Christopher Nastasi v. Ronald Brown & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0671, Christopher Nastasi v. Ronald
Brown & a., the court on July 23, 2015, issued the following
order:

Having considered the briefs, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The defendants, Ronald Brown, Sweethill Investments, LLC, and Ronald
Brown Investments, LLC, appeal the order of the Superior Court (Anderson, J.)
after a bench trial awarding a judgment to the plaintiff, Christopher Nastasi
d/b/a CN Building Movers, on his claims for breach of contract and
conversion. The defendants argue that the trial court erred in failing to
conclude that the plaintiff’s claims were barred by the statute of limitations.
The statute of limitations is an affirmative defense, and the defendants bear the
burden of proving that it applies to the plaintiff’s claims. Glines v. Bruk, 140
N.H. 180, 181 (1995).

The defendants first argue that the plaintiff’s breach of contract claim
was time-barred. To be timely, a contract claim must be brought within three
years of when the breach occurs. Coyle v. Battles, 147 N.H. 98, 100 (2001);
RSA 508:4, I (2010). The record shows that the defendants entered into a
contract with the plaintiff on or about October 18, 2006, the date of the
plaintiff’s letter setting forth the terms of the agreement, in which the plaintiff
agreed to move the defendants’ house to a new location for $13,000. The
contract provided that payment of $5,000 would be due when the house was
removed from its existing foundation; a second $5,000 payment would be due
when the house was on wheels; and a $3,000 payment would be due when the
house was lowered onto temporary supports at the new location.

The contract also provided that the defendants had thirty days following
completion of the work in which to have all necessary work done to allow the
plaintiff to remove his equipment, which consisted of steel beams and wooden
cribs providing temporary support for the structure. The contract next
provides, “If we are unable to remove our equipment at the end of this 30-day
period, we shall be obliged to impose a charge of $45.00 per day thereafter for
which our equipment must remain on the site.”
 There is no dispute that the plaintiff moved the house in October, 2006,
and that the thirty-day period ended on or about November 15, 2006. The
plaintiff was not able to remove his equipment after that date because there
were no replacement supports in place. In July 2007, the plaintiff started
sending invoices to the defendant regularly for the $45 per day rental charge
for his equipment. On January 11, 2008, the plaintiff’s attorney sent the
defendants a letter demanding payment “for the balance of the contract price,
which now totals $17,730.00, and the return of the equipment supporting the
structure.” When no response was received, the plaintiff continued sending the
defendants invoices for the still-accruing $45 per day rental charge. On June
25, 2011, the house was destroyed by fire. The plaintiff testified that his
wooden cribs were destroyed, and his steel beams were damaged beyond
repair. On July 18, 2013, the plaintiff filed suit against the defendants for
breach of contract, conversion, and other causes of action. The defendants
raised the statute of limitations as an affirmative defense.

After a bench trial, the trial court ruled that the three-year statute of
limitations in RSA 508:4 (2010) barred claims that arose prior to July 18,
2010, the date three years prior to the date on which suit was filed. The court
also ruled, however, that claims for rental payments from July 18, 2010
through the date of the fire were timely because the claims did not arise until
each day’s rent became due. See Coyle, 147 N.H. at 100 (claim arises when
breach occurs); General Theraphysical, Inc. v. Dupuis, 118 N.H. 277, 279
(1978) (statute of limitations does not begin to run on an installment until it
becomes due). On appeal, the defendants do not argue that the trial court
erred in ruling that the claims for rental payments did not arise until each
day’s rent became due. Instead, the defendants argue that the statute of
limitations started to run on January 11, 2008, the date of the attorney’s
demand letter, because the letter showed that the plaintiff knew by that date
that he had been injured by the defendants’ conduct. See Wood v. Greaves, 152 N.H. 228, 232 (2005) (declining to apply discovery rule where record
showed that plaintiffs should have known more than three years before suit
was filed that defendant proximately caused their injuries).

We conclude that the defendants’ argument does not address the trial
court’s reasoning. The plaintiff did not assert that he was unaware that he was
injured by the defendants’ conduct, and the trial court did not rule that the
discovery rule applies; on the contrary, the court ruled that the statute of
limitations barred any claim that arose more than three years before the
plaintiff filed suit. Accordingly, we conclude that the defendants have failed to
show that the court erred in implicitly ruling that the $45 per day obligation
was in essence an installment contract and, thus, that the claims for rental
payments from July 18, 2010 through the date of the fire were timely. See
Coyle, 147 N.H. at 100 (on appeal, appellants have the burden to demonstrate
error).

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 To the extent that the defendants argue that the January 11, 2008 letter
from the plaintiff’s attorney effectively terminated the contract and, thus, that
no rent accrued after that date, we note that the letter expressly states: “The
contract continues to accrue charges at a daily rate of forty-five dollars per day
for the use of the equipment.” Accordingly, we conclude that the trial court
was not compelled to find that the attorney’s letter terminated the contract.
See Behrens v. S.P. Constr. Co., 153 N.H. 498, 500-01 (2006) (We will sustain
the trial court’s findings if they are supported by the record.).

The defendants next argue that the trial court erred in failing to conclude
that the plaintiff’s conversion claim was time-barred. They argue that the
statute of limitations on this claim started to run on the date of the attorney’s
demand letter, January 11, 2008, or shortly thereafter, because they failed to
return the plaintiff’s equipment in response to the letter. They concede that
nothing in the record shows that they explicitly refused to return the plaintiff’s
equipment after receiving the letter. They assert, however, that their lack of
response within the ten-day period set forth in the letter “constituted a refusal”
for purposes of the statute of limitations.

We conclude, however, that the trial court was not compelled to find that
the defendants’ failure to return the equipment in response to the attorney’s
demand letter constituted a conversion of the plaintiff’s property. See LFC
Leasing & Financial Corp. v. Ashuelot Nat. Bk., 120 N.H. 638, 640 (1980)
(noting that “not every failure to deliver upon demand will constitute a
conversion”). Moreover, such a finding would be inconsistent with the
defendants’ position that they repeatedly asked the plaintiff to retrieve his
equipment, but that the plaintiff failed to do so in a timely manner. Thus, the
trial court was not required to find that the limitations period had expired
before the plaintiff filed suit. The trial court concluded that the defendants
converted the plaintiff’s equipment when they failed to allow for the return of
the property prior to the fire that damaged it beyond repair and maintained
possession of it during the fire. We assume the trial court found that the
conversion occurred within three years of July 18, 2013, the date the plaintiff
filed suit, see Nordic Inn Condo. Owners’ Assoc. v. Ventullo, 151 N.H. 571, 586
(2004) (we assume trial court made all findings necessary to support its
decision, even if it did not do so expressly), and conclude that the record
supports such a finding, see Behrens, 153 N.H. at 500-01.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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