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Murray v. McNamara

Supreme Court of New Hampshire

March 20, 2015

Richard Murray & a.
v.
Keith McNamara & a

Argued: June 18, 2014.

Grafton.

Edward D. Philpot, Jr., PLLC, of Laconia ( Edward D. Philpot, Jr. on the brief and orally), for the plaintiffs.

Plymouth Law Center, of Plymouth ( Gabriel Nizetic and Nikolas Frye on the brief, and Mr. Nizetic orally), for the defendants.

BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

OPINION

Page 1160

Bassett, J.

The defendants, Keith McNamara, Shirley Benton, and Jerel Benton, appeal: (1) a jury verdict in favor of the plaintiffs, Richard and Mary Murray, on their claim that the defendants breached the implied warranty of workmanlike quality; (2) an order of the Superior Court ( Vaughan, J.) denying their motion to dismiss the plaintiffs'

Page 1161

New Hampshire Consumer Protection Act (CPA) claim, see RSA ch. 358-A (2009 & Supp. 2014); and (3) an order of the Superior Court ( Bornstein, J.) finding that the defendants violated the CPA when they built the plaintiffs' home with latent structural defects that caused mold growth. The defendants argue that, because the plaintiffs' claim is exempt from the CPA, the trial court erred by denying their motion to dismiss. The defendants also assert that the trial court erred by denying their motion for a judgment notwithstanding the verdict (JNOV) on the plaintiffs' breach of implied warranty claim. We affirm in part and reverse in part.

The trial court found, or the record supports, the following facts. In 2004, the defendants, owners of a construction business, built a house for David Downing. Four years later, in February 2009, the plaintiffs purchased the house for $120,000. Shortly before their purchase, the plaintiffs visited the house several times and had it inspected; neither the plaintiffs nor the home inspector observed mold in the house. Nonetheless, in June 2009, after living in the house for several months, the plaintiffs discovered mold in a closet. By the fall of 2009, mold was present throughout the house and on the plaintiffs' belongings, and they were compelled to move into a hotel while they attempted to remedy the problem.

The plaintiffs hired a mold remediation contractor, Robert Barish, to investigate and remove the mold. Barish began the remediation, but after assessing the construction of the house, Barish concluded that, unless the structural problems that promoted mold growth were fixed, the mold would return. The plaintiffs then hired Joel Fisher, a professional engineer, to inspect the house. Fisher told the plaintiffs that the structural repairs needed to address the mold problem were " so extreme that it [was] not practical ... from both a constructability and economic perspective" to make them, and he " recommend[ed] that the [house] be demolished and reconstructed." Realizing that the mold problem could not be easily remedied, the plaintiffs moved into a rental home.

In March 2011, the plaintiffs sued the defendants, asserting a claim under the CPA, a claim for breach of the implied warranty of workmanlike quality, and other claims that are not germane to this appeal. The defendants moved to dismiss the CPA claim, arguing that it was exempt from the CPA pursuant to RSA 358-A:3, IV-a (2009). The superior court denied the motion.

The trial court presided over a five-day jury trial on the breach of implied warranty claim, reserving the CPA claim for determination by the court itself. See Hair Excitement v. L'Oreal U.S.A., 158 N.H. 363, 370, 965 A.2d 1032 (2009) (holding that " [CPA] claims are not entitled to a trial by jury." ). The jury returned a verdict in ...


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