2008-724, STATE OF NH v. LAKE WINNIPESAUKEE RESORT, LLC & a.

The legal issue in this interlocutory appeal is whether this

Spinella, Jr. on the brief and orally), for Peerless Golf, Inc. Hall, Morse, Anderson, Miller & Spinella, P.C., of Concord (Frank P.

on the brief, and Mr. Carter orally), for Lake Winnipesaukee Resort, LLC. Hinckley, Allen & Snyder LLP, of Concord (Christopher H.M. Carter & a.

and orally), for the State. Kelly A. Ayotte, attorney general (Daniel J. Licata, attorney, on the brief to press. Errors may be reported by E-mail at the following address:

LAKE WINNIPESAUKEE RESORT, LLC & a.

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-724 editorial errors in order that corrections may be made before the opinion goes Strafford Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 “the presumption that time does not run against the State applies.” specific limitations periods. did not apply because the instant action was penal. Accordingly, it ruled that general three-year statute of limitations upon “personal actions,” RSA 508:4, I,

[chapter] 482-A and [RSA chapter] 485-A which do not contain

for bringing actions to recover civil penalties. It further reasoned that the

508:4[.]

doctrine known as

construction to be completed. soil. DES subsequently lifted the order and issued permits allowing to bring suit under civil enforcement statutes like RSA 2001 requiring LWR to mitigate environmental damage and to cease disturbing neither RSA chapter 482-A nor RSA chapter 485-A specifically limits the time nullum tempus as an operative doctrine in New Hampshire. It noted that complained of occurred no later than 2002. In ruling upon the motion to dismiss, the trial court first recognized set forth in New Hampshire’s general limitations statute, RSA chapter] 485-A, is subject to the three-year limitations period monetary penalty under RSA [chapter] 482-A and [RSA nullum tempus [.] 3. Whether the State is immune from RSA 508:4 under the

interlocutory appeal from ruling.

The State argued that the doctrine 2. Whether the State has an unlimited period of time within which environmental problems, investigated and ultimately issued an order in August

2008) (entitled “Water Pollution and Waste Disposal”). The underlying conduct

1. Whether a civil action brought by the State to recover a

now submits three issues for our review:

such defense. The trial court denied the motion, but later approved this

Peerless raised a statute of limitations defense and moved to dismiss. New Hampshire Department of Environmental Services (DES) learned of certain May 2001 as general contractor. Early in the construction of the course, the course in New Durham. It retained respondent Peerless Golf, Inc. (Peerless) in (entitled “Fill and Dredge in Wetlands”), and RSA chapter 485-A (2001 & Supp. penalties for alleged violations of RSA chapter 482-A (2001 & Supp. 2008) The State petitioned the superior court in August 2006 for civil monetary

Respondent Lake Winnipesaukee Resort, LLC (LWR) sought to construct a golf The relevant facts appear within the interlocutory appeal statement. from injury and loss, by the negligence of public officers.”

“the great public policy of preserving the public rights, revenues, and property

from asserting its claim after the running of the nonclaim statute.

undisturbed the rule of nullum tempus. Instead, he drew a distinction periods within which to assert actions against executors. reaching a contrary conclusion to that in Faulkner, Justice Duncan left an inmate’s cost of care from his estate. Dockham, 108 N.H. at 82. In In Dockham, the nonclaim statute precluded the State’s action to recover

applies. within the times limited to subjects,” the rule of law is founded instead upon governments, existed within the agency’s charter. Id. at 19 p. 3 3. tempus, a “deep rooted principle of law” applicable to the federal and state 100 N.H. at 194. This was because no express or implied waiver of nullum

preclude a petitioner finance corporation, an agency of the federal government, In Faulkner, we held that New Hampshire’s nonclaim statute did not

that the doctrine transcended the particular form of government. decisions regarding the operation of nonclaim statutes — those prescribing &c. Corporation v. Faulkner, 100 N.H. 192 (1956), nullum tempus guided our In both In re Dockham Estate, 108 N.H. 80 (1967), and Reconstruction

endures as a recognized doctrine of law in New Hampshire. affirmative defense and the respondents bear the burden of proving that it busied for the public good, and, therefore, has not leisure to assert his right Although it seldom surfaces within our jurisprudence, nullum tempus

v. Thompson, 98 U.S. 486, 489 (1878). federal and state governments as “incidents of . . . sovereignty.” United States Nullum tempus, therefore, is typically viewed as a privilege imparted to the

of this policy justification — the preservation of public rights — he reasoned

exclusively upon the statute of limitations. The statute of limitations is an although the underlying policy is often believed to be that “the king is always p. 3 329, 329 (C.C.D. Mass. 1821) (No. 15,373). Justice Story noted in Hoar that, construction that would permit recovery. sovereign from general limitations periods. United States v. Hoar, 26 F. Cas. The doctrine of nullum tempus is a common law rule excepting the

novo. See Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 81 p. 3 3, 830 (2005). rejected the statute of limitations defense as a matter of law, our review is de

Glines v. Bruk, 140 N.H. 180, 181 (1995). Because the trial court

44 p. 3 3, 446 (2006). The respondents, however, moved to dismiss based

consider whether the petitioner’s allegations are reasonably susceptible of a In reviewing a trial court’s ruling on a motion to dismiss, we generally p. 4 4 we express no opinion whether it could defeat a claim of

to

statute of limitations. The defendants did not assert laches as a defense and dictum. Vachon and the fact that the language upon which the respondents rely was asserted by municipality). We further note the equitable considerations unique 188 (2006) (collecting authority dismissing claim of nullum tempus when Statutes of Limitation, Laches, and Statutes of Repose, 73 Def. Couns. J. 180, laches.” (emphasis added)); Mack, Nullum Tempus: Governmental Immunity to 223, 226 (199 p. 4 4) (“[T]he State does not forfeit or lose its rights to public lands by its site plan ordinance. and not the State, initiated the proceedings. See State v. Tallman, 139 N.H. note, however, that Vachon is distinguishable because there a municipality,

addressed only laches, an established equitable defense separate from the Vachon is readily distinguishable from the instant case because there we

the State’s property rights and its concomitant ability to enforce those rights. the site plan ordinance. Id. reach the merits of laches, however, because the defendant knowingly violated enforcing a site plan ordinance. Id. at 668 (quotation omitted). We did not “extraordinary and compelling circumstances,” preclude a municipality from

petition, we rejected the argument that laches barred the town from enforcing against public highways. business. Vachon, 1 p. 4 44 N.H. at 661. In reversing the dismissal of the town’s Vachon, a town sought an injunction against the defendants’ live nude dancing tempus in Town of Seabrook v. Vachon Management, 144 N.H. 660 (2000). In Contrary to the respondents’ contention, we did not repudiate nullum

236:30 and RSA 539:6 may be asserted as defenses, they generally preserve tempus. This, however, is a distinction without a difference. While RSA (2007). Peerless argues that these statutes sanction only “defensive” nullum serve merely to bar the remedy.” possession of [state] land, as against the state or its grantees.” RSA 539:6 2622:1). It further provided that “[n]o right shall be acquired by . . . adverse

almost 150 years ago when it provided that prescriptive periods do not run In addition, the legislature codified the principle of nullum tempus

(emphasis added). statutory requirements adopted to expedite the settlement of estates.” Id. at 82 together, he declined to apply nullum tempus “in derogation of specific required to be presented and sued upon.” Id. Taking these considerations Faulkner that “materially shorten[ed] the periods within which claims are

statutes “since they operate to extinguish a claim, while general limitations a State or its subdivisions.” Id. at 81. He further distinguished nonclaim preponderance of authority holding that nonclaim statutes “apply to claims by between nonclaim statutes and general statutes of limitation, noting the p. 5 5 [to be lost or injured] by the negligence of public officers.”

had the ancillary effect of abrogating

with which individuals assert their private rights.”

advances eliminate the possibility for “public rights, revenues, and property . . . banc); N.J. Educ. Facilities v. Gruzen, p. 5 592 A.2d 559, 564 (N.J. 1991) (applying Shootman v. Department of Transp., 926 P.2d 1200, 1205 (Colo. 1996) (en State ex rel. Condon v. City of Columbia, 528 S.E.2d 408, 413 (S.C. 2000); nullum tempus in view of their states’ abrogation of sovereign immunity, see therein.” nullum tempus. While some courts reject The respondents contend that legislative waivers of sovereign immunity

cf. Lorenz v. N.H. Admin. Office of the Courts, 1 p. 5 52 N.H. 632, 634 (2005). community at large will assert their public rights, with the same promptness 330; see State, Dept. of Transp. v. Sullivan, 527 N.E.2d 798, 800 (Ohio 1988);

modern government. We are not convinced, however, that technological contend that the policies behind nullum tempus are no longer served in The respondents alternatively invite us to abolish nullum tempus. They

Id. at 2 p. 5 54.

the state is not bound by general statute of limitations, unless expressly named Company’s holding was “strongly supported” by the “well-settled principle that

underlying rationale: “Experience does not justify the presumption that the whether nullum tempus was part of our common law, we approved of its (quotation omitted). Although in Company we found it unnecessary to decide authority, as well as to the spirit of our legislation.” Company, 49 N.H. at 2 p. 5 57 Company, we rejected Webber as “opposed to reason, and to the weight of and when the issue of acquiring prescriptive rights in public property arose in Webber, however, was abrogated the next year by Laws 1862, 2622:1,

case of public highways.” Webber, 42 N.H. at 336-37 (citations omitted). applies with equal force, and should be applied for the same reasons, to the the state or sovereign, as well as against individuals. And the same doctrine (1861), where we said: “A grant will be presumed from lapse of time, against The quoted argument was grounded in Webber v. Chapman, 42 N.H. 326 recounting the parties’ appellate arguments. See Company, 49 N.H. at 248. not from Company’s holding, but from the preliminary section of that opinion As the State points out, however, the language Vachon relied upon came

New Hampshire.’” Id. at p. 6 667-68 (quoting Company, 49 N.H. at 248). government, and against it no time runs so as to bar its rights, is not law in (1870), reasoned that “the doctrine that ‘no laches can be imputed to the the weight of authority and, relying upon State v. Company, 49 N.H. 240 governmental capacity.” Vachon, 144 N.H. at 667. It ultimately went against laches may not bar an enforcement action by a municipality acting in its Vachon correctly recognized that “the weight of legal authority provides that Moreover, Vachon’s precedential value can be called into question. chapter [616].” Laws 1990, 191:3. Accordingly, it does not apply elsewhere.

the meaning of “personal actions,” RSA 508:4, I, is defined to include “bodies

actions, by analogy limits civil penalty actions, the legislature amended RSA

act or omission complained of . . . .” RSA 508:4, I. distinguishable, nevertheless categorized a civil penalty action as personal. except actions for slander or libel, may be brought only within 3 years of the Lumber, 488 S.E.2d 901, 913 (W. Va. 1997), although otherwise . . . politic.” RSA 21:9 (2000). Furthermore, State ex rel. Smith v. Kermit

On the other hand, the term “person,” to the extent it sheds light upon

RSA p. 6 616:9 (2001), the general two-year statute of limitations upon penal action”); 1 Am. Jur. 2d Actions §§ 27, 31 (2005). While Peerless argues that Law Dictionary 33 (8th ed. 2004) (defining “personal action” and “penal might be viewed, as did the trial court, as penal and not personal. See Black’s in relevant part: “Except as otherwise provided by law, all personal actions, Sources extrinsic to RSA 508:4 are conflicting. On one hand, this action

bears little resemblance to these theories of recovery. Lumber Co. v. Vrusho, 151 N.H. 754, 75 p. 6 6 (2005). The instant action, however, (2006), legal malpractice, Therrien, 153 N.H. at 213, and contract, A&B those to recover for personal injury, Therrien v. Sullivan, 153 N.H. 211, 213 “personal action.” Personal actions, which are not defined by statute, include is clearly expressed in the statute.” Nothing within RSA chapter 508 clearly classifies the instant action as a construe a statute as abrogating the common law unless the intention to do so

support for the respondents’ argument,

general three-year statute of limitations, RSA 508:4, I. RSA 508:4, I, provides, We turn to the parties’ arguments concerning the construction of the

II. RSA 508:4

0 p. 6 6 (1983).

RSA 491:8 (1997); RSA ch. 541-B (2007 & Supp. 2008), and “[w]e will not

Furthermore, our legislative waivers of sovereign immunity supply no textual offset where it acted as claimant), cert. denied, 539 U.S. 942 (2003). p. 6 68 p. 7 7, 693 (2002) (concluding that sovereign immunity did not shield State from Co., 439 A.2d 101, 104-05 (Pa. 1981); cf. In re Estate of Raduazo, 148 N.H. 728 N.W.2d 163, 169 n.3 (Iowa 2006); Com., Dept. of Transp.v. J. W. Bishop & tempus are distinct doctrines. See, e.g., Fennelly v. A-1 Machine & Tool Co., (West Supp. 2009), it is well established that sovereign immunity and nullum holding only prospectively), superseded by statute, N.J. Stat. Ann. § 2A:14-1.2 7

time to

the scope of the second interlocutory issue — whether the State has unlimited inadequately briefed. See Mortgage Specialists v. Davey, 153 N.H. p. 7 764, 792-93 Chadwick v. CSI, Ltd., 137 N.H. 515, 520 (1993). Moreover, the argument is time on appeal. Peerless, therefore, failed to properly preserve it. See proceedings below shows that Peerless advances this argument for the first see, e.g., State v. Varagianis, 128 N.H. 226, 228 (1986), our review of the read to assert a due process violation for delay in bringing the instant action, and Procedure § 26.14, at 162 (4th ed. 2003). Although Peerless’ brief could be due process. See 2 R. McNamara, New Hampshire Practice, Criminal Practice Delay in initiating proceedings is protected against by the strictures of omitted)). initiate the instant action.

Peerless’ argument concerning the violation of its speedy trial right is outside 14. This constitutional mandate applies to both civil and criminal proceedings. States v. Marion, 404 U.S. 30 p. 7 7, 320-21 (1971). Thus, even if meritorious, and justice” be obtained “promptly, and without delay.” N.H. CONST. pt. I, art. action commenced. See State v. Philibotte, 123 N.H. 240, 244 (1983); United Article 14 of the State Constitution, which provides, in relevant part, that “right trial analysis appropriate, the speedy trial right would not attach until this in State v. Fitzgerald, 137 N.H. 23, 26 (1993), and that this renders the speedy Even assuming the instant action is criminal under the test enunciated

this argument exceeds the scope of the interlocutory appeal. We agree. argues the State violated through pre-petition delay. The State contends that should be preserved or waived is purely a legislative question.” (quotation standard applies here and guarantees its right to a speedy trial, which it Stow, 136 N.H. 598, 600, 602 (1993). Peerless argues that the criminal See Town of Nottingham v. Newman, 14 p. 7 7 N.H. 131, 134-35 (2001); State v.

general statutes of limitations.

Finally, Peerless argues that the State’s pre-petition delay violates Part I,

III. Part I, Article 14

108 N.H. 18 p. 7 7, 189 (1967) (“The extent to which . . . [sovereign] immunity v. A, C and S, Inc., 546 N.E.2d 580, 603 (Ill. 1989); cf. Krzysztalowski v. Fortin, 272-73 (1947); Gibson v. Chouteau, 80 U.S. 92, 99 (1871); see Board of Educ.

period specifically applicable to the State, the sovereign remains immune from statute of limitations expressly waives nullum tempus by making a limitations 26 F. Cas. at 330, include this action. We follow the doctrine that unless a In either case, RSA 50 p. 8 8:4, I, does not “clear[ly] and indisputabl[y],” Hoar, 8

BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

would prevail in the instant action. (2006). Accordingly, we express no opinion whether such a due process claim