Randall v. Laconia, NH

Filing

OPINION issued by Michael Boudin, Appellate Judge; Jeffrey R. Howard, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [11-1412]

Case: 11-1412

Document: 00116374139

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Date Filed: 05/08/2012

Entry ID: 5639481

United States Court of Appeals
For the First Circuit
No. 11-1412
JAMESON C. RANDALL,
Plaintiff, Appellant,
v.
LACONIA, NH,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. Magistrate Judge]

Before
Boudin, Howard, and Thompson,
Circuit Judges.

Christopher J. Seufert and Seufert Professional Association
for appellant.
Robert C. Dewhirst and Devine, Millimet & Branch, P.A. for
appellee.

May 8, 2012

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THOMPSON, Circuit Judge.

Entry ID: 5639481

Federal law requires home

sellers to alert potential home buyers to the presence of leadbased

paint

hazards.

The

City

of

Laconia,

New

Hampshire

sidestepped this requirement when it sold Jameson Randall his
house.

Some years later, after learning that lead-based paint was

present in his home, Randall filed suit.
whether his lawsuit is time-barred.

The sole question is

We agree with the district

court that it is, and therefore affirm.
BACKGROUND
In 1998, the appellee, the City of Laconia (the "City" or
"Laconia"), purchased a house located at 192 Elm Street in Laconia
(the "property" or "home"). The property was an older house, built
before 1978.

The City purchased the property, which at the time

was a group home, to provide extra storage and parking for the
adjacent branch of the Laconia Public Library (the "Library").

In

connection with the transaction, the seller turned over a "Lead
Paint Inspection Report," which detailed the results of a 1996
inspection performed by Alpha Lead Consultants, Inc. (the "Alpha
report").

The Alpha report indicated that lead-based paint was

present in the home.

After the purchase, the Library maintained a

copy of the Alpha report in its files.
Some years later the City decided to sell the property
and in 2003, the appellant, Jameson Randall, contracted to purchase
it.

When Randall signed the purchase and sale agreement he

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received a blank, pre-printed, standard lead-based paint disclosure
form titled "Disclosure of Information on Lead-Based Paint and
Lead-Based
form").

Paint

Hazards

for

Housing

Sales"

(the

"disclosure

The disclosure form included a section titled "Seller's

Disclosure," in which the seller (the City) was to indicate whether
it had any knowledge of lead-based paint hazards1 in the home and
whether it had any reports or records pertaining to the same.

The

disclosure form also provided for a "Purchaser's Acknowledgment"
that included an acknowledgment that the buyer (Randall) had a tenday

window

inspection.

in

which

to

conduct

a

lead-based

paint

hazard

Randall and his buyer's agent signed the blank

disclosure form.

The buyer's agent then informed Randall that the

City would complete the disclosure form later.

However, the City

never completed the form nor did it turn over the Alpha report.2
Randall opted not to have his own inspection performed.3

1

The disclosure form and relevant statute use the terms
"lead-based paint" and "lead-based paint hazards" in conjunction.
For simplicity's sake, we will just say "lead-based paint hazards."
2

It is not entirely clear why the City did not complete the
disclosure form or divulge the Alpha report, though there is some
suggestion that the Alpha report might have been housed in a
separate Library file as opposed to in a City file. In any event,
there is no indication that the omissions were intentional and
Randall does not allege any fraudulent conduct on the part of the
City.
3

Randall says he thought there was no need for an inspection
because his wife, during a tour of the property, was told by a
Library employee that any lead-based paint hazard issues would have
been taken care of when the former owner, the group home, applied
for licensing.
The City disputes that the employee made this
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Despite not having received the completed disclosure form
from the City, Randall went ahead and closed on the property,
taking title on July 22, 2003.
his wife and two daughters.
a son.

He then moved into the home with

In 2006, the couple had a third child,

In 2008, tests taken at the son's two-year physical

revealed an elevated blood lead level.

As a result, the state of

New Hampshire sent a representative to the property to perform an
inspection for lead.

The inspection (the results of which were

given to Randall in an October 13, 2008 letter) revealed lead-based
paint hazards in the home.

Elimination or control of the hazards

was recommended.
On February 9, 2010 - approximately six and one-half
years after he purchased the property - Randall filed this lawsuit.
The sole count in the complaint alleged that the City had violated
42 U.S.C. § 4852d, which requires the disclosure of lead-based
paint hazards in connection with the sale of homes built before
1978.

Though at the time of filing suit Randall had not had any

removal or abatement of the lead-based paint performed, he alleged
that he had received an estimate of approximately $126,000 to
perform the work and that he would not have purchased the home if
he had known about the hazards.

As part of the discovery process,

Randall propounded a request for document production on the City.

remark.
dispute.

It is not necessary for us to resolve this factual
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The City responded on May 28, 2010 and one of the documents that it
turned over was the Alpha report.

This was the first time Randall

had seen the report.
A few months later, the City moved for summary judgment,
alleging

that

Randall's

cause

of

action

was

barred

applicable three-year state statute of limitations.

by

the

The City's

position was that Randall's cause of action accrued when he took
title to the property on July 22, 2003 and therefore his suit,
filed six and one-half years later, came too late.

The district

court agreed and granted summary judgment in favor of the City.
Randall appealed.
ANALYSIS
We review a grant of summary judgment on statute of
limitations grounds de novo, construing the record in the light
most favorable to the non-movant. See Montalvo v. Gonzalez-Amparo,
587 F.3d 43, 46 (1st Cir. 2009).

We affirm if "there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law."

Fed. R. Civ. P. 56(a).

i. Residential Lead-Based Paint Hazard Reduction Act
Randall filed suit under the Residential Lead-Based Paint
Hazard Reduction Act (the "Act"), 42 U.S.C. §§ 4851-4856, and in
particular under § 4852d, which allows for a private cause of
action for three times the amount of any damages incurred by the
buyer, id. § 4852d(b)(3). The Act provides for the promulgation of

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regulations that require a seller to "disclose to the purchaser .
. . the presence of any known lead-based paint, or any known leadbased paint hazards, in such housing and provide to the purchaser
. . . any lead hazard evaluation report available to the seller."
Id. § 4852d(a)(1)(B).

Such regulations were promulgated.

See 24

C.F.R. § 35.88(a) (Housing and Urban Development); 40 C.F.R. §
745.113(a) (Environmental Protection Agency).
The City does not attempt to argue that it met these
requirements, nor does it appear that it truthfully could make this
argument.

It is undisputed that prior to selling Randall the

property the City did not complete the disclosure form, turn over
the Alpha report, or otherwise inform Randall about the lead-based
paint hazards in the home. The only question is whether the City's
non-compliance should be excused on timeliness-of-suit grounds.
ii. Applicable Statute of Limitations
42 U.S.C. § 4852d does not contain a limitations period
and therefore a question below was what limitations period applied.
There was not much debate.

The City argued that the New Hampshire

three-year statute of limitations for personal actions governed,
Randall did not disagree, and the district court followed suit
applying the state statute.

See Randall v. City of Laconia, No.

10-cv-50-LM, 2011 WL 1085679, at *1-2 (D.N.H. Mar. 24, 2011)
(applying N.H. Rev. Stat. Ann. § 508:4).

This approach is in

accord with our practice of applying "the most analogous statute of

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limitations in the state where the action was brought" when a
federal statute does not include a statute of limitations.
Greenwood ex rel. Estate of Greenwood v. N.H. Pub. Utils. Comm'n,
527 F.3d 8, 13 (1st Cir. 2008) (citing Wilson v. Garcia, 471 U.S.
261, 266 (1985)).
Now, for the first time, Randall asserts that instead of
looking to the three-year New Hampshire limitations statute, the
district court should have applied the federal four-year catch-all
statute of limitations for civil actions.

See 28 U.S.C. § 1658(a)

(stating that, "[e]xcept as otherwise provided by law, a civil
action arising under an Act of Congress . . . may not be commenced
later than 4 years after the cause of action accrues").

Randall

admits that he would fare no better under a four-year, as opposed
to a three-year, limitations period should we agree with the
district court that his cause of action accrued when he purchased
the property (six and one-half years before filing suit).

Perhaps

for this reason, Randall only briefly raises this issue in a
footnote and provides no supporting argumentation. His perfunctory
treatment, as well as his raising this argument for the first time
on appeal, waives the issue. See Farris v. Shinseki, 660 F.3d 557,
562 n.5 (1st Cir. 2011) (declining to consider an issue that was
"never raised before the district court, nor briefed or argued" on
appeal).

Consequently we need not get into the merits of this

particular statute of limitations debate.

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We assume for purposes

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of this decision that the three-year New Hampshire limitations
period applies to Randall's action.
iii. The Separate Cause of Action Argument
Before we go any further, we wish to dispose of an
argument

of

Randall's.

It

is

a

meritless

argument

that

unfortunately for Randall permeates his entire position on appeal.
In a nutshell Randall characterizes the City's failure to turn over
the Alpha report as a separate and distinct violation from the
City's other alleged violations of the Act (e.g., not completing
the disclosure form, not providing a lead information pamphlet, not
including a lead warning statement in the sales contract). And, in
Randall's mind, each such violation is its own cause of action
complete with its own statute of limitations.

So, while he now

concedes that all of the City's "other" violations are barred by
the statute of limitations, Randall argues that his cause of action
for the City's failure to turn over the Alpha report survives.
Relying on the discovery rule, Randall's stance is that accrual did
not occur until May 2010 when he learned that the Alpha report
existed after the City turned it over in discovery. Randall claims
he could not have discovered the factual basis for his claim until
this time.
As we said though, this argument is founded on a faulty
thesis, namely that the City's failure to turn over the Alpha
report

is

a

stand-alone

violation

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of

the

Act

with

its

own

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We have found no support for this position,

nor does Randall point us to any.

Perhaps the closest he comes is

to reference Smith v. Coldwell Banker Real Estate Services, Inc.,
a district court case out of Connecticut, which Randall claims
stands

for

cumulative
distinct.

the
and

proposition
each

that

requirement

violations
of

the

Act

of

the

Act

are

is

separate

and

See 122 F. Supp. 2d 267 (D. Conn. 2000).

not see any such language in Smith.

However, we do

The only arguably comparable

point in that case is when the court expressed an unwillingness to
accept the home seller's argument that it had a "substantial
compliance" defense because it met some, though not all, of the
Act's requirements.

See id. at 272-73.

But we decline to

speculate as to whether this point is what Randall is attempting to
rely on.
Moreover, we do not disagree that the Act places multiple
requirements on a seller as far as what actions must be taken
(e.g., provide a lead hazard information pamphlet and permit a tenday inspection period) and what disclosures must be made (e.g.,
disclose the presence of lead-based paint hazards and hand over any
evaluation reports).

See 42 U.S.C. § 4852d(a)(1)(A)-(C).

That

being said, Randall has not made a strong case for treating a
seller's non-conformance with each of the Act's requirements as
separate causes of action.

He has not offered up any supporting

case

conduct

law,

endeavored

to

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any

statutory

construction

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analysis, or provided any analogous examples of courts parsing out
the requirements of other statutes in such a manner.

As a result,

we decline Randall's invitation to consider the City's failure to
comply with the Act's various requirements as giving rise to
multiple causes of action.

We must now determine when Randall's

cause of action (his single cause of action) accrued.
iv. Accrual
While

we

are

utilizing

New

Hampshire

law

for

the

applicable statute of limitations, the date of accrual is a federal
law question.

See Gorelik v. Costin, 605 F.3d 118, 121-22 (1st

Cir. 2010); Greenwood ex rel. Estate of Greenwood, 527 F.3d at 14.
Though we have not had occasion to decide the accrual particulars
for a 42 U.S.C. § 4852d

action, we have applied the following

parameters in the context of other statutes: (1) explaining that a
Federal Tort Claims Act "claim generally accrues at the time of
injury" unless, in certain situations, "the injury itself or its
cause is not readily apparent," Donahue v. United States, 634 F.3d
615, 623 (1st Cir. 2011); (2) finding that, in an action filed
under

the

Declaratory

Judgment

Act

and

the

Public

Utility

Regulatory Policies Act, "[f]ederal law incorporates 'the standard
rule that [accrual occurs] when the plaintiff has a complete and
present cause of action,'"

Greenwood ex rel. Estate of Greenwood,

527 F.3d at 14 (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)
(alteration in original) (internal quotation marks omitted)); (3)

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holding that Section 1983 actions accrue "'when the plaintiff
knows, or has reason to know of the injury on which the action is
based,'" Gorelik, 605 F.3d at 122; and (4) stating that in certain
Employee

Retirement

Income

Security

Act

suits

"'it

is

the

[challenged employment] decision and the participant's discovery of
this decision that dictates accrual,'" Edes v. Verizon Commc'ns,
Inc., 417 F.3d 133, 139 (1st Cir. 2005)(alteration in original).
Our take-away from these cases is that causes of action
typically accrue when the aggrieved party suffers his injury
(absent application of a discovery rule, which we will get into
later).

At the time of injury, the potential plaintiff has a

present and complete cause of action and can sue.

What this means

for Randall is that his cause of action accrued on July 22, 2003,
the closing date.
A violation of the Act occurs when the seller fails to
make the necessary disclosures.

See Mason ex rel. Heiser v.

Morrisette, 403 F.3d 28, 31 (1st Cir. 2005).

This reading is

consistent with the purpose of the Act's disclosure requirements,
which is
to provide the purchaser . . . with notice that there
could be a lead-based paint hazard present in the subject
premises, and the opportunity to either decline to enter
into a contract regarding the premises or proceed forward
with the transaction in the face of the knowledge that a
lead-based paint hazard could be present.
Id. In keeping with this goal, the Act logically requires that the
seller

take

the

necessary

actions
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and

make

the

requisite

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disclosures "before the purchaser . . . is obligated under any
contract to purchase . . . the housing."
(emphasis added).

42 U.S.C. § 4852d(a)(1)

Therefore the City was required to comply with

the Act's requirements - provide the information pamphlet, allow
the inspection period, disclose the existence of lead-based paint
hazards, relinquish any evaluation reports - prior to July 22,
2003, the date on which closing occurred. Consequently, as of that
date the City was one-hundred percent non-compliant and Randall had
a complete and present cause of action. When he signed the closing
documents, without the City's having complied with the Act, he was
injured.

Randall could have filed suit, and potentially obtained

relief, at that time.

Our conclusion: Randall's cause of action

against the City accrued on July 22, 2003 unless he is saved by the
application of a discovery rule.
v. The Discovery Rule
As a general proposition, a discovery rule "allow[s] a
claim

'to

accrue

when

the

litigant

first

knows

or

with

due

diligence should know facts that will form the basis for an
action."

Merck & Co., Inc. v. Reynolds, 130 S.Ct. 1784, 1794

(2010) (citing 2 C. Corman, Limitation of Actions § 11.1.1, p. 134
(1991 & Supp. 1993)).

To the extent that such a rule is applicable

to this case, it does not help Randall.4

4

Randall's deposition

A brief clarification on why we are being equivocal on this
point.
The parties and the district court assumed the
applicability of New Hampshire's discovery rule. See N.H. Rev.
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testimony strongly suggests that he had actual knowledge that the
City had not returned the disclosure form prior to closing.

Even

generously assuming this not to be the case, it is clear that at
the very least, in the exercise of due diligence, Randall should
have known. He had previously signed the blank disclosure form and
been told by his agent that the City would complete it.
never did.

The City

Nonetheless, Randall did not follow-up with his agent

to see why he had not received the signed form.

Instead he went

ahead with the purchase.
That Randall did not (and could not) specifically know
about the Alpha report at that time is of no weight in our
discovery-rule analysis.
a

series

of

obligations

Turning over the report was just one in
imposed

by

the

Act,

and

in

fact,

identification of the report was one of the disclosures that the
City was required to make on the disclosure form.

Because at the

time of closing Randall had discovered (or at a minimum should have
discovered) that the City had not completed the disclosure form or
made any of the compulsory disclosures, the statute of limitations

Stat. Ann. § 508:4 (providing that in the event the injury and its
causal relationship to the act or omission complained of were not
discovered and could not have reasonably been discovered, an action
shall be commenced within three years of the plaintiff's making the
discovery). However, as we noted, it is federal law that controls
the accrual issue. Though there is a dearth of law on when actions
accrue for purposes of 42 U.S.C. § 4852d, as a general matter,
courts apply forms of the "discovery rule" to all types of claims.
See Merck & Co., Inc. v. Reynolds, 130 S.Ct. 1784, 1794 (2010).
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clock started ticking.
full

extent

conduct.5

of,

or

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It is not necessary that Randall knew the
the

particulars

of,

the

City's

wrongful

See Epstein v. C.R. Bard, Inc., 460 F.3d 183, 187 (1st

Cir. 2006) (stating that in connection with the Massachusetts
discovery rule, a "plaintiff is considered to be on 'inquiry
notice' when the first event occurs that would prompt a reasonable
person to inquire into a possible injury at the hands of the
defendant"); Feddersen v. Garvey, 427 F.3d 108, 113 (1st Cir. 2005)
(finding that in a legal malpractice action, the New Hampshire
"discovery rule is not intended to toll the statute of limitations
until the full extent of the plaintiff's injury has manifested
itself'"); Callahan v. United States, 426 F.3d 444, 451 (1st Cir.
2005)

(explaining

"'something

less

that
than

in

a

Federal

definitive

Tort

knowledge

Claims
is

Act

suit,

required'"

and

"[a]ccrual is triggered by 'the discovery of sufficient facts about
the injury and its cause'" to prompt an inquiry).
Ultimately we cannot say for certain whether the Alpha
report would have come to light had Randall pressed for a completed
disclosure
conclusion.

form.

But

this

uncertainty

does

not

change

our

Even applying the discovery rule, Randall's cause of

5

Our conclusion might be different had the City actually
completed the disclosure form and on it affirmatively (and
inaccurately) indicated that there were no relevant reports. But
that is not the situation we have here.
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action still accrued when he closed on the property on July 22,
2003.
CONCLUSION
Because Randall filed this lawsuit six and one-half years
after his cause of action accrued, the suit is untimely under New
Hampshire's three-year limitations period.

We affirm the district

court's grant of summary judgment in favor of the City.

-Concurring Opinion Follows-

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Howard, Circuit Judge, (Concurring). A person damaged by
a violation of the Residential Lead-Based Paint Hazard Reduction
Act

may

seek

4852d(b)(3).

recovery

against

the

violator.

42

U.S.C.

§

Among the Act's express requirements, implemented by

a regulation, is one that imposes on a seller the obligation to
hand over to the buyer "any lead hazard evaluation report available
to the seller."

§ 4852d(a)(1)(B).

The seller is required to

provide this report before the buyer is obligated to purchase the
house.

§ 4852d(a)(1).

I am not prepared to say that the statute

of limitations for a civil suit based on an alleged violation of
this strict consumer protection provision necessarily began to run
at the same time that it did for the cause of action based on the
other disclosure violations alleged in this case.
Moreover, the seller's further arguments that the buyer
was on at least inquiry notice do not persuade me.

I do not accept

the seller's argument that its failure to provide to the buyer a
timely and completed lead paint hazard disclosure form put the
buyer on inquiry notice that the seller had also failed to hand
over an existing lead paint report; in fact, all indications are
that even had the seller provided the form, it would not have
disclosed the existence of the report.

Nor do I accept the

seller's argument that the buyer's ability and opportunity to test
for lead paint also put the buyer on inquiry notice that a report
existed.

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Despite these misgivings, I agree with the result in this
case, based upon an argument made by the seller in the district
court.

Under the Act, sellers are liable to buyers only for

knowing violations.

§ 4852d(b)(3).

To permit a finding of

liability on this record would be to convert the knowing violation
standard to one of mere negligence.
higher standard.

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Congress explicitly chose the