRANK P. SPINELLA, Jr. Manchester, New Hampshire 03101 *TIERNEY M, CHADWICK
DEAN B. EGGERT Telephone (603) 669-4140 STEPHEN N. ZAHARIAS
MICHAEL R. MORTIMER Facsimile (603) 669-6018 ABBY TUCKER
KATHLEEN €, PEAHL ALUSON M, TAMPGSI
RICHARD THORNER STEPHEN M, BENNETT, Of Counsel
CHAREES F, CLEARY WWW. WADLEIGHLAW,COM ELIZABETH E. EWING
CHRISTINE GORDON JEFFREY D. ODLAND
TODD J, HATHAWAY . . . WILLIAM P, REDDINGTON
ALISON M, MENLTELLI Serving New Hampstire since 1899 MICHAEL G. EATON
MICHAEL J, TIERNEY GRETCHEN M. WADE
DONNA BROWN AUTUMN H. KISH
ROBIN 0, MELONE CATHERINE C, BOUSQUET
EMILY E, PEFERSON
* Also admitted In MA, RI, and ME
Direct Dial: (603) 206-7219
tchadwick@wadleighlaw.com
August 2, 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:
Enclosed please find the following documents for filing on behalf of Superior Insulation,
LLC, in the above-referenced matter:
1. Defendant Superior Insulation, LLC’s Partial Answer to Plaintiff's Complaint and
Brief Statement of Affirmative Defenses.
2. Defendant Superior Insulation, LLC’s Partial Moton to Dismiss Plaintiff's
Complaint with Incorporated Memorandum of Law.
Thank you.
Very truly yours,
Tierney M. Chadwick
TMCf/whd
Enclosures
cc: Jason B, Dennis, Esquire
Christopher D. Hawkins, Esquire
Pro-Tech Contracting, LLC