Justia.com Opinion Summary: Plaintiff Josephine Lamprey appealed a superior court order that dismissed her against 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. 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. 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, Plaintiff hired Sherwood to repair loose stones on her terrace. In 2010, when Plaintiff replaced 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, 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. Sherwood moved to dismiss, arguing that the construction statute of repose also barred Plaintiff’s claims. Plaintiff responded by arguing, among other things, that the statutes should be tolled because Sherwood had fraudulently concealed her home’s masonry problems. Upon review, the Supreme Court affirmed in part, and reversed in part. The trial court properly dismissed all claims against Destefano. Although the trial court properly dismissed the claims against Britton and Sherwood initially, "it unsustainably exercised its discretion by not permitting Plaintiff to amend her writ to add fraudulent concealment allegations related to the bent masonry ties that concealed defects in her home’s stone veneer. Plaintiff’s amended claims against Britton and Sherwood related to the stone veneer were allowed. The Court remanded the case for further proceedings.
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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2010-800
JOSEPHINE A. LAMPREY
v.
BRITTON CONSTRUCTION, INC. & a.
Argued: October 13, 2011
Opinion Issued: February 10, 2012
McLane Graf Raulerson & Middleton, Professional Association, of
Manchester (Jeremy T. Walker and Joel T. Emlen on the brief, and Mr. Walker
orally), for the plaintiff.
Bouchard, Kleinman & Wright, P.A., of Manchester (Nicholas D. Wright
on the brief and orally), for defendant Britton Construction, Inc.
Boyle, Shaughnessy & Campo, P.C., of Manchester (Peter L. Bosse and
Elsabeth D. Foster on the brief, and Ms. Foster orally), for defendant Dave
Sherwood.
Donovan Hatem LLP, of Boston, Massachusetts (John W. Dennehy and
Gregory M. Sargent on the brief, and Mr. Dennehy orally), for defendant
DeStefano Architects, PLLC f/k/a Lisa DeStefano.
DALIANIS, C.J. 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.
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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 508:4, I.
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The statute of limitations constitutes an affirmative defense, and the
defendant bears the burden of proving that it applies in a given case. Beane,
160 N.H. at 712. That burden, however, is met by a showing that the action
was not brought within three years of the act or omission of which the plaintiff
complains. Id. Once the defendant has established that the statute of
limitations would bar the action, the plaintiff has the burden of proving that
the discovery rule applies. Id. at 713. The statutory discovery rule is designed
to provide relief in situations where the plaintiff is unaware either of the injury
or that the injury was caused by a wrongful act or omission. Id.
The discovery rule is two-pronged, and both prongs must be satisfied
before the statute of limitations begins to run. Id. First, a plaintiff must know
or reasonably should have known that she has been injured; second, a plaintiff
must know or reasonably should have known that her injury was proximately
caused by conduct of the defendant. Id. Thus, the discovery rule exception
does not apply unless the plaintiff did not discover, and could not reasonably
have discovered, either the alleged injury or its causal connection to the
defendant’s alleged act. Id.
Although the discovery rule tolls the limitations period until a plaintiff
discovers, or should reasonably have discovered, the causal connection
between the harm and the defendant’s negligent or wrongful act, this rule is
not intended to toll the statute of limitations until the full extent of the
plaintiff’s injury has manifested itself. Id. Rather, once the plaintiff could
reasonably discern that he or she suffered some harm caused by the
defendant’s conduct, the tolling ends. Id. Further, the plaintiff need not be
certain of the causal connection; the reasonable possibility that it existed will
suffice to obviate the protections of the discovery rule. Id.; see Glines v. Bruk,
140 N.H. 180, 182 (1995).
In this case, the defendants argue that, because the plaintiff’s initial writ
alleged that within one year of the home’s substantial completion “defective
exterior stone work caused water damage to appear on the wood floors in the
home,” we must infer that, when the water staining appeared, the plaintiff
knew there was a causal connection between the staining and the defendants’
acts. When reviewing a motion to dismiss, however, we must draw all
reasonable inferences in favor of the non-moving party. McNamara, 157 N.H.
at 73. Thus, we must draw the favorable inference that, although the plaintiff
may have observed the water staining within one year of the home’s
completion, she was unaware of the causal connection at that time. This
inference is reasonable and consistent with the plaintiff’s assertion that she
discovered the defendants’ stonework was defective in 2010.
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The defendants also argue that, even if the plaintiff did not discover the
causal connection between the defendants’ acts and her injury when the water
staining appeared, as a matter of law, she discovered or in the exercise of
reasonable diligence should have discovered this connection when Sherwood
repaired her terrace in 2006. Based upon the plaintiff’s allegations, we cannot
make this determination as a matter of law. Compare Black Bear Lodge v.
Trillium Corp., 136 N.H. 635, 638 (1993) (motion to dismiss improperly granted
when plaintiff’s allegations did not establish, as a matter of law, that she
should have discovered causal connection), with Beane, 160 N.H. at 712
(affirming grant of motion to dismiss notwithstanding allegations that the
discovery rule tolled statute of limitations).
B. Statute of Repose
The trial court also found that the construction statute of repose, RSA
508:4-b, barred the plaintiff’s claims. RSA 508:4-b, I, provides in pertinent
part:
Except as otherwise provided in this section, all actions to
recover damages for injury . . . arising out of any deficiency in the
creation of an improvement to real property, including without
limitation the design, labor, materials, engineering, planning,
surveying, construction, observation, supervision or inspection of
that improvement, shall be brought within 8 years from the date of
substantial completion of the improvement, and not thereafter.
The plaintiff argues that the eight-year statute of repose does not bar her
2010 claims because she brought them “within 8 years from the date of
substantial completion of [her home].” RSA 508:4-b, I. Unlike a statute of
limitation, the construction statute of repose creates a time limitation that is
measured not from the date of an injury or its discovery, but from the
“substantial completion” of “an improvement to real property.” Id.; see Big
League Entm’t v. Brox Indus., 149 N.H. 480, 483 (2003). The defendants argue
that the plaintiff’s home was substantially complete in November 2001, when
she began living there. Notwithstanding the allegation in the plaintiff’s original
writ that water stains appeared on the floor within one year of substantial
completion, on appeal she asserts that the home was substantially complete at
some later time, the exact determination of which required the trial court to
consider when she made her final payments to Britton, when Britton stopped
working on the house and – because the home was never certified for
occupancy – when it would have been eligible for such certification.
RSA 508:4-b, II defines substantial completion as follows: “The term
‘substantial completion’ means that construction is sufficiently complete so
that an improvement may be utilized by its owner or lawful possessor for the
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purposes intended.” The meaning of the statute is clear. When an
improvement to real property “may,” i.e., “can,” be used for the purposes its
owner or possessor intended, the statute of repose begins to run. If a party
actually uses the improvement for the purpose intended, such use necessarily
proves that the improvement can be used for that purpose, and the statutory
period begins. Thus, while the factors the plaintiff urges us to consider might
be relevant when considering whether an unused improvement could have
been used for certain purposes, once such use actually occurs, a plaintiff
cannot rely upon other factors to argue that the use was impossible.
In her complaint, the plaintiff characterized the improvement at issue in
this case as a “single family home” or a “single-family residence.” Although the
plaintiff alleges that when she moved in she “could not use the home as [she]
wanted” because the kitchen was “not fully working” and there was other
ongoing work, she does not argue here that she intended to use the home for
any purpose other than as a residence. The plaintiff also concedes that she
began using the home as a residence in November 2001. Thus, assuming the
truth of the plaintiff’s allegations and viewing all facts in the light most
favorable to her, the home was substantially complete when she began living in
it – November 2001. The plaintiff filed these actions in 2010, more than eight
years later, and unless there is a basis for tolling the statute of repose, the
claims set forth in her original writ are barred.
C. Fraudulent Concealment
The plaintiff argues that the fraudulent concealment exception to the
statute of repose tolled the statutory period. The statute of repose excludes
from its limitations “actions involving the fraudulent concealment of material
facts upon which a claim might be based.” RSA 508:4-b, V(a). Fraudulent
concealment occurs when “[o]ne party to a transaction . . . by concealment or
other action intentionally prevents the other from acquiring material
information.” Restatement (Second) of Torts § 550, at 118 (1977). It “require[s]
something affirmative in nature designed or intended to prevent, and which
does prevent, the discovery of facts giving rise to a cause of action – some
actual artifice to prevent knowledge of the facts or some representation
intended to exclude suspicion and prevent inquiry.” Nardo v. Guido DeAscanis
& Sons, Inc., 254 A.2d 254, 256 (Del. Super. Ct. 1969).
We note that the language of the fraudulent concealment exception to the
statute of repose differs slightly from the language we have used when
discussing the common law rule that fraudulent concealment tolls the statute
of limitations. Compare Furbush v. McKittrick, 149 N.H. 426, 431 (2003) (“The
fraudulent concealment rule states that when facts essential to the cause of
action are fraudulently concealed, the statute of limitations is tolled until the
plaintiff has discovered such facts or could have done so in the exercise of
6
reasonable diligence.” (quotation and brackets omitted)), with RSA 508:4-b,
V(a) (“The limitation set out in [the statute of repose] shall not apply to actions
involving fraudulent misrepresentations, or to actions involving the fraudulent
concealment of material facts upon which a claim might be based.”). Because
the parties do not argue otherwise, we assume without deciding that the
statutory fraudulent concealment exception simply codifies the existing
common law rule.
Turning to the merits, the plaintiff alleged that, after making an almost
$4,000 repair to her terrace and, years later, a $7,000 repair to her chimney,
Sherwood fraudulently concealed her home’s defects by telling her that the
stones he repaired should not have come loose and that he did not know what
happened. Fraudulent concealment, however, requires the “concealment of
material facts.” RSA 508:4-b, V(a).
Furbush, 149 N.H. at 431-32, which addressed fraudulent concealment
in the context of the statute of limitations, aids our analysis. In that case, a
lawyer whose client had been injured at work informed the client that a
negligence action against the employer was time-barred because the lawyer
failed to file within the statutory period. Furbush, 149 N.H. at 428-29. The
lawyer added that the client would “still be fully protected under [a] Workers’
Compensation claim.” Id. at 429 (quotation and brackets omitted).
Because the lawyer failed to advise the client to file a timely negligence
action against the employer, the client later sued the lawyer for malpractice.
Id. The malpractice suit was itself untimely, but the client argued that the
statute of limitations should be tolled because the lawyer fraudulently
concealed his malpractice when he suggested that the workers’ compensation
statutory scheme adequately protected the client. Id. at 429, 431-32. We held
that there was no fraudulent concealment because the lawyer “did not conceal
any essential facts.” Id. at 432. By saying that the client was “fully protected,”
the lawyer “did not conceal the injury, but merely reflected the fact that the
plaintiff’s workers’ compensation claim was not in jeopardy.” Id. (quotation
omitted).
Similarly here, Sherwood’s stonework was plainly falling apart, and his
failure to account for the crumbling masonry did not conceal its defects. Thus,
just as the Furbush lawyer’s assertion that workers’ compensation would fully
protect the client did not conceal the lawyer’s failure to file a timely action,
Sherwood’s statement that he did not understand his masonry’s deterioration
did not obscure the material fact that the masonry was failing. To the
contrary, the plaintiff was evidently aware of the masonry problems because
she called Sherwood to make repairs. Thus, the facts supporting the plaintiff’s
initial fraudulent concealment argument failed to state a basis for tolling the
statute of repose because Sherwood’s statements and repairs did not, in the
7
language of RSA 508:4-b, V(a), conceal any “material fact[ ].” As a result, the
statutory period had expired by the time the plaintiff brought these actions,
and the trial court properly dismissed them.
Because Sherwood did not conceal material facts from the plaintiff, we
need not address Britton’s and DeStefano’s arguments that Sherwood’s
allegedly fraudulent actions could not toll the statute as to them.
II. Motion to Amend
Having concluded that the trial court did not err in dismissing the
plaintiff’s original writ, we now address whether it erred in denying the
plaintiff's motion to amend. Plaintiffs must be given leave to amend their writs
to correct perceived deficiencies before a dismissal for failure to state a claim
has preclusive effect. ERG, Inc. v. Barnes,137 N.H. 186, 189 (1993). The
opportunity to correct an original writ’s perceived deficiencies, however, does
not include the right to plead an entirely new cause of action. Pesaturo v.
Kinne, 161 N.H. 550, 556 (2011). A court need only allow substantive
amendments when necessary to prevent injustice. Id. A substantive
amendment that introduces an entirely new cause of action, or calls for
substantially different evidence, may be properly denied. Id. Therefore, we
must review the plaintiff’s amended writ to determine whether it corrects her
original writ’s deficiencies or pleads an entirely new cause of action. Id. The
decision of the trial court to deny a motion to amend will not be overturned
absent an unsustainable exercise of discretion. Id.
As an initial matter, the plaintiff’s amended writ added entirely new
claims against Britton and Sherwood alleging fraud and violations of RSA
chapter 358-A (2009), the Consumer Protection Act; however, the plaintiff
makes no argument about dismissal of these claims and, thus, we focus on the
plaintiff’s argument that her amended writ cured the flaws that required her
initial writ’s dismissal.
The plaintiff’s initial writ failed because the statute of repose barred her
actions, but she contends her amended writ cured this defect with respect to
Britton and Sherwood because it alleged new facts supporting her fraudulent
concealment theory. Specifically, in addition to incorporating the fraudulent
concealment allegations against Sherwood that we have rejected as to the
original writ, the amendments alleged that: (1) Britton failed to obtain a
certificate of occupancy because an occupancy inspection would have revealed
the home’s defects; (2) Britton fraudulently concealed that the plywood it used
on the roof was one-eighth of an inch too thin; (3) Britton and Sherwood
fraudulently concealed their failure to insulate the home’s foundation; and (4)
Britton and Sherwood fraudulently concealed that the home’s stone veneer was
8
inadequately attached to the house by bending down the ties designed to
secure the veneer. We address these allegations in turn.
A. Occupancy Certificate
The first allegation, that Britton never obtained an occupancy certificate,
fails to state a basis for tolling the statute of repose because, like Sherwood’s
inability to explain the masonry’s rapid deterioration, it concealed nothing from
the plaintiff. The plaintiff does not allege that Britton somehow prevented her
from discovering that her home was uncertified. See Restatement (Second) of
Torts, supra § 550, at 118.
B. Roof Plywood & Foundation Insulation
The plaintiff’s next two amended allegations, relating to inadequate roof
plywood and foundation insulation, fail because they lack the specificity
necessary for a fraud claim to survive a motion to dismiss. These allegations
state:
[Britton and Sherwood] intentionally misrepresented and/or
concealed several problems, including, but not limited to, failing to
install the foundation insulation system, which was shown directly
on the plans. Based upon Britton’s experience and skill in
construction, it had to know that there was no waterproofing on
the foundation. Britton, however, concealed this fact from Plaintiff.
. . . In addition, based upon Britton’s experience and skill in
construction, it had to know that it used only half-inch plywood
rather than the required five-eights-inch [sic] plywood on the roof.
Britton, however, concealed this fact from Plaintiff . . . .
When alleging fraud, “to withstand a motion to dismiss, the plaintiff
must specify the essential details of the fraud, and specifically allege the facts
of the defendant’s fraudulent actions. It is not sufficient for the plaintiff merely
to allege fraud in general terms.” Brzica v. Trustees of Dartmouth College, 147
N.H. 443, 449 (2002) (quotation omitted). Here, the allegations relating to the
foundation insulation and roof plywood fail because they allege the legal
conclusion that Britton and Sherwood “concealed” these defects, but fail to
state the essential facts as to how the defects were concealed. Thus, for
example, the plaintiff does not allege that Britton shimmed the plywood on her
roof to make it appear thicker, or painted her foundation to make it appear
insulated. Neither does the plaintiff allege that, by shingling the roof and
backfilling the basement, Britton concealed the problems alleged.
9
Regardless of whether such allegations would be sufficient to state a
claim for fraudulent concealment, the naked allegation that defects were
concealed requires us to guess what concealing act took place in order to
decide a motion to dismiss. As a result, without more detail, we are unable to
“test[ ] the facts alleged in the pleadings against the applicable law.” Beane,
160 N.H. at 711.
Moreover, to the extent that the plaintiff contends mere failure to disclose
the alleged defects amounted to fraudulent concealment, her allegations
remain insufficient to state a basis for relief. Fraudulent concealment requires
“some actual artifice to prevent knowledge of the facts or some representation
intended to exclude suspicion and prevent inquiry.” Nardo, 254 A.2d at 256.
“Concealment . . . only by silence is not enough.” State of Tex. v. Allan Const.
Co., Inc., 851 F.2d 1526, 1529 (5th Cir. 1988) (quotation omitted); see also
Sills v. Oakland General Hosp., 559 N.W.2d 348, 352 (Mich. Ct. App. 1997)
(“Mere silence is insufficient.”); Sletto v. Wesley Const., Inc., 733 N.W.2d 838,
846 (Minn. App. Ct. 2007) (“Unless special circumstances apply, . . . there is no
general duty to disclose.”).
Because, at most, the allegations here assert that Britton and Sherwood
did not tell the plaintiff about the roof and foundation defects, they fail to allege
“something affirmative in nature designed or intended to prevent . . . the
discovery of facts giving rise to a cause of action” and, therefore, do not state a
claim for fraudulent concealment tolling the statute of repose. Nardo, 254 A.2d
at 256. As a result, the roof plywood and basement insulation allegations
failed to correct the deficiencies in the plaintiff’s initial writ, and the trial court
sustainably exercised its discretion by not allowing the amendments. See
Pesaturo, 161 N.H. at 556.
C. Bent Masonry Ties
We now turn to the plaintiff’s final amended fraudulent concealment
allegation, that “Britton and Sherwood not only used an insufficient number of
ties to properly and safely anchor the stones [on the stone veneer] to the wall,
but also, they . . . intentionally bent down and did not use several ties in order
to hide this fact.” Viewing this allegation in the light most favorable to the
plaintiff, we construe it to mean that Britton and Sherwood bent several ties,
which were not used, intending to create the false impression that an adequate
number of ties supported the veneer.
If proved, this alleged cosmetic change to unused, but necessary,
components would constitute “something affirmative in nature designed or
intended to prevent, and which does prevent, the discovery of facts giving rise
to a cause of action.” Nardo, 254 A.2d at 256. The plaintiff alleges that the
defendants installed ties that they knew were not used to support the stone
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veneer, and bent them to prevent the plaintiff from discovering that the veneer
was inadequately supported. She alleges that she “justifiably relied” upon
Sherwood and Britton’s concealment, which we construe in the light most
favorable to her to mean that, as a result of the concealment, she did not
discover that the veneer lacked proper support. Moreover, the lack of support
for the stone veneer gave rise to several of the plaintiff’s causes of action.
Thus, the plaintiff alleged facts supporting a claim for fraudulent concealment
tolling the statute of repose.
Although Sherwood argues for a rule that allegations of concealment
incident to normal construction fail to state a claim for fraudulent concealment
tolling the statute of repose, resolution of this case does not require us to adopt
such a rule. See Steel v. Ivanhoe Huntley-Oakhurst Builders, L.L.C., No.
271494, 2007 WL 288213, at *2 (Mich. Ct. App. Feb. 1, 2007) (allegation that
exterior trim, part of house’s “intended design and construction,” concealed
defects failed to toll statute of limitations). Even if we were to apply this rule,
the concealing act that the plaintiff has alleged would still state a claim for
fraudulent concealment because the act alleged is not incidental to normal
construction. Rather, the plaintiff alleges that, by bending unused, but
necessary, ties, Britton and Sherwood intentionally concealed their failure to
provide adequate anchoring of the stone veneer to the wall.
With the benefit of additional discovery, it may be determined that the
ties were not bent as artifice, but were merely installed improperly. If this
proves to be the case, then the plaintiff’s allegation of an act “intended to
prevent” the discovery of insufficient ties could well fail because her bent-tie
allegation would state the presence of a construction defect without any
affirmative act of concealment. Nardo, 254 A.2d at 256. As alleged, however,
the plaintiff’s claim states an affirmative concealing act – the bending of the
masonry ties.
Thus, as to Britton and Sherwood, the plaintiff’s amended writ states a
claim for fraudulent concealment of material facts upon which claims regarding
the stone veneer were based. See RSA 508:4-b, V(a). This claim cured the
defect that required dismissal of the plaintiff’s initial writ, and the trial court
unsustainably exercised its discretion by dismissing the claims against Britton
and Sherwood without giving the plaintiff an opportunity to add the bent-tie
allegation. See ERG, Inc., 137 N.H. at 189.
Nonetheless, the plaintiff’s amended allegations only correct the initial
writ’s deficiencies as to claims relating to the stone veneer. The statute of
repose bars the plaintiff’s other amended claims, and the trial court
sustainably exercised its discretion in disallowing the amendments as to claims
unrelated to the stone veneer. See Pesaturo, 161 N.H. at 556.
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Moreover, because the plaintiff’s amended writ did not allege that
DeStefano was even aware of the insufficient number of ties or the concealing
acts, she has failed to link DeStefano to any acts arguably constituting
fraudulent concealment. Thus, the amended writ did not revive any claims
against DeStefano otherwise barred by the statute of repose, and the trial court
sustainably exercised its discretion when it denied the plaintiff’s motion to
amend as to it. See id.
In summary, the trial court properly dismissed all claims against
Destefano. Although the trial court properly dismissed the claims against
Britton and Sherwood initially, it unsustainably exercised its discretion by not
permitting the plaintiff to amend her writ to add fraudulent concealment
allegations related to the bent masonry ties that concealed defects in her
home’s stone veneer. See ERG, Inc., 137 N.H. at 189. Thus, the plaintiff’s
amended claims against Britton and Sherwood related to the stone veneer are
allowed. The plaintiff’s amended claims of fraud and RSA chapter 358-A
violations, however, plead entirely new causes of action, and the trial court
sustainably exercised its discretion in denying them even as they relate to the
stone veneer. See Pesaturo, 161 N.H. at 557.
Affirmed in part; reversed in
part; and remanded.
HICKS, CONBOY and LYNN, JJ., concurred.
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