Roberts v. General Motors Corp. , 140 N.H. 723 ( 1996 )

BROCK, C.J.

The issue in this interlocutory appeal is whether a plaintiff may rely upon the statute of limitations saving statute, RSA 508:10 (1983), more than once, when judgment is rendered against the plaintiff and his right of action is not barred by the prior judgment. We hold that he may. Accordingly, we affirm the trial court’s denial of the defendant’s motion to dismiss on statute of limitations grounds, and remand.

The plaintiff, Dennis S. Roberts, originally filed suit in 1988 against the defendant, General Motors Corporation (GM), asserting multiple claims based on GM’s decision in 1987 not to award the plaintiff a Chevrolet dealership. The defendant never argued that the original suit failed to comply with the statute of limitations. In 1992, after the trial court granted GM’s motion for summary judgment on all but the claim for breach of the duty of good faith and fair dealing, Roberts followed the suggestion of the trial judge and accepted a voluntary nonsuit on that remaining claim while he pursued an appeal of the claims on which summary judgment had been entered against him. On October 12,1993, within the one year permitted by RSA 508:10, Roberts executed and served a second writ. However, he never filed that writ with the court. Over one year later, after this court affirmed the grant of partial summary judgment against him, Roberts v. General Motors Corp., 138 N.H. 532, 643 A.2d 956 (1994) (Roberts I), the plaintiff filed a motion for leave for late entry of the second writ. The trial court denied the motion, finding no accident, mistake, or misfortune to excuse the failure to file.

Relying on RSA 508:10 for a second time, Roberts brought and filed a third suit on January 24, 1995, alleging the same claim for breach of the duty of good faith and fair dealing. The defendant moved to dismiss, arguing that both the original limitations period and the grace period allowed under the saving statute had expired; GM argued that the plaintiff had no right to invoke the saving statute a second time. Ruling that successive invocation of RSA 508:10 is permissible, depending on the facts of a particular case, the Superior Court (McHugh, J.) denied GM’s motion “[b]ased on all of the procedural facts and circumstances which this case presents.” GM then filed this interlocutory appeal. See SUP. CT. R. 8.

The saving statute provides as follows:

Second suit. If judgment is rendered against the plaintiff in an action brought within the time limited therefor, or upon a writ of error thereon, and the right of action is not barred by the judgment, a new action may be brought thereon in one year after the judgment.

RSA 508:10. The saving statute is “designed to insure a diligent suitor the right to a hearing in court until he reaches a judgment on the merits.” Berg v. Kelley, 134 N.H. 255, 257, 590 A.2d 621, 622 (1991) (quotation omitted). Its broad and liberal purpose “is not to be frittered away by any narrow construction.” Id, (quotation omitted). “The statute benefits suitors who are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them with a cause of action, yet undetermined.” Id. (quotation omitted).

The test was well articulated recently in Berg:

Essentially, RSA 508:10 serves to permit an action to be brought after the general limitation has run (RSA 508:4), where a prior action, seasonably brought, should be dismissed for reasons not barring the right of action or determining it upon its merits. The test of RSA 508:10 is whether the right of action is, or is not, barred by the first judgment.

Id. (quotations and brackets omitted). This is the sole test. Barton v. Barton, 125 N.H. 433, 434, 480 A.2d 199, 200 (1984).

The test is plainly not whether the prior judgment of dismissal was based on any mistake committed by the plaintiff or his counsel: “A party is protected although the technical judgment against him may be due to his own carelessness or fault.” Milford Quarry &c. Co. v. Railroad, 78 N.H. 176, 178, 97 A. 982, 988 (1916) (quotation omitted). This court in Milford Quarry rejected a claim, as the defendant makes here, that the plaintiff’s fault “in getting into a situation where [he was] obliged or thought it wise to take a voluntary nonsuit, debars [him] from the new action.” Id. In Brady v. Duran, 119 N.H. 467, 403 A.2d 416 (1979), we permitted the plaintiff to pursue a new writ under the saving statute, even though we had previously upheld the trial court’s denial of a motion for late entry of a writ which, similar to the instant case, was based upon the “inexcusable neglect” of the plaintiff’s attorney. Brady v. Duran, 117 N.H. 275, 277, 372 A.2d 283, 285 (1977); see also Carveth v. Latham, 110 N.H. 232, 234, 265 A.2d 1, 2-3 (1970) (dismissal for failure to prosecute is not adjudication on the merits for purposes of RSA 508:10).

Thus, the “diligent suitor” whom the saving statute seeks to protect, see Berg, 134 N.H. at 257, 590 A.2d at 622, is the plaintiff who has not slept on his rights; it does not require diligence in the sense of never making mistakes — even “inexcusable” mistakes — in lawyering. Indeed, the purpose of the statute of limitations itself “is to insure that defendants receive timely notice of actions against them.” Dupuis v. Smith Properties, Inc., 114 N.H. 625, 629, 325 A.2d 781, 783 (1974) (emphasis added). Here, as in Dupuis, the defendant was on notice of the charges against it from the day the original suit was filed. GM knew it needed to preserve its evidence and marshal its witnesses. Nor did it ever have reason to believe the plaintiff was dropping the action, as might occur in cases of failure to prosecute. Cf. Carveth, 110 N.H. at 234, 265 A.2d at 2-3 (even where action is dismissed for plaintiff’s failure to prosecute, the saving statute gives plaintiff an opportunity to file a second lawsuit). This action was virtually always on the active docket.

The ultimate question in this case is what RSA 508:10 means by the phrase “the time limited therefor.” GM asks us to hold that it means the time originally set in the statute cOmitations-for filing the first writ. The plaintiff’s brief does not directly address this question but implies that it merely means the writ was not untimely, taking into account all applicable legal provisions. We agree with the latter interpretation. We examine statutes not in isolation, but in the context of the overall statutory scheme. Opinion of the Justices (Solid Waste Disposal), 135 N.H. 543, 545, 608 A.2d 870, 872 (1992). “[A]ll statutes upon the same subject-matter are to be considered in interpreting any one of them.” Barksdale v. Town of Epsom, 136 N.H. 511, 515-16, 618 A.2d 814, 817 (1992) (quotation omitted). Thus, in construing RSA 508:10, we determine “the time limited” for any action after considering all applicable statutes and rules. In addition, when construing the meaning of a statute, “where possible, we ascribe the plain and ordinary meanings to words used.” Appeal of Astro Spectacular, 138 N.H. 298, 300, 639 A.2d 249, 250 (1994) (quotation omitted).

On its face, RSA 508:10 does not cojitain-anv_drcumscribing language that might require a court to interpret “the time limited therefor” as referring to timeUnessumder-only^-one-statute, the statute of limitations. On the contrary,-, if the saving-statute properly saved a second writ, then that, writ has_been — timely initiated; the second action has been brought “within the time limited” for it, under the plain meaning of the,statutory words. Moreover, the statute speaks of “an action brought within the time limited therefor.” The phrase “time limited therefor” thus modifies “an action.” An action is a lawsuit, not a cause of action or a legal claim. See MBC, Inc. v. Engel, 119 N.H. 8, 11, 397 A.2d 636, 638 (1979). Here, the second writ initiated an action, which was brought within the time permitted for it by law: in this ease, RSÁ 508:10 gave Roberts one year from the prior nonsuit to initiate his second action. If the legislature had intended to limit RSA 508:10 to only one application, it could have stated such an intention clearly, as has been done in other States. See Tenn. Stat. Ann. § 28-1-105 (Supp. 1995).

GM argues that this interpretation will lead to actions being brought, dismissed, and saved under the saving statute, over and over, ad infinitum. We reject this argument, as we rejected a similar slippery slope argument in Desaulnier v. Manchester School District, 140 N.H. 336, 339-40, 667 A.2d 1880, 1382 (1995). The trial court has ample authority to guarantee that such abuses do not occur. The court can, for example, deny a plaintiff’s motion for voluntary nonsuit without prejudice; the court has discretion to grant a nonsuit only with prejudice, if it would be “manifestly unjust” to the defendant to grant plaintiff’s request. Total Service, Inc. v. Promotional Printers, Inc., 129 N.H. 266, 268, 525 A.2d 273, 275 (1987) (quotation omitted). The court might so decide if the plaintiff, by his act or agreement, has pursued the suit or committed himself to such an extent that a nonsuit would, be unfair to the defendant, see id. at 268-69, 525 A.2d at 275-76; 5 R. WIEBUSCH, NEW HAMPSHIRE PRACTICE, CIVIL PRACTICE AND PROCEDURE §§ 1069,1071, 1075 (1984). The court also has the power to dismiss an action with prejudice where the plaintiff has not complied with court rules. 5 WIEBUSCH, supra § 1416 (Supp. 1994); Foster v. Bedell, 136 N.H. 728, 730, 621 A.2d 936, 938, cert. denied, 114 S. Ct. 133 (1993). The trial court’s discretion in dismissing cases with or without prejudice, or in denying a plaintiff’s motion for voluntary nonsuit, is sufficient to prevent an infinitude of successive actions being filed.

Here, the successive suits were not brought for purposes of hindrance or delay, or otherwise to gain a strategic advantage for the plaintiff. Nor was GM prejudiced by the lapse of time or otherwise. Roberts’ initial action was timely in the first instance and has been under litigation ever since. GM has been on notice of the allegations against it, and of its need to secure and preserve evidence to prepare its defense. The total amount of time that has transpired between initial writ and the potential retrial is eomparabie to that in many other lawsuits: if we had reversed in Roberts I, the retrial would have taken place some time after June 1994, which was only seven months before the writ which GM is now asking us to order dismissed as stale. Indeed, it was our affirmance in Roberts I that triggered the scheduling conference where plaintiff’s counsel realized he had failed to file the writ. Thus, the bulk of the alleged staleness in this case appears to have resulted from ordinary pretrial activities (discovery and cross-motions for summary judgment) and the initial appeal process, not from Roberts’ attempt to use the saving statute twice for two different reasons.

Even the defendant concedes that the policy of the saving statute would allow a new writ after each of the dismissals separately. GM simply argues that the two applications of the saving statute may not be joined together. We disagree. If each application of the saving statute was fair, reasonable, and thus appropriate under the plain meaning of the statute, we see no reason to read into the statute a one-use limitation that the legislature has not enacted.

GM argues that, even if we reject its argument that a plaintiff should never be able to use RSA 508:10 a second time, we should adopt a standard for when RSA 508:10 may be applied that is at least as exacting as the standard for granting a motion for late filing of the writ, i.e., “accident, mistake, or misfortune.” We disagree. If GM were correct on this point, then there would be no need for the saving statute at all: if the trial court had found “accident, mistake, or misfortune,” it would presumably have granted the motion for late filing of the writ. Cf. Brady, 117 N.H. at 276, 372 A.2d at 285. The saving statute would never come into play unless the court had previously found no ground for late filing and dismissed the action.

GM has cited a number of cases in other States refusing to allow a second application of the saving statute. But see Trull v. Seaboard Air Line Ry., 66 S.E. 586 (N.C. 1909) (permitting multiple applications of the saving statute). As noted by Roberts at oral argument, however, our statute does not clearly indicate a legislative intent to permit only one application of the saving statute, the way some other state statutes do. See, e.g., Ga. Code Ann. § 9-2-6 (Supp. 1995) (“[I]f the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.”); Tenn. Code Ann. § 28-1-105 (instead of the New Hampshire language, “time limited therefor,” the Tennessee saving statute saves an action “commenced within the time limited by rule or statute of limitations”).

More importantly, however, our State has a different legal tradition than other States, even those States whose saving statutes are not very different than our own. Since the days of Chief Justice Doe in the late nineteenth century, New Hampshire procedure has focused on “what justice require[s],” not on “strict precision in form.” In re Proposed Rules of Civil Procedure, 139 N.H. 512, 515-16, 659 A.2d 420, 422 (1995). That is why we make every effort to reach a judgment on the merits, to achieve the ends of justice unobstructed by imaginary barriers of form. Id. at 516, 659 A.2d at 422; Walker v. Walker, 63 N.H. 321, 328 (1885).

In the instant case, we will continue to focus on “what justice requires” and not mere “form.” We will apply our saving statute “to insure a diligent suitor the right to a hearing in court until he reaches a judgment on the merits,” Berg, 134 N.H. at 257, 590 A.2d at 622 (quotation omitted), despite the formal error of plaintiff’s counsel.

Affirmed and remanded.

JOHNSON and BRODERICK, JJ., did not sit; HORTON, J., concurred; THAYER, J., dissented.