Boutin v. R.E. Drapeau, Inc.

• Court: Superior Court of Maine
• Decided: August 20, 2019
• Docket: KENap-18-43
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. AP-18-43

JESSICA ALLEN BOUTIN,

Appellee ORDER

V.

R.E. DRAPEAU, INC.,

Appellant

Before the Court is Appellant R .E. Drapeau , Inc.'s ("Drapeau's") Rule 760 appeal of a

Small Claims decision of the District Court (Montgomery, J.) . Appellee Jessica Allen Boutin

("Boutin") has also moved to dismiss the appeal based on the alleged failure of the appellant to

timely request a copy of the transcript.

This matter arises out of a dispute over a faulty clothes dryer which Boutin purchased from

Drapeau and used, albeit briefly, in her hair and nail salon. Specifically, the parties dispute the

applicability of the implied warranty of merchantability.

On February 5, 2018, Boutin's husband Jeff went to Drapeau and inquired about

purchasing a clothes dryer for Boutin's salon. (Tr. 20, 58 .) Jeff Spoke with Dan Poulin, a co-owner

of Drapeau, about a specific model of a Whirlpool brand clothes dryer. (Tr. 58-59.) Dan told Jeff

that there would be no warranty on the Dryer if it was used in Boutin's salon because the

manufacturer would not cover it. (Tr. 59.) Jeff said he understood this and would talk to his wife

about it. (Tr. 59.)

The next day, February 6, 2018, Jeff returned to Drapeau and spoke with Ronald Poulin,

Dan Poulin's brother and co-owner, and informed Ronald that he would like to purchase the

1 Whirlpool dryer. (Tr. 59.) Ronald attempted to persuade Jeff to purchase a much less expensive

model suggesting that it would be riskier to purchase the Whirlpool dryer because there was no

warranty. (Tr. 59.) Jeff declined this invitation and purchased the Whirlpool dryer for $1,170. (Tr.

11 , 59.) The dryer was delivered and installed at Boutin's Salon the same day it was purchased .

(Tr. 60.)

Two days later, on February 8 , 2018, the dryer stopped working. (Tr . 11.) Boutin called

Drapeau and Dan went to the Salon to service the dryer. (Tr. 11, 36.) Dan discovered that the filter

had not been properly inserted and adjusted the filter. (Tr. 36 .) The next day, however, the dryer

was still not working and was showing the same error code as the day before. (Tr. 11.) Dan returned

to the salon and made an adjustment to the drainpipe to try and alleviate any strain on the dryer

pump. (Tr. 11.) The Dryer worked for a couple of cycles before it once again stopped working and

showed the same error code. (Tr. 12.) Boutin contacted Drapeau and spoke with Dan who told her

that the dryer was not covered by a warranty and that Boutin would have to contact Whirlpool.

(Tr. 14, 35, 37 .) Drapeau refused to replace the dryer or the dryer pump. (Tr. 14.)

Boutin initiated a small claims action on March 22 , 2018 and a hearing was held on June

8, 2018. On June 19, 2018,judgment was granted to Boutin in the amount of $1,170 and costs of

$55.

Standard of Review

When a jury trial has not been requested, the Superior Court's review of a small-claims

judgment rendered by the District Court is limited to questions of law only . M .R.S.C.P. 1 l(d);

Taylor v. Walker, 2017 ME 218, ~ 6, 173 A.3d 539 . "Any findings of fact of the District Court

shall not be set aside unless clearly erroneous." M .R. Civ. P. 76D. "Factual findings are deemed

2 clearly erroneous only when there is no competent record evidence to support them." Thibeault v.

Brackett, 2007 ME 154, ~ 14, 93 8 A .2d 27 .

Discussion

I. Appellee Boutin 's Motion to Di miss

In her opposition, Boutin requests that the court dismiss the appeal for want of prosecution.

In support of her arguments Boutin cites Rules 76F and 76H. Rule 76F requires the record on

appeal to be "filed in the Superior Court not later than 40 'days after the filing of the notice of

appeal or 10 days after the filing of any transcript ... whichever occurs later." M.R. Civ. P. 76F(a).

Additionally, Rule 76F specifies that "it is the Appellant's responsibility to insure that these time

limits are met.'' If the Appellant fails to comply with Rule 76F, "the District Court may ... dismiss

the appeal for want of prosecution." Rule 76H states that "an appellant must file with the notice of

appeal a fully completed transcript order form ...." M.R. Civ. P. 76H(3)(B)(i).

In this case, the notice of appeal was filed on July 9, 2018. A transcript request form was

filed along with the notice of appeal. The transcript was filed on January 11, 2019. Given these

facts, the court declines to dismiss the appeal for want of prosecution.

II. The Merits of Drapeau's Appeal

Drapeau' s sole argument on appeal is that the "uncontroverted evidence" shows that it

properly disclaimed any and all warranties for the commercial use of the dryer. Based on this

disclaimer, Drapeau argues there was no implied warranty of merchantability and that the District

Court therefore committed error and abused its discretion when it entered judgment for Boutin.

Drapeau's argument is based on the uniform commercial code which allows a seller of commercial

goods to disclaim the implied warranty of merchantability.

3 Pursuant to the UCC, all contracts for the purchase of goods from a merchant contain an

implied warranty that the goods shall be merchantable. 11 M.R.S. § 2-314(1). In order to be

merchantable, goods must, among other things, be "fit for the ordinary purpose for which such

goods are used." Id.§ 2-314(l)(c). The implied warranty of merchantability, however, may be

excluded from a contract for the sale of commercial goods. Id.§ 2-316. The implied warranty may

not be excluded from a contract for the sale of consumer goods. Id. Consumer goods are "goods

that are used or bought for use primarily for personal, family or household purposes." Id. §§ 2­

103(3), 9-1102(23). In order to exclude the implied warranty of merchantability from a non­

consumer sale of goods, the language of exclusion must mention merchantability or contain

language "which in common understanding calls the buyer's attention to the exclusion of

warranties and makes plain that there is no implied warranty." Id. § 2-316(2), (3)(a). Examples of

such language are "as is" or "with all faults." Id.§ 2-316(3)(a). If the language of exclusion is in

a writing it must be conspicuous. Id. § 2.

To support its argument, Drapeau points to testimonial evidence that the Poulins told

Boutin' s husband that "there would be no warranty if [Boutin] put [the dryer] in the salon, [or] any

commercial setting because the manufacturer won't cover it." (Tr. 58-59 .) This testimony,

however, does not show that Boutin was expressly told the implied warranty of merchantability

would not apply. Simply stating that there would be no warranty if the dryer was used in a

commercial setting does not make plain that there is also no implied warranty of merchantability .

This is particularly so given the reference to the manufacturer in the quoted language above. This

indicates that the Poulin's were talking about the lack of an express manufacturer's warranty and

not the exclusion of the implied warranty of merchantability. Additional record evidence supports

4 this conclusion. (Tr. 12-13, 35, 39, 63; Def.'s Ex. 1.) These facts support a finding that Drapeau

did not exclude the implied warranty of merchantability from the sale of the dryer.

Conclusion

Based on the record evidence, the District Court did not commit error or abuse its discretion

when it entered judgment in favor of Boutin.

The entry is

The Judgment of the District Court is AFFIRMED.

Date: ~Ju tice, Superior C o o ~