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Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co.

United States Court of Appeals for the First Circuit · Civil Procedure

Civil ProcedureConsumer Protection ActSummary JudgmentPreservation of ErrorJury InstructionsDamagesPrejudgment InterestNew Hampshire Consumer Protection Act

Facts

Sherwin-Williams recommended a paint system to EMPT after EMPT said it would switch only if the new system met or exceeded the performance of its existing system. The system failed in the first season of use: the coating peeled from aluminum panels and the surface became slick because aluminum oxide aggregate was lost. The jury found for EMPT and awarded $1,087,000, finding violations of express warranty, implied warranty of fitness for a particular purpose, and the New Hampshire Consumer Protection Act, and also found the unfair or deceptive practices were willful or knowing. The district court doubled the verdict under the CPA and awarded prejudgment interest on the original verdict through final judgment.

Issue

Whether Sherwin-Williams preserved its challenge to application of the New Hampshire Consumer Protection Act to this commercial transaction, and if so whether the Act reaches such business-to-business sales; whether various trial objections were waived; and whether the district court erred in refusing a plaintiff-misconduct instruction, upholding damages, rejecting claims of judicial misconduct, and calculating prejudgment interest.

Rule

A denial of summary judgment does not merge into the final judgment; to preserve a legal issue decided at summary judgment for appellate review, a party must renew it in a motion for judgment as a matter of law at the close of the evidence. The New Hampshire Consumer Protection Act, by its plain language covering 'any person' and 'any trade or commerce,' applies to commercial transactions occurring in a trade or business context and is not limited to sales to ultimate consumers. Under Rule 49(a), failure to object to omitted or ambiguous special verdict questions before the jury retires waives later objection and permits the court to make implicit curative findings. New Hampshire prejudgment interest under section 524:1-b runs from filing to the date of the verdict or finding, not to the date of final judgment, and this opinion does not extend comparative fault as a defense to express warranty or implied warranty of fitness claims under the NHUCC in a contract case.

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Maple Ridge Fabrication, a cabinet-component manufacturer in Ohio, sued Harbor Crest Coatings, a paint supplier in Michigan, in federal court in New Hampshire after a coating system failed. Before trial, the judge denied Harbor Crest's summary-judgment motion, rejecting Harbor Crest's argument that the New Hampshire consumer-protection statute does not apply to business-to-business sales. Harbor Crest then went through trial, lost, and never moved for judgment as a matter of law at the close of all the evidence.

On appeal, Harbor Crest argues the statute categorically excludes commercial transactions. What is the strongest response?

Explanation. The majority held that a denial of summary judgment does not merge into the final judgment. To obtain appellate review of a legal conclusion embodied in that denial, the party must preserve it through a motion for judgment as a matter of law at the close of the evidence. Because Harbor Crest made no such motion, the statutory-coverage argument is not available on appeal. (Derived from Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co. (n.d.).)