113 A.3d 1159
N.H.2015Background
- In 2004 defendants (contractors) built a house; plaintiffs purchased it in 2009 after inspections that revealed no visible mold.
- Within months plaintiffs discovered widespread mold tied to latent structural defects; remediation experts advised demolition/reconstruction.
- Plaintiffs sued in 2011 asserting a CPA claim and breach of implied warranty of workmanlike quality; jury tried the warranty claim and the court reserved the CPA claim.
- Jury awarded $70,000 on the implied-warranty claim; the superior court denied defendants’ JNOV motion and found a CPA violation, awarding double damages and fees.
- Defendants appealed arguing (1) the CPA claim is exempt under RSA 358-A:3, IV-a, and (2) JNOV should have been granted on the warranty claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CPA claim is exempt under RSA 358-A:3, IV-a | Murray: the amended exemption requires looking to when plaintiff knew or should have known, so claim is timely | Defendants: construction occurred in 2004 (over 3 years before discovery), so transaction is exempt | Reversed: transaction (construction) occurred >3 years before plaintiffs knew/should have known; CPA claim is exempt and should be dismissed |
| Whether JNOV should be granted on statute-of-limitations grounds (RSA 508:4) for warranty claim | Murray: defects were latent; discovery rule delayed accrual until plaintiffs discovered causal relationship | Defendants: Downing (first purchaser) was present at construction so his knowledge imputes to plaintiffs, starting limitations in 2004 | Denied: evidence supported that defects were latent; reasonable inference supports plaintiff’s discovery timing, so JNOV denied |
| Whether plaintiffs proved causation (probable, not merely possible) for mold from defendants’ construction | Murray: expert testimony allowed jury to infer that construction defects probably caused mold | Defendants: experts did not testify to probability; only possibility shown | Denied: viewing evidence favorably to plaintiffs, jury could reasonably infer probable causation |
| Whether defendants are insulated by building to purchaser’s specifications | Murray: no evidence of formal plans/specifications furnished by Downing | Defendants: built per Downing’s specifications so not liable | Denied: record shows informal, minimal specifications; Perkins exception inapplicable |
Key Cases Cited
- Catucci v. Lewis, 140 N.H. 243 (N.H. 1995) (pre‑amendment construction of CPA exemption and discovery rule)
- Hair Excitement v. L’Oreal U.S.A., 158 N.H. 363 (N.H. 2009) (CPA claims are not entitled to jury trial)
- Alava Vista v. NRT, 160 N.H. 594 (N.H. 2010) (standards for JNOV and viewing evidence in light most favorable to nonmoving party)
- Petition of George, 160 N.H. 699 (N.H. 2010) (rejecting a faulty premise in appellate argument)
- Nashua Hous. Auth. v. Wilson, 162 N.H. 358 (N.H. 2011) (plaintiff’s burden of proof by preponderance)
- Moulton v. Groveton Papers Co., 114 N.H. 505 (N.H. 1974) (discussed by parties regarding damages in warranty contexts)
- Lempke v. Dagenais, 130 N.H. 782 (N.H. 1988) (discussed by parties regarding damages in warranty contexts)
- Bougopoulos v. Altria Group, Inc., 954 F. Supp. 2d 54 (D.N.H. 2013) (construing CPA exemption to focus on plaintiff’s knowledge of wrongful conduct)