Lamprey v. Britton Constr., Inc.

• Citation: 37 A.3d 359
• Decision Date: 10 February 2012
• Docket Number: No. 2010–800.,2010–800.
• Parties: Josephine A. LAMPREY v. BRITTON CONSTRUCTION, INC. & and another.
• Court: Supreme Court of New Hampshire

37 A.3d 359

Josephine A. LAMPREY

v.BRITTON CONSTRUCTION, INC. & and another.

No. 2010–800.

Supreme Court of New Hampshire.

Argued: Oct. 13, 2011.Opinion Issued: Feb. 10, 2012.

McLane Graf Raulerson & Middleton, Professional Association, of Manchester (Jeremy T. Walker and Joel T. Emlen on the brief, and Mr. Walker orally), for the plaintiff.

Bouchard, Kleinman & Wright, P.A., of Manchester (Nicholas D. Wright on the brief and orally), for defendant Britton Construction, Inc.

Boyle, Shaughnessy & Campo, P.C., of Manchester (Peter L. Bosse and Elsabeth D. Foster on the brief, and Ms. Foster orally), for defendant Dave Sherwood.Donovan Hatem LLP, of Boston, Massachusetts (John W. Dennehy and Gregory M. Sargent on the brief, and Mr. Dennehy orally), for defendant DeStefano Architects, PLLC f/k/a Lisa DeStefano.DALIANIS, C.J.

The plaintiff, Josephine A. Lamprey, appeals orders of the Superior Court ( Nadeau, J.) dismissing her actions against the defendants, Britton Construction, Inc. (Britton), DeStefano Architects, PLLC f/k/a Lisa B. DeStefano (DeStefano) and Dave Sherwood, pursuant to the statutes of limitations and repose. See RSA 508:4 (2010); RSA 508:4–b (2010). We affirm in part, reverse in part and remand.

The following facts appear in the record. The plaintiff hired the defendants to design and build her home. DeStefano was the architect; Britton was the general contractor; and Sherwood was the mason who installed the home's extensive stonework, including a stone veneer, terrace and stone chimneys.

The plaintiff began living in the house in November 2001, but never obtained a certificate of occupancy. Within one year, water damage appeared on the wood floors. In 2006, the plaintiff hired Sherwood to repair loose stones on her terrace. In 2008, again at the plaintiff's request, Sherwood repaired her chimney.

In 2010, when the plaintiff was replacing her stone terrace with granite, the mason in charge of the replacement noticed problems with the home's stonework requiring significant repairs. As a result, the plaintiff sued the defendants, alleging negligence and breaches of warranty in her home's construction. Britton requested dismissal pursuant to the statute of limitations for personal actions. See RSA 508:4 (2010). Sherwood moved to dismiss, arguing that the construction statute of repose also barred the plaintiff's claims. See RSA 508:4–b. The plaintiff responded by arguing, among other things, that the statutes should be tolled because Sherwood had fraudulently concealed her home's masonry problems. See RSA 508:4–b, V(a). She also moved to amend her writ to add more facts supporting her fraudulent concealment claim and to add new causes of action. Ultimately, after a hearing addressing the application of the statute of repose, the plaintiff's claims were dismissed under the statutes of repose and limitations, and the plaintiff's motion to amend her writ was denied.

The plaintiff appeals, arguing that the trial court erred by dismissing her case under the statutes of limitations and repose and denying her motion to amend. We first turn to whether the trial court erred by dismissing the plaintiff's initial writ and then address whether it properly denied her motion to amend.

I. Motions to Dismiss

In reviewing a motion to dismiss, our standard of review is whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery. McNamara v. Hersh, 157 N.H. 72, 73, 945 A.2d 18 (2008). We assume the plaintiff's allegations to be true and construe all reasonable inferences in the light most favorable to her. See id. We need not, however, accept allegations in the writ that are merely conclusions of law. Beane v. Dana S. Beane & Co., 160 N.H. 708, 711, 7 A.3d 1284 (2010). The threshold inquiry involves testing the facts alleged in the pleadings against the applicable law. Id. We will uphold the granting of the motion to dismiss if the facts pleaded do not constitute a basis for legal relief. Id.

Resolution of the issues in this case requires statutory interpretation. We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515, 842 A.2d 77 (2004). We first examine the language of the statute, and, when possible, we ascribe the plain and ordinary meanings to the words used. Id. We review the trial court's interpretation of a statute de novo. Remington Invs. v. Howard, 150 N.H. 653, 654, 843 A.2d 334 (2004).

We first address whether the trial court properly dismissed the plaintiff's actions under the statute of limitations, RSA 508:4, and then whether dismissal under the statute of repose, RSA 508:4–b, was proper.

A. Statute of Limitations

The plaintiff argues that the trial court erred by dismissing her actions under the statute of limitations because her pleadings and objections to the defendants' motions to dismiss stated a basis for relief from the statute of limitations under the discovery rule. The statute of limitations for personal actions states that:

Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

RSA 508:4, I.

The statute of limitations constitutes an affirmative defense, and the defendant bears the burden of proving that it applies in a given case. Beane, 160 N.H. at 712, 7 A.3d 1284. That burden, however, is met by a showing that the action was not brought within three years of the act or omission of which the plaintiff complains. Id. Once the defendant has established that the statute of limitations would bar the action, the plaintiff has the burden of proving that the discovery rule applies. Id. at 713, 7 A.3d 1284. The statutory discovery rule is designed to provide relief in situations where the plaintiff is unaware either of the injury or that the injury was caused by a wrongful act or omission. Id.

The discovery rule is two-pronged, and both prongs must be satisfied before the statute of limitations begins to run. Id. First, a plaintiff must know or reasonably should have known that she has been injured; second, a plaintiff must know or reasonably should have known that her injury was proximately caused by conduct of the defendant. Id. Thus, the discovery rule exception does not apply unless the plaintiff did not discover, and could not reasonably have discovered, either the alleged injury or its causal connection to the defendant's alleged act. Id.

Although the discovery rule tolls the limitations period until a plaintiff discovers, or should reasonably have discovered, the causal connection between the harm and the defendant's negligent or wrongful act, this rule is not intended to toll the statute of limitations until the full extent of the plaintiff's injury has manifested itself. Id. Rather, once the plaintiff could reasonably discern that he or she suffered some harm caused by the defendant's conduct, the tolling ends. Id. Further, the plaintiff need not be certain of the causal connection; the reasonable possibility that it existed will suffice to obviate the protections of the discovery rule. Id.; see Glines v. Bruk, 140 N.H. 180, 182, 664 A.2d 79 (1995).

In this case, the defendants argue that, because the plaintiff's initial writ alleged that within one year of the home's substantial completion “defective exterior stone work caused water damage to appear on the wood floors in the home,” we must infer that, when the water staining appeared, the plaintiff knew there was a causal connection between the staining and the defendants' acts. When reviewing a motion to dismiss, however, we must draw all reasonable inferences in favor of the non-moving party. McNamara, 157 N.H. at 73, 945 A.2d 18. Thus, we must draw the favorable inference that, although the plaintiff may have observed the water staining within one year of the home's completion, she was unaware of the causal connection at that time. This inference is reasonable and consistent with the plaintiff's assertion that she discovered the defendants' stonework was defective in 2010.

The defendants also argue that, even if the plaintiff did not discover the causal connection between the defendants' acts and her injury when the water staining appeared, as a matter of law, she discovered or in the exercise of reasonable diligence should have discovered this connection when Sherwood repaired her terrace in 2006. Based upon the plaintiff's allegations, we cannot make this determination as a matter of law. Compare Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638, 620 A.2d 428 (1993) (motion to dismiss improperly granted when plaintiff's allegations did not establish, as a matter of law, that she should have discovered causal connection), with Beane, 160 N.H. at 712, 7 A.3d 1284 (affirming grant of motion to dismiss notwithstanding allegations that the discovery rule tolled statute of limitations).

B. Statute of Repose

The trial court also found that the construction statute of repose, RSA 508:4–b, barred the plaintiff's claims. RSA 508:4–b, I, provides in pertinent part:

Except as otherwise provided in this section, all actions to recover damages for injury ... arising out of any deficiency in the creation of an improvement to real property, including without limitation the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection of that improvement, shall be brought within...