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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford

No. 2017-0159

SLANIA ENTERPRISES, INC.

v.

APPLEDORE MEDICAL GROUP, INC.

Argued: November 16, 2017

Opinion Issued: May 1, 2018

Lynne C. Christie, of Durham, by brief and orally, for the plaintiff.

Nixon Peabody LLP, of Manchester (Kevin M. Fitzgerald on the brief and 

orally), for the defendant.

BASSETT, J. The plaintiff, Slania Enterprises, Inc. (Slania), appeals a 

decision by the Superior Court (Howard, J.) granting the motion of the 

defendant, Appledore Medical Group, Inc. (Appledore), to dismiss as timebarred a petition to recover damages stemming from an alleged breach of a 

commercial real estate lease. We reverse in part, vacate in part, and remand.

The trial court recited, or the plaintiff alleged, the following facts. In 

October 2012, Slania, as the lessor, and Appledore, as the lessee, entered into 

a commercial real estate lease for an initial fixed term that ended on April 30,

2015. However, Appledore never took possession of the premises.
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Appledore paid rent due through January 2013, but then stopped doing 

so. In March 2013, Appledore communicated to Slania that it wished to 

terminate the lease. On April 12, 2013, Slania notified Appledore that it was in 

default on its rental payments. Appledore did not pay. On April 22, 2013, at 

the expiration of the 10-day cure period, Slania notified Appledore that, 

pursuant to Section 13.1(b) of the lease, it was electing, as its remedy upon 

default, to “keep the lease in effect and recover rent and other charges due 

[from Appledore] less the amount [Slania] may recover by re[-]letting the 

premises.” Slania re-let the premises from February 2015 through the end of 

the initial term of the lease, April 2015, for a lesser monthly amount. 

On April 29, 2016, Slania filed a breach of contract action against 

Appledore for $82,527.87 in damages, which included rent, late fees, and 

utility costs due from May 2013 through April 2015. Appledore moved to 

dismiss, asserting that because the lease was breached no later than April 22, 

2013, the claim was barred by the three-year statute of limitations under RSA 

508:4, I (2010). Slania objected, arguing that the lease was an installment 

contract, and, therefore, the statute of limitations did not bar a suit to recover 

payments due within three years of the date the complaint was filed.

The trial court granted Appledore’s motion to dismiss, ruling that, 

because “a real estate lease of the type involved here is not an installment 

contract as that term is contemplated in the statute of limitations context,” the 

so-called “installment contract rule,” under which the statute of limitations 

runs only against each installment when it becomes due, did not apply. See

General Theraphysical, Inc. v. Dupuis, 118 N.H. 277, 279 (1978). Thus, the 

trial court concluded, the breach in this case occurred “no later than April 22, 

2013, the date upon which Appledore’s right to cure the claimed default 

expired.” The trial court also ruled that, even if the installment contract rule 

could apply to a commercial real estate lease, it did not apply to the parties’ 

lease because Appledore never took possession of the property.

In addition, the trial court decided that, although the lease “provided 

Slania with the choice to continue the Lease and calculate damages in a certain 

manner as a remedy to Appledore’s breach[,] . . . Slania’s unilateral choice of 

remedies cannot serve to extend the time in which Appledore’s initial breach 

occurred.” The trial court concluded that when Appledore “failed to cure the 

default by April 22, 2013, the cause of action had arisen for purposes of the 

statute of limitations.” The trial court denied Slania’s motion for 

reconsideration. This appeal followed. 

In reviewing the trial court’s grant of a motion to dismiss, our standard 

of review is whether the allegations in the plaintiff’s pleadings are reasonably 

susceptible of a construction that would permit recovery. Plaisted v. LaBrie, 

165 N.H. 194, 195 (2013). We assume that the plaintiff’s pleadings are true 
3

and construe all reasonable inferences in the light most favorable to the 

plaintiff. Id. We then engage in a threshold inquiry that tests the facts alleged 

by the plaintiff against the applicable law, and if the allegations constitute a 

basis for legal relief, we must hold that it was improper to grant the motion to 

dismiss. Id.

Slania first argues that the trial court erred when it decided that 

commercial real estate leases cannot be installment contracts for purposes of 

the installment contract rule. We agree with Slania: a commercial real estate 

lease can be an installment contract. An installment contract is “[a] contract 

requiring or authorizing the delivery of goods in separate lots, or payments in 

separate increments, to be separately accepted.” Black’s Law Dictionary 395 

(10th ed. 2014). So too is a lease, in which a month’s use of the lessor’s 

property is compensated by a monthly rent payment. Thus, a commercial real 

estate lease that calls for separate payments, separately accepted, is an 

installment contract.

Slania further argues that because a commercial real estate lease is an 

installment contract, the installment contract rule applies. Under New 

Hampshire law, “when an obligation is to be paid in installments[,] the statute 

of limitations runs only against each installment as it becomes due even 

though the creditor has the option to declare the whole sum due on default of 

an installment, unless he exercises that option.” General Theraphysical, Inc., 

118 N.H. at 279. “In essence,” the installment contract “rule treats each 

missed or otherwise deficient payment as an independent breach of contract 

subject to its own limitations period.” Pierce v. Metropolitan Life Ins. Co., 307 

F. Supp. 2d 325, 328-29 (D.N.H. 2004). “Accordingly, a party bringing an 

action on an installment contract can recover only for those payments relating 

to periods for which the applicable statute of limitations has not expired at the 

time plaintiff files suit.” Id. (quotation, brackets, and ellipsis omitted). 

Appledore counters that the installment contract rule does not apply to 

commercial real estate leases because a lease does not convey a final 

possessory interest. Appledore cites no support for this proposition. Nor have 

we found any. Indeed, we have applied the installment contract rule to 

contracts for the lease of goods, which similarly do not deliver a “final 

possessory interest.” See General Theraphysical, Inc., 118 N.H. at 278-79. 

Moreover, courts in other jurisdictions have ruled that the installment contract 

rule can apply to real estate leases. See Lakeview Management, Inc. v. Care 

Realty, LLC, Civil No. 07-cv-303-+SM, 2010 WL 346811, at *2 (D.N.H. Jan. 22, 

2010) (applying the installment contract rule to a real estate lease and 

observing that this court has not expressly excepted real estate leases from 

that rule); Lindner v. Meadow Gold Dairies, Inc., 515 F. Supp. 2d 1141, 1151 

(D. Haw. 2007) (applying Hawaiian common law); Holiday Furniture Factory 

Out. Corp. v. DOC, 852 So. 2d 926, 928 (Fla. Dist. Ct. App. 2003); Annotation, 
4

When Statute of Limitations begins to run against action to recover upon 

contract payable in instalments, 82 A.L.R. 316 (1933) (collecting cases that 

apply the installment contract rule to many types of contracts including real 

estate leases). 

Appledore next contends that the installment contract rule does not 

apply to real estate leases because leases are regulated by statute. See RSA ch. 

540 (2007 & Supp. 2017); RSA ch. 540-A (2007 & Supp. 2017). The 

installment contract rule is a common law rule. See General Theraphysical, 

Inc., 118 N.H. at 279. “Generally, we will not construe a statute as abrogating 

the common law unless the statute clearly expresses that intent.” Petition of 

Willeke, 169 N.H. 802, 806 (2017) (quotation, brackets, and ellipsis omitted). 

Nothing in RSA chapters 540 and 540-A addresses the statute of limitations for 

a breach of contract action based upon a lease. Nor does the plain language of 

RSA 508:4, I, which sets forth a three-year statute of limitations for “all 

personal actions, except actions for slander or libel,” evince clear legislative 

intent to abrogate the installment contract rule. Accordingly, we conclude that 

commercial real estate leases do not fall outside the bounds of the installment 

contract rule, and we reverse the trial court’s contrary ruling. 

Alternatively, Appledore asserts that, “even if the [c]ourt were to conclude 

the installment [contract] rule generally applies to real estate leases,” the rule

does not apply here because: (1) Slania’s claim is based upon a “single distinct 

event which has ill effects that continue over time,” McNamara v. City of 

Nashua, 629 F.3d 92, 96 (1st Cir. 2011) (quotation omitted); and (2) Appledore 

never took possession of the premises. 

To support the proposition that Slania’s claim is time-barred because it 

is based upon a single, discrete event, Appledore relies upon McNamara and 

upon a non-precedential order of this court. See id.; see also Gage v. State, 

Case No. 2013-0362, 2014 WL 11656372, at *5 (N.H. Jan. 29, 2014) (3JX 

Order). However, both cases are distinguishable. In McNamara, the plaintiff 

sued Nashua “for harm done in inducing [a] settlement and for . . . 

misreporting . . . matters to the [New Hampshire Retirement System].” 

McNamara, 629 F.3d at 96. The court specifically distinguished a lawsuit 

based upon that kind of single, discrete event from a lawsuit that the plaintiff 

could have brought if Nashua had been obligated “to make periodic payments 

to [him] and successively underpaid him.” Id. In the latter case, the court 

explained, “a claim might arise each time a payment was made and a suit 

could be brought within the limitations period on any underpayment.” Id. 

 

In Gage, we stated, in dicta, that the petitioner’s lawsuit was “not 

analogous to a claim for breach of an installment contract” because she had 

“not sued the New Hampshire judicial retirement plan for individual 

underpayments of pension benefits,” but rather had “claimed that the State 
5

failed to properly administer” the plan, thereby impairing her rights under the 

applicable statute. Gage, 2014 WL 11656372, at *5.

Here, by contrast, Slania’s claim is based upon Appledore’s failure to pay 

monthly rent. Appledore’s failure to pay is not a “single event,” but rather a reoccurring contractual breach. See Pierce, 307 F. Supp. 2d at 331-32

(observing that “[c]ourts have routinely treated the failure to make payments 

according to an agreed-upon schedule as the breach of an installment 

contract”). The mere fact that Appledore ceased paying rent as of a certain 

date, or that it notified Slania of its intent not to pay rent as of a certain date, 

does not mean that Appledore’s failure to pay constitutes a single, discrete 

event. As the federal district court explained in Pierce, “nearly every action 

seeking to recover on a contract calling for periodic performances has its 

genesis at the point where the defendant stops rendering those performances 

through the first of what turns out to be a series of discontinued 

payments.” Id. at 331-32. If the “first missed or otherwise deficient payment 

triggered the statute of limitations as to all future payments, the installment 

contract rule would never apply.” Id. at 332. Such a result “cannot be squared 

with existing New Hampshire law.” Id.; see General Theraphysical, Inc., 118 

N.H. at 279.

Appledore next asserts that the installment contract rule does not apply

to this claim because Appledore never took possession of the property. 

Appledore cites no authority for the proposition that a tenant must take 

possession in order for the installment contract rule to apply to a commercial 

real estate lease. We fail to see how the fact that Appledore did not take 

possession of the premises is legally relevant. See Holiday Furniture Factory 

Out. Corp., 852 So. 2d at 928 (observing that, although none of the court’s

prior cases “involved a tenant who had never taken possession of the property

. . . , we see no need to limit the general [installment contract] rule to lessees 

who have been in possession for some period”). 

Applying the installment contract rule in this case would mean that 

Slania’s breach of contract claim against Appledore is timely, but that Slania 

may recover only those damages that accrued within three years of when this 

lawsuit was filed. See Pierce, 307 F. Supp. 2d at 328-29. However, the trial 

court stated that “[e]ven if our Supreme Court were to apply the installment 

contract rule to real estate leases, this court would nevertheless conclude that 

the action is barred under the circumstances of this case.” It reasoned:

Appledore did not take possession of the property and clearly 

indicated its intent not to honor the lease in its communication on 

March 28, 2013. Further, after Slania gave notice of the breach on 

April 12, 2013, Appledore did not cure the default within the 10-

day period. Unequivocally, this contract action arose no later than 
6

April 22, 2013, and needed to be filed within three years of that 

date. Since it was not, the claim is time-barred. 

Slania argues that, because it exercised its contractual right to “keep this 

Lease in effect and recover monthly” from Appledore, the lease was neither 

completely breached nor terminated on April 22, 2013. (Quotation omitted.) 

Accordingly, Slania asserts that its suit is timely because the lease is an 

installment contract and, therefore, “each month that the rent was not paid 

was a separate breach of the lease triggering a new three year statute of 

limitations for each breach.” 

Appledore counters that the trial court found that Appledore materially 

breached the lease on or before April 22, 2013, and, therefore, that the material 

breach triggered the running of the statute of limitations. At oral argument, 

Appledore asserted that the trial court found that Appledore had unequivocally 

repudiated the lease on or before April 22, 2013. Appledore further argued

that repudiation “take[s] [this case] outside of the installment [rule] discussion 

altogether,” presumably implying that Slania’s lawsuit is untimely. 

As an initial matter, Appledore also argues that we should affirm because 

Slania did not develop a sufficient argument in its appellate brief that the trial 

court’s determination of when breach occurred was in error. We disagree and 

turn to the merits of the parties’ arguments. 

Under New Hampshire law, “[i]n instances of anticipatory breach, the 

non-breaching party has the option to treat the repudiation as an immediate 

breach and maintain an action at once for damages.” LeTarte v. West Side 

Dev. Group, 151 N.H. 291, 294 (2004). “An anticipatory breach of a contract 

occurs when a promising party repudiates his obligations either through words 

or by voluntarily disabling himself from performing them before the time for 

performance.” Id. 

In LeTarte, we held that the defendant’s “repeated and unjustified failure 

to make any of the first nineteen payments for more than three years” 

constituted a “total anticipatory breach” of the parties’ installment contract, 

and allowed the plaintiff to recover damages for such “total . . . breach.” Id. at 

295. In a prior case, also involving an installment contract, we found that the 

defendants’ failure to make payments “after the initial installments” constituted 

a “material failure to perform” and, therefore, a “total breach” of the contract. 

Id. at 294, 295; see Hoyt v. Horst, 105 N.H. 380, 389 (1964). 

However, this court has yet to address whether, if the non-breaching 

party elects not to sue within three years of the other party’s anticipatory 

breach or repudiation, the non-breaching party’s lawsuit is barred by the 

statute of limitations. Jurisdictions that have decided this issue are divided. 
7

Compare Bioveris Corp. v. Meso Scale Diagnostics, LLC, C.A. No. 8692-VCMR, 

2017 WL 5035530, at *10 (Del. Ch. Nov. 2, 2017) (holding that letter with 

accompanying payment “was a present breach accompanied by an anticipatory 

repudiation, constituting a total breach” of the contract and that the 

installment contract’s total breach triggered the applicable statute of 

limitations), with Keefe Co. v. Americable Intern., Inc., 755 A.2d 469, 477 (D.C. 

2000) (holding that the installment contract rule applied and explaining that 

“nonpayment of one installment triggers no requirement to sue on the totality 

of the debt”).

In rejecting Slania’s assertion that it could elect to keep the lease in place 

and sue for breaches that occurred within three years of the date it filed suit, 

the trial court did not mention anticipatory repudiation or material breach. 

This case raises issues of first impression regarding the interplay of the 

installment contract rule, a party’s election of contractual remedies, and 

anticipatory repudiation or anticipatory breach. It does not appear that these 

issues were fully explored by the trial court, and jurisdictions are divided on 

how these issues affect when the statute of limitations accrues. Accordingly, 

we vacate the trial court’s ruling with respect to Slania’s argument that, under 

the terms of the lease, it could keep the lease in effect and bring an action to 

recover for breaches that occurred no more than three years before the date it 

filed this suit. We remand for such further proceedings, consistent with this 

opinion, as the trial court may deem necessary.

Reversed in part; vacated in part; and remanded.

LYNN, C.J., and HICKS and HANTZ MARCONI, JJ., concurred; 

DALIANIS, C.J., retired, specially assigned under RSA 490:3, concurred.