Roberts v. General Motors Corp.

• Decision Date: 12 March 1996
• Docket Number: No. 95-348,95-348
• Citation: 140 N.H. 723,673 A.2d 779
• Parties: Dennis S. ROBERTS v. GENERAL MOTORS CORPORATION.
• Court: New Hampshire Supreme Court

Page 779

673 A.2d 779

140 N.H. 723

Dennis S. ROBERTS v. GENERAL MOTORS CORPORATION.

No. 95-348.

Supreme Court of New Hampshire.

March 12, 1996.

As Modified on Denial of Rehearing

April 18, 1996.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Robert E. Murphy, Jr. and Peter R. Chiesa, on the brief, and Mr. Murphy orally), for the plaintiff.

Bingham, Dana & Gould, Boston, Massachusetts (Daniel L. Goldberg and Alicia L. Downey, on the brief, and Mr. Goldberg orally), for the defendant.

BROCK, Chief Justice.

The issue in this interlocutory appeal is whether a plaintiff may rely upon the statute of limitations saving statute, RSA 508:10 (1983), more than once, when judgment is rendered against the plaintiff and his right of action is not barred by the prior judgment. We hold that he may. Accordingly, we affirm the trial court's denial of the defendant's motion to dismiss on statute of limitations grounds, and remand.

The plaintiff, Dennis S. Roberts, originally filed suit in 1988 against the defendant, General Motors Corporation (GM), asserting multiple claims based on GM's decision in 1987 not to award the plaintiff a Chevrolet dealership. The defendant never argued that the original suit failed to comply with the statute of limitations. In 1992, after the trial court granted GM's motion for summary judgment on all but the claim for breach of the duty of good faith and fair dealing, Roberts followed the suggestion of the trial judge and accepted a voluntary nonsuit on that remaining claim while he pursued an appeal of the claims on which summary judgment had been entered against him. On October 12, 1993, within the one year permitted by RSA 508:10, Roberts executed and served a second writ. However, he never filed that writ with the court. Over one year later, after this court affirmed the grant of partial summary judgment against him, Roberts v. General Motors Corp., 138 N.H. 532, 643 A.2d 956 (1994) (Roberts I ), the plaintiff filed a motion for leave for late entry of the second writ. The trial court denied the motion, finding no accident, mistake, or misfortune to excuse the failure to file.

Relying on RSA 508:10 for a second time, Roberts brought and filed a third suit on January 24, 1995, alleging the same claim for breach of the duty of good faith and fair dealing. The defendant moved to dismiss, arguing that both the original limitations period and the grace period allowed under the saving statute had expired; GM argued that the plaintiff had no right to invoke the saving statute a second time. Ruling that successive invocation of RSA 508:10 is permissible, depending on the facts of a particular case, the Superior Court (McHugh, J.) denied GM's motion "[b]ased on all of the procedural facts and circumstances which this case presents." GM then filed this interlocutory appeal. See Sup.Ct.R. 8.

The saving statute provides as follows:

Second suit. If judgment is rendered against the plaintiff in an action brought within the time limited therefor, or upon a writ of error thereon, and the right of action is not barred by the judgment, a new action may be brought thereon in one year after the judgment.

RSA 508:10. The saving statute is "designed to insure a diligent suitor the right to a hearing in court until he reaches a judgment on the merits." Berg v. Kelley, 134 N.H. 255, 257, 590 A.2d 621, 622 (1991) (quotation omitted). Its broad and liberal purpose "is not to be frittered away by any narrow construction." Id. (quotation omitted). "The statute benefits suitors who are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them with a cause of action, yet undetermined." Id. (quotation omitted).

The test was well articulated recently in Berg:

Essentially, RSA 508:10 serves to permit an action to be brought after the general limitation has run (RSA 508:4), where a prior action, seasonably brought, should be dismissed for reasons not barring the right of action or determining it upon its merits. The test of RSA 508:10 is whether the right of action is, or is not, barred by the first judgment.

Id. (quotations and brackets omitted). This is the sole test. Barton v. Barton, 125 N.H. 433, 434, 480 A.2d 199, 200 (1984).

The test is plainly not whether the prior judgment of dismissal was based on any mistake committed by the plaintiff or his counsel: "A party is protected although the technical judgment against him may be due to his own carelessness or fault." Milford Quarry & C. Co. v. Railroad, 78 N.H. 176, 178, 97 A. 982, 983 (1916) (quotation omitted). This court in Milford Quarry rejected a claim, as the defendant makes here, that the plaintiff's fault "in getting into a situation where [he was] obliged or thought it wise to take a voluntary nonsuit, debars [him] from the new action." Id. In Brady v. Duran, 119 N.H. 467, 403 A.2d 416 (1979), we permitted the plaintiff to pursue a new writ under the saving statute, even though we had previously upheld the trial court's denial of a motion for late entry of a writ which, similar to the instant case, was based upon the "inexcusable neglect" of the plaintiff's attorney. Brady v. Duran, 117 N.H. 275, 277, 372 A.2d 283, 285 (1977); see also Carveth v. Latham, 110 N.H. 232, 234, 265 A.2d 1, 2-3 (1970) (dismissal for failure to prosecute is not adjudication on the merits for purposes of RSA 508:10).

Thus, the "diligent suitor" whom the saving statute seeks to protect, see Berg, 134 N.H. at 257, 590 A.2d at 622, is the plaintiff who has not slept on his rights; it does not require diligence in the sense of never making mistakes--even "inexcusable" mistakes--in lawyering. Indeed, the purpose of the statute of limitations itself "is to insure that defendants receive timely notice of actions against them." Dupuis v. Smith Properties, Inc., 114 N.H. 625, 629, 325 A.2d 781, 783 (1974) (emphasis added). Here, as in Dupuis, the defendant was on notice of the charges against it from the day the original suit was filed. GM knew it needed to preserve its evidence and marshal its witnesses. Nor did it ever have reason to believe the plaintiff was dropping the action, as might occur in cases of failure to prosecute. Cf. Carveth, 110 N.H. at 234, 265 A.2d at 2-3 (even where action is dismissed for plaintiff's failure to prosecute, the saving statute gives plaintiff an opportunity to file a second lawsuit). This action was virtually always on the active docket.

The ultimate question in this case is what RSA 508:10 means by the phrase "the time limited therefor." GM asks us to hold that it means the time originally set in the statute of limitations for filing the first writ. The plaintiff's brief does not directly address this question but implies that it merely means the writ was not untimely, taking into account all applicable legal provisions. We agree with the latter interpretation. We examine statutes not in isolation, but in the context of the overall statutory scheme. Opinion of the Justices (Solid Waste Disposal), 135 N.H. 543, 545, 608 A.2d 870, 872 (1992). "[A]ll statutes upon the same subject-matter are to be considered in interpreting any one of them." Barksdale v. Town of Epsom, 136 N.H. 511, 515-16, 618 A.2d 814, 817 (1992) (quotation omitted). Thus, in construing RSA 508:10, we determine "the time limited" for any action after considering all applicable statutes and rules. In addition, when construing the meaning of a statute, "where possible, we ascribe the plain and ordinary meanings to words used." Appeal of Astro Spectacular, 138 N.H. 298, 300, 639 A.2d 249, 250 (1994) (quotation omitted).

On its face, RSA 508:10 does not contain any circumscribing language that might require a court to interpret "the time limited therefor" as referring to timeliness under only one statute, the statute of limitations. On the contrary, if the saving statute properly saved a second writ, then that writ has been timely initiated; the second action has been brought "within the time limited" for it, under the plain meaning of the statutory words. Moreover, the statute speaks of "an action brought within the time limited therefor." The phrase "time limited therefor" thus modifies "an action." An action is a lawsuit, not a cause of action or a legal claim. See MBC, Inc. v. Engel, 119 N.H. 8, 11, 397 A.2d 636, 638 (1979). Here, the second writ initiated an action, which was brought within the time permitted for it by law: in this case, RSA 508:10 gave Roberts one year from the prior nonsuit to initiate his second action. If the legislature had intended to limit RSA 508:10 to only one application, it could have stated such an intention clearly, as has been done in other States. See Tenn.Stat.Ann. § 28-1-105 (Supp.1995).

GM argues that this interpretation will lead to actions being brought, dismissed, and saved under the saving statute, over and over, ad infinitum. We reject this argument, as we rejected a similar slippery slope argument in Desaulnier v. Manchester School District, 140 N.H. 336, 339, 667 A.2d 1380, 1382 (1995). The trial court has ample authority to guarantee that such abuses do not occur. The court can, for example, deny a plaintiff's motion for voluntary nonsuit without prejudice; the court has discretion to grant a nonsuit only with prejudice, if it would be "manifestly unjust" to the defendant to grant plaintiff's request. Total Service, Inc. v. Promotional Printers, Inc., 129 N.H. 266, 268, 525 A.2d 273, 275 (1987) (quotation omitted). The court might so decide if the plaintiff, by his act or agreement, has pursued the suit or committed himself to such an extent that a nonsuit would be unfair to the defendant, see id. at 268-69, 525 A.2d at 275-76; 5 R. Wiebusch, New Hampshire Practice, Civil Practice and Procedure §§ 1069, 1071, 1075 (1984). The court also has the power to dismiss an action with prejudice where the plaintiff has not complied with court rules. 5 Wiebusch, supra ...