2006-438, WILLIAM BECKSTED, SR. v. J.P. NADEAU

The plaintiffs, William F. Becksted, Sr., William F.

orally), for the defendants. Gottesman and Hollis, of Nashua (Anna Barbara Hantz on the brief and

L. Pettis on the brief and orally), for the plaintiffs. to press. Errors may be reported by E-mail at the following address: Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (Philip

editorial errors in order that corrections may be made before the opinion goes No. 2006-438 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as plaintiffs’ waiver of their $39,000 invoice. p. 2 legal fees and represent the plaintiffs through mediation in exchange for the would increase the total bill to over $15,000. The letter offered to waive these

representation of the plaintiffs through a mediation scheduled for February 16

materials.” The letter further stated: “I have absolutely no intention of paying

plaintiffs’ outstanding bill with the Nadeau Law Offices was $12,474 and that and “abuses of the trust that Justin placed in you.” The letter noted that the tasks. The letter called some of the plaintiffs’ charges “absurd,” “outrageous,”

. . .”; and “[y]ou secretly marked up the costs of flooring, cabinets and other work you did . . .”; “[y]ou failed to perform your duties as a General Contractor performing the work I wanted done . . .”; “[y]ou overcharged me for some of the Offices stationery. The letter stated, in part: “You misrepresented your On March 4, Justin Nadeau sent a letter to the plaintiffs on Nadeau Law

agreed-upon price for the work and charged too much for various individual those fees to an outstanding balance of $12,474 for a total of $15,708. any of the $39,000 charged by the plaintiffs because the charges exceeded an 24. It itemized the fees incurred from January 3 to February 16 and added that both J.P. Nadeau and Justin Nadeau felt that they should not have to pay The Nadeau Law Offices sent another bill to the plaintiffs on February listed both J.P. Nadeau and Justin Nadeau as members of the firm. It stated

The defendants disputed the amount of this final invoice. until the final invoice, which totaled $39,000 and was submitted in December. or the amount that he would charge. any of the plaintiffs about the number of hours that J.P. Nadeau was working amount due. Prior to receiving this bill, none of the defendants had informed

J.P. Nadeau sent the plaintiffs a letter on Nadeau Law Offices stationery, which office, and J.P. Nadeau continued to represent the plaintiffs. On January 11, Nadeau Law Offices. The plaintiffs had completed work on the defendants’ law by the plaintiffs and the plaintiffs had not paid the $12,001.50 charged by the By January 11, 2005, the defendants had not paid the $39,000 charged

and submitted invoices every two to four weeks, which the defendants paid

and is also an attorney in the Nadeau Law Offices. total hours worked, $210.00 as the hourly rate, and $12,001.50 as the total description of the work performed. The final page of the bill listed 57.15 as the from July to December, listing the dates of the work, the hours worked, and a services to the plaintiffs. This itemized bill accounted for all work performed On December 29, the Nadeau Law Offices issued its first bill for legal

The plaintiffs continued performing construction work for the defendants

plaintiffs in an unrelated legal matter. J.P. Nadeau is Justin Nadeau’s father project in May or June 2004. In July, J.P. Nadeau began representing the plaintiffs, reducing the amount owed from $15,708 to $8,589. p. 3 plaintiffs’ fee dispute, the Nadeau Law Offices sent two corrected bills to the

Committee (ADRC). Soon after the ADRC notified the defendants of the

the Act . . . .

complaint regarding the erroneous bill with the Attorney Dispute Resolution and that the $12,001.50 originally charged. The plaintiffs subsequently filed a defendants, the trial court reasoned, because the bill was itemized and plainly per hour, and arrived at a final charge of approximately $5,000, rather than defendants engaged in deceptive acts. The plaintiffs were not deceived by the

358-A . . . and the Plaintiffs are consumers within the definition of

which was excessive, misleading and false, in the amount of $12,001.50 . . .”

for. He added the hours worked, multiplied that number by the rate of $210 the plaintiffs failed to introduce evidence that would support findings that the The trial court granted the defendants’ motion for three reasons. First, services and products and are subject to the provisions of RSA practices. Defendants are in the business of selling and distributing legal demonstrated, at most, billing errors, and did not prove unfair or deceptive construction services and materials for $39,047.15; that the was no evidence of a violation of the CPA. They contended that the evidence plaintiffs rested, the defendants moved for a directed verdict, arguing that there A jury trial on the CPA claim commenced on April 5, 2006. After the

The trial court severed the CPA claim from the other claims. that the defendants “presented the Plaintiffs with their first bill for services, contract, quantum meruit, and violations of the CPA. The CPA claim alleged plaintiffs for over twenty hours that were not itemized or otherwise accounted fixtures at the defendants’ law office, and filed a writ alleging breach of Nadeau Law Offices and found that the December 29 bill had charged the would sue the plaintiffs. Becksted, Sr. inspected the two bills sent by the

and false legal bills to coerce the Plaintiffs to waive their bill for the Defendants have attempted to use those excessive, misleading

plaintiffs obtained a mechanic’s lien to attach $39,047.15 of real estate and The legal proceedings in superior court began on March 30, when the concerned that either the Nadeau Law Offices, Justin Nadeau, or J.P. Nadeau

restrain myself from suing you.”

Upon receiving Justin Nadeau’s letter, William Becksted, Sr. became

have caused me substantial damages and losses and I have all I can do to you one cent more. You took advantage of my trust and abused it . . . . You p. 4 4 practices.

scope.”

CPA lists specific types of conduct that qualify as unfair or deceptive trade world of commerce.” A:2. After this general proscription of unfair or deceptive trade practices, the Id. (quotation and brackets omitted). This test applies that would raise an eyebrow of someone inured to the rough and tumble of the practice in the conduct of any trade or commerce within this state.” RSA 358the rascality test, “the objectionable conduct must attain a level of rascality listed in RSA 358-A:2 are prohibited, we employ the rascality test. Id. Under often associated with determining whether commercial actions not specifically

State v. Moran, 151 N.H. p. 4 450, 452 (2004). Because of the difficulty

worded, and not all conduct in the course of trade or commerce falls within its “We have recognized that the general provision of the CPA is broadly

See id. The plaintiffs rely upon the general proscription. conclude that the non-moving party is entitled to any relief.

therefrom most favorably to the non-moving party, that no rational juror could

to use any unfair method of competition or any unfair or deceptive act or The CPA provides, in relevant part: “It shall be unlawful for any person

court did not commit an unsustainable exercise of discretion. Id. for a directed verdict when the record supports the conclusion that the trial verdict should be denied. Id. We will uphold a trial court’s ruling on a motion conflicting or permits several reasonable inferences, a motion for a directed College, 150 N.H. p. 4 431, 434 (2003). If the evidence adduced at trial is

determines, after considering the evidence and construing all inferences A trial court may grant a motion for a directed verdict only if it

negotiation. obvious computational errors and the letter sent from J.P. Nadeau was only defendants argue that there was no deceit because the first bill contained the bills by J. P. Nadeau. failed to introduce sufficient evidence that the defendants deceived them. The the defendants were “surprised” by evidence of changes made to the hours of The plaintiffs first argue that the trial court erred by ruling that they because the plaintiffs never paid the erroneous bill. Third, the court found that I. Deceit

CPA. See RSA 358-A:2 (1995). consumers and that the defendants engaged in trade or commerce under the note, however, that the parties do not dispute on appeal that the plaintiffs are The plaintiffs challenge all three reasons given by the trial court. We

that they suffered an injury. There was no injury, the trial court reasoned, showed the error. Second, the plaintiffs failed to introduce sufficient evidence p. 5 Law Offices, Justin Nadeau or J.P. Nadeau would sue him. testified that as a result of these letters, he became concerned that the Nadeau and indicating that he was restraining himself from suing them. One plaintiff would not pay the plaintiffs’ bill, stating that the plaintiffs caused him damages

plaintiffs of poorly and deceitfully performing their work, asserting that he lawyer in the law firm representing the plaintiffs, sent a letter accusing the would forego charging the disputed construction fees. Justin Nadeau, also a

charging the plaintiffs approximately $15,000 in legal services if the plaintiffs

juror could conclude that it was to the defendants’ advantage to intentionally 29 and using that inflated amount to bargain with the plaintiffs. A rational the plaintiffs had already significantly overcharged them, but offered to forego attempted to deceive the plaintiffs by inflating the legal bill sent on December defendants should not have to pay any of the plaintiffs’ $39,000 bill because We conclude that a rational juror could find that the defendants the plaintiffs, sent a letter on Nadeau Law Offices stationery asserting that the defendants’ services by more than double. J.P. Nadeau, who was representing

six months. It is undisputed that this bill erroneously inflated the cost of the to the plaintiffs, after performing legal work on their behalf for approximately after receiving this disputed bill, the Nadeau Law Offices submitted its first bill the plaintiffs for finishing their work on Justin Nadeau’s apartment. Shortly The evidence was that the defendants disputed the $39,000 charged by

plaintiffs are entitled to any relief based upon the above standards. most favorably to the plaintiffs, that no rational juror could conclude that the ruling, after considering the evidence and construing all inferences therefrom Id. at 453. Accordingly, the issue before us is whether the trial court erred in

competitors or other businessmen). (3) whether it causes substantial injury to consumers (or

(2) whether it is immoral, unethical, oppressive, or unscrupulous;

common-law, statutory or other established concept of unfairness; whether, in other words, it is within at least the penumbra of some been established by statutes, the common law, or otherwise – previously considered unlawful, offends public policy as it has (1) Whether the practice, without necessarily having been

actions are unfair or deceptive by inquiring: Commission Act. Id. at 452-53. The Federal Trade Commission determines if for guidance to the federal courts’ interpretation of the Federal Trade the defendants’ actions violate the general provision of the CPA, we also look equally to the analysis of civil and criminal cases. Id. In determining whether p. 6 6

legislature did not see fit to incorporate in the statute. what the legislature might have said or add language that the further indication of legislative intent, and we refuse to consider

Id. at 77 p. 6 6-77 (citations omitted).

language is plain and unambiguous, we need not look beyond it for and ordinary meanings to the words used. When a statute’s the language of the statute, and, where possible, ascribe the plain the words of the statute considered as a whole. We first examine obtain relief under the CPA. We are the final arbiters of the legislature’s intent as expressed in show an injury. The plaintiffs argue that actual damages are not required to verdict should be denied.” Matter of Giacomini & Giacomini, 151 N.H. 775, 77 p. 6 6 (2005). conflicting or permits several reasonable inferences, a motion for a directed We review the trial court’s statutory interpretation de novo. In the clear on the face of the bill; however, “[i]f the evidence adduced at trial is (1995) in ruling that the CPA requires proof of an injury. lawsuit based on deceptive acts.” The trial court relied upon RSA 358-A:10 anything as a result of the deceptive acts they claimed. They didn’t settle their the trial court stated: “But here, there’s been no injury. They didn’t lose In ruling that the plaintiffs failed to show that they suffered an injury,

for directed verdict based, in part, upon the finding that the plaintiffs failed to The plaintiffs next argue that the trial court erred by granting the motion

that the December 29 bill was erroneously calculated and that the error was II. Injury

failed to introduce sufficient evidence of deceit. defendants’ motion for directed verdict based upon a finding that the plaintiffs trial court committed an unsustainable exercise of discretion by granting the might also reasonably infer the contrary. Accordingly, we conclude that the could find that the defendants’ actions were not deceitful, a rational juror

The defendants argue that J.P. Nadeau testified that he did not know

charges, the more likely the plaintiffs would be to waive their bill. overstate their legal fees, because the closer the legal fees came to the plaintiffs’ p. 7 7

damages. motion for directed verdict based upon the plaintiffs’ failure to show actual Accordingly, we conclude that the trial court erred in granting the defendants’

costs and reasonable attorney’s fees.” BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

trial court’s ruling on surprise. In light of our rulings above, we conclude that we need not address the

the court. costs of the suit and reasonable attorney’s fees, as determined by amount. In addition, a prevailing plaintiff shall be awarded the (2001). This case presents no reason for us to diverge from our prior holdings. award as much as 3 times, but not less than 2 times, such

court award the prevailing plaintiff the minimum of $1,000 in damages plus Docusearch, 149 N.H. p. 7 759, 767 (2003). “[T]he statute mandates that the trial awarded the statutory minimum and attorney’s fees. Preferred Nat’l Ins. Co. v. 358-A:10 does not require a showing of actual damages for the claimant to be Contrary to the trial court’s ruling, we have previously held that RSA

practice was a willful or knowing violation of this chapter, it shall $1,000, whichever is greater. If the court finds that the . . . act or plaintiff, recovery shall be in the amount of actual damages or the court deems necessary and proper. If the court finds for the damages and for such equitable relief, including an injunction, as declared unlawful under this chapter may bring an action for Any person injured by another’s use of any method, act or practice

RSA 358-A:10, I, states, in pertinent part: