Jillian Lennartz v. Oak Point Associates, P.A. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0714, Jillian Lennartz v. Oak Point
Associates, P.A. & a., the court on September 18, 2015, issued
the following order:

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

The plaintiff, Jillian Lennartz, appeals an order of the Superior Court
(Tucker, J.) granting a motion to dismiss in favor of the defendant, the New
Hampshire Department of Safety, on the ground that her action is barred by the
statute of repose, RSA 508:4-b (2010). She contends that RSA 508:4-b, as
applied to her, deprived her of procedural due process because her failure to
timely file suit was “due to the undisputed failure of a State of New Hampshire
entity to provide to her public record information required by law.”

In reviewing the trial court’s grant of a motion to dismiss for failure to state
a claim, our standard of review is whether the allegations in the petitioner’s
pleadings are reasonably susceptible of a construction that would permit
recovery. Plaisted v. LaBrie, 165 N.H. 194, 195 (2013). We assume that the
petitioner’s well-pleaded allegations of fact are true and construe all reasonable
inferences in the light most favorable to it. Id. We then engage in a threshold
inquiry that tests the facts in the petition against the applicable law, and if the
allegations do not constitute a basis for legal relief, we must hold that granting
the motion to dismiss was proper. Id.

Whether a statute is constitutional is a question of law, which we review de
novo. Prof. Fire Fighters of N.H. v. State of N.H., 167 N.H. 188, 192 (2014). We
presume a legislative act to be constitutional and will not declare it invalid except
upon inescapable grounds. Id. The plaintiff brings her claim solely under the
New Hampshire Constitution.

Although the plaintiff claims that she “was deprived of procedural due
process,” she does not brief the factors that we address to determine what
process is due. See Doe v. State of N.H., 167 N.H. 382, 414 (2015) (describing
our procedural due process test). Therefore, we also do not address them. See
State v. Blackmer, 149 N.H. 47, 49 (2003) (stating we confine our review to only
those issues that have been fully briefed). Instead, the plaintiff argues that the
application of the statute of repose to bar a claimant’s cause of action against the
State when it was the State which caused the failure to file suit prior to
expiration of the statute of repose by its failure to abide by its statutory obligation
to disclose public records is an instance when as applied the statute is
fundamentally unfair.

A fundamentally unfair adjudicatory procedure is one that gives a party a
significant advantage or places a party in a position of prejudice or allows a party
to reap the benefit of his own behavior in placing his opponent at an unmerited
and misleading disadvantage. State v. Symonds, 131 N.H. 532, 534 (1989).
Here, the record establishes that it was the plaintiff’s failure to prosecute her
claim diligently that resulted in her failure to timely file her action. Cf. Perez v.
Pike Inds., 153 N.H. 158, 160 (2005) (stating discovery rule tolls statute of
limitations only if plaintiff could not reasonably have discovered either alleged
injury or its causal connection to alleged negligent act). Accordingly, we conclude
that the application of the statute under these circumstances is not
fundamentally unfair.

The plaintiff has stated that on November 25, 2009, the date of her injury,
she “knew she was hurt and within a short time knew that a condition of the
[University of New Hampshire (UNH)] lab was to blame.” She represents that she
did not make any request for information from UNH until June 3, 2011, more
than 18 months after she was injured. At that time, she did not specifically
request information pursuant to RSA 91-A:4 (2013). Although she argues that
UNH’s eventual response to this request “did not reference the dates during
which the laboratory renovation was performed or identify any of the contractors
involved,” we note that she requested only information “pertaining to the
November 25, 2009 incident.”

The plaintiff did not request information from UNH relating to the
construction of the laboratory until October 18, 2011, almost two years after she
was injured. At that time, she made her request pursuant to RSA 91-A:4.
However, although UNH failed to respond as statutorily required, see RSA 91-A:4,
IV, the plaintiff did not petition the superior court for injunctive relief, see RSA
91-A:7, until January 6, 2012. During this period, in November 2011, the
statute of repose expired. We note that the plaintiff did not add the defendant to
the suit until more than 14 months after she received UNH’s response to her RSA
91-A request. Although the plaintiff argues that UNH’s failure to provide her with
public information, as required by law, “led directly to [her] failure . . . to file suit
prior to [the] expiration of the statute of repose,” we conclude that it was the
plaintiff’s lack of reasonable diligence in seeking the information and pursuing
legal relief based upon the information she had that led to her failure to comply
with RSA 508:4-b.

The plaintiff argues that “[a]s the property owner in this case was
purportedly her employer, [she] did not have available to her an obvious means
by which to sue the property owner to discover any information pertaining to the
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history of the real property improvement which caused her injury.” However, we
note that she did eventually add UNH as a defendant. Furthermore, as she
demonstrated, she could seek information pursuant to RSA 91-A:4 and, if that
proved inadequate, she could have sought equitable discovery. See Gutbier v.
Hannaford Bros. Co., 150 N.H. 540, 545 (2004) (stating equitable discovery not
available when there is an adequate remedy at law).

The plaintiff argues that applying the statute of repose to bar her claim “is
particularly unfair as the statute of repose provides no safe procedural harbor for
those injured claimants actively seeking the information necessary to bring their
claims.” However, the plaintiff does not cite, nor are we aware of, any authority
stating that procedural due process requires such a safe harbor. Cf. Lennartz v.
Oak Point Associates, 167 N.H. ___, ___, 112 A.3d 1159, 1162 (2015) (stating RSA
508:4–b does not violate equal protection by barring accrued cause of action
without application of the discovery rule). RSA 508:4-b, V(a) does provide that
the statute does not apply to actions involving fraudulent concealment of
material facts upon which a claim might be based. However, the plaintiff does
not argue that UNH acted fraudulently.

The plaintiff argues that, because the date on which the statute of repose
expires depends upon information that a plaintiff may not know, due process
requires that “potential defendants not be permitted to use their own delay as a
means of foreclosing an action against them or others.” However, we conclude
that, in light of the purpose of the statute of repose, a plaintiff is required to
pursue information necessary to her cause of action in a reasonably expeditious
fashion. Cf. Winnisquam Reg. Sch. Dist. v. Levine, 152 N.H. 537, 540 (2005)
(stating purpose of statute of repose is to relieve potential defendants from
infinite liability perpetuated by the discovery rule).

The plaintiff argues that “[t]he fundamental unfairness of permitting a
potential defendant to avoid potential liability by its own refusal to provide
information necessary to permit a suit is particularly apparent when the
defendant” contravenes a statutory duty. However, when UNH initially failed to
respond to her RSA 91-A:4 request, the plaintiff did not promptly avail herself of
the statutory procedure to compel a response.

The plaintiff relies upon Appeal of Eno, 126 N.H. 650 (1985), and Appeal of
Plantier, 126 N.H. 500 (1985), which she characterizes as cases in which the
plaintiff’s constitutional “right was lost not due to the misconduct of the person
protected by the constitution but by the misconduct of another.” She argues that
allowing the State “to profit from the disadvantage caused [her] by [its] failure . . .
to abide by the law” is fundamentally unfair. However, we conclude that in this
case the plaintiff’s right to bring an action against the defendant was lost, not as
a result of UNH’s failure to respond to the plaintiff’s requests for information, but

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as a result of the plaintiff’s failure to prosecute her case in a reasonably timely
manner.

The plaintiff argues that RSA 508:4-b does not provide a “reasonable
process by which injured claimants can discern by when they must act to protect
a constitutional right to recover.” However, we cannot conclude, based upon the
facts of this case, that the plaintiff lacked a reasonable process by which to learn
when the statute of repose would terminate her cause of action. Accordingly, we
conclude that applying the statute of repose under these circumstances is not
fundamentally unfair.

Affirmed.

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

Eileen Fox,
Clerk

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