State v. Moran
| Citation | 151 N.H. 450,861 A.2d 763 |
| Decision Date | 21 October 2004 |
| Docket Number | No. 2003–804.,2003–804. |
| Court | Supreme Court of New Hampshire |
| Parties | The STATE of New Hampshire v. James MORAN d/b/a Exterior Solutions. |
Kelly A. Ayotte, attorney general (Constance N. Stratton, senior assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, James Moran d/b/a Exterior Solutions, appeals a conviction of violating RSA chapter 358–A (1995 & Supp. 2003), the New Hampshire Consumer Protection Act (CPA), following a bench trial in Superior Court (Morrill , J.). We affirm.
The trial court could have found the following facts. On October 25, 2001, an employee of the defendant, Darryn Lawrence, entered into a contract to install siding on the home of Richard and Therese Robidoux. The contract specified a total price of $6,800 with $2,800 to be paid before the defendant began the job. In addition, the contract stated the work would be done sometime between March 2002 and April 2002. Finally, the Robidouxs agreed to make an initial deposit of $500 to hold the price for the spring installation, leaving $2,300 to be paid before the work began.
On February 5, 2002, Lawrence called Therese Robidoux to inquire about doing the work early. The following day, when the defendant telephoned Therese for an answer, the Robidouxs agreed to have the work done early. During the conversation, the defendant requested $2,300 to buy materials before he began the job. The same day the defendant and Lawrence arrived at the Robidouxs' home to pick up a check for the amount stated. The check was made out to the defendant, at his request, and was cashed later that day. The garage doors were to be left open so the materials could be delivered there and the defendant could begin the work.
On February 7, 2002, Therese telephoned the defendant because the materials had not been delivered. In response, the defendant told Therese the siding company was out of the color she had requested but that it should be in by the end of the week. On February 8, 2002, the materials still had not been delivered. Again, Therese telephoned the defendant, who stated that he had another small job to finish before starting the siding project. Later that day, the defendant told Therese he did not have enough crew to start the job. Further attempts to contact the defendant were unsuccessful.
On March 25, 2002, Therese finally contacted the defendant. During the phone conversation, the defendant said he could no longer work in New Hampshire and he could either deliver the materials and have someone else do the job, or refund the deposit. Therese asked for a refund and the defendant said she would have it by the end of the week. Therese subsequently learned that the defendant was still able to work in New Hampshire. No check arrived and when Therese tried to contact the defendant again she discovered the office phone had been disconnected. A later conversation took place in which the defendant said he was having a hard time getting the money together. He stated he wanted to get the issue behind him and he should have a check to Therese by the beginning of the following week. No check arrived. Later, the defendant left a message on Therese's answering machine stating his office had been closed but if she needed to reach him to call his cell phone; that number, however, had been disconnected as well. According to Therese, in one of the conversations with the defendant, he stated the siding was ordered from Alsiding, but there was no record of the order. Therese had no further contact with the defendant after these events.
On appeal, the defendant argues the trial court erred in concluding that the facts proved in this case constituted the crime of unfair or deceptive business practices under the CPA. In ruling upon the sufficiency of the evidence, we must first decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Evans, 134 N.H. 378, 383, 594 A.2d 154 (1991).
The CPA provides in relevant part:
The CPA proscribes unfair or deceptive trade practices in general, and sets forth a list of specific types of conduct that qualify as unfair or deceptive trade practices. Id. The trial court found that the defendant's conduct did not fall within any of the enumerated categories under the CPA, but rather fell within the general prohibition barring unfair or deceptive trade practices.
We have recognized that the general provision of the CPA is broadly worded, and not all conduct in the course of trade or commerce falls within its scope. Barrows v. Boles, 141 N.H. 382, 390, 687 A.2d 979 (1996). Because of the difficulty often associated with determining which commercial actions, not specifically delineated, are covered by the act, we employed the rascality test in Barrows . See Milford Lumber Co. v. RCB Realty, 147 N.H. 15, 17, 780 A.2d 1259 (2001). In doing so, we clarified our ruling in Roberts v. General Motors Corp., 138 N.H. 532, 538–39, 643 A.2d 956 (1994), in which we had held that in order for conduct not particularized by the enumerated categories in the CPA to qualify as an unfair or deceptive trade practice, that conduct must be of the same type as proscribed by the enumerated categories. See Barrows, 141 N.H. at 390, 687 A.2d 979.
Under the rascality test, "[t]he objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce." Milford Lumber Co. , 147 N.H. at 17, 780 A.2d 1259 (quotations omitted). The rascality test applies equally to the analysis of civil and criminal cases. In determining what actions are unlawful outside of the enumerated categories of RSA 358–A:2, we also look to the federal courts' interpretation of the Federal Trade Commission Act for guidance. See RSA 358–A:13. The Federal Trade Commission determines if actions are unfair or deceptive by inquiring:
(1) Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common-law, statutory or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).
Milford Lumber Co., 147 N.H. at 19, 780 A.2d 1259 (quotation omitted).
The defendant argues that we have established a three-prong test to...
To continue reading
Request your trial