Real Estate

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

No. 2018-0268
May 10, 2019


  • Whether a defendant may forfeit his right to a statute of limitations defense through his conduct in litigation

The sole issue on appeal was whether a defendant may forfeit his right to a statute of limitations defense through his conduct in litigation.

The Court noted the relevant facts as follows. Petitioner and respondent are siblings. This litigation commenced following the death of their mother on Mach 10, 2019. Also at issue in the litigation were two checks dated March 6, 2012, and March 7, 2012 both drafted payable to the respondent, and signed by him, from the late-mother’s checking account, which were processed for payment on March 15, 2012. The underlying action, a petition to partition, was filed on June 8, 2016, the respondent filed an answer on August 29, 2016, and asserted a statute of limitations affirmative defense. The court noted that the respondent was not a credible witness, and there was no evidence that his mother had agreed him to pay the funds subject to the drafts or authorized him to sign, and that the petitioners learned of the checks well over a year after March 2012 during discovery in separate litigation. Based on this, the trial court ordered that the proceeds from the sale of the mother’s home to be distributed to the mother’s children, excluding the respondent, according to their respective ownership percentages. Following the order, on February 20, 2018, both parties filed motions to reconsider and challenged the initial analysis. The respondent did not pursue the statute of limitations defense in his motion to reconsider. The trial court then made a finding of conversion, determining that the respondent had wrongfully converted the funds of his mother’s estate when he wrote and delivered the two checks. The court then allowed the respondent to receive his ownership share, but it was to be applied against the amount the court found the respondent owed the estate (the total of the checks). On March 1, 2018, nearly two years after the petition was filed, and following the court ruling on the initial motion to reconsider, the respondent filed a second motion to consider. In that second motion to reconsider, the respondent raised for the first time, the statute of limitations defense originally raised in his answer. The trial court denied the motion. The trial court concluded that by actively participating in the litigation, and failing to present his limitations defense until a post-trial motion to reconsider, the respondent had forfeited his right to the defense. This appeal followed.

The Court revewed the trial court ruling for clear error. The Court observed that while generally trial court rulings on motions to reconsider are subject to a discretionary review, waiver is a question of fact which is reviewed for clear error.

The Court noted that where a party’s action or inaction is deemed to incur the consequence of loss of a right, or as here, a defense, the term forfeiture is more appropriate. The Court held that a party may forfeit a statute of limitations through his conduct in litigation.


William Gramer, Devine, Millimet & Branch, Manchester, for the petitioners. Jan Myskowski, Concord, for the respondent. .