Sylvain Noiseux v. Gary's RV Centers, LLC & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0441, Sylvain Noiseux v. Gary’s RV
Centers, LLC & a., the court on April 7, 2023, issued the
following order:

The court has reviewed the written arguments and the record submitted on
appeal, and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The plaintiff, Sylvain Noiseux, appeals orders of the Superior Court
(Kissinger and Tucker, JJ.): (1) granting in part and denying in part the motion to
dismiss filed by the defendants, Gary’s RV Centers, LLC d/b/a Camping World
RV Sales (Gary’s) and Jayco, Inc. (Jayco); (2) denying the plaintiff’s motion to
amend his complaint; and (3) granting summary judgment to Gary’s on the
plaintiff’s surviving claims. We affirm.

We first consider the plaintiff’s arguments regarding the dismissal order.
In reviewing a trial court’s grant of a motion to dismiss, we consider whether the
allegations in the plaintiff’s pleadings are reasonably susceptible of a
construction that would permit recovery. Cluff-Landry v. Roman Catholic Bishop
of Manchester, 169 N.H. 670, 673 (2017). We assume the plaintiff’s pleadings to
be true and construe all reasonable inferences in the light most favorable to him.
Id. However, we need not assume the truth of statements in the plaintiff’s
pleadings that are merely conclusions of law. Id. We then engage in a threshold
inquiry that tests the facts in the complaint against the applicable law, and if the
allegations constitute a basis for legal relief, we must hold that it was improper to
grant the motion to dismiss. Id.

The Trial Court (Kissinger, J.) dismissed the plaintiff’s claims that: (1)
Jayco breached the Limited Warranty; (2) both defendants breached the
purchase agreement; (3) Jayco violated the Consumer Protection Act (CPA); (4)
Jayco breached the implied covenant of good faith and fair dealing; (5) both
defendants were negligent; and (6) both defendants committed fraud and
negligent misrepresentation.

On appeal, the plaintiff first argues that dismissing his claim that Jayco
breached the Limited Warranty was error. The trial court dismissed the
plaintiff’s claim for breach of the Limited Warranty against Jayco pursuant to the
Limited Warranty’s forum selection clause, which makes Indiana the exclusive
jurisdiction for deciding legal disputes relating to an alleged breach of warranty.
See RSA 508-A:3 (2010) (mandating dismissal when parties have “agreed in
writing that an action . . . shall be brought only in another state” unless certain
circumstances apply). The trial court ruled that the Limited Warranty’s forum
selection clause was enforceable given that the plaintiff had made no claim that
he was unable to “secure effective relief in Indiana,” and had made “no argument
. . . that Indiana would be a substantially less convenient place for the trial of
this action” or “that the agreement as to the place of the action was obtained by
misrepresentation, duress, the abuse of economic power, or other
unconscionable means.” See id.

The plaintiff contends that enforcing the forum selection clause is unjust
because he was not provided a complete copy of the warranty until after the
motorhome was delivered and “was never made aware of [the warranty’s] forum
selection clause.” To the extent that, in this argument, the plaintiff disavows the
Limited Warranty’s forum selection clause, we find his argument unpersuasive.
As the trial court ruled, the plaintiff’s failure to ask for a copy of the Limited
Warranty before signing a delivery form certifying that he had “received, read,
and [understood]” the warranty’s provisions did not negate the terms of the
Limited Warranty, including its forum selection clause. Cf. 27 Richard A. Lord,
Williston on Contracts § 70:113, at 562-63 (4th ed. 2003) (“A party is not excused
from a contract simply for not having read the agreement before signing and
accepting its benefits.”). Although the plaintiff states that the trial court erred by
finding the Limited Warranty’s forum selection clause enforceable, he offers no
developed argument on this issue. “Judicial review is not warranted for
complaints regarding adverse rulings without developed legal argument . . . .”
Appeal of Omega Entm’t, 156 N.H. 282, 287 (2007).

The plaintiff next asserts that the trial court erred by determining that the
forum selection clause in the purchase agreement was enforceable. Despite this
determination, however, the trial court did not, in fact, dismiss any of the
plaintiff’s claims pursuant to the purchase agreement’s forum selection clause.
Indeed, the trial court concluded that the purchase agreement’s forum selection
clause is ambiguous and, therefore, “does not require the Court to dismiss [the
plaintiff’s] action.”

The plaintiff next argues that the trial court erred by dismissing his claim
that Gary’s breached the purchase agreement. The trial court dismissed the
claim, in part, because the front portion of the agreement (the only portion the
plaintiff conceded that he read and signed) provided that any claim arising out of
the purchase agreement had to be brought within one year of the October 3,
2017 sale date, and the plaintiff brought this action outside the one-year window.
Notably, the trial court did not grant the motion to dismiss as to the plaintiff’s
claim that Gary’s breached the extended service plan, which the plaintiff refers to
as a “Five-Year Warranty.”

The plaintiff argues that “it escapes sound logic as to how [he] could have
reasonably been held to a one-year action window” when the purchase agreement
“included the Five-Year Warranty.” We are unpersuaded by the plaintiff’s

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attempt to revive his claim that Gary’s breached the purchase agreement by
relying upon the terms of the extended service plan. Contrary to his assertions,
the purchase agreement does not incorporate the terms of the extended service
plan; rather, the purchase slip merely contains a notation indicating plaintiff’s
purchase of the plan.

The plaintiff next contends that the trial court erred by dismissing his
Consumer Protection Act (CPA) claim against Jayco. The CPA proscribes unfair
or deceptive trade practices in general and sets forth a list of 18 specific types of
conduct that qualify as unfair or deceptive trade practices. See RSA 358-A:2
(2022). “In determining which commercial actions not specifically delineated are
covered by the act, we have employed the ‘rascality’ test.” Fat Bullies Farm, LLC
v. Devenport, 170 N.H. 17, 24 (2017) (quotation omitted). Under that test, “the
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.” Id.
(quotation omitted).

The trial court observed that, “[w]ith respect to Jayco, [the plaintiff] alleges
only that Jayco ‘assured [him] that certain repairs and/or actions would occur
when they never did.’” The trial court determined that this allegation was
insufficient to state a claim under the CPA because: (1) the court could not
determine from the allegations whether Jayco made the representations “in a
bona fide attempt to fulfill its contractual duties under the Limited Warranty”; (2)
the plaintiff “separately [alleges] in the Complaint that Jayco’s inability to repair
the vehicle constitutes a breach of that contract” and “[a]n ordinary breach of
contract claim . . . is not a violation of the CPA,” State v. Sideris, 157 N.H. 258,
262 (2008); and (3) “none of Jayco’s alleged conduct rises to the level of rascality
that would amount to an unfair or deceptive act within the meaning of the CPA.”

The plaintiff, as the appealing party, has the burden of demonstrating that
the trial court’s dismissal of his CPA claim against Jayco constituted reversible
error. See Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon the trial
court’s well-reasoned decision, the plaintiff’s challenges to it, the relevant law,
and the record submitted on appeal, we conclude that the plaintiff has not met
that burden. See id. We also conclude that the plaintiff has not met his burden
of demonstrating that the trial court committed reversible error when it
dismissed his fraud and negligent misrepresentation claims.

We next consider the plaintiff’s arguments related to the denial of his
motion to amend his complaint. Under RSA 514:9, a trial court may permit a
substantive amendment to pleadings “in any stage of the proceedings, upon such
terms as the court shall deem just and reasonable, when it shall appear to the
court that it is necessary for the prevention of injustice.” “Although amendment
of pleadings is liberally permitted, the decision to grant or deny a motion to
amend rests in the sound discretion of the trial court.” Dent v. Exeter Hosp., 155

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N.H. 787, 796-97 (2007). “We will not overturn that decision unless it is an
unsustainable exercise of discretion.” Id.

Here, as the defendants correctly observed in their objection to the
plaintiff’s motion to amend, the plaintiff’s “proposed substantive amendments
repeat[ed] statements he made in his Objection to the Motion to Dismiss and
which the Court expressly considered in dismissing several of his claims” and
“state[d] legal conclusions that the [trial court had] already rejected.” Under
these circumstances, we agree with the Trial Court’s (Tucker, J.) observation on
reconsideration of the denial of the motion to amend that the proposed amended
complaint would not have cured the defects in the original complaint, and
conclude, therefore, that the Trial Court (Kissinger, J.) did not unsustainably
exercise its discretion by denying the motion to amend. See Gould v. George
Brox, Inc., 137 N.H. 85, 90 (1993).

Finally, we consider the plaintiff’s arguments related to the Trial Court’s
(Tucker, J.) grant of summary judgment to Gary’s on his claims for breach of the
extended service plan, breach of the implied covenant of good faith and fair
dealing, and violation of the CPA. When reviewing a trial court’s grant of
summary judgment, we consider the affidavits and other evidence, and all
inferences properly drawn from them, in the light most favorable to the non-
moving party. See Peerless Ins. v. Vt. Mut. Ins. Co., 151 N.H. 71, 72 (2004). If
there is no genuine issue of material fact, and if the moving party is entitled to
judgment as a matter of law, the grant of summary judgment is proper. Id. We
review the trial court’s application of the law to the facts de novo. Id.

The trial court granted summary judgment to Gary’s on the plaintiff’s claim
that Gary’s breached the extended service plan on the ground that Gary’s is not a
party to the plan. Our review of the extended service plan confirms that Gary’s is
not a party to the plan. The obligor under the plan is “United Service Protection
Corp,” not Gary’s.

The trial court granted summary judgment to Gary’s on the plaintiff’s
claims for breach of the implied covenant of good faith and fair dealing and
violation of the CPA because both claims “are premised on the notion that Gary’s
persuaded [the plaintiff] to purchase [the extended service plan] with a false
promise that he could bring the motor home to Gary’s for repair,” and the
“uncontroverted” evidence is that Gary’s is a separate corporate entity from the
entity from which the plaintiff purchased his motorhome and extended service

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plan. The plaintiff’s appellate arguments fail to persuade us that the trial court’s
summary judgment rulings constitute reversible error. See Gallo, 166 N.H. at
740.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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