UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Sheridan and Gabriele Meyer
v. Civil No. 18-cv-449-LM Opinion No. 2018 DNH 187 Leroy Page, et al
O R D E R
This suit arises out of plaintiffs’ purchase and
construction of a log home kit. Plaintiffs bring this action
against United Wall Systems, LLC, d/b/a UWS Construction Group
(“UWS”), Leroy Page, and several other corporate entities that
were involved in either the sale of the log home kit or its
construction, asserting claims sounding in contract and tort,
and a violation of the New Hampshire Consumer Protection Act.
Before the court is defendant UWS’s motion to dismiss all claims
against it under Federal Rule of Civil Procedure 12(b)(6).
Plaintiffs object to this motion. For the following reasons,
UWS’s motion is denied.1
1 UWS requested a hearing on this motion. Doc. no. 20 at 5. Upon review of UWS’s motion, the court is not convinced that oral argument would “provide assistance to the court.” LR 7.1(d). STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, draw all reasonable
inferences from those facts in the plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s
complaint set forth ‘a plausible claim upon which relief may be
granted.’” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75
(1st Cir. 2014) (quotation omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
BACKGROUND
The following allegations are taken from the complaint.2 In
January 2017, plaintiffs purchased a log home kit from defendant
2 At the outset, the court notes that both parties attached “matters outside the pleadings” to their motion to dismiss pleadings. Fed. R. Civ. P. 12(d); see Doc. no. 20-1, 20-2, 22- 1. Because the court does not rely upon these supplementary materials in its analysis, and instead focuses on the allegations in the complaint, UWS’s motion remains one to dismiss, not for summary judgment. See Garita Hotel Ltd. P’ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18-19 (1st Cir. 1992)(“If the district court chooses to ignore the supplementary materials and determines the motion under the Rule 12(b)(6) standard, no conversion [into a motion for summary judgment] occurs.”).
2 Southland Log Homes, Inc. (“Southland”), which they intended to
construct on property located in New Hampshire. Southland
provided plaintiffs with a list of approved builders, and
plaintiffs selected Leroy Page from that list.
Page, acting as an agent of UWS, sent plaintiffs a quote
for the proposed construction of the log home. Plaintiffs
subsequently signed a cost breakdown and construction budget
document provided to them by Page (“construction contract”).
Page and UWS started construction of the log home on
plaintiffs’ property in New Hampshire in May 2017. Doc. no. 1
at 3. Plaintiffs paid Page over $180,000 during the course of
construction. After completion of the log home in October 2017,
plaintiffs discovered multiple construction problems, such as
crooked and leaning walls, drainage into the home, and no heat
in some areas. Plaintiffs allege that the deficient
construction caused them emotional distress and forced them to
incur additional costs, including alternative living
arrangements, and retention of a building inspector and
construction manager to repair the home.
Based on these allegations, plaintiffs assert the following
claims against UWS and Page: breach of contract and implied
warranties; quantum meruit and unjust enrichment; negligence;
3 negligent infliction of emotional distress; and violation of the
New Hampshire Consumer Protection Act.
DISCUSSION
UWS moves to dismiss all claims against it, arguing that
the complaint alleges insufficient facts to support any of
plaintiffs’ claims. Doc. no. 20 at 3-5. The court addresses
each claim in turn.
I. Breach of Contract and Implied Warranties (Count I)
UWS moves to dismiss plaintiffs’ breach of contract and
breach of implied warranties claims, arguing that the complaint
fails to state such claims because there is no allegation that
plaintiffs “had a contract or agreement” with UWS or that “Page
. . . was an ‘agent’ of UWS.” Doc. no. 20 at 3. Plaintiffs
correctly point out that the complaint does, in fact, include
those allegations. Doc. no. 22 at 3.
“In order to state a breach of contract claim under New
Hampshire law, [the plaintiff] must allege sufficient facts to
show (1) that a valid, binding contract existed between the
parties, and (2) that [defendant] breached the terms of the
contract.” Wilcox Indus. Corp. v. Hansen, 870 F. Supp. 2d 296,
311 (D. N.H. 2012); see also Norton v. Burleaud, 115 N.H. 435,
436 (1975) (recognizing claim for breach of implied warranty to
4 construct residential home that home be constructed in
workmanlike manner and in accordance with accepted standards).
Here, the complaint alleges that plaintiffs “had a contract
with defendants Page and UWS to build their residential home.”
Doc. no. 1 ¶ 30. The complaint further alleges that “[a]t all
times relevant, Page acted as an agent of UWS, held himself out
as an agent of UWS, and entered into a contract with
[p]laintiffs by himself and in his authority as Project Manager
for UWS.” Doc. no. 1 ¶ 31. In support of this contention,
plaintiffs allege that the quote Page provided to them was sent
“from Page’s UWS e-mail address, was detailed on UWS stationary,
and provided Mr. Page’s UWS contact information.” Doc. no. 1
¶ 13. These facts support plaintiffs’ allegation that Page
acted as an agent of UWS. Thus, the complaint alleges that a
binding contract existed between plaintiffs and UWS by virtue of
Page’s conduct as UWS’s agent.
Although not contested by UWS, the complaint also alleges
that UWS breached that contract and the implied warranty of
workmanlike quality by failing to construct plaintiffs’ log home
in a workmanlike fashion. Accordingly, the court concludes that
plaintiffs’ allegations are sufficient to state claims for
breach of contract and breach of implied warranties.
5 II. Unjust Enrichment and Quantum Meruit (Count II)
UWS next argues that Plaintiffs’ unjust enrichment and
quantum meruit claims should be dismissed because plaintiffs
fail to allege that UWS received any compensation from
plaintiffs, or that Page acted as an agent of UWS. Doc. no. 20
at 4. Plaintiffs correctly contend that the complaint alleges
that Page acted as an agent of UWS. Doc. no. 22 at 3.
“Unjust enrichment is an equitable remedy that is available
when an individual receives a benefit which would be
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Sheridan and Gabriele Meyer
v. Civil No. 18-cv-449-LM Opinion No. 2018 DNH 187 Leroy Page, et al
O R D E R
This suit arises out of plaintiffs’ purchase and
construction of a log home kit. Plaintiffs bring this action
against United Wall Systems, LLC, d/b/a UWS Construction Group
(“UWS”), Leroy Page, and several other corporate entities that
were involved in either the sale of the log home kit or its
construction, asserting claims sounding in contract and tort,
and a violation of the New Hampshire Consumer Protection Act.
Before the court is defendant UWS’s motion to dismiss all claims
against it under Federal Rule of Civil Procedure 12(b)(6).
Plaintiffs object to this motion. For the following reasons,
UWS’s motion is denied.1
1 UWS requested a hearing on this motion. Doc. no. 20 at 5. Upon review of UWS’s motion, the court is not convinced that oral argument would “provide assistance to the court.” LR 7.1(d). STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, draw all reasonable
inferences from those facts in the plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s
complaint set forth ‘a plausible claim upon which relief may be
granted.’” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75
(1st Cir. 2014) (quotation omitted). A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
BACKGROUND
The following allegations are taken from the complaint.2 In
January 2017, plaintiffs purchased a log home kit from defendant
2 At the outset, the court notes that both parties attached “matters outside the pleadings” to their motion to dismiss pleadings. Fed. R. Civ. P. 12(d); see Doc. no. 20-1, 20-2, 22- 1. Because the court does not rely upon these supplementary materials in its analysis, and instead focuses on the allegations in the complaint, UWS’s motion remains one to dismiss, not for summary judgment. See Garita Hotel Ltd. P’ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18-19 (1st Cir. 1992)(“If the district court chooses to ignore the supplementary materials and determines the motion under the Rule 12(b)(6) standard, no conversion [into a motion for summary judgment] occurs.”).
2 Southland Log Homes, Inc. (“Southland”), which they intended to
construct on property located in New Hampshire. Southland
provided plaintiffs with a list of approved builders, and
plaintiffs selected Leroy Page from that list.
Page, acting as an agent of UWS, sent plaintiffs a quote
for the proposed construction of the log home. Plaintiffs
subsequently signed a cost breakdown and construction budget
document provided to them by Page (“construction contract”).
Page and UWS started construction of the log home on
plaintiffs’ property in New Hampshire in May 2017. Doc. no. 1
at 3. Plaintiffs paid Page over $180,000 during the course of
construction. After completion of the log home in October 2017,
plaintiffs discovered multiple construction problems, such as
crooked and leaning walls, drainage into the home, and no heat
in some areas. Plaintiffs allege that the deficient
construction caused them emotional distress and forced them to
incur additional costs, including alternative living
arrangements, and retention of a building inspector and
construction manager to repair the home.
Based on these allegations, plaintiffs assert the following
claims against UWS and Page: breach of contract and implied
warranties; quantum meruit and unjust enrichment; negligence;
3 negligent infliction of emotional distress; and violation of the
New Hampshire Consumer Protection Act.
DISCUSSION
UWS moves to dismiss all claims against it, arguing that
the complaint alleges insufficient facts to support any of
plaintiffs’ claims. Doc. no. 20 at 3-5. The court addresses
each claim in turn.
I. Breach of Contract and Implied Warranties (Count I)
UWS moves to dismiss plaintiffs’ breach of contract and
breach of implied warranties claims, arguing that the complaint
fails to state such claims because there is no allegation that
plaintiffs “had a contract or agreement” with UWS or that “Page
. . . was an ‘agent’ of UWS.” Doc. no. 20 at 3. Plaintiffs
correctly point out that the complaint does, in fact, include
those allegations. Doc. no. 22 at 3.
“In order to state a breach of contract claim under New
Hampshire law, [the plaintiff] must allege sufficient facts to
show (1) that a valid, binding contract existed between the
parties, and (2) that [defendant] breached the terms of the
contract.” Wilcox Indus. Corp. v. Hansen, 870 F. Supp. 2d 296,
311 (D. N.H. 2012); see also Norton v. Burleaud, 115 N.H. 435,
436 (1975) (recognizing claim for breach of implied warranty to
4 construct residential home that home be constructed in
workmanlike manner and in accordance with accepted standards).
Here, the complaint alleges that plaintiffs “had a contract
with defendants Page and UWS to build their residential home.”
Doc. no. 1 ¶ 30. The complaint further alleges that “[a]t all
times relevant, Page acted as an agent of UWS, held himself out
as an agent of UWS, and entered into a contract with
[p]laintiffs by himself and in his authority as Project Manager
for UWS.” Doc. no. 1 ¶ 31. In support of this contention,
plaintiffs allege that the quote Page provided to them was sent
“from Page’s UWS e-mail address, was detailed on UWS stationary,
and provided Mr. Page’s UWS contact information.” Doc. no. 1
¶ 13. These facts support plaintiffs’ allegation that Page
acted as an agent of UWS. Thus, the complaint alleges that a
binding contract existed between plaintiffs and UWS by virtue of
Page’s conduct as UWS’s agent.
Although not contested by UWS, the complaint also alleges
that UWS breached that contract and the implied warranty of
workmanlike quality by failing to construct plaintiffs’ log home
in a workmanlike fashion. Accordingly, the court concludes that
plaintiffs’ allegations are sufficient to state claims for
breach of contract and breach of implied warranties.
5 II. Unjust Enrichment and Quantum Meruit (Count II)
UWS next argues that Plaintiffs’ unjust enrichment and
quantum meruit claims should be dismissed because plaintiffs
fail to allege that UWS received any compensation from
plaintiffs, or that Page acted as an agent of UWS. Doc. no. 20
at 4. Plaintiffs correctly contend that the complaint alleges
that Page acted as an agent of UWS. Doc. no. 22 at 3.
“Unjust enrichment is an equitable remedy that is available
when an individual receives a benefit which would be
unconscionable for him to retain.” Axenics, Inc. v. Turner
Constr. Co., 164 N.H. 659, 669 (2013). This cause of action is
an alternative theory of recovery available when there is no
valid, express contract covering the subject matter at hand.
See id.
Here, plaintiffs allege that Page acted as, and held
himself out as, an agent of UWS during their relationship, and
that they paid Page over $180,000 during the course of
construction. Further, the complaint alleges that it would be
unconscionable for UWS to retain such benefit based upon Page’s
and UWS’s failure to construct the log home in a workmanlike
manner. Construed favorably to plaintiffs, these allegations
are sufficient to raise a plausible inference that UWS received
6 some benefit from the compensation plaintiffs paid to Page, and
to state a claim for unjust enrichment against UWS.
III. Negligence (Count III) and Negligent Infliction of Emotional Distress (Count V)
UWS argues that plaintiffs’ claims of negligence and
negligent infliction of emotional distress should be dismissed
because plaintiffs did not allege “a contractor-customer
relationship with UWS” and, therefore, UWS owed no duty of care
to plaintiffs. Doc. no. 20 at 4-5. Plaintiffs correctly
respond that the complaint alleges that UWS was a party to the
construction contract, and that Page entered into that contract
as an agent of UWS. Doc. no. 22 at 3.
To state a claim of negligence, a plaintiff must allege
“that the defendant owed a duty to the plaintiff, breached that
duty, and that the breach proximately caused the claimed
injury.” Estate of Joshua T. v. State, 150 N.H. 405, 407
(2003); see also Tessier v. Rockefeller, 162 N.H. 324, 342
(2011) (listing elements of claim for negligent infliction of
emotional distress, including “causal negligence of the
defendant”).
As highlighted above, the complaint does, in fact, allege
that plaintiffs and UWS had a contractual relationship. For
this reason, the court is not persuaded that plaintiffs’
7 negligence and negligent infliction of emotional distress claims
should be dismissed on the grounds advanced by UWS.
IV. Violation of New Hampshire Consumer Protection Act (Count VI)
Finally, UWS moves to dismiss plaintiffs’ claim that it
violated the New Hampshire Consumer Protection Act (“the CPA”),
asserting the complaint states no valid CPA claim against it.
The CPA prohibits the use of “any unfair method of competition
or any unfair or deceptive act or practice in the conduct of any
trade or commerce within this state.” N.H. Rev. Stat. Ann.
(“RSA”) § 358-A:2. The CPA provides a non-exhaustive list of
prohibited practices, including “[r]epresenting that goods or
services are of a particular standard, quality, or grade . . .
if they are of another.” RSA 358-A:2, VII.
The complaint alleges that both UWS and Page represented to
plaintiffs that subcontractors of a particular quality would
work on the project, but, without plaintiffs’ knowledge, UWS and
Page then hired lesser, unlicensed subcontractors to do the
work. These allegations are sufficient to state a plausible
claim that UWS violated the CPA.
8 CONCLUSION
For the foregoing reasons, UWS’s motion to dismiss (doc.
no. 20) is denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
September 13, 2018
cc: Counsel of Record