Black Bear Lodge v. Trillium Corp., 620 A.2d 428 (N.H. 1993). · Go Syfert
Black Bear Lodge v. Trillium Corp., 620 A.2d 428 (N.H. 1993). Cases Citing This Book View Copy Cite
65 citation events (31 in the last 25 years) across 5 distinct courts.
Strongest positive: Mount Prospect Academy, Inc. et al v. Philadelphia Indemnity Insurance Company (nhd, 2026-03-11)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited as authority (rule) Mount Prospect Academy, Inc. et al v. Philadelphia Indemnity Insurance Company
D.N.H. · 2026 · confidence medium
Even more fundamentally, under New Hampshire law “[a]n action for breach of contract . . . accrues when the breach occurs [regardless of] whether any damage then occurred or not.” Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637 (1993) (first alteration in original) (quoting Roberts v. Richard & Sons, Inc., 113 N.H. 154, 156 (1973), superseded by statute on other grounds as stated in Wood v. Greaves, 152 N.H. 228, 232 (2005)); see also Cluff-Landry v. Roman Cath.
cited Cited as authority (rule) Sarah Lampron and Walter Lampron v. Johnson & Johnson and Ethicon, Inc.
D.N.H. · 2020 · confidence medium
Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
cited Cited as authority (rule) Lampron v. Ethicon, Inc.
D.N.H. · 2020 · confidence medium
Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
cited Cited as authority (rule) Pamela Langlois v. Insys Therapeutics, Inc.
D.N.H. · 2019 · confidence medium
Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
cited Cited as authority (rule) Colleen Perry v. Insys Therapeutics, Inc.
D.N.H. · 2019 · confidence medium
Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
discussed Cited as authority (rule) Gregory Gould & a. v. Northern Human Services & a.
N.H. · 2016 · confidence medium
Thus, although application of the discovery rule presents a question of fact, see Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993), the trial court may properly decide the issue on a motion to dismiss if the plaintiffs fail to plead facts supporting application of the discovery rule to their case, see Beane, 160 N.H. at 711-12 (rejecting argument that evidentiary hearing was required to resolve motion to dismiss raising discovery rule issue); Dobe v. Comm’r, N.H.
discussed Cited as authority (rule) Ed's Carpet, Tile, and Hardwood, Inc. v. Marshall Law Office
N.H. · 2016 · confidence medium
Thus, although application of the discovery rule presents a question of fact, see Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993), the trial court may properly decide the issue on a dispositive motion if the plaintiff fails to plead facts supporting application of the discovery rule to a particular case, see Beane, 160 N.H. at 711-12 (rejecting argument that evidentiary hearing was required to resolve motion to dismiss raising discovery rule issue); Dobe v. Comm’r, N.H.
cited Cited as authority (rule) Bourne v. Stewart Title
D.N.H. · 2011 · confidence medium
Trillium Corp., 136 N.H. 635, 637 (1993) (applying § 508:4 to contract claims).
examined Cited as authority (rule) McNamara v. City of Nashua (3×) also: Cited "see"
1st Cir. · 2011 · confidence medium
Co., LLC v. Wyner, 156 N.H. 468 , 937 A.2d 303, 313 (2007) (plaintiff was apprised of injury when bank purchased right to income from future periodic payments for 29 percent of payments’ total value), and Perez v. Pike Indus., Inc., 153 N.H. 158 , 889 A.2d 27, 30-31 (2005) (reasonably diligent plaintiff would have investigated and discovered that the source of his injury was a particular subcontractor), with Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813 , 891 A.2d 477, 487-89 (2005) (plaintiff could not discover that rot in window was due to ineffective preservative), Big League Entm�…
cited Cited as authority (rule) Berthiaume v. Ticor Ins.
D.N.H. · 2010 · confidence medium
Trillium Corp., 136 N.H. 635, 637 (1993)(applying § 508:4 to contract claims).
cited Cited as authority (rule) Archdiocese San Salv. v. FM Inter’l
D.N.H. · 2006 · confidence medium
Trillium Corp., 136 N.H. 635, 638 (1993).
cited Cited as authority (rule) Kelleher v. Marvin Lumber & Cedar Co.
N.H. · 2005 · confidence medium
Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
cited Cited as authority (rule) Wood v. Greaves
N.H. · 2005 · confidence medium
We held in Black Bear Lodge v. Trillium Corporation, 136 N.H. 635, 638 (1993), that according to the plain meaning of RSA 508:4, I, the discovery rule contained therein applies to contract actions.
cited Cited as authority (rule) Coyle v. Battles
N.H. · 2001 · confidence medium
While we have previously held that the “discovery rule” applies to contract claims, see Black Bear Lodge v. Trillium, Corp., 136 N.H. 635, 638 (1993), it does not apply here.
discussed Cited as authority (rule) Fuller Ford v. Ford Motor et al.
D.N.H. · 2001 · confidence medium
Draper v. Brennan, 142 N.H. 780, 785-87 (1998); Conrad v. Hazen, 140 N.H. 249, 250-53 (1995) (discussing the distinction between when a cause of action "arises" and when it "accrues" for limitations purposes); Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637-38 (1993) . 6 I limit my analysis to New Hampshire law because, as discussed later in this Memorandum and Order, I grant Ford's motion to dismiss plaintiffs' ADDCA claims for other reasons.
discussed Cited as authority (rule) West Gate Village Ass'n v. Dubios
N.H. · 2000 · confidence medium
RSA 508:4, I, applies to contract actions, see Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637 , 620 A.2d 428, 429 (1993), and’ states: “Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within-3 years of the act or omission complained of . . . .” In contract actions, the cause of action arises, and the time limit in RSA 508:4 begins to run, at the time of the breach.
discussed Cited as authority (rule) Fothergill v. Seabreeze Condominiums at Hampton Ass'n
N.H. · 1996 · confidence medium
Although this defense frequently appears in motions to dismiss, see, e.g., Glines v. Bruk, 140 N.H. 180, 181 , 664 A.2d 79, 80 (1995); McCollum v. D’Arcy, 138 N.H. 285, 286 , 638 A.2d 797, 798 (1994); Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 636 , 620 A.2d 428, 428 (1993), it occasionally surfaces in summary judgment motions as well, see, e.g., Bronstein v. GZA Geoenvironmental, Inc., 140 N.H. 253, 254 , 665 A.2d 369, 371 (1995); Wolf Investments, Inc. v. Town of Brookfield, 129 N.H. 303, 304 , 529 A.2d 861, 861 (1987); Dover School Committee v. Euler & Littlefield, 121 N.H. 757, 75…
discussed Cited as authority (rule) Bronstein v. GZA GeoEnvironmental, Inc.
N.H. · 1995 · confidence medium
While a party may be able to invoke the discovery rule if the injury is not discovered until a later time, see Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 , 620 A.2d 428, 429-30 (1993), the action arises once there has been a breach.
discussed Cited as authority (rule) City of Portsmouth New Hampshire v. Richard Schlesinger and William Weinstein
1st Cir. · 1995 · confidence medium
To avoid any due process concerns, we explicitly assume a point implicit in Blue Jay Realty, viz. any analysis of this issue must proceed on the express understanding that it is limited to those who had actual and immediate notice of each step in the enactment of the ordinance in question. 7 .Given the plain meaning of the words in RSA 677:2 and :4, Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637-38 , 620 A.2d 428, 429-30 (1993), as to those cases where § 2 cuts off direct review, collateral attacks are likewise extinguished.
discussed Cited as authority (rule) City of Portsmouth v. Richard Schlesinger and William Weinstein
1st Cir. · 1995 · confidence medium
Given the plain meaning of the words in RSA 677:2 and :4, Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637-38 , 620 A.2d 428, 429-30 (1993), as to those cases where § 2 cuts off direct review, collateral attacks are likewise extinguished. 8 .
cited Cited as authority (rule) Greuel v. Burlingame
D.N.H. · 1995 · confidence medium
"Whether the plaintiff did in fact exercise reasonable diligence is a guestion of fact." Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
cited Cited as authority (rule) Sinclair v. Brill
D.N.H. · 1994 · signal: cf. · confidence medium
See French v. Audley, 123 N.H. 476, 479 , 464 A.2d 279, 282 (1983); cf. Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637 , 620 A.2d 428, 429 (1993).
cited Cited as authority (rule) Oropallo v. Churbuck
D.N.H. · 1993 · confidence medium
Trillium Corp., 136 N.H. 635, 638 (1993).
cited Cited "see" Michael L. McLaughlin v. J. Martin McLaughlin
N.H. · 2025 · signal: see · confidence high
See Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993) (citing French, 123 N.H. at 476 ).
discussed Cited "see" Vanz, LLC v. PMD Financial Group, LLC, et al.
D.N.H. · 2019 · signal: see · confidence high
See Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637-38 (1993) (discussing application of “discovery rule” to toll running of statute of limitations until plaintiff, in exercise of reasonable diligence, “should have discovered the injury and its causal relationship to the act or omission complained of”).
cited Cited "see" Mareld Company, Inc. v. New England Telephone and Telegraph Company n/k/a Verizon New England Inc.
D.N.H. · 2018 · signal: see · confidence high
See Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
discussed Cited "see" Lund, et al. v. Citizens
D.N.H. · 1999 · signal: see · confidence high
See Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 637 (1993) (contract actions governed by N.H.
discussed Cited "see" King v. Town of Hanover (2×)
N.H. · 1995 · signal: see · confidence high
See Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 , 620 A.2d 428, 430 (1993).
discussed Cited "see, e.g." Begley v. Windsor Surry Co., et al. (2×)
D.N.H. · 2018 · signal: see also · confidence medium
Aug. 22, 2016) (unpublished opinion); see also Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993).
discussed Cited "see, e.g." Lamprey v. Britton Construction, Inc.
N.H. · 2012 · signal: compare · confidence medium
Compare Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 (1993) (motion to dismiss improperly granted when plaintiff’s allegations did not establish, as a matter of law, that she should have discovered causal connection), with Beane, 160 N.H. at 712 (affirming grant of motion to dismiss notwithstanding allegations that the discovery rule tolled statute of limitations).
discussed Cited "see, e.g." Taylor v. Litteer (2×)
D.N.H. · 1996 · signal: compare · confidence low
Compare Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 , 620 A. 2d 428, 430 (1993) (assuming reasonable diligence in discovery of connection, limitations period for defective construction claim "begins to run only after a plaintiff has discovered the causal connection between . . . injury and . . . act . . . ."), with Conrad, supra, 140 N.H. at 252 , 665 A.2d at 375 (if original injury of sufficiently serious character, common law discovery rule inapplicable), and Rowe, supra, 130 N.H. at 22-23 , 533 A. 2d at 37 7-7 8 (same). 5Despite plaintiff's arguments otherwise, the court finds and…
discussed Cited "see, e.g." Taylor v. Litteer (2×)
D.N.H. · 1996 · signal: compare · confidence low
Compare Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 , 620 A.2d 428, 430 (1993) (assuming reasonable diligence in discovery of connection, limitations period for defective construction claim “begins to run only after a plaintiff has discovered the causal connection between ... injury and ... act_”), with Conrad, supra, 140 N.H. at 252 , 665 A.2d at 375 (if original injury of sufficiently serious character, common law discovery rule inapplicable), and Rowe, supra, 130 N.H. at 22-23 , 533 A.2d at 377-78 (same). (1) The “Awareness” in Grover In Grover, “both [plaintiffs] admit …
discussed Cited "see, e.g." Cummings v. Bartlett (2×)
D.N.H. · 1996 · signal: compare · confidence low
Compare Black Bear Lodge v. Trillium Corp., 136 N.H. 635, 638 , 620 A. 2d 428, 430 (1993) (assuming reasonable diligence in discovery of connection, limitations period for defective construction claim "begins to run only after a plaintiff has discovered the causal connection between . . . injury and . . . act . . . ."), with Conrad, supra 140 N.H. at ___ , 665 A.2d at 375 (if original injury of 6This court of the United States solemnly acknowledges that " [a] federal court sitting in diversity jurisdiction and called upon in that role to apply state law is absolutely bound by a current interpr…
Retrieving the full opinion text from the archive…
The Black Bear Lodge
v.
Trillium Corporation & a.
No. 92-109.
Supreme Court of New Hampshire.
Feb 17, 1993.
620 A.2d 428
Sheehan, Phinney, Bass & Green P.A., of Manchester (James E. Higgins and Robert R. Lucie on the brief, and Mr Lucie orally), for the plaintiff., Edward B. Mulligan, TV, P.C., of Laconia (Edward B. Mulligan, TV on the defendants’ joint brief and orally), for defendant M. Mooney Corporation., Stark a,nd Peltonen, of Manchester (Michael D. Hatem on the defendants’ joint brief and orally), for defendant Samyn & D’Elia Architects, P.A., Evans and Hermann, of Bedford (Robert L. Hermann, Jr. on the defendants’ joint brief), for defendant Trillium Corporation.
Johnson.
Cited by 38 opinions  |  Published
Johnson, J.

The plaintiff, The Black Bear Lodge, a condominium association, appeals the Superior Court’s (O’Neill, J.) order granting the defendants’ motions to dismiss the plaintiff’s action for negligent design and construction and breach of contract and war[*636] ranty. The defendants are Trillium Corporation, Samyn & D’Elia Architects, P.A., and M. Mooney Corporation, designers and builders of the plaintiff’s condominium. The issues on appeal are whether the statute of limitations “discovery rule” found in RSA 508:4, I (Supp. 1992) applies to contract actions, and whether the plaintiff adequately pled reasonable diligence in discovering the causal connection between its injuries and an act or omission of the defendants. We reverse, answering both questions in the affirmative.

The relevant facts are as follows. The defendants completed construction of the plaintiff’s condominium in the fall of 1986. Within a year, leaks appeared in the roof, perimeter walls, and foundation. In July 1991, the plaintiff filed suit against the defendants; the defendants thereafter filed motions to dismiss, arguing that the plaintiff’s action was barred by the applicable statute of limitations. The plaintiff objected to the motions, explaining that “[t]he causes of [the claimed] leaks have not been discovered until recently.” The plaintiff also filed an affidavit, stating:

“Despite our repeated and continuous efforts to discover the cause of the leaks and to involve the developer and the contractor in the solution of this problem, we did not discover until the fall of 1990 that the leaks were caused by insufficient felt underlayment, the basic design of the roof, and the utilization of inadequate methods and materials.”

The superior court granted the defendants’ motions to dismiss. It declared the “discovery rule” inapplicable to contract actions and, finding the plaintiff’s action to be such an action, concluded that it accrued in 1987 and was therefore barred by the three-year statute of limitations. See RSA 508:4, I (Supp. 1992). The court also found that

“[e]ven if the Court were to give the plaintiff the benefit of the discovery rule, the Court finds that the action would have accrued in 1987 with the discovery of the leaks because this is the type of injury which would put the plaintiff on notice that its rights had been violated, Raymond v. Eli Lilly & Co., 117 N.H. 164 (1977). Specifically, a reasonable person should realize that leaks in newly constructed buildings were possibly caused by the parties involved in construction, and further inspection and/or tests should have been pursued by the plaintiff at that time.”

The plaintiff appealed, claiming error in all of the superior court’s findings and rulings.

[*637] We first address the superior court’s ruling that the “discovery rule” does not apply to contract actions. We assume, for the sake of argument only, that the plaintiff’s action was substantively a contract action. The applicable statute of limitations, RSA 508:4, I (Supp. 1992), reads:

“Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.”

(Emphasis added.)

By its terms, nothing in the statute prohibits the applicability of the “discovery rule” to contract actions. See Concord Steam Corp. v. City of Concord, 128 N.H. 724, 729, 519 A.2d 266, 270 (1986) (when language of statute is plain and unambiguous, we construe language according to common and approved usage); see also BLACK’S LAW DICTIONARY 29 (6th ed. 1990) (contract action is personal action). The defendants cite several cases approving such a restriction, but none of them were decided under current RSA 508:4,1 (Supp. 1992). See Antoniou v. Kenick, 124 N.H. 606, 610, 474 A.2d 566, 568 (1984) (interpreting former RSA 508:4, I (1983)); French v. R.S. Audley, Inc., 123 N.H. 476, 479, 464 A.2d 279, 282 (1983) (interpreting RSA 539:8); Roberts v. Richard & Sons, Inc., 113 N.H. 154, 156-57, 304 A.2d 364, 366 (1973) (interpreting former RSA 508:4,1 (1983)). Moreover, neither of the statutes at issue in these cases explicitly adopted the “discovery rule,” as does current RSA 508:4,1 (Supp. 1992). Instead, they each measured the time in which a plaintiff could bring suit from the date “the cause of action accrued.” RSA 539:8; RSA 508:4, I (1983). It was reasonable to interpret this language as limiting the common law “discovery rule” to tort actions because “[a]n action for breach of contract unlike a tort action accrues when the breach occurs whether any damage then occurred or not.” Roberts, 113 N.H. at 156, 304 A.2d at 366.

Current RSA 508:4, I (Supp. 1992), however, does not measure the relevant time period from the date “the cause of action accrued,” but instead explicitly measures it from the date of “the act or[*638] omission complained of.” When applicable under the discovery rule, that date is determined by finding when, in the exercise of reasonable diligence, one should have discovered the injury and its causal relationship to the act or omission complained of. Consequently, we find the cases cited by the superior court and the defendants inapposite, and interpret RSA 508:4,1 (Supp. 1992) according to its plain meaning, finding that the statutory “discovery rule” applies to contract, as well as tort, actions.

We next address whether the superior court properly found that, applying the “discovery rule,” the plaintiff’s action is nonetheless time-barred.

The statute provides that “the [plaintiff’s] action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury [or damage] and its causal relationship to the act or omission complained of.” RSA 508:4 (Supp. 1992). Thus, the three-year time limit begins to run only after a plaintiff has discovered the causal connection between its injury and an act or omission of the defendant, assuming that the plaintiff was reasonably diligent in discovering the connection. Whether the plaintiff did in fact exercise reasonable diligence is a question of fact. See French, supra at 480, 464 A.2d at 282. Although the superior court apparently made a finding that the plaintiff was not reasonably diligent, it was not an appropriate point in these proceedings to do so. In this case, based on this affidavit, a hearing was required to determine whether the plaintiff’s claim, under the statutory discovery rule, should have been allowed. Therefore, we hold the superior court erred in granting the defendants’ motions to dismiss.

Reversed and remanded.

All concurred.