Estate of Bowen S. Downes v. Dennis Greenwood

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0574, Estate of Bowen S. Downes v.
Dennis Greenwood, the court on May 12, 2023, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Dennis Greenwood, appeals an order of the Circuit Court (Boyle, R.,
approved by Subers, J.), following a hearing, awarding judgment on a small
claim complaint to the plaintiff, the Estate of Bowen S. Downes through its
administrator Yvonne Downes. The defendant argues that the trial court erred
when it did not find the plaintiff’s suit barred either: (1) because the Estate had
already been closed by summary administration, see RSA 553:33 (2019); or (2)
because the plaintiff’s claim is barred by the applicable statute of limitations.
We affirm.

The trial court could have found the following facts. Bowen S. Downes
passed away on November 27, 2017. On April 2, 2018, Yvonne Downes, the
decedent’s mother, was appointed as the administrator of the Estate. As
administrator, Ms. Downes filed an Inventory of Fiduciary with the court,
which listed seven items of tangible personal property belonging to the Estate
and their values. For the purposes of this appeal, we will assume, consistent
with the defendant’s arguments, that the Estate was closed by summary
administration on February 20, 2019. See RSA 553:33.

Over a year later, in July 2020, Ms. Downes, representing herself, filed a
small claim complaint in her personal capacity against the defendant. The
complaint alleged that she and her son had been business partners; that, at
the time of her son’s death, the defendant had possession of certain business
property; and that, following her son’s death, the defendant refused to return
the property. The defendant, represented by counsel, filed a response to the
small claim complaint, disputing the claim and requesting a hearing. Ms.
Downes later retained counsel and filed a motion to amend the complaint in
order to substitute the Estate as the plaintiff. The defendant did not object,
and the court granted the motion.

Both parties presented evidence at the hearing in October 2021. The
court admitted the Inventory of Fiduciary as an exhibit. Ms. Downes testified
that she was seeking to recover the value of six of the listed items, which she
claimed were in the possession of the defendant. After both parties had rested,
the defendant, in his closing statement, argued for the first time that the
plaintiff’s claim was barred by the statute of limitations. The court awarded
judgment to the plaintiff. The defendant moved for reconsideration, again
raising the statute of limitations defense and asserting, for the first time, that
the Estate should not be allowed to pursue the claim because it had already
been closed by summary administration. The court denied the motion, and
this appeal followed.

The defendant first argues that the trial court erred when it “permitted
the Estate to initiate any action.” We do not construe this as a challenge to the
trial court’s grant of Ms. Downes’ motion to substitute the Estate as plaintiff;
rather, the defendant claims that the court “abused its discretion and
misapprehended the facts in its Final Order when it permitted the Estate
judgment after it was already closed.” (Emphasis added.) We are not
persuaded.

We will uphold the findings and rulings of the trial court unless they lack
evidentiary support or are legally erroneous. Vincent v. MacLean, 166 N.H.
132, 134 (2014). We defer to the trial court’s judgment on such issues as
resolving conflicts in the testimony, measuring the credibility of witnesses, and
determining the weight to be given evidence. Id.

We conclude that the defendant has not shown that the trial court’s
decision to render judgment in favor of the Estate, despite the fact that the
Estate was closed by summary administration, was unsupported by the
evidence or legally erroneous. In the first instance, the suit was not initially
filed by the Estate. The action was initiated by Ms. Downes in her personal
capacity — after the date on which the defendant asserts that the Estate was
closed. Based on the record before us, the decedent died intestate and there is
no evidence that the decedent had a spouse or any family members other than
his mother and brother. Accordingly, under the intestacy distribution statute,
Ms. Downes was the decedent’s sole heir. See RSA 561:1, II(b) (2019). As the
decedent’s sole heir, Ms. Downes brought this suit to vindicate her property
interest in the decedent’s personal property. See In re Estate of Couture, 166
N.H. 101, 105 (2014) (recognizing that decedent’s heir had “a direct legal or
equitable interest in the decedent’s estate”). We find no error in the court’s
award of judgment to the Estate, which ultimately benefits Ms. Downes — the
original plaintiff, the decedent’s sole heir, and the person who has pursued this
suit in one capacity or another from beginning to end. See Nat’l Marine
Underwriters v. McCormack, 138 N.H. 6, 8-9 (1993); see also RSA 503:2 (2010)
(establishing small claim proceeding as a “simple, speedy, and informal
procedure” for resolving disputes). Under the circumstances presented, this
result does not prejudice the defendant because, whether Ms. Downes pursued
the suit in her personal capacity or as the administrator of the Estate, the
outcome would have been the same. Cf. Nat’l Marine Underwriters, 138 N.H.
at 8-9 (trial court erred when it denied substitution of new plaintiff on the eve

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of trial because substitution would not have prejudiced the defendant by
introducing an entirely new cause of action, calling for substantially different
evidence, or causing surprise and defendant had timely, adequate notice of the
action).

The defendant next argues that the trial court erred when it did not find
the plaintiff’s suit barred by the three-year statute of limitations in RSA 508:4,
I (2010). The plaintiff counters that, under the Circuit Court — District
Division Rules, the defendant was obligated to raise the affirmative defense of
statute of limitations prior to trial. See Dist. Div. R. 3.9(d). The plaintiff
asserts that, because the defendant did not raise his statute of limitations
defense until his closing argument at trial, he waived the defense. In response,
the defendant contends that, because this is a small claim case, he was not
bound by the District Division Rules. Because it is a longstanding common law
rule that a statute of limitations defense may be waived if not timely raised, we
need not resolve the parties’ disagreement as to whether the Circuit Court —
District Division Rules apply in small claim proceedings. We conclude that,
under our common law, the defendant waived his statute of limitations
defense.

The statute of limitations is an affirmative defense, and the defendant
bears the burden of proving that it applies to the plaintiff’s claim. See Riso v.
Riso, 172 N.H. 173, 178 (2019). Our common law establishes that application
of the statute of limitations must be pleaded or otherwise raised prior to trial to
put the plaintiff and the court on notice that the defendant intends to invoke
this affirmative defense. See Yeaton v. Skillings, 100 N.H. 316, 320 (1956);
Moore v. Insurance Co., 64 N.H. 140, 141-42 (1886). The failure to timely raise
a statute of limitations defense may operate to waive that defense. See West
Gate Village Assoc. v. Dubois, 145 N.H. 293, 298 (2000) (“We further recognize
that statutes of limitations may be waived.”); Yeaton, 100 N.H. at 320
(concluding that defendant’s failure to raise statute of limitations defense until
three years after action was initiated constituted waiver). Whether a party has
waived an affirmative defense is a question of fact. See So. Willow Properties v.
Burlington Coat Factory of N.H., 159 N.H. 494, 499 (2009) (“Waiver is a
question of fact . . . .”); cf. Riso, 172 N.H. at 176-77 (whether defendant
forfeited statute of limitations defense presented a question of fact, which we
review for clear error).

The trial court did not make an explicit ruling with respect to the
defendant’s statute of limitations argument. Accordingly, it is not clear
whether the court rejected the argument on the merits, or found that the
defendant had waived the defense. However, when a trial court has not
addressed a factual issue, but the record reveals that a reasonable fact finder
necessarily would reach a certain conclusion, we may decide the issue as a
matter of law. See Simpson v. Young, 153 N.H. 471, 474 (2006).

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Here, given the defendant’s conduct, a reasonable fact finder would necessarily
conclude that the defendant waived any statute of limitations defense. The
defendant raised his statute of limitations defense for the first time in his
closing argument — after both parties had rested. Moreover, by waiting to
raise this defense, the defendant deprived the plaintiff of the opportunity to
present any evidence pertaining to the statute of limitations. See Riso, 172
N.H. at 178-79 (explaining that defendant must do more than simply put
plaintiff on notice that he is asserting statute of limitations defense before
plaintiff is required to produce rebuttal evidence). Accordingly, we conclude
that the defendant waived his statute of limitations defense. See Simpson, 153
N.H. at 474; cf. Riso, 172 N.H. at 179-81 (concluding that defendant forfeited
statute of limitations defense — after initially raising the defense in his answer
— by failing to press it in pre-trial litigation, at trial, or in first motion to
reconsider).

In sum, we conclude that the court did not err when it allowed Ms.
Downes to initiate and litigate this suit in her various capacities, or when it
awarded judgment to the plaintiff, and that the defendant waived his statute of
limitations defense. Accordingly, the trial court did not err when it allowed the
suit to proceed and awarded judgment to the plaintiff.

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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