The opinion
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
DONAHUE, TUCKER & CIANDELLA, PLLC
16 Acadia Lane, P.O. Box 630, Exeter, NH 03833
111 Maplewood Avenue, Suite D, Portsmouth, NH 03801
Towle House, Unit 2, 164 NH Route 25, Meredith, NH 03253
1-800-566-0506 83 Clinton Street, Concord, NH 03301 www.dtclawyers.com