Plaintiff's Attorney Jessica Allen Boutin, Pro Se
Defendant's Attorney Laura Piech, Esq.
the Court is Appellant R.E. Drapeau, Inc.'s
("Drapeau's") Rule 76G appeal of a Small Claims
decision of the District Court (Montgomery, J.).
Appellee Jessica Allen Boutin ("Boutin") has also
moved to dismiss the appeal based on the alleged failure of
the appellant to timely request a copy of the transcript.
matter arises out of a dispute over a faulty clothes dryer
which Boutin purchased from Drapeau and used, albeit briefly,
in her hair and nail salon. Specifically, the parties dispute
the applicability of the implied warranty of merchantability.
February 5, 2018, Boutin's husband Jeff went to Drapeau
and inquired about purchasing a clothes dryer for
Boutin's salon. (Tr.20, 58.) Jeff Spoke with Dan Poulin,
a co-owner of Drapeau, about a specific model of a Whirlpool
brand clothes dryer. (Tr. 58-59.) Dan told Jeff that there
would be no warranty on the Dryer if it was used in
Boutin's salon because the manufacturer would not cover
it. (Tr. 59.) Jeff said he understood this and would talk to
his wife about it. (Tr. 59.)
next day, February 6, 2018, Jeff returned to Drapeau and
spoke with Ronald Poulin, Dan Poulin's brother and
co-owner, and informed Ronald that he would like to purchase
the Whirlpool dryer. (Tr. 59.) Ronald attempted to persuade
Jeff to purchase a much less expensive model suggesting that
it would be riskier to purchase the Whirlpool dryer because
there was no warranty. (Tr. 59.) Jeff declined this
invitation and purchased the Whirlpool dryer for $1, 170.
(Tr. 11, 59.) The dryer was delivered and installed at
Boutin's Salon the same day it was purchased. (Tr. 60.)
days later, on February 8, 2018, the dryer stopped working.
(Tr. 11.) Boutin called Drapeau and Dan went to the Salon to
service the dryer. (Tr. 11, 36.) Dan discovered that the
filter had not been properly inserted and adjusted the
filter. (Tr. 36.) The next day, however, the dryer was still
not working and was showing the same error code as the day
before. (Tr. 11.) Dan returned to the salon and made an
adjustment to the drainpipe to try and alleviate any strain
on the dryer pump. (Tr. 11.) The Dryer worked for a couple of
cycles before it once again stopped working and showed the
same error code. (Tr. 12.) Boutin contacted Drapeau and spoke
with Dan who told her that the dryer was not covered by a
warranty and that Boutin would have to contact Whirlpool.
(Tr. 14, 35, 37.) Drapeau refused to replace the dryer or the
dryer pump. (Tr. 14.)
initiated a small claims action on March 22, 2018 and a
hearing was held on June 8, 2018. On June 19, 2018, judgment
was granted to Boutin in the amount of $1, 170 and costs of
jury trial has not been requested, the Superior Court's
review of a small-claims judgment rendered by the District
Court is limited to questions of law only. M.R.S.C.P. 11(d);
Taylor v. Walker, 2017 ME 218, ¶ 6, 173 A.3d
539. "Any findings of fact of the District Court shall
not be set aside unless clearly erroneous." M.R. Civ. P.
76D. "Factual findings are deemed clearly erroneous only
when there is no competent record evidence to support
them." Thibeault v. Brackett, 2007 ME 154,
¶ 14, 938 A.2d 27.
Appellee Boutin's Motion to Dismiss
opposition, Boutin requests that the court dismiss the appeal
for want of prosecution. In support of her arguments Boutin
cites Rules 76F and 76H. Rule 76F requires the record on
appeal to be "filed in the Superior Court not later than
40 days after the filing of the notice of appeal or 10 days
after the filing of any transcript... whichever occurs
later." M.R. Civ. P.76F(a). Additionally, Rule 76F
specifies that "it is the Appellant's responsibility
to insure that these time limits are met." If the
Appellant fails to comply with Rule 76F, "the District
Court may .. . dismiss the appeal for want of
prosecution." Rule 76H ...