Argued: October 6, 2016
Primmer Piper Eggleston & Cramer PC, of Manchester
(Thomas J. Pappas, Matthew J. Delude, and Adam R. Mordecai on
the brief, and Mr. Pappas orally), for the plaintiff.
Flaherty, Beliveau, & Pachios LLP, of Concord (Kenneth E.
Rubinstein and Nathan R. Fennessy on the brief, and Mr.
Rubinstein orally), for defendant Chicago Bridge & Iron
n/k/a CB&I, Inc.
Middleton, Professional Association, of Manchester (Jennifer
L. Parent and Nicholas F. Casolaro on the brief, and Ms.
Parent orally), for defendant Whitman & Howard n/k/a
AECOM Technical Services, Inc.
Morrison Mahoney, LLP, of Manchester (Ralph N. Suozzo), for
defendant Marcel A. Payeur, Inc., filed no brief.
Sheehan, Phinney, Bass & Green, P.A., of Manchester
(Peter S. Cowan), for defendant Wright-Pierce, filed no
Gagliuso & Gagliuso Professional Association, of
Merrimack (Richard C. Gagliuso on the brief), for Associated
Builders and Contractors, New Hampshire/Vermont Chapter, as
an interlocutory appeal by the plaintiff, the City of
Rochester (City), from an order of the Superior Court
(Houran, J.) dismissing the City's claims
against two of the four defendants it sued for damages. On
appeal, the City asserts that the trial court erred in
refusing to apply the doctrine of nullum tempus occurrit
regi ("time does not run against the king") so
as to exempt the City's claims against defendants Chicago
Bridge & Iron n/k/a CB&I, Inc. (CB&I) and Whitman
& Howard n/k/a AECOM Technical Services, Inc. (AECOM)
from the bar of the six-year statute of limitations that was
in effect when CB&I and AECOM substantially completed
their contract with the City. See RSA 508:4, I
(1983) (amended 1986). We affirm and remand.
following facts are drawn from the interlocutory appeal
statement. The City's Department of Public Works owns and
operates the Rochester Water System, which provides water to
residents of the City. The City operates three water storage
tanks, one of which is the Rochester Hill Water Storage Tank
(the Tank). AECOM designed the Tank and oversaw its
construction by CB&I. CB&I completed the Tank in
1985, and it was placed into service that same year.
2009, the City contracted defendant Marcel A. Payeur, Inc.
(Payeur) to service the Tank by recoating the Tank's
interior and exterior, installing a mixer, and modifying the
Tank to accommodate the mixer. Defendant Wright-Pierce, a
Maine corporation, performed the engineering and design work
for the modification project. Payeur substantially completed
the modification, under Wright-Pierce's supervision, in
December 2011, the Tank developed a leak. The City had to
evacuate nearby residents, drain the Tank, and remove it from
service. The City inspected the Tank and discovered that
Payeur had failed to properly construct the modifications in
accordance with Wright-Pierce's design.
City filed suit against Payeur in November 2012, alleging
breach of contract, breach of warranty, negligence, and
unjust enrichment. In April 2014, the City named CB&I,
AECOM, and Wright-Pierce as additional defendants. The
City's amended complaint alleged that Wright-Pierce had
failed to properly supervise Payeur's 2009 modification
work; it also alleged that, in 1985, CB&I had failed to