Tiffani Lacasse & a. v. Elaine Majewski & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0646, Tiffani Lacasse & a. v. Elaine
Majewski & a., the court on April 2, 2020, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiffs, Tiffani Lacasse and Andrew Lacasse (buyers), appeal an
order of the Superior Court (MacLeod, J.) dismissing their complaint against
defendant New London Realty, LLC (realtor), which brokered the sale of a home
to them, for failure to state a claim.1 We construe their brief to contend that
the trial court erred by concluding that: (1) RSA 331-A:26, V (2017) does not
create a private cause of action; and (2) they failed to allege sufficient facts to
state claims for fraudulent and negligent misrepresentation.

In reviewing the trial court’s grant of a motion to dismiss for failure to
state a claim, our standard of review is whether the allegations in the
complaint are reasonably susceptible of a construction that would permit
recovery. Plaisted v. LaBrie, 165 N.H. 194, 195 (2013). We assume that the
plaintiffs’ allegations of fact are true and construe all reasonable inferences in
the light most favorable to them. Id. We will not, however, assume the truth or
accuracy of any allegations that are not well-pleaded, including the statement
of conclusions of fact and principles of law. Snierson v. Scruton, 145 N.H. 73,
76 (2000). We then engage in a threshold inquiry that tests the facts in the
complaint against the applicable law, and if the allegations do not constitute a
basis for legal relief, we must conclude that granting the motion to dismiss was
proper. Plaisted, 165 N.H. at 195.

We first address whether the trial court erred in concluding that RSA
331-A:26, V does not create a private cause of action. We have stated that “‘the
legislature intended [RSA chapter 331-A] to have no effect outside the ethical,
licensing, and disciplinary confines of the business.’” Snierson, 145 N.H. at 82
(quoting Finlay Commercial Real Estate v. Paino, 133 N.H. 4, 8 (1990)).
Accordingly, the trial court correctly determined that the buyers failed to state

1 The plaintiffs also sued the prior owner of the property and other defendants, but have not

appealed the dismissal of their complaint against them.
a claim for relief under RSA 331-A:26, V. The parties agree that RSA chapter
331-A (2017 & Supp. 2019) does not bar a properly-pleaded common law cause
of action.

We next address whether the trial court erred in dismissing the buyers’
claim against the realtor for fraud. To establish fraud, a plaintiff must show
that: (1) the defendant made a representation with knowledge of its falsity or
with conscious indifference to its truth; (2) the defendant intended another to
rely upon that representation; and (3) the plaintiff justifiably relied upon it.
Snierson, 145 N.H. at 77. A plaintiff cannot allege fraud in general terms, but
must specifically allege the essential details of the fraud and the facts of the
defendant’s fraudulent conduct. Id.

In this case, the buyers failed to allege with specificity facts establishing:
(1) that the realtor adopted the homeowner’s statements regarding the
condition of the basement as the realtor’s own statements; (2) how the realtor
knew that the homeowner’s statements were false or demonstrated a conscious
indifference to their truth; or (3) how the buyers’ reliance upon the
homeowner’s statements relayed by the realtor was justifiable given the
“numerous ‘red flags’” that the buyers identified in their complaint, all
indicating that the water entering the basement was more significant than the
homeowner indicated. Viewing the alleged facts in the light most favorable to
the buyers, we conclude that the trial court properly dismissed the buyers’
claim for fraudulent misrepresentation. See Plaisted, 165 N.H. at 195.

Finally, we address whether the trial court properly dismissed any claim
by the buyers against the realtor for negligent misrepresentation. We assume,
without deciding, that this claim is preserved. To establish a claim for
negligent misrepresentation, the plaintiff must show that the defendant
negligently misrepresented a material fact and that the plaintiff justifiably
relied upon that misrepresentation. Snierson, 145 N.H. at 78. One who
volunteers information to another not having equal knowledge, with the
intention that the other will act upon it, has a duty to exercise reasonable care
to verify the truth of the statements before making them. Id.

In this case, the buyers’ complaint contains insufficient facts to construe
it as making a claim for negligent misrepresentation. See Toy v. City of
Rochester, 172 N.H. 443, 448 (2019) (“It is well settled that a defendant is
entitled to be informed of the theory on which the plaintiff is proceeding . . . .”).
Furthermore, as noted above, the complaint alleges facts indicating that any
reliance by the buyers on the realtor’s recounting of the homeowner’s
statements was not justified. Even viewing the facts alleged in the light most

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favorable to the buyers, we conclude that the trial court properly dismissed the
plaintiffs’ claim against the realtor. See Plaisted, 165 N.H. at 195.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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