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Courtney v. Bassano
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 101
Docket:	Wal-98-636
Argued:	May 5, 1999
Decided:	June 30, 1999	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.





ELIZABETH COURTNEY v. LINDA BASSANO et al.


WATHEN, C.J.

	[¶1] Defendants Linda Bassano and Vito Peri appeal from the
judgment entered in the Superior Court (Waldo County, Atwood, J.) in favor
of plaintiff Elizabeth Courtney, holding that Bassano and Peri breached
express warranties and violated the Unfair Trade Practices Act.  On appeal,
defendants contend that the court erred in finding that they breached an
express warranty that plaintiff could return an antique table she purchased
from defendants if she were unsatisfied as well as an express warranty that
the table was "all original."  Defendants also challenge the court's holdings
that they violated the Unfair Trade Practices Act and, with respect to their
counterclaim, that plaintiff did not defame them.  Finding no error, we
affirm the judgment.
	[¶2] At trial, plaintiff testified that she saw an antique table
advertised in the March 1996 issue of Maine Antiques Digest.  The table was
advertised by Blue Dolphin Antiques in Northport, an unincorporated
business owned by defendants Linda Bassano and Vito Peri.  The final line in
the ad read "We Guarantee Complete Satisfaction."  Plaintiff stated that she
interpreted the guarantee to mean that if she were the least bit dissatisfied,
she could return the table.  When plaintiff phoned Blue Dolphin Antiques,
Bassano told her that she and Peri had owned the table for several years and
had restored the table's original red paint and replaced a knob.  Bassano told
plaintiff that the table had been constructed between 1770 and 1790 and
that the asking price was $8250.  After discussing the purchase with her
husband and her decorator and viewing photographs of the table, plaintiff
agreed to buy the table.
	[¶3] Plaintiff testified that she paid the purchase price in
installments and had paid in full within a few weeks.  By agreement with
defendants, her husband did not pick up the table until late July due to
renovations that were being completed at her home.  When she first saw the
table, she was extremely disappointed in the table's appearance.  After
seeking other opinions and having the table appraised, plaintiff decided that
she was not completely satisfied with the table because she felt that a piece
of wood had been replaced, cleats had possibly been replaced, and black
paint and circular saw marks could be observed in the drawer.  
	[¶4] Plaintiff testified that she phoned Blue Dolphin Antiques on
August 14 and told Bassano that she was not satisfied with the table and
wished to return it, offering to accept a refund of only $8000 in order to
compensate Blue Dolphin for any inconvenience.  Bassano responded: "you
get what you paid for it, bring it."  Nevertheless, when plaintiff's husband
returned the table the following day, Bassano refused to return the purchase
price and instead gave him a receipt stating that she would have the table
appraised and if the table were not what it was represented to be, the
purchase price would be returned.  In September, plaintiff received a letter
from Bassano stating that Blue Dolphin Antiques would not return her money
because the two appraisals showed that the table was authentic and the
guarantee promised only that.  
	[¶5] Plaintiff also testified that she eventually phoned Maine
Antiques Digest to inquire about Blue Dolphin Antiques and to complain that
she felt the advertisement had been "misrepresentative."  Plaintiff sent the
advertising manager at Maine Antiques Digest written documentation of her
experience with Blue Dolphin Antiques and in a letter she suggested that
defendant Peri had been verbally abusive to her husband when he returned
the table.
	[¶6] Defendant Vito Peri testified that he ran Blue Dolphin Antiques
with his wife, Linda Bassano.  They purchased the table in approximately
1980 for $3200 when it was removed from a farmhouse, and they replaced a
knob on the table at that time.  He admitted to speaking about the
authenticity and vintage of the table with plaintiff, telling her that the table
was "all original" with no major replacements and only minor imperfections.
	[¶7] Defendant Linda Bassano testified that when plaintiff phoned
her to explain she would be returning the table due to her dissatisfaction,
plaintiff hung up before she could respond.  Bassano testified that the
language in the ad was intended to guarantee only that the item was
authentic. She contended that she had never heard a complaint from
plaintiff about the table other than a lack of authenticity.  She stated that she
sent a letter to plaintiff in September attaching the appraisals, and she
expected that plaintiff would retrieve the table.  Plaintiff did not retrieve the
table, and Bassano did not refund plaintiff's money. 
	[¶8] Antiques dealer James Julia testified that at defendants' request
he assessed the table's vintage and determined it to be a late eighteenth or
early nineteenth century New England table.  He explained that the table
drawer contained a piece of replacement wood that would not affect the
value of the table.
	[¶9] The court found that defendants had expressly guaranteed both
that plaintiff could return the table if she were unsatisfied and that the table
was "all original."  The court found that defendants breached the warranties
and held that they violated the Unfair Trade Practices Act.  The court also
found for plaintiff on defendants' counterclaim that she had defamed them
in remarks made to the advertising manager of the Maine Antiques Digest. 
Defendants appeal.
	[¶10] Defendants first argue that the court erred in holding that they
had created and breached an express warranty.  Whether language creates
an express warranty and whether a warranty has been breached are
questions of fact.  See Maine Farmers Exch. v. McGillicudy, 1997 ME 153, ¶
7, 697 A.2d 1266, 1268.  Findings of fact, whether express or implied, are
reviewed only for clear error.  See Gay v. Gay's Super Markets, Inc., 343
A.2d 577, 579 (Me. 1975).  A factual finding is clearly erroneous only if
there is no competent evidence in the record to support it.  See
VanVoorhees v. Dodge, 679 A.2d 1077, 1080 (Me. 1996). 
	[¶11] The Uniform Commercial Code describes the creation of an
express warranty in part as follows:  "Any affirmation of fact or promise
made by the seller to the buyer which relates to the goods and becomes part
of the basis of the bargain creates an express warranty that the goods shall
conform to the affirmation or promise."  11 M.R.S.A. § 2-313 (1995). 
Moreover, "[t]he circumstances surrounding the agreement, including the
knowledge of both parties, should be considered in determining whether an
express warranty was formed."  Miller v. Lentine, 495 A.2d 1229, 1231 (Me.
1985).
	[¶12] In the present case, the court's finding that defendants
created an express warranty of plaintiff's satisfaction was supported by
competent evidence, including the advertisement itself, and plaintiff's
testimony that Bassano promised a full refund.  The court's finding that
defendants breached the warranty of complete satisfaction is supported by
plaintiff's testimony that she was dissatisfied with the table and attempted
to return it and was refused a refund.  The court's finding that defendants
expressly warranted that the table was "all original" was also supported by
competent evidence, such as Peri's testimony that he told plaintiff that the
table was "all original, [there are] no replaced legs, the top is original . . .  I
said there's minor imperfections, but there is no major change on this
table."  Finally, the court's finding that defendants breached the warranty
that the table was "all original" was supported by the testimony that a piece
of wood in the drawer had been replaced.  
	[¶13] Finally, defendants contend that the court erred in holding
that they violated the Unfair Trade Practices Act (UTPA).  The UTPA states
that:
Any person who purchases or leases goods, services or
property, real or personal, primarily for personal, family or
household purposes and thereby suffers any loss of money or
property, real or personal, as a result of the use or
employment by another person of a method, act or practice
declared unlawful by section 207 or by any rule or regulation
issued under section 207, subsection 2 may bring an action
either in the Superior Court or District Court for actual
damages, restitution and for such other equitable relief,
including an injunction, as the court determines to be
necessary and proper.  
5 M.R.S.A. § 213(1) (Pamph. 1998).  In turn, section 207 of the UTPA states: 
"Unfair methods of competition and unfair or deceptive acts or practices in
the conduct of any trade or commerce are declared unlawful."  5 M.R.S.A. §
207 (1989); see also Guiggey v. Bombardier, 615 A.2d 1169, 1172 (Me.
1992) (noting that the UTPA is not triggered unless defendant's conduct is
"unfair" or "deceptive").
	[¶14]  Defendants contend that plaintiff was required to show that
they acted in bad faith.  On the contrary, merely because a seller makes
misrepresentations in good faith does not excuse him or her from liability. 
See Bartner v. Carter, 405 A.2d 194, 200 (Me. 1979) (holding that, when
real estate brokers advertised a lot as bigger than it actually was, they could
not "avoid liability merely because they made the misrepresentation in good
faith and without purpose to deceive").  We have frequently reiterated that
private plaintiffs need not prove bad faith.  See, e.g., Binette v. Dyer Library
Ass'n, 688 A.2d 898, 906 (Me. 1996) (holding in private plaintiff case that
"[g]ood faith does not shield the withholder of material information from
liability pursuant to the UTPA").  In this case, the court did not err in
holding that defendants violated the UTPA by breaching the warranties,
withholding information, and subjecting plaintiff to a pecuniary loss by
refusing to refund her money after she returned the table.
	[¶15] Finally, defendants allege that the court erred in holding that
plaintiff did not defame them when she communicated with the advertising
manager at Maine Antiques Digest.  Defendants contend that because the
court held that statements made by plaintiff were false and defamatory, the
court was required to enter a judgment against plaintiff on their
counterclaim. 
	[¶16]  In order to prevail on their defamation claim, defendants had
the burden of proving not only that plaintiffs' statement were false and
defamatory, but also that she was at least negligent in publishing the
statements.  See Withers v. Hackett, 1998 ME 164, ¶ 9, 714 A.2d 798, 801;
see also Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 (1st Cir.
1997) ("Simply put, Maine defamation law does not recognize liability
without fault; rather, as a predicate to recovery, Maine requires a defamation
plaintiff to show that the defendant acted at least negligently.").  The court
found that plaintiff was not negligent in failing to ascertain the truth or
falsity of her statement because she had a reasonable basis for her
statements.  See Horton & McGehee, Maine Civil Remedies § 20.a-6 at 20-9
(1991).  Although the evidence in this case could support a finding of
negligence, it does not compel such a finding.  The factfinder could remain
unpersuaded and no error was committed in granting judgment to plaintiff
on defendants' counterclaim.
	[¶17] As the court noted, plaintiff is entitled to attorney fees under
the UTPA.  See 5 M.R.S.A. § 213(2) (1989).  Because the court has not yet
determined the amount of plaintiff's attorney fees, we affirm the judgment
but remand for the entry of an award of attorney fees.
	The entry is:
Judgment affirmed.  Remanded to the
Superior Court for the entry of an award
of attorney fees to plaintiff.

Attorney for plaintiff: Joseph W. Baiungo, Esq., (orally) Carver, Kimball & Baiungo 10 Church Street Belfast, ME 04915 Attorney for defendants: William S. Kelly, Esq., (orally) 96 High Street Belfast, ME 04915