Cynthia Mackillop v. Centennial View Child Care and Enrichment, LLC & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0317, Cynthia Mackillop v. Centennial
View Child Care and Enrichment, LLC & a., the court on March
18, 2021, issued the following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The plaintiff, Cynthia Mackillop, appeals orders of the Superior Court
(Bornstein, J.) denying her partially-assented to motion to amend her
complaint to add Preston Colby as a defendant. We affirm.

The following facts are from the trial court’s order or relate the content of
documents in the record. The event giving rise to the plaintiff’s claim in this
case, an accident in which she was injured, occurred on July 4, 2016. In April
2018, the plaintiff initiated this action, asserting a single count of negligence
against defendant, Centennial View Child Care and Enrichment Center, LLC.
In May 2019, the plaintiff amended her complaint to add a new count of
negligence against defendant Lancaster Floral Design and Garden Center, Inc.
(Lancaster Floral). On October 29, 2019, the plaintiff filed her partially-
assented to motion to amend her complaint for a second time, this time to add
a negligence claim against Colby.

Lancaster Floral objected to the plaintiff’s motion to amend her
complaint to add Colby, arguing that the amendment would be futile as her
claim against Colby is barred by the applicable three-year statute of
limitations. See RSA 508:4 (2010). The plaintiff countered that she should be
permitted to add Colby as a party pursuant to New Hampshire’s policy of
liberal amendment of pleadings. The trial court subsequently granted
summary judgment to Lancaster Floral.

In its order denying the plaintiff’s partially-assented-to motion to amend
her complaint to add Colby as a defendant, the trial court observed that the
statute of limitations is an affirmative defense, which ordinarily must be
pleaded so as to give the plaintiff notice and an opportunity to rebut. See
Exeter Hospital v. Hall, 137 N.H. 397, 399 (1993); see also Super. Ct. R. 9(d).
Here, the trial court noted, the affirmative defense was raised by Lancaster
Floral, even though Lancaster Floral was no longer a party to the plaintiff’s
lawsuit. The trial court reasoned that it was appropriate for the court to
consider the timeliness of the plaintiff’s claim against Colby because she “has
received notice of the statute of limitations defense and has had an opportunity
to rebut it.” See Exeter Hospital, 137 N.H. at 399-400; see also Super. Ct. R.
1(d) (“As good cause appears and as justice may require, the court may waive
the application of any rule.”). Because the plaintiff did not bring her claim
against Colby until October 29, 2019, more than three years after the statute of
limitations expired, and because the plaintiff did not argue that the discovery
rule applied to her case, the court denied her motion to amend to add Colby as
a defendant. The plaintiff moved for reconsideration arguing, for the first time,
that the discovery rule applies. The trial court denied the plaintiff’s motion.
This appeal followed.

On appeal, the plaintiff argues that the discovery rule applies to her
claim against Colby and that Lancaster Floral waived any right to rely upon the
statute of limitations as an affirmative defense by failing to raise the defense in
its answer. As the appealing party, the plaintiff has the burden of
demonstrating reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014).
Based upon our review of the trial court’s orders, the plaintiff’s challenges to
them, the relevant law, and the record submitted on appeal, we conclude that
the plaintiff has not demonstrated reversible error. See id.; see also Mt. Valley
Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 654-55 (2000)
(concluding that “the trial court acted reasonably and within its discretion” by
declining to address a new issue raised for the first time in a motion for
reconsideration where “the error alleged in the motion for reconsideration was
readily apparent” at an earlier stage in the proceedings). All arguments that
the plaintiff raised in her notice of appeal, but has not briefed, are deemed
waived. See In re Estate of King, 149 N.H. 226, 230 (2003).

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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