2012-596, Robin Plaisted v. Jeffrey A. LaBrie

The plaintiff, Robin Plaisted, appeals an order of the

on the memorandum of law), for the defendant. Law Offices of Simpson & Mulligan, PLLC, of Lebanon (James L. Mulligan

the plaintiff.

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 nature, it was time-barred under the three-year statute of limitations. See RSA

p. 2 “personal in nature.” He maintained that, since her claim was personal in

now has, any claim to title of the subject property,” and, thus, her claim was either facts or law upon which the Court could conclude . . . that she had, or defendant moved to dismiss, contending that the plaintiff had “failed to allege order requiring the defendant to pay her one-half of the sale proceeds. The declaration that she had been a one-half owner of the property, as well as an

In October 2011, the plaintiff petitioned the trial court, seeking a

account “[f]or the benefit of Blue Star Consulting (Jeff LaBrie).”

the property for a profit of $98,855.97 and wired the proceeds to a bank

susceptible of a construction that would permit recovery. Kilnwood on of review is whether the allegations in the plaintiff’s pleadings are reasonably

interest in the property. Two years later, on October 15, 2004, Blue Star sold limitations under RSA 508:2. We disagree. Ownership” stating that Blue Star granted to the plaintiff a fifty percent August 15, the defendant, as president of Blue Star, signed a “Declaration of In reviewing the trial court’s grant of a motion to dismiss, our standard

the motion to dismiss. Id.

of limitations under RSA 508:4 rather than the twenty-year statute of “[f]rom R. Plaisted for full payment for 50% of 10 Nelson [Street] Property.” On out to “Jeff LaBrie” in the amount of $19,500. The check noted that it was On July 31, the plaintiff wrote, and the defendant cashed, a check made

constitute a basis for legal relief, we must hold that it was improper to grant

of real estate, and, thus, the trial court erred in applying the three-year statute The plaintiff argues that her cause of action is an action for the recovery appeal followed.

Deeds. tests the facts in the petition against the applicable law, and if the allegations the light most favorable to her. Id. We then engage in a threshold inquiry that that the plaintiff’s pleadings are true and construe all reasonable inferences in Kanasatka Condo. Unit Assoc. v. Smith, 163 N.H. 751, 752 (2012). We assume

RSA 508:2 (2010). The trial court granted the defendant’s motion, and this twenty-year statute of limitations for the recovery of real estate applied. See property was based upon her ownership interest in the property, and, thus, the Blue Star as sole grantee was recorded with the Grafton County Registry of Morgan, 118 N.H. 154 (1978), her claim for the proceeds from the sale of the sole shareholder, officer, and director. On July 19, a quitclaim deed listing 508:4 (2010). The plaintiff objected, arguing that, pursuant to Shuris v. Star Consulting (Blue Star) – a New Hampshire corporation of which he was the

and signed as buyers; however, the defendant signed only on behalf of Blue Nelson Street in Woodsville. The parties initialed each page of the agreement property and been entitled to one-half of the sale proceeds. See Wood, 152

p. 3 contract or fraud, she would have had a one-half ownership interest in the

In substance, the plaintiff claims that, were it not for the defendant’s breach of would grant her a one-half interest in the property, but, in fact, did not do so. obtained one-half of the purchase price from her and represented that he

“promote[d] an injustice and fraud upon” her. She alleges that the defendant

plaintiff’s petition alleges conduct by which the defendant, through Blue Star, therefore, subject to the three-year statute of limitations in RSA 508:4. The agree with the trial court that the plaintiff’s action was personal in nature and,

Here, construing all reasonable inferences in the plaintiff’s favor, we

Wood v. Greaves, 152 N.H. 228, 231 (2005) (quotation, brackets, and ellipsis

Shuris: “It is true, as defendant argues, that plaintiff seeks money and not the 508:2. Although in Shuris, as in this case, the plaintiff sought to establish his the property itself, is subject to the twenty-year statute of limitations in RSA

However, Shuris does not stand for the proposition that a claim for

statute of limitations provided in RSA 508:2. therefore, is inapposite. statute of limitations applied to the plaintiff’s claim. Id. at 157. Shuris, arose under RSA 508:2 or RSA 508:4, we did not have occasion to decide which because we found that the plaintiff’s cause of action was timely whether it purposes, we look not to “the form of the action but rather its substance.” right to proceeds from the sale of real estate he claimed to own, id. at 155, To determine the nature of a cause of action for statute of limitations 508:2. In support of her argument, she cites the following language from of the act or omission complained of.” proceeds from the sale of real property, if based upon a claim of ownership of

contract and fraud.” Nevertheless, relying upon Shuris, she maintains that,

proceeds derived from an ownership interest is subject to the twenty-year upon this language, the plaintiff argues that we held that a claim for sale his claim of ownership of the property itself.” Shuris, 118 N.H. at 157. Based property, but his claim for the money as a substitute for the property rests on

interest, her claims are subject to the twenty-year statute of limitations in RSA property, and because her claim for the sale proceeds is based upon that actions, except actions for slander or libel, may be brought only within 3 years because she seeks to establish that she once had an ownership interest in the first accrued.” RSA 508:4, I, provides, in pertinent part, that “all personal of real estate shall be brought after 20 years from the time the right to recover acknowledges that she is “attempting to recover damages based on a breach of RSA 508:2, I, provides, in relevant part, that “[n]o action for the recovery Rather, she seeks her share of the proceeds from the sale of the property. She omitted). In this case, the plaintiff does not seek the recovery of real property. rule exception. See Perez v. Pike Inds., 153 N.H. 158, 160 (2005) (explaining p. 4 court observed, the plaintiff has not raised the applicability of the discovery was commenced in October 2011, seven years after the sale, and, as the trial Affirmed.

reasonable diligence should have [been] discovered.” RSA 508:4, I; see Sutton

Star sold the property and failed to share the proceeds with her. This action

the plaintiff’s claims.

three years of the time the breach or fraud was discovered “or in the exercise of

limitations). Here, the plaintiff’s petition alleges that those fraudulent or breach of fiduciary duty subject to limitations for personal actions under RSA 508:4, and we affirm its dismissal of breach of fiduciary duty statute of conclude that the trial court did not err in applying the three-year statute of and prove the applicability of the discovery rule exception). Accordingly, we

year fraud statute of limitations (quotation omitted)); Potter v. Cottrill, 2012 WL defendant’s breach of contract or fraud, she was required to bring it within Because the plaintiff’s action is predicated upon establishing the

breached her fiduciary duty and, thus, actual nature of plaintiff’s claims was

within three years of the alleged act, the burden shifts to the plaintiff to raise

of the action was – relief on the ground of fraud” that was barred by the two- DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred. breached their contract or committed fraud.

period for fraudulent conveyances and not recovery of real property); Herthel v.

recovery of title to real property he would have to prove that defendant

that, once the defendant establishes that the cause of action was not brought

depended entirely upon establishing defendant’s fraud and, therefore, the “gist

property and this she could do only by proving that the defendant had proceeds without first establishing that she had an ownership interest in the conveyance, and, thus, her action should have been brought under the time recovery, therefore, she would not be entitled to obtain her share of the sale

1964921, at *3-4 (Ohio Ct. App. 2012) (finding that before plaintiff could obtain

decree to impress land with a constructive trust in favor of the plaintiff” Barth, 81 P.2d 19, 20, 21 (Kan. 1938) (finding plaintiff’s action “to obtain a

action to recover property, plaintiff first was required to nullify fraudulent determined by substance of action rather than form). Under her own theory of v. Sutton, 118 P.3d 700, 703 (Kan. Ct. App. 2005) (concluding that to maintain N.H. at 231 (nature of cause of action for statute of limitations purposes is