Jane Ireland & a.
Town of Rye
The petitioners, employees of the respondent, the Town of Rye, appeal an order of the superior court dismissing their petition for specific performance and monetary relief relative to the town's alleged failure to enroll them in the New Hampshire Retirement System (NHRS). They argue that the trial court erred by ruling, pursuant to Petition of Goffstown Educ. Support Staff, 150 N.H. 795 (2004), that they are not entitled to recover lost retirement benefits, and by concluding that the action is time-barred. Because we agree that the action is untimely, we affirm.
We assume the petitioners' well-pleaded allegations of fact to be true, and construe all reasonable inferences in their favor. See Thorndike v. Thorndike, 154 N.H. 443, 446 (2006). The petitioners allege that at the town's 1979 annual meeting, a resolution passed that the town would "elect to approve of the inclusion of its officers and employees in the New Hampshire Retirement System." The petitioners do not assert that the trustees of the NHRS, in accordance with the vote, set a date when their participation would become effective, see RSA 100-A:20, I (1977), nor do they contest the town's assertion that, in fact, the NHRS did not set an effective date. Instead, they assert that the town initially enrolled the petitioners in the retirement system, but submitted a letter on July 12, 1979, rescinding the enrollment.
In 2001, the town became a member of the NHRS and began to provide the petitioners benefits under the system. Prior to 2001, the town advised the petitioners that they were not entitled to participate in the retirement system, and provided different retirement benefits.
The petitioners claim they first learned of the 1979 vote in October 2003. They filed the present suit in August 2006, seeking an order requiring the town to purchase credits for them for each of their prior years of service between 1979 and 2000, and that the town provide health benefits equivalent to those they would have been entitled to receive had they been enrolled in the NHRS from 1979 to 2000. The trial court dismissed the suit, concluding that it was prohibited under Petition of Goffstown Educ. Support Staff, and that it was time-barred under the statute of limitations in effect in 1979.
In Goffstown Educ. Support Staff, we held that, despite a 1950 vote of the Goffstown school district to participate in the NHRS, the district's support staff were not eligible to participate prior to 2001, when the NHRS set an effective date. We reasoned that under both RSA 100-A:20, I (2001) and Laws 1945, 201:2, the setting of an effective date by the NHRS for participation in the system was a necessary predicate to the eligibility of employees to participate in the system, and their entitlement to demand benefits under it. See Goffstown Educ. Support Staff, 150 N.H. at 801. We noted in dicta, however, that the employees might have equitable remedies against the district under State Employees' Ass'n of N.H. v. Belknap County, 122 N.H. 614 (1982), for the district's failure to notify the NHRS of the 1950 vote.
In Belknap County, Belknap County voted to have its officers and employees participate in the NHRS, and the NHRS established an effective date for their participation. For several years, however, the county refused to enroll its employees in the system. See Belknap County, 122 N.H. at 619-20. Under these circumstances, we upheld the trial court's order allowing eligible employees to buy back prior years of creditable service to which they were entitled and requiring the county to pay its share of unfunded contributions, and directed the trial court to consider additional relief for those eligible employees who could not afford to buy back prior creditable years of service. See id. at 626.
We also rejected a statute of limitations defense in Belknap County, reasoning that because benefits become payable only upon the death or retirement of the qualifying employee, the statute would not begin to run until the employee's death or retirement. We noted, however, that because the county had a continuing obligation to enroll its eligible employees, eligible employees could sue prior to their death or retirement for anticipatory breach. See id. at 622.
The critical distinction between this case and Belknap County is that in this case, like Goffstown Educ. Support Staff, the petitioners were not eligible to participate in the NHRS prior to 2001. See Goffstown Educ. Support Staff, 150 N.H. at 801. Thus, unlike the eligible employees in Belknap County, any entitlement of the petitioners to equitable relief cannot be founded upon a statutory obligation of the town to enroll the petitioners in the NHRS. Rather, the petitioners assert that the town "breached the contractual duty . . . to execute the will of the voters, as expressed in the  Town Meeting vote." Accordingly, the date upon which the statute of limitations commenced cannot turn upon the petitioners' retirement or death, but is governed by the date of the alleged breach of contract. See Metropolitan Prop. & Liabil. Ins. Co. v. Walker, 136 N.H. 594, 597 (1993) (statute of limitations generally begins to run on contract claims when the breach occurs).
In their brief, the petitioners claim that "[t]he Town's failure to enroll [them] in the NHRS in 1979 and to maintain their enrollment has cost [them] substantial sums of money in lost benefits." We agree with the trial court, therefore, that the alleged breach would have occurred in 1979, and that the statute of limitations in effect in 1979 governs the timeliness of this suit. See Bronstein v. GZA GeoEnvironmental, 140 N.H. 253, 255 (1995) (version of statute of limitations applicable to contract claim turns upon when the breach occurred).
In 1979, the statute of limitations provided that "[e]xcept as otherwise provided by law all personal actions may be brought within six years after the cause of action accrued, and not afterwards." RSA 508:4 (Supp. 1977). We have interpreted this language not to incorporate a "discovery rule" for cases sounding in contract. See Roberts v. Richard & Sons, Inc., 113 N.H. 154, 156-57 (1973). Although we have held that the discovery rule applies in contract actions governed by the current version of the statute of limitations, see Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637-38 (1993); RSA 508:4 (1997), we disagree with the petitioners that Roberts is no longer good law to the extent that earlier versions of RSA 508:4 govern a particular contract action.
It is irrelevant, therefore, that the petitioners did not discover their claim until August 2003. Their claim expired no later than 1985, or six years after the town allegedly rescinded their enrollment. Because the petitioners do not otherwise argue that the town "fraudulently concealed" the facts essential to their cause of action, see Lakeman v. LaFrance, 102 N.H. 300, 303-04 (1959), we conclude that the trial court properly dismissed the matter as time-barred. Accordingly, we need not address whether the plaintiffs were entitled to equitable relief under Goffstown Educ. Support Staff.
DALIANIS, GALWAY and HICKS, JJ., ...