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Kelleher v. Lumber12/15/2005
ently protect against rot and decay"; and (2) the pre-finish "lasts four to five times longer than paint" (the catalog warranty).
The plaintiff's writ asserted claims based upon the fifteen-year warranty but failed to identify the alleged warranty contained in the defendant's catalog. On June 23, 2000, based upon the fifteen-year warranty, the defendant moved to dismiss all of the plaintiff's claims, asserting they were barred by the applicable statutes of limitations and the economic loss doctrine. Specifically, with respect to the Magnuson-Moss and breach of express warranty claims, Marvin argued that the fifteen-year warranty was insufficient to trigger the future performance exception to the applicable statute of limitations, and, therefore, these claims were untimely. See RSA 382-A:2-725(1) (1994). Based upon the fifteen-year warranty, the Superior Court (Groff, J.) denied the defendant's motion to dismiss the breach of express warranty claim, but dismissed the Magnuson-Moss claim because the fifteen-year warranty did not comply with the Magnuson-Moss Act's requirement that it be in writing. The strict liability claim also survived the motion to dismiss.
By order dated September 19, 2000, the trial court granted the plaintiff's motion to amend the writ, which ultimately resulted in both the Magnuson-Moss and breach of express warranty claims being based upon the written catalog warranty rather than the fifteen-year warranty. The defendant then moved for summary judgment, reasserting that the plaintiff's claims were untimely and, therefore, barred as a matter of law. With respect to the strict liability claim, the defendant asserted that the plaintiff knew that one of the windows contained rot as early as 1996, and, therefore, even if the discovery rule exception to RSA 508:4, I (1997) applied, the plaintiff still failed to timely file this claim. Similarly, it argued that pursuant to RSA 382-A:2-725, the statute of limitations applicable to the Magnuson-Moss and breach of express warranty claims, the plaintiff was required to file his claim within four years of delivery of the windows. The defendant also argued that the catalog warranty was not sufficiently explicit to invoke the future performance exception and, therefore, failed to trigger the discovery rule exception encompassed by RSA 382-A:2-725. On April 5, 2001, the trial court denied the defendant's summary judgment motion.
In October 2001, the court conducted a six-day jury trial. By way of a special verdict form, the jury returned a partial verdict for the plaintiff on the strict liability count, awarding damages in the amount of $53,676.00. However, the court declared a mistrial as to the Magnuson-Moss and breach of express warranty claims when the jury was unable to reach a verdict on them. The defendant's subsequent post-trial motion to set aside the verdict, motion for a new trial, motion to reduce damages, and motions for a directed verdict and judgment notwithstanding the verdict (JNOV) were denied.
The defendant appealed the jury verdict, arguing the trial court erred in: (1) determining the plaintiff's claims were timely and did not violate the applicable statute of limitations; (2) declining to determine that the catalog warranty was insufficient, as a matter of law, to trigger the future performance exception of RSA 382-A:2-725; (3) allowing the plaintiff to simultaneously maintain both the strict liability claim and the Magnuson-Moss claim; (4) denying its motion to set aside the verdict on the strict liability claim; (5) denying its motion in limine and admitting statements made by Marvin's agents in connection with another case as statements of a party opponent; (6) failing to properly instruct
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