| (December 16, 2004. Manchester, NH.) - Rob Miller and Jim Ogorchock, partners in Sheehan Phinney Bass + Green's Commercial Litigation Practice Group, have settled a major case breaking significant new ground in Consumer Protection Act jurisprudence.
The case, captioned Sandra Lee Rowse v. State Park Realty, was brought in the Sullivan County Superior Court by Rowse, who had purchased a vacation home on Sunapee Harbor. The State Park Realty listing sheet for the home advertised it as featuring "three docks" that "will accommodate large boats." Although the seller of the property could not produce permits for one of the docks, the State Park agent, after calling the Department of Environmental Services' Wetlands Bureau, assured Rowse that the dock without the permit was "grandfathered." Rowse purchased the property, and, after filing permit applications with the Wetlands Bureau to repair the docks, learned that one of the docks was, in fact, not grandfathered, was illegal, and, therefore, had to be removed.
After a three-day bench trial, the Court found for Rowse against the seller for breach of contract, but found no liability against State Park Realty under the Consumer Protection Act because the State Park agent had not made any "negligent misrepresentations" to Rowse. Rowse appealed, arguing that a defendant need not have intentionally or negligently committed one or more of the "acts unlawful" enumerated by the Consumer Protection Act, which, Rowse argued, are unlawful per se.. The Supreme Court agreed, vacated the Superior Court's judgment, and remanded the case for further proceedings consistent with its Order. The Superior Court then issued judgment for Rowse on her 358-A claim, finding that State Park Realty had violated the Consumer Protection Act, and awarded Rowse her reasonable attorney's fees and costs in pursuing the claim.
The case, which had been watched with interest by realtors across New Hampshire, was then settled for a significant six-figure sum. More importantly, it has changed the practice of realtors dealing with waterfront properties, who are now much more closely examining the legal propriety of docks and their representations on listing sheets. It also represented a significant new development in 358-A jurisprudence, as the holding of Rowse v. State Park Realty suggests that the commission of an unlawful act enumerated in 358-A:2 indeed constitutes a per se violation of the Act, entitling the Plaintiff to damages and attorney's fees.
"I'm happy with this result - because what it is going to do is make all licensees more aware of their responsibilities and the pitfalls in the listing and selling of waterfront properties in this State - and that's a good thing for everybody," said Nancy LeRoy, a realtor/member from Laconia who has sold waterfront property in New Hampshire for 25 years. "If you're listing three docks, you better be selling three docks."
"I appreciated Rob's and Jim's incredible effort and their sincere desire to establish clarity in the law for the benefit of others who might find themselves in similar circumstances in the future," Sandy Rowse stated. "Rob and his colleagues at Sheehan Phinney demonstrated their thorough understanding of the Consumer Protection Act and its application, and saw this thing through. They are extremely bright, energetic and, obviously, very effective."
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