In Case No. 97-288, Richard S. Snierson & a. v. Robert T. Scruton & a., the court upon November 22, 2000, made the following order:

The defendants move to clarify the opinion dated April 12, 2000, arguing that the court's citation to Fed. Trade Comm'n v. Algoma Co., 291 U.S. 67, 81 (1934), and the accompanying parenthetical go beyond the issues necessary for the court to decide in this case. We agree. By granting the defendants' motion, we do not intend to express any opinion as to the circumstances, if any, under which an innocent misrepresentation may be actionable under the Consumer Protection Act.

The slip opinion dated April 12, 2000, is modified by deleting the penultimate sentence of the second full paragraph on page 7, so that said paragraph as modified shall state as follows:

The plaintiffs allege in count IV that Tate & Foss and Dunkle violated RSA 358-A:2 "by misrepresenting the Scrutons' house, lot and utilities, including but not limited to the septic system, to the [plaintiffs], as set forth herein." Count IV incorporates allegations of misrepresentation made against Tate & Foss and Dunkle previously in the petition, including that: (1) Dunkle misrepresented material facts; (2) she did so to induce the plaintiffs to enter into the real estate contract; (3) "Dunkle had reason to know that she did not have sufficient knowledge to make such statements and, therefore, made such statements with reckless disregard for their truth or correctness"; (4) the plaintiffs believed and relied on the representations; and (5) "[t]he Scrutons, Tate & Foss and Dunkle did not give the [plaintiffs] reason to believe that the said representations were not true," thus alleging the reasonableness of their reliance. Count IV also incorporates the averment that Dunkle was acting within the course and scope of her employment by Tate & Foss, sufficient to allege respondeat superior, see Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 485, 657 A.2d 417, 419 (1995), and allegations that Tate & Foss and Dunkle acted in their business capacities. We conclude that the allegations of misrepresentation against Tate & Foss and Dunkle support a claim of unfair or deceptive trade practices under the Consumer Protection Act. Accordingly, the trial court erred in dismissing the plaintiffs' Consumer Protection Act claim.

Brock, C.J., and Horton, Broderick, Nadeau, and Dalianis, JJ., concurred.


Howard J. Zibel,


Date of clerk's notice of decision: December 5, 2000