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Analysis On appeal, the plaintiff argues that the trial court erred as a matter of law by raising the statute of frauds sua sponte, and by failing to inform him that “the issue of the Statute of Frauds would be addressed at the final hearing.” The defendant asserts that the trial court had the authority to raise the affirmative defense, citing Exeter Hospital v. Hall, 137 N.H. 397 (1993), and Superior Court Rule 1(d).

The statute of limitations is an affirmative defense that must be raised by the defendant.

Exeter Hospital v. Hall, 137 N.H. 397, 399 (1993); see also Super.

generally Exeter Hospital v. Hall, 137 N.H. 397 (1993).5 In light of the trial court’s decision, we need not, and do not, pass upon the validity of the BLA; as the trial court did, we assume, without deciding, that the BLA is invalid.

Exeter Hospital v. Hall, 137 N.H. 397, 399-400 (1993) (stating that while the procedural rules do not prohibit a trial court judge from raising a limitations defense sua sponte, there is no requirement in the rules that a judge do so either).

The statute of limitations is an affirmative defense that must be pleaded, Exeter Hospital v. Hall, 137 N.H. 397, 399 (1993), and may be waived, see Kalil v. Town of Dummer Zoning Bd.

The trial court has discretion to raise on its own an affirmative defense, such as the statute of limitations or res judicata, and to dismiss a case on that basis.

HCNA had sufficient notice and an opportunity to be heard when it filed its motion for reconsideration.

v. Hall, 137 N.H. 397, 400 (1993); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard).

See, e.g., Keshishian v. CMC Radiologists, 142 N.H. 168, 181, 698 A.2d 1228, 1236 (1997); Exeter Hospital v. Hall, 137 N.H. 397, 399-400, 629 A.2d 88, 89 (1993).

Exeter Hospital v. Hall, 137 N.H. 397, 399, 629 A.2d 88, 89 (1993) (discussing District and Municipal Court Rule 3.10(A), which is identical to Superior Court Rule 28).

Our holding in Exeter Hospital v. Hall, 137 N.H. 397, 629 A.2d 88 (1993), a case involving a district and municipal court rule identical to Rule 28, resolves the issue in the association’s favor.

Exeter Hospital v. Hall, 137 N.H. 397, 399-400, 629 A.2d 88, 89-90 (1993) (holding, under district and municipal court rules, that judge may raise affirmative defense sua sponte as “justice may require”).

The plaintiff correctly notes that the statute of limitations constitutes an affirmative defense, Exeter Hospital v. Hall, 137 N.H. 397, 399, 629 A.2d 88, 89 (1993), and that the defendant bears the burden of proving that it applies in a given case, cf. State v. Soucy, 139 N.H. 349, 353, 653 A.2d 561, 564 (1995) (defendant bears the burden of proving an affirmative defense).