Randall v. Laconia

• Decision Date: 08 May 2012
• Docket Number: No. 11–1412.,11–1412.
• Citation: 679 F.3d 1
• Parties: Jameson C. RANDALL, Plaintiff, Appellant, v. LACONIA, NH, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

679 F.3d 1

Jameson C. RANDALL, Plaintiff, Appellant,

v.LACONIA, NH, Defendant, Appellee.

No. 11–1412.

United States Court of Appeals,First Circuit.

Heard Oct. 6, 2011.

Decided May 8, 2012.

Christopher J. Seufert and Seufert Professional Association for appellant.

Robert C. Dewhirst and Devine, Millimet & Branch, P.A. for appellee.

Before BOUDIN, HOWARD, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Federal law requires home sellers to alert potential home buyers to the presenceof lead-based paint hazards. The City of Laconia, New Hampshire sidestepped this requirement when it sold Jameson Randall his house. Some years later, after learning that lead-based paint was present in his home, Randall filed suit. The sole question is whether his lawsuit is time-barred. We agree with the district court that it is, and therefore affirm.

BACKGROUND

In 1998, the appellee, the City of Laconia (the “City” or “Laconia”), purchased a house located at 192 Elm Street in Laconia (the “property” or “home”). The property was an older house, built before 1978. The City purchased the property, which at the time was a group home, to provide extra storage and parking for the adjacent branch of the Laconia Public Library (the “Library”). In connection with the transaction, the seller turned over a “Lead Paint Inspection Report,” which detailed the results of a 1996 inspection performed by Alpha Lead Consultants, Inc. (the “Alpha report”). The Alpha report indicated that lead-based paint was present in the home. After the purchase, the Library maintained a copy of the Alpha report in its files.

Some years later the City decided to sell the property and in 2003, the appellant, Jameson Randall, contracted to purchase it. When Randall signed the purchase and sale agreement he received a blank, pre-printed, standard lead-based paint disclosure form titled “Disclosure of Information on Lead–Based Paint and Lead–Based Paint Hazards for Housing Sales” (the “disclosure form”). The disclosure form included a section titled “Seller's Disclosure,” in which the seller (the City) was to indicate whether it had any knowledge of lead-based paint hazards ¹ in the home and whether it had any reports or records pertaining to the same. The disclosure form also provided for a “Purchaser's Acknowledgment” that included an acknowledgment that the buyer (Randall) had a ten-day window in which to conduct a lead-based paint hazard inspection. Randall and his buyer's agent signed the blank disclosure form. The buyer's agent then informed Randall that the City would complete the disclosure form later. However, the City never completed the form nor did it turn over the Alpha report.² Randall opted not to have his own inspection performed.³

Despite not having received the completed disclosure form from the City, Randall went ahead and closed on the property, taking title on July 22, 2003. He then moved into the home with his wife and two daughters. In 2006, the couple had a third child, a son. In 2008, tests taken at the son's two-year physical revealed an elevated blood lead level. As a result, the state of New Hampshire sent a representative to the property to perform an inspection for lead. The inspection (the results of which were given to Randall in an October 13, 2008 letter) revealed lead-based paint hazards in the home. Elimination or control of the hazards was recommended.

On February 9, 2010—approximately six and one-half years after he purchased the property—Randall filed this lawsuit. The sole count in the complaint alleged that the City had violated 42 U.S.C. § 4852d, which requires the disclosure of lead-based paint hazards in connection with the sale of homes built before 1978. Though at the time of filing suit Randall had not had any removal or abatement of the lead-based paint performed, he alleged that he had received an estimate of approximately $126,000 to perform the work and that he would not have purchased the home if he had known about the hazards. As part of the discovery process, Randall propounded a request for document production on the City. The City responded on May 28, 2010 and one of the documents that it turned over was the Alpha report. This was the first time Randall had seen the report.

A few months later, the City moved for summary judgment, alleging that Randall's cause of action was barred by the applicable three-year state statute of limitations. The City's position was that Randall's cause of action accrued when he took title to the property on July 22, 2003 and therefore his suit, filed six and one-half years later, came too late. The district court agreed and granted summary judgment in favor of the City. Randall appealed.

ANALYSIS

We review a grant of summary judgment on statute of limitations grounds de novo, construing the record in the light most favorable to the non-movant. See Montalvo v. Gonzalez–Amparo, 587 F.3d 43, 46 (1st Cir.2009). We affirm if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

i. Residential Lead–Based Paint Hazard Reduction Act

Randall filed suit under the Residential Lead–Based Paint Hazard Reduction Act (the “Act”), 42 U.S.C. §§ 4851–4856, and in particular under § 4852d, which allows for a private cause of action for three times the amount of any damages incurred by the buyer, id. § 4852d(b)(3). The Act provides for the promulgation of regulations that require a seller to “disclose to the purchaser ... the presence of any known lead-based paint, or any known lead-based paint hazards, in such housing and provide to the purchaser ... any lead hazard evaluation report available to the seller.” Id. § 4852d(a)(1)(B). Such regulations were promulgated. See24 C.F.R. § 35.88(a) (Housing and Urban Development); 40 C.F.R. § 745.113(a) (Environmental Protection Agency).

The City does not attempt to argue that it met these requirements, nor does it appear that it truthfully could make this argument. It is undisputed that prior to selling Randall the property the City did not complete the disclosure form, turn over the Alpha report, or otherwise inform Randall about the lead-based paint hazards in the home. The only question is whether the City's non-compliance should be excused on timeliness-of-suit grounds.

ii. Applicable Statute of Limitations

42 U.S.C. § 4852d does not contain a limitations period and therefore a question below was what limitations period applied. There was not much debate. The City argued that the New Hampshire three-year statute of limitations for personal actions governed, Randall did not disagree, and the district court followed suit applying the state statute. See Randall v. City of Laconia, No. 10–cv–50–LM, 2011 WL 1085679, at *1–2 (D.N.H. Mar. 24, 2011) (applying N.H.Rev.Stat. Ann. § 508:4). This approach is in accord with our practice of applying “the most analogous statute of limitations in the state where the action was brought” when a federal statute does not include a statute of limitations. Greenwood ex rel. Estate of Greenwood v. N.H. Pub. Utils. Comm'n, 527 F.3d 8, 13 (1st Cir.2008) (citing Wilson v. Garcia, 471 U.S. 261, 266, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)).

Now, for the first time, Randall asserts that instead of looking to the three-year New Hampshire limitations statute, the district court should have applied the federal four-year catch-all statute of limitations for civil actions. See28 U.S.C. § 1658(a) (stating that, “[e]xcept as otherwise provided by law, a civil action arising under an Act of Congress ... may not be commenced later than 4 years after the cause of action accrues”). Randall admits that he would fare no better under a four-year, as opposed to a three-year, limitations period should we agree with the district court that his cause of action accrued when he purchased the property (six and one-half years before filing suit). Perhaps for this reason, Randall only briefly raises this issue in a footnote and provides no supporting argumentation. His perfunctory treatment, as well as his raising this argument for the first time on appeal, waives the issue. See Farris v. Shinseki, 660 F.3d 557, 562 n. 5 (1st Cir.2011) (declining to consider an issue that was “never raised before the district court, nor briefed or argued” on appeal). Consequently we need not get into the merits of this particular statute of limitations debate. We assume for purposes of this decision that the three-year New Hampshire limitations period applies to Randall's action.

iii. The Separate Cause of Action Argument

Before we go any further, we wish to dispose of an argument of Randall's. It is a meritless argument that unfortunately for Randall permeates his entire position on appeal. In a nutshell Randall characterizes the City's failure to turn over the Alpha report as a separate and distinct violation from the City's other alleged violations of the Act (e.g., not completing the disclosure form, not providing a lead information pamphlet, not including a lead warning statement in the sales contract). And, in Randall's mind, each such violation is its own cause of action complete with its own statute of limitations. So, while he now concedes that all of the City's “other” violations are barred by the statute of limitations, Randall argues that his cause of action for the City's failure to turn over the Alpha report survives. Relying on the discovery rule, Randall's stance is that accrual did not occur until May 2010 when he learned that the Alpha report existed after the City turned it over in discovery. Randall claims he could not have discovered the factual basis for his claim until this time.

As we said though, this argument is founded on a faulty thesis, namely that the City's failure to turn over the Alpha report is a stand-alone violation of the Act with its own limitations period. We have found no support for this position, nor does Randall point us to any....