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JAMES MILLER, Plaintiff v. CEDRIC HUNTINGTON and CEDRIC HUNTINGTON, d/b/a CUSTOM BURGLAR ALARM CO., Defendants [NO NUMBER IN ORIGINAL] SUPERIOR COURT OF MAINE 1980 Me. Super. LEXIS 79

JAMES MILLER, Plaintiff v. CEDRIC HUNTINGTON and CEDRIC HUNTINGTON, d/b/a CUSTOM BURGLAR ALARM CO., Defendants

[NO NUMBER IN ORIGINAL]

SUPERIOR COURT OF MAINE

1980 Me. Super. LEXIS 79

 
December 12, 1980, Decided



JUDGES:  Daniel E. Wathen, Justice, Superior Court.

OPINIONBY: Wathen

OPINION: DECISION

This case arises out of the sale of a burglar alarm system to Plaintiff. Plaintiff alleged that Defendant sold a defective alarm system, thereby breaching the implied warranties of merchantability and fitness for a particular purpose. A jury found that Defendant breached one of these warranties. Based on this finding, Plaintiff claims entitlement to the following relief:
1. Restitution of the purchase price, together with costs and interest;
 
2. Reimbursement of a reasonable attorney fee.
Defendant has raised the statute of limitations n1 as a defense to this action.

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n1 Title 11 M.R.S.A. § 2-725.
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DISCUSSION

Defendant conceded that rescission and restitution would be appropriate if a breach of warranty was found. n2 Based upon the jury's verdict, this Court finds for Plaintiff in the amount of the purchase price, One thousand fifty dollars ($ 1050.00). Defendant is entitled to return of the components [*2]  of the alarm system.

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n2 The U.C.C. expressly provides for the right of the buyer to recover the price paid upon revocation of acceptance; 11 M.R.S.A. § 2-711(1). See also 5 M.R.S.A. § 213 which creates an action for restitution.
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Plaintiff bases his claim for reasonable attorney's fees on 5 M.R.S.A. § 213(2) of the Maine Unfair Trade Practices Act. n3 This section requires a violation of 5 M.R.S.A. § 207 as a prerequisite to recovery of attorney's fees. Plaintiff asserts that 11 M.R.S.A. § 2-316 n4 makes all breaches of implied warranties into per se violations of 5 M.R.S.A. § 207.

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n3 Title 5 M.R.S.A. § 213(2) provides, if the court finds, in any action commenced under this section that there has been a violation of section 207, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action.
 
n4 1 1 M.R.S.A. § 2-316(a) provides, "[a] violation of sections 2-314, 2-315 or 2-316, arising from the retail sale of consumer goods and services, shall constitute a violation of Title 5, chapter 10, Unfair Trade Practices Act.
 
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The express terms of the statute make "violation" of warranty previsions of the U.C.C. an unfair trade practice under 5 M.R.S.A. § 207. The words "violation" and "breach" are similar in meaning. n5 To the extent we can look to federal law as an aid to construction, the entitlement to recovery of attorney's fees for simple breaches of warranty becomes clearer. n6

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n5 BLACK'S LAW DICTIONARY (4th ed. 1968) defines "violation" as "breach of right, duty or law . . ." See also, Banville v. Huckins, 407 A.2d 294, 298 (Me. 1979), in which the court seems to equate "violation" of warranty with "breach."
n6 Title 5 M.R.S.A. § 207(1) makes express reference to substantive portions of the Federal Trade Commission Act. (15 U.S.C. § 45 (a). No specific reference is made to the remedial portion of the act, 15 U.S.C. § 2310(d) (1975). However, it is interesting to note that § 2310 allows recovery of attorneys fees in suits based on "failure of a . . . warrantor . . . to comply with any obligation . . . under [an] . . . implied warranty . . ."
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Since Plaintiff has amended his complaint to allege an unfair trade practice and a claim for restitution, the jury finding of a breach of implied warranty entitles Plaintiff to costs and reasonable attorney's fees under 5 M.R.S.A. § 213(2).

Regarding the asserted statute of limitations defense, this court rules against the Defendant. n7

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n7 See, Me.R.Civ.P. Rule 15(c).
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The entry will be:

Plaintiff is awarded the amount of One thousand fifty dollars ($ 1050.00) together with interest, costs and reasonable attorney's fees in the amount of $ 500.00

Plaintiff is to permit removal of alarm system components by Defendant.
 
Dated: December 12, 1980

Daniel E. Wathen

Justice, Superior Court