152 A.3d 878
N.H.2016Background
- Rochester owns a water storage tank designed by AECOM and built by CB&I in 1985; later modifications were done in 2009 by contractor Payeur under engineer Wright‑Pierce.
- Payeur substantially completed the 2009 work in November 2009; a leak occurred in December 2011 revealing defective modification work.
- Rochester sued Payeur in 2012 and added CB&I, AECOM, and Wright‑Pierce in 2014 alleging defective original construction and supervision dating to 1985.
- CB&I and AECOM moved to dismiss arguing the claims were time‑barred by the six‑year statute of limitations then in effect (RSA 508:4).
- Rochester argued the common‑law doctrine nullum tempus (time does not run against the sovereign) exempted the City from the limitations period.
- The trial court dismissed Rochester’s claims against CB&I and AECOM; the Supreme Court of New Hampshire affirmed, holding nullum tempus does not bar application of the statute to municipal contract claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nullum tempus applies to municipalities to exempt them from general statutes of limitations | The City: nullum tempus should apply to municipalities so limitations do not bar its contract claims | Defendants: nullum tempus applies only to sovereign/state, not municipalities; statute bars the claims | Held: nullum tempus does not apply to municipal contract claims; statute of limitations applies |
| Whether nullum tempus bars RSA 508:4 as applied here | The City: even if limited, nullum tempus should excuse untimely suit against CB&I/AECOM | Defendants: RSA 508:4 governs; plaintiff acted like private party in contracting, so no exemption | Held: RSA 508:4 bars these contract claims; allowing City to proceed would undermine limitations policy |
| Whether public‑policy bases for nullum tempus (e.g., protecting public property) support municipal contract claims | The City: analogous protections/support from statutes and precedent justify extension | Defendants: public‑policy rationales (adverse possession, enforcement) do not apply to contracts | Held: Public‑policy rationale for nullum tempus does not justify extending it to municipal contract claims |
| Whether decision requires deciding broader application of nullum tempus to municipalities in other contexts | The City: urged alternate tests (ultimate right at issue, discretionary function) for limited application | Defendants: N/A (argued statute controls for contracts) | Held: Court did not decide broader contexts or adopt tests; limited holding to municipal contract claims |
Key Cases Cited
- Lake Winnipesaukee Resort v. State, 159 N.H. 42 (N.H. 2009) (applied nullum tempus to exempt state civil enforcement action from personal‑action statute of limitations)
- Glines v. Bruk, 140 N.H. 180 (N.H. 1995) (statute of limitations is an affirmative defense; defendant bears burden)
- Great Lakes Aircraft Co. v. City of Claremont, 135 N.H. 270 (N.H. 1992) (municipalities may sue and be sued and are bound by contracts like private parties)
- Keeton v. Hustler Magazine, 131 N.H. 6 (N.H. 1988) (purposes of statutes of limitations: protect defendants from stale claims and preserve reliable evidence)
- Bonardi v. Kazmirchuk, 146 N.H. 640 (N.H. 2001) (adverse possession requires owner knew or should have known of the adverse use)
- State v. Franklin Falls Co., 49 N.H. 240 (N.H. 1870) (historical discussion that sovereign cannot be expected to detect many infringements on its rights)