2007-682, ELMER E. CHESLEY v. HARVEY INDUSTRIES, INC.

Joseph Kelly Levasseur

No. 2007-682

Hillsborough-northern judicial district

Superior Court (McGuire facts alleged in the plaintiff’s writ to be true. See DUGGAN, J. The plaintiff, Elmer E. Chesley, appeals a decision of the

Because this case was decided on a motion to dismiss, we assume the

injure his left ankle. of the ladder stabilizer bars inexplicably broke,” causing the plaintiff to fall and from the defendant. The same day, as the plaintiff was using the ladder, “one N.H. 631, 632 (2003). On December 5, 2003, the plaintiff purchased a ladder Bouchard, Kleinman & Wright, P.A. Donnelly v. Eastman, 149

limitations. See RSA 508:4 (1997). We reverse and remand. Harvey Industries, Inc., for failure to file within the three-year statute of

THE SUPREME COURT OF NEW HAMPSHIRE on the brief), for the defendant.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as expressed in the words of the statute considered as a whole. In the Matter of p. 2 statutory interpretation, we are the final arbiter of the legislature’s intent as of this issue requires us to interpret RSA 508:4 and RSA 21:35. In matters of We now address whether the plaintiff’s writ was timely filed. Resolution

court.” Sup. Ct. R. questions of law presented by the case are in fact provided to the supreme such portions of the record relevant and necessary for the court to decide the Under Rule 13(2), “[t]he moving party [is] responsible for ensuring that all or dismissed because the plaintiff failed to comply with Supreme Court Rule 13. We first consider the defendant’s argument that the appeal should be

thus reject the defendant’s argument that the appeal should be dismissed. and arguments of the parties can be gleaned from the trial court’s order. We adequate for us to decide the issues presented. The facts alleged in the writ dismiss, was not sound practice, we conclude that the record he did file is documents, particularly the original writ and the defendant’s motion to While we agree with the defendant that the plaintiff’s failure to file certain pleading filed by the defendant, including the defendant’s motion to dismiss. The defendant notes that the plaintiff has not included the original writ or any plaintiff filed in the trial court and the trial court order dismissing his writ. Here, the appendix to the plaintiff’s brief contains three motions the

second, that the trial court correctly dismissed the writ as untimely filed. because the plaintiff failed to file certain documents with this court, and, The defendant argues, first, that this appeal should be dismissed 2

to support result reached by trial court). insufficient, lack of transcript required court to assume evidence was sufficient (where plaintiff failed to provide transcript and argued evidence was dismissal. Id.; cf. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) of the writ or date of entry, whichever occurs first. 13(2). Failure to comply with the rule may result in Superior Court Rule 2, which deems a case to commence on the date of service incident occurred. Finally, he argues that the trial court erred by not waiving because the “within three years” time period does not include the day the applied to the calculation of the three-year period, his writ was timely filed of the allegedly tortious conduct. He further asserts that if RSA 21:35 (2000) is On appeal, the plaintiff argues that he filed the writ “within” three years

and was, thus, barred. Id. The trial court agreed and granted the motion. that the writ was not filed “within 3 years of the act or omission complained of” statute of limitations. See RSA 508:4. Specifically, the defendant contended moved to dismiss, arguing that the claims were barred by the three-year theories of liability and seeking damages from the defendant. The defendant On December 5, 2006, the plaintiff filed a six-count writ alleging various the incident is excluded. See p. 3 Thus, the “general rule” for computing a time period or limit is that the day of the period or limit of time. an act should occur shall be included in the computation of that day or date shall be excluded from and the day on which period or limit of time is to be reckoned from a day or date,

For example, in Pelletier Except where specifically stated to the contrary, when a

Id. at 688. When Pelletier was decided, RSA 677:2 read, in pertinent part: rehearing did not include the day the ZBA voted to deny a variance application. (Supp. 2005) and RSA 21:35, the thirty-day time period for filing a motion for a

(2004). As the plaintiff notes, RSA 21:35 provides: states a contrary rule.” Pelletier v. City of Manchester, 150 N.H. 687, 689 computing a time period does not apply if the statute in question specifically

the statutory scheme. Martin However, we do not read statutes in isolation, but rather within the context of anniversary date of an incident is not filed within three years of the incident. Read in isolation, RSA 508:4 would indicate that a writ filed on the third

statute. See day too late, and therefore did not file “within three years” as required by the because the plaintiff filed his writ on the anniversary date of the incident, one the policy or purpose sought to be advanced by the statutory scheme.” Id The defendant argues that the trial court correctly dismissed this case. discern the legislature’s intent and to interpret statutory language in light of

compliance with the statute of limitations. Donnelly omission complained of.” We strictly adhere to deadlines when assessing law, all personal actions . . . may be brought only within 3 years of the act or RSA 508:4 provides, in pertinent part, “Except as otherwise provided by word “year” means a calendar year). We disagree.

RSA 21:8 (2000) (providing that, unless otherwise expressed, the

burden of proving that it applies. Id. at 633. statute of limitations is an affirmative defense, and the defendant bears the

of Hudson, 148 N.H. 769, 771 (2002). court’s interpretation of a statute de novo. Monahan-Fortin Properties v. Town rather within the context of the statute as a whole. Id. We review the trial words used. Id. We do not consider the words and phrases in isolation, but the language of a statute, we ascribe the plain and ordinary meaning to the Martin & Martin, ___ N.H. ___, ___ (decided March 13, 2008). When examining on the date of the ZBA’s vote.” Id p. 4 We held that “RSA 677:2 specifically state[d] that the time period begins to run

In Donnelly

disapprove the application.

the statute of limitations expired on the anniversary date of the injury, thus to the anniversary date of the injury. The cited language explicitly states that foregoing language to mean that a personal action is barred if not brought prior Provencal, 132 N.H. at 744. The trial court erroneously interpreted the proceedings on her claim nor accepted the defendants’ offer” to settle the claim. anniversary of the injury, the plaintiff had neither commenced legal added). In Provencal, we noted that “[o]n August 26, 1987, the sixth the third anniversary of the incident. Donnelly, 149 N.H. at 632 (emphasis with the date upon which the board voted to approve or prior to the expiration of the statute of limitations on June 2, 2002,” which was because “[t]he writ was not served upon the defendant, nor filed with the court The defendant relies upon Donnelly, we explained that the plaintiffs’ action was time-barred

132 N.H. at 744. within three calendar years of December 6, 2003. See not begin to run until the day after the incident, and December 5, 2006, is barred by the statute of limitations. See Donnelly, 149 N.H. at 632; Provencal, on December 5, 2006, because, under RSA 21:35, the statute of limitations did personal action brought on the third anniversary of an incident would be timetime is excluded from the time limit. Here, the plaintiff’s writ was timely filed question whether the pertinent language in these opinions suggests that a day upon which the incident occurred in computing the three-year period of is time-barred, the language of [these] other decisions indicates that it is.” We three-year period. Therefore, the general rule in RSA 21:35 does apply, and the brought on the third anniversary of the act or omission giving rise to the claim omission complained of,” without specifying when to begin calculating the this Court had “not yet had the occasion to address whether a personal action that all personal actions “may be brought only within 3 years of the act or untimely filed. The trial court also cited these cases and stated that although time period shall be counted in calendar days beginning Insurance Co. a day or date to begin computing the time period. RSA 508:4 states simply, 132 N.H. 742 (1990), to support his argument that the writ was proceedings . . . may apply for a rehearing. . . . This 30-day Unlike RSA 677:2, RSA 508:4 does not contain a specific directive stating and Provencal v. Vermont Mutual

board of adjustment . . . any party to the action or included in the thirty-day time period. Id. general rule did not apply and the date upon which the board voted was stated a date to begin computing that was contrary to the general rule, the

Within 30 days after any order or decision of the zoning p. 5 Reversed and remanded

plaintiff’s final argument. Because we hold that the writ was timely filed, we need not address the

BRODERICK, C.J.