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Josephine A. Lamprey v. Britton Construction

February 10, 2012

JOSEPHINE A. LAMPREY
v.
BRITTON CONSTRUCTION, INC. & A.



The opinion of the court was delivered by: Dalianis, C.J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: October 13, 2011

The plaintiff, Josephine A. Lamprey, appeals orders of the Superior Court (Nadeau, J.) dismissing her actions against the defendants, Britton Construction, Inc. (Britton), DeStefano Architects, PLLC f/k/a Lisa B. DeStefano (DeStefano) and Dave Sherwood, pursuant to the statutes of limitations and repose. See RSA 508:4 (2010); RSA 508:4-b (2010). We affirm in part, reverse in part and remand.

The following facts appear in the record. The plaintiff hired the defendants to design and build her home. DeStefano was the architect; Britton was the general contractor; and Sherwood was the mason who installed the home's extensive stonework, including a stone veneer, terrace and stone chimneys.

The plaintiff began living in the house in November 2001, but never obtained a certificate of occupancy. Within one year, water damage appeared on the wood floors. In 2006, the plaintiff hired Sherwood to repair loose stones on her terrace. In 2008, again at the plaintiff's request, Sherwood repaired her chimney.

In 2010, when the plaintiff was replacing her stone terrace with granite, the mason in charge of the replacement noticed problems with the home's stonework requiring significant repairs. As a result, the plaintiff sued the defendants, alleging negligence and breaches of warranty in her home's construction. Britton requested dismissal pursuant to the statute of limitations for personal actions. See RSA 508:4 (2010). Sherwood moved to dismiss, arguing that the construction statute of repose also barred the plaintiff's claims. See RSA 508:4-b. The plaintiff responded by arguing, among other things, that the statutes should be tolled because Sherwood had fraudulently concealed her home's masonry problems. See RSA 508:4-b, V(a). She also moved to amend her writ to add more facts supporting her fraudulent concealment claim and to add new causes of action. Ultimately, after a hearing addressing the application of the statute of repose, the plaintiff's claims were dismissed under the statutes of repose and limitations, and the plaintiff's motion to amend her writ was denied.

The plaintiff appeals, arguing that the trial court erred by dismissing her case under the statutes of limitations and repose and denying her motion to amend. We first turn to whether the trial court erred by dismissing the plaintiff's initial writ and then address whether it properly denied her motion to amend.

2

I. Motions to Dismiss

In reviewing a motion to dismiss, our standard of review is whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery. McNamara v. Hersh, 157 N.H. 72, 73 (2008). We assume the plaintiff's allegations to be true and construe all reasonable inferences in the light most favorable to her. See id. We need not, however, accept allegations in the writ that are merely conclusions of law. Beane v. Dana S. Beane & Co., 160 N.H. 708, 711 (2010). The threshold inquiry involves testing the facts alleged in the pleadings against the applicable law. Id. We will uphold the granting of the motion to dismiss if the facts pleaded do not constitute a basis for legal relief. Id.

Resolution of the issues in this case requires statutory interpretation.

We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515 (2004). We first examine the language of the statute, and, when possible, we ascribe the plain and ordinary meanings to the words used. Id. We review the trial court's interpretation of a statute de novo. Remington Invs. v. Howard, 150 N.H. 653, 654 (2004).

We first address whether the trial court properly dismissed the plaintiff's actions under the statute of limitations, RSA 508:4, and then whether dismissal under the statute of repose, RSA 508:4-b, was proper.

A. Statute of Limitations

The plaintiff argues that the trial court erred by dismissing her actions under the statute of limitations because her pleadings and objections to the defendants' motions to dismiss stated a basis for relief from the statute of limitations under the discovery rule. The statute of limitations for personal actions states that:

Except as otherwise provided by law, all personal actions,

except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

RSA ...


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