First of Maine Commodities v. Dube

In First of Maine Commodities v. Dube, 534 A.2d 1298 (Me. 1987), the parties entered into a listing agreement whereby the plaintiff was to sell the defendant's property. Id. at 1299. Eventually plaintiff brought suit for breach of the listing agreement. Id. at 1300. Defendants counterclaimed arguing that the agreement was void because it violated the Maine Solicitation Sales Act and that because any violation of that Act constitutes a violation of the UTPA, they were entitled to equitable relief under the UTPA, including rescission of the contract and reasonable attorney's fees. Id. The Law Court rejected this argument based on the exception in section 208(1). Id. at 1301-02. The Court held that "because by statute the Maine Real Estate Commission extensively regulates brokers' activities, including the execution of exclusive listing agreements, such activities fall outside the scope of Maine's Unfair Trade Practices Act . . . ." Id. at 1302. In reaching this conclusion, the Court noted that in State v. Piedmont Funding Corp., 119 R.I. 695, 382 A.2d 819 (R.I. 1978), the Rhode Island Supreme Court found that insurance contracts are not covered by its Deceptive Trade Practices Act since that industry is governed by other state regulatory bodies. Dube, 534 A.d at 1302 n.3. In Dube, the defendant owners signed an "exclusive right to sell" listing agreement with the plaintiff broker. See id. at 1299. When the owners refused to pay the brokers' commission provided under the listing agreement, even though a ready, willing and able buyer had been produced, the brokers brought suit to recover that commission. See, 534 A.2d at 1299-1300. The owners counterclaimed for rescission of the listing agreement and for attorneys' fees under the Consumer Solicitation Sales Act, 32 M.R.S.A. 4661-4670 (1978 & Pamph.1986), and the Unfair Trade Practices Act, 5 M.R.S.A. 213 (1979 & Supp.1987). See id. at 1300. The Solicitation Sales Act incorporates UTPA by reference, and any violation of the Solicitation Sales Act is also a violation of UTPA. See 32 M.R.S.A. 4670; Dube, 534 A.2d at 1301. The Dube Court held that exclusive listing agreements between licensed brokers and sellers of real estate do not come within the scope of the Maine Solicitation Sales Act and UTPA. See, 534 A.2d at 1301-02. This conclusion was based on UTPA 208, which excepts from its scope "transactions or actions otherwise permitted under laws as administered by any regulatory board." 5 M.R.S.A. 208 (1); Dube, 534 A.2d at 1301. Noting that the Maine Real Estate Commission regulates the sales efforts of licensed brokers, particularly exclusive listing agreements, the Law Court accordingly determined that such activities fall outside the scope of the Solicitation Sales Act and UTPA. See, 534 A.2d at 1301-02.