2010-800, Josephine A. Lamprey v. Britton Construction, Inc. & a.

The plaintiff, Josephine A. Lamprey, appeals orders of

DeStefano Architects, PLLC f/k/a Lisa DeStefano. Gregory M. Sargent on the brief, and Mr. Dennehy orally), for defendant Donovan Hatem LLP, of Boston, Massachusetts (John W. Dennehy and p. 3 3

RSA 508:4, I.

causal relationship to the act or omission complained of. reasonable diligence should have discovered, the injury and its p. 3 3 years of the time the plaintiff discovers, or in the exercise of

time of the act or omission, the action shall be commenced within

discovered and could not reasonably have been discovered at the injury and its causal relationship to the act or omission were not years of the act or omission complained of, except that when the

except actions for slander or libel, may be brought only within p. 3 3 Except as otherwise provided by law, all personal actions,

actions states that:

A. Statute of Limitations

limitations under the discovery rule. The statute of limitations for personal

dismissal under the statute of repose, RSA 508:4-b, was proper. actions under the statute of limitations, RSA 508:4, and then whether

defendants’ motions to dismiss stated a basis for relief from the statute of

We first address whether the trial court properly dismissed the plaintiff’s

words used. Id under the statute of limitations because her pleadings and objections to the The plaintiff argues that the trial court erred by dismissing her actions

Remington Invs. v. Howard, 150 N.H. 65 p. 3 3, 654 (2004).

. We review the trial court’s interpretation of a statute de novo.

statute, and, when possible, we ascribe the plain and ordinary meanings to the Tierney, 150 N.H. 51 p. 3 3, 515 (2004). We first examine the language of the construction that would permit recovery. McNamara v. Hersh words of the statute considered as a whole. In the Matter of Jacobson & We are the final arbiter of the intent of the legislature as expressed in the Resolution of the issues in this case requires statutory interpretation.

pleaded do not constitute a basis for legal relief. Id. law. Id. We will uphold the granting of the motion to dismiss if the facts inquiry involves testing the facts alleged in the pleadings against the applicable Beane v. Dana S. Beane & Co., 160 N.H. 708, 711 (2010). The threshold however, accept allegations in the writ that are merely conclusions of law. reasonable inferences in the light most favorable to her. See id. We need not, (2008). We assume the plaintiff’s allegations to be true and construe all

allegations in the plaintiff’s pleadings are reasonably susceptible of a In reviewing a motion to dismiss, our standard of review is whether the

I. Motions to Dismiss p. 4 4

reasonable inferences in favor of the non-moving party. McNamara acts. When reviewing a motion to dismiss, however, we must draw all

discovered the defendants’ stonework was defective in 2010. inference is reasonable and consistent with the plaintiff’s assertion that she completion, she was unaware of the causal connection at that time. This

knew there was a causal connection between the staining and the defendants’

may have observed the water staining within one year of the home’s at 73. Thus, we must draw the favorable inference that, although the plaintiff

plaintiff’s injury has manifested itself. Id home,” we must infer that, when the water staining appeared, the plaintiff not intended to toll the statute of limitations until the full extent of the exterior stone work caused water damage to appear on the wood floors in the alleged that within one year of the home’s substantial completion “defective In this case, the defendants argue that, because the plaintiff’s initial writ

1 p. 4 40 N.H. 180, 182 (1995). defendant’s alleged act. Id suffice to obviate the protections of the discovery rule. Id.; see Glines v. Bruk, complains. Id certain of the causal connection; the reasonable possibility that it existed will defendant’s conduct, the tolling ends. Id caused by conduct of the defendant. Id. Further, the plaintiff need not be reasonably discern that he or she suffered some harm caused by the must know or reasonably should have known that her injury was proximately

between the harm and the defendant’s negligent or wrongful act, this rule is discovers, or should reasonably have discovered, the causal connection Although the discovery rule tolls the limitations period until a plaintiff

have discovered, either the alleged injury or its causal connection to the does not apply unless the plaintiff did not discover, and could not reasonably was not brought within three years of the act or omission of which the plaintiff. Thus, the discovery rule exception

defendant bears the burden of proving that it applies in a given case. Beane or reasonably should have known that she has been injured; second, a plaintiff before the statute of limitations begins to run. Id. First, a plaintiff must know The discovery rule is two-pronged, and both prongs must be satisfied

or that the injury was caused by a wrongful act or omission. Id. to provide relief in situations where the plaintiff is unaware either of the injury the discovery rule applies. Id. at 713. The statutory discovery rule is designed limitations would bar the action, the plaintiff has the burden of proving that

. Once the defendant has established that the statute of

160 N.H. at 712. That burden, however, is met by a showing that the action

The statute of limitations constitutes an affirmative defense, and the p. 5 5

that an improvement may be utilized by its owner or lawful possessor for the

“substantial completion” of “an improvement to real property.” Id

‘substantial completion’ means that construction is sufficiently complete so

measured not from the date of an injury or its discovery, but from the

RSA p. 5 508:4-b, II defines substantial completion as follows: “The term

occupancy – when it would have been eligible for such certification. limitation, the construction statute of repose creates a time limitation that is substantial completion of [her home].” RSA p. 5 508:4-b, I. Unlike a statute of 2010 claims because she brought them “within 8 years from the date of

working on the house and – because the home was never certified for

The plaintiff argues that the eight-year statute of repose does not bar her

substantial completion of the improvement, and not thereafter. that improvement, shall be brought within 8 years from the date of

consider when she made her final payments to Britton, when Britton stopped some later time, the exact determination of which required the trial court to completion, on appeal she asserts that the home was substantially complete at

surveying, construction, observation, supervision or inspection of

writ that water stains appeared on the floor within one year of substantial

limitation the design, labor, materials, engineering, planning, creation of an improvement to real property, including without recover damages for injury . . . arising out of any deficiency in the

she began living there. Notwithstanding the allegation in the plaintiff’s original

Except as otherwise provided in this section, all actions to

that the plaintiff’s home was substantially complete in November 2001, when League Entm’t v. Brox Indus., 149 N.H. 480, 483 (2003). The defendants argue

part: p. 5 508:4-b, barred the plaintiff’s claims. RSA 508:4-b, I, provides in pertinent The trial court also found that the construction statute of repose, RSA

B. Statute of Repose

discovery rule tolled statute of limitations).

should have discovered causal connection), with

make this determination as a matter of law. Compare

(affirming grant of motion to dismiss notwithstanding allegations that the

when plaintiff’s allegations did not establish, as a matter of law, that she Trillium Corp., 136 N.H. 63 p. 5 5, 638 (1993) (motion to dismiss improperly granted

repaired her terrace in 2006. Based upon the plaintiff’s allegations, we cannot reasonable diligence should have discovered this connection when Sherwood staining appeared, as a matter of law, she discovered or in the exercise of causal connection between the defendants’ acts and her injury when the water The defendants also argue that, even if the plaintiff did not discover the p. 6 C. Fraudulent Concealment

claims set forth in her original writ are barred. years later, and unless there is a basis for tolling the statute of repose, the it – November 2001. The plaintiff filed these actions in 2010, more than eight

favorable to her, the home was substantially complete when she began living in

truth of the plaintiff’s allegations and viewing all facts in the light most

information.” Restatement (Second) of Torts of limitations. Compare discussing the common law rule that fraudulent concealment tolls the statute

began using the home as a residence in November 2001. Thus, assuming the any purpose other than as a residence. The plaintiff also concedes that she ongoing work, she does not argue here that she intended to use the home for

plaintiff has discovered such facts or could have done so in the exercise of

other action intentionally prevents the other from acquiring material

statute of repose differs slightly from the language we have used when We note that the language of the fraudulent concealment exception to the

wanted” because the kitchen was “not fully working” and there was other intended to exclude suspicion and prevent inquiry.” Nardo v. Guido DeAscanis

action are fraudulently concealed, the statute of limitations is tolled until the fraudulent concealment rule states that when facts essential to the cause of

facts upon which a claim might be based.” RSA 508:4-b, V(a). Fraudulent from its limitations “actions involving the fraudulent concealment of material

& Sons, Inc., 254 A.2d 254, 256 (Del. Super. Ct. 1969).

plaintiff alleges that when she moved in she “could not use the home as [she] actual artifice to prevent knowledge of the facts or some representation this case as a “single family home” or a “single-family residence.” Although the does prevent, the discovery of facts giving rise to a cause of action – some In her complaint, the plaintiff characterized the improvement at issue in something affirmative in nature designed or intended to prevent, and which

be relevant when considering whether an unused improvement could have

statute of repose tolled the statutory period. The statute of repose excludes The plaintiff argues that the fraudulent concealment exception to the

period begins. Thus, while the factors the plaintiff urges us to consider might

cannot rely upon other factors to argue that the use was impossible. been used for certain purposes, once such use actually occurs, a plaintiff

proves that the improvement can be used for that purpose, and the statutory actually uses the improvement for the purpose intended, such use necessarily owner or possessor intended, the statute of repose begins to run. If a party improvement to real property “may,” i.e., “can,” be used for the purposes its purposes intended.” The meaning of the statute is clear. When an p. 7 7

statute of repose because Sherwood’s statements and repairs did not, in the

just as the Furbush Furbush failure to account for the crumbling masonry did not conceal its defects. Thus, material facts.” RSA 508:4-b, V(a).

initial fraudulent concealment argument failed to state a basis for tolling the

Similarly here, Sherwood’s stonework was plainly falling apart, and his happened. Fraudulent concealment, however, requires the “concealment of stones he repaired should not have come loose and that he did not know what Sherwood fraudulently concealed her home’s defects by telling her that the she called Sherwood to make repairs. Thus, the facts supporting the plaintiff’s contrary, the plaintiff was evidently aware of the masonry problems because did not obscure the material fact that the masonry was failing. To the

plaintiff’s workers’ compensation claim was not in jeopardy.” Id $4,000 repair to her terrace and, years later, a $ p. 7 7,000 repair to her chimney, failed to file within the statutory period. Furbush Turning to the merits, the plaintiff alleged that, after making an almost

statutory scheme adequately protected the client. Id Sherwood’s statement that he did not understand his masonry’s deterioration concealed his malpractice when he suggested that the workers’ compensation protect the client did not conceal the lawyer’s failure to file a timely action,

omitted). Compensation claim.” Id. (quotation the lawyer “did not conceal the injury, but merely reflected the fact that the any essential facts.” Id. at 432. By saying that the client was “fully protected,” negligence action against the employer was time-barred because the lawyer that there was no fraudulent concealment because the lawyer “did not conceal common law rule.. at 429, 431-32. We held

statute of limitations should be tolled because the lawyer fraudulently Id. The malpractice suit was itself untimely, but the client argued that the action against the employer, the client later sued the lawyer for malpractice. Because the lawyer failed to advise the client to file a timely negligence

lawyer added that the client would “still be fully protected under [a] Workers’

lawyer whose client had been injured at work informed the client that a statutory fraudulent concealment exception simply codifies the existing in the context of the statute of limitations, aids our analysis. In that case, a

, 149 N.H. at 431-32, which addressed fraudulent concealment

the parties do not argue otherwise, we assume without deciding that the concealment of material facts upon which a claim might be based.”). Because involving fraudulent misrepresentations, or to actions involving the fraudulent V(a) (“The limitation set out in [the statute of repose] shall not apply to actions reasonable diligence.” (quotation and brackets omitted)), with RSA 50 p. 8 8:4-b, 8

Britton and Sherwood fraudulently concealed that the home’s stone veneer was fraudulently concealed their failure to insulate the home’s foundation; and (4)

on the roof was one-eighth of an inch too thin; (3) Britton and Sherwood

the home’s defects; (2) Britton fraudulently concealed that the plywood it used

certificate of occupancy because an occupancy inspection would have revealed original writ, the amendments alleged that: (1) Britton failed to obtain a concealment allegations against Sherwood that we have rejected as to the

concealment theory. Specifically, in addition to incorporating the fraudulent

Britton and Sherwood because it alleged new facts supporting her fraudulent actions, but she contends her amended writ cured this defect with respect to The plaintiff’s initial writ failed because the statute of repose barred her

initial writ’s dismissal. plaintiff’s argument that her amended writ cured the flaws that required her makes no argument about dismissal of these claims and, thus, we focus on the

has preclusive effect. ERG, Inc. v. Barnes

allegedly fraudulent actions could not toll the statute as to them. chapter 35 p. 8 8-A (2009), the Consumer Protection Act; however, the plaintiff

absent an unsustainable exercise of discretion. Id to correct perceived deficiencies before a dismissal for failure to state a claim

need not address Britton’s and DeStefano’s arguments that Sherwood’s claims against Britton and Sherwood alleging fraud and violations of RSA not include the right to plead an entirely new cause of action. Pesaturo v. As an initial matter, the plaintiff’s amended writ added entirely new

decision of the trial court to deny a motion to amend will not be overturned plaintiff's motion to amend. Plaintiffs must be given leave to amend their writs original writ’s deficiencies or pleads an entirely new cause of action. Id plaintiff’s original writ, we now address whether it erred in denying the. The must review the plaintiff’s amended writ to determine whether it corrects her Having concluded that the trial court did not err in dismissing the substantially different evidence, may be properly denied. Id. Therefore, we amendment that introduces an entirely new cause of action, or calls for amendments when necessary to prevent injustice. Id. A substantive Kinne, 161 N.H. 550, 556 (2011). A court need only allow substantive

Because Sherwood did not conceal material facts from the plaintiff, we opportunity to correct an original writ’s perceived deficiencies, however, does

statutory period had expired by the time the plaintiff brought these actions, language of RSA 50 p. 8 8:4-b, V(a), conceal any “material fact[ ].” As a result, the rather than the required five-eights-inch [sic p. 9 construction, it had to know that it used only half-inch plywood

. . . In addition, based upon Britton’s experience and skill in

the foundation. Britton, however, concealed this fact from Plaintiff. p. 9 construction, it had to know that there was no waterproofing on

on the plans. Based upon Britton’s experience and skill in

install the foundation insulation system, which was shown directly backfilling the basement, Britton concealed the problems alleged. concealed several problems, including, but not limited to, failing to insulated. Neither does the plaintiff allege that, by shingling the roof and [Britton and Sherwood] intentionally misrepresented and/or roof to make it appear thicker, or painted her foundation to make it appear

state the essential facts as to how conclusion that Britton and Sherwood “concealed” these defects, but fail to foundation insulation and roof plywood fail because they allege the legal

state: example, the plaintiff does not allege that Britton shimmed the plywood on her

N.H. 443, 449 (2002) (quotation omitted). Here, the allegations relating to the to allege fraud in general terms.” Brzica v. Trustees of Dartmouth College, 147 of the defendant’s fraudulent actions. It is not sufficient for the plaintiff merely must specify the essential details of the fraud, and specifically allege the facts from discovering that her home was uncertified. See When alleging fraud, “to withstand a motion to dismiss, the plaintiff

Britton, however, concealed this fact from Plaintiff . . . .

plywood and foundation insulation, fail because they lack the specificity The plaintiff’s next two amended allegations, relating to inadequate roof

B. Roof Plywood & Foundation Insulation

the plaintiff. The plaintiff does not allege that Britton somehow prevented her inability to explain the masonry’s rapid deterioration, it concealed nothing from fails to state a basis for tolling the statute of repose because, like Sherwood’s

A. Occupancy Certificate

Torts, supra § 550, at 118.

The first allegation, that Britton never obtained an occupancy certificate,

secure the veneer. We address these allegations in turn. inadequately attached to the house by bending down the ties designed to to a cause of action.” Nardo

p. 10 intended to prevent, and which does prevent, the discovery of facts giving rise components would constitute “something affirmative in nature designed or If proved, this alleged cosmetic change to unused, but necessary,

number of ties supported the veneer. which were not used, intending to create the false impression that an adequate plaintiff, we construe it to mean that Britton and Sherwood bent several ties,

claim for fraudulent concealment tolling the statute of repose. Nardo

discovery of facts giving rise to a cause of action” and, therefore, do not state a

sustainably exercised its discretion by not allowing the amendments. See

but also, they . . . intentionally bent down and did not use several ties in order intended to exclude suspicion and prevent inquiry.” Nardo defendants installed ties that they knew were not used to support the stone ties to properly and safely anchor the stones [on the stone veneer] to the wall, “some actual artifice to prevent knowledge of the facts or some representation “something affirmative in nature designed or intended to prevent . . . the allegation, that “Britton and Sherwood not only used an insufficient number of, 254 A.2d at 256. The plaintiff alleges that the

failed to correct the deficiencies in the plaintiff’s initial writ, and the trial court

remain insufficient to state a basis for relief. Fraudulent concealment requires did not tell the plaintiff about the roof and foundation defects, they fail to allege We now turn to the plaintiff’s final amended fraudulent concealment Because, at most, the allegations here assert that Britton and Sherwood C. Bent Masonry Ties

Pesaturo, 161 N.H. at 556.

at 256. As a result, the roof plywood and basement insulation allegations

the alleged defects amounted to fraudulent concealment, her allegations Moreover, to the extent that the plaintiff contends mere failure to disclose general duty to disclose.”). 846 (Minn. App. Ct. 2007) (“Unless special circumstances apply, . . . there is no “test[ ] the facts alleged in the pleadings against the applicable law.” Beane (“Mere silence is insufficient.”); Sletto v. Wesley Const., Inc., 733 N.W.2d 838, Sills v. Oakland General Hosp. decide a motion to dismiss. As a result, without more detail, we are unable to, 559 N.W.2d 348, 352 (Mich. Ct. App. 1997) concealed requires us to guess what concealing act took place in order to Co., Inc., 851 F.2d 1526, 1529 (5th Cir. 1988) (quotation omitted); see also “Concealment . . . only by silence is not enough.” State of Tex. v. Allan Const.

160 N.H. at 711.

claim for fraudulent concealment, the naked allegation that defects were Regardless of whether such allegations would be sufficient to state a affirmative act of concealment. Nardo

p. 11 allegation would state the presence of a construction defect without any

prevent” the discovery of insufficient ties could well fail because her bent-tie proves to be the case, then the plaintiff’s allegation of an act “intended to ties were not bent as artifice, but were merely installed improperly. If this With the benefit of additional discovery, it may be determined that the

provide adequate anchoring of the stone veneer to the wall. necessary, ties, Britton and Sherwood intentionally concealed their failure to

the stone veneer were based. See claim for fraudulent concealment of material facts upon which claims regarding unrelated to the stone veneer. See sustainably exercised its discretion in disallowing the amendments as to claims Thus, as to Britton and Sherwood, the plaintiff’s amended writ states a repose bars the plaintiff’s other amended claims, and the trial court construction. Rather, the plaintiff alleges that, by bending unused, but

allegation. See and Sherwood without giving the plaintiff an opportunity to add the bent-tie

such a rule. See tolling the statute of repose, resolution of this case does not require us to adopt incident to normal construction fail to state a claim for fraudulent concealment Pesaturo, 161 N.H. at 556. Although Sherwood argues for a rule that allegations of concealment

tolling the statute of repose. masonry ties. writ’s deficiencies as to claims relating to the stone veneer. The statute of Thus, the plaintiff alleged facts supporting a claim for fraudulent concealment fraudulent concealment because the act alleged is not incidental to normal Nonetheless, the plaintiff’s amended allegations only correct the initial

ERG, Inc., 137 N.H. at 189.

unsustainably exercised its discretion by dismissing the claims against Britton defect that required dismissal of the plaintiff’s initial writ, and the trial court

the plaintiff’s claim states an affirmative concealing act – the bending of the for the stone veneer gave rise to several of the plaintiff’s causes of action. the concealing act that the plaintiff has alleged would still state a claim for, 254 A.2d at 256. As alleged, however, defects failed to toll statute of limitations). Even if we were to apply this rule, exterior trim, part of house’s “intended design and construction,” concealed

discover that the veneer lacked proper support. Moreover, the lack of support favorable to her to mean that, as a result of the concealment, she did not Sherwood and Britton’s concealment, which we construe in the light most 271494, 2007 WL 288213, at *2 (Mich. Ct. App. Feb. 1, 2007) (allegation that

Steel v. Ivanhoe Huntley-Oakhurst Builders, L.L.C., No.

was inadequately supported. She alleges that she “justifiably relied” upon veneer, and bent them to prevent the plaintiff from discovering that the veneer p. 12 12

home’s stone veneer. See

stone veneer. See

allegations related to the bent masonry ties that concealed defects in her HICKS, CONBOY and LYNN, JJ., concurred. permitting the plaintiff to amend her writ to add fraudulent concealment Britton and Sherwood initially, it unsustainably exercised its discretion by not

amend as to it. See sustainably exercised its discretion in denying them even as they relate to the violations, however, plead entirely new causes of action, and the trial court allowed. The plaintiff’s amended claims of fraud and RSA chapter 358-A

In summary, the trial court properly dismissed all claims against

Pesaturo, 161 N.H. at 557.

sustainably exercised its discretion when it denied the plaintiff’s motion to

amended claims against Britton and Sherwood related to the stone veneer are

against DeStefano otherwise barred by the statute of repose, and the trial court fraudulent concealment. Thus, the amended writ did not revive any claims acts, she has failed to link DeStefano to any acts arguably constituting DeStefano was even aware of the insufficient number of ties or the concealing Moreover, because the plaintiff’s amended writ did not allege that