UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey T. Piampiano, Ch. 7 Trustee of the Estate of Sky-Skan Inc.

v. Case No. 22-cv-003-SE Opinion No.

Stuart B. Ratner and Stuart B. Ratner, P.C.

ORDER

New Hampshire Rev. Stat. Ann. (“RSA”) § 508:4 includes a

“discovery rule” that tolls the three-year statute of

limitations for personal actions when the plaintiff could not

reasonably have discovered his injury or its causal relationship

to the acts or omissions that led to his injury. The discovery

rule does not, however, allow an otherwise time-barred action

when the plaintiff ignored his potential injury and made no

reasonable effort to discover the acts or omissions that led to

it.

In this case, the Chapter 7 Trustee for Sky-Skan Inc.,

Jeffrey T. Piampiano (the “Trustee”), brings malpractice and

breach of fiduciary duty claims against Sky-Skan’s former

lawyer, Stuart Ratner and Stuart Ratner, P.C. (collectively,

“Ratner”).1 The claims arise out of Ratner’s alleged failure in

1The Trustee alleges that Ratner was Sky-Skan’s attorney at all relevant times. Ratner does not dispute this fact for the purpose of summary judgment. Doc. no. 11-1, ¶ 19. October and November 2017 to inform Sky-Skan that the Internal

Revenue Service had granted a crucial extension related to its

federal tax debts. Sky-Skan’s mistaken belief that the IRS had

not granted the extension allegedly caused it to file for

bankruptcy and suffer harm.

Because Ratner’s actions and Sky-Skan’s bankruptcy filing

occurred more than three years before the Trustee asserted the

claims in this suit, those claims are barred by RSA § 508:4

unless the statute of limitations is tolled. The Trustee argues

that the discovery rule applies because Sky-Skan reasonably

expected Ratner to notify it if the IRS granted the extension,

which would have prevented bankruptcy.

That argument misunderstands the discovery rule. Even if

Sky-Skan reasonably assumed that Ratner would convey any updates

regarding the extension, that does not save the Trustee’s claims

from the statute of limitations. Rather, the discovery rule

applies only if Sky-Skan could not have reasonably discovered

the extension. As discussed further below, there is no

allegation or evidence to support that contention. Therefore,

the discovery rule does not apply. For this reason, and because

the Trustee’s argument regarding fraudulent concealment is

unavailing, the Trustee’s claims are time-barred, and the court

grants Ratner’s motion for summary judgment (doc. no. 11).

2 Standard of Review

Granting summary judgment is appropriate “if the movant

shows that 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). A material fact is one that “carries with it

the potential to affect the outcome of the suit.” French v.

Merrill,

, 123 (1st Cir. 2021) (quotation omitted).

A material fact is in genuine dispute if “a reasonable jury

could resolve the point in the favor of the non-moving party.”

In considering a motion for summary judgment, the court may

review materials cited in the motion and other materials in the

record. Fed. R. Civ. P. 56(c)(1)(3).

Background

Steven and Virginia Savage owned and operated Sky-Skan,

which “was in the business of systems integration for theater

systems and planetariums.” Doc. no. 15-1, ¶ 1. To fund the

business, Sky-Skan had taken out loans worth $1,040,000 from

Bank of America, N.A. Those loans were later sold to Coastal

Capital, LLC (“Coastal”), who acquired distressed assets.

In the months following Coastal’s purchase of the Sky-Skan

debt, the parties corresponded regarding the potential terms on

which Sky-Skan would repay Coastal. Sky-Skan was experiencing

financial difficulties and could not immediately pay Coastal

3 what it owed. On August 17, 2017, Coastal filed an action

against Sky-Skan in New Hampshire state court seeking to attach

its assets because Richard Gleicher, Coastal’s member-manager,

had lost faith in the Savages. On September 22, 2017, the state

court issued an order granting Coastal’s attachment.

In addition to its loan debt, Sky-Skan owed the IRS

$751,428. Prior to Coastal’s state court action, Sky-Skan had

retained an IRS-credentialed agent to help resolve its unpaid

federal tax liability. That agent negotiated an offer-in-

compromise (“OIC”) with the IRS that would have allowed Sky-Skan

to resolve its tax liability for $185,618. The deadline for Sky-

Skan to agree to the OIC was October 23 or 24, 2017.2 A condition

of the OIC was that Sky-Skan would immediately pay a deposit

equal to 20 percent of the total compromised amount.

Given the state court order attaching Sky-Skan’s assets,

the Savages sought approval from Coastal to pay the deposit to

the IRS pursuant to the OIC. Coastal was not willing to approve

that payment without additional information. Consequently, Sky-

Skan did not accept the IRS’s offer prior to the October 23 or

24 deadline. However, Coastal notified Sky-Skan that it was

retaining a tax expert, Ratner, to help it better understand the

2 The parties agree that the OIC deadline was either October 23 or 24, 2017. See doc. no. 11-1, ¶ 54; doc. no. 15-1, ¶ 4.

4 merits of the OIC and for the express purpose of seeking an

extension of the already-expired IRS deadline to fund the OIC.

In order to facilitate Ratner’s efforts, on October 27,

2017, Virginia Savage signed an IRS “Power of Attorney and

Declaration of Representative” form, which gave Ratner power of

attorney for Sky-Skan before the IRS.3 Ratner also spoke with Ms.

Savage and informed her that he would seek a 30-day extension

from the IRS for the parties to consider the OIC further. She

testified in her deposition as follows:

Q: Did Mr. Ratner indicate to you a possibility of getting an extension relative to the offer in compromise addendum?

A: He mentioned that, but at that point we were already past the deadline . . . for the offer in compromise.”

. . . .

Q: [W]as it your understanding that among the things he was going to request from the IRS would be a further extension of that already lapsed deadline under the offer in compromise addendum?

A: Yes, I believe so.

Doc. no. 11-2 at 9-10.

On that same day, October 27, 2017, Ratner spoke with the

IRS agent who was handling the Sky-Skan OIC. That agent told

Ratner that the IRS would grant the requested extension through

3 The form gave both Stuart Ratner and his associate, Laura Rodriguez, power of attorney. See doc. no. 15-15.

5 November 30, 2017.4 Ratner did not notify the Savages or anyone

else at Sky-Skan that the IRS had granted the extension, either

on October 27 or at any time thereafter. No one from Sky-Skan,

including its bankruptcy attorney, inquired with Ratner or the

IRS regarding the status of the extension.

On November 1, 2017, having not heard from Ratner and

assuming he would have reached out had his efforts with the IRS

been successful, Sky-Skan filed for bankruptcy. According to its

bankruptcy attorney, Sky-Skan’s unresolved tax obligation was a

“major factor” that led it to file. Doc. no. 15-3, ¶ 7. Sky-

Skan’s bankruptcy attorney believed that, in the absence of a

final OIC, the IRS would likely take over the business and

liquidate its assets.

The IRS sent a fax to Ratner on November 2, 2017, formally

extending the OIC to November 30. Ratner did not notify the

Savages or anyone at Sky-Skan about the fax. Subsequently, due

to Sky-Skan’s bankruptcy filing, the IRS sent Sky-Skan a notice

on December 4, 2017, stating that the OIC had been terminated.

The notice did not indicate that the OIC had previously been

subject to an extension beyond the October 23/24 deadline. Sky-

Skan’s estate ultimately settled with the IRS for $491,952. Sky-

4 Ratner also negotiated a change to the terms of the OIC. Sky-Skan would make a lower one-time payment rather than a 20 percent deposit of the total amount followed by monthly payments.

6 Skan later learned of the extension during a March 5, 2019

bankruptcy deposition of the IRS agent who handled the OIC. Doc.

no. 15-1, ¶ 49.

The Trustee sued Ratner on August 13, 2021 – nearly four

years after the expiration of the OIC – seeking damages for

claims of negligence/legal malpractice and breach of fiduciary

duty. Ratner moves for summary judgment on those claims. The

court held a hearing on Ratner’s motion on September 13, 2023.

Discussion

The Trustee claims that Ratner breached his duty to Sky-

Skan when he failed to notify it that the IRS agreed by phone on

October 27 and in writing on November 2 to grant it an extension

through November 30 to consider the OIC. Had Sky-Skan known of

the extension, the Trustee argues, it either would not have

filed for bankruptcy or would have withdrawn its then-recently

filed bankruptcy petition. And, even if Sky-Skan did not or

could not withdraw its bankruptcy petition, its estate would

have benefited from settling with the IRS for the OIC amount.

According to the Trustee, Ratner’s silence caused Sky-Skan to

incur significant costs and losses related to the bankruptcy.

Ratner argues that, even assuming he committed the alleged

breaches, his purported unlawful actions did not cause Sky-Skan

any injury. Ultimately, the court need not determine Ratner’s

7 liability because the Trustee’s claims are time-barred and not

subject to any tolling doctrine.

I. Statute of Limitations

Under New Hampshire law, which applies to this diversity

action, a plaintiff must bring claims alleging malpractice and

breach of fiduciary duty within three years of the alleged act

or omission giving rise to the claims. Feddersen v. Garvey,

(1st Cir. 2005) (citing RSA § 508:4); Beane v.

Dana S. Beane & Co.,

(2010). In this case, the

alleged act or omission constituting malpractice and breach of

fiduciary duty is Ratner’s failure to inform Sky-Skan that the

IRS extended the OIC deadline through November 30, 2017.

Therefore, for the purpose of calculating the three-year

limitation period, the act or omission complained of occurred no

later than November 30 - the final day of the IRS extension.

In his summary judgment papers, the Trustee does not offer

any argument or evidence to contradict this conclusion or

provide an alternative date on which the limitation period began

to run, absent application of a tolling doctrine. At the

conclusion of oral argument, however, the Trustee argued for the

first time that his claims were timely because Ratner’s actions

constituted a continuing violation — that is, Sky-Skan continued

to be injured throughout the bankruptcy proceeding because it

8 could have dismissed the proceeding at any point had Ratner

informed it of the extension. Because, as the Trustee conceded,

the issue had not been briefed, the court did not permit

extended argument and will not dwell on it here. Suffice it to

say that the continuing violation doctrine is plainly

inapplicable to the undisputed facts of this case, which

establish that any violation of duty concluded at the expiration

of the extension on November 30, 2017. See Singer Asset Finance

Co. v. Wyner,

(2007) (A “claim based on a

single tort ordinarily accrues when the tort is completed, and

the continuing accrual of injury or damages does not extend the

accrual date.” (quotation omitted)).

Because the three-year limitation period began to run on

November 30, 2017, the Trustee was required to file his claims

on or before November 30, 2020. He filed his complaint on August

13, 2021, well beyond the expiration of the limitation period.5

Thus, the burden falls on the Trustee to prove that an exception

applies to toll the statute of limitations. Feddersen,

. The Trustee argues that the statute of limitations

5 The parties entered into an agreement tolling any available causes of action from May 26, 2021 to August 20, 2021. Doc. no. 15-1, ¶¶ 50-51. Because the limitation period for the instant causes of action expired prior to the effective date of that agreement, it is not relevant to the court’s analysis.

9 should be tolled under either the discovery rule or the doctrine

of fraudulent concealment.

A. Discovery Rule

Section 508:4 provides a discovery-rule exception to the

statute of limitations “when the injury and its causal

relationship to the act or omission were not discovered and

could not reasonably have been discovered at the time of the act

or omission.” RSA § 508:4, I. If the discovery rule applies,

then “the action shall be commenced within 3 years of the time

the plaintiff discovers, or in the exercise of reasonable

diligence should have discovered, the injury and its causal

relationship to the act or omission complained of.” Id.

The Trustee asserts that, under the discovery rule, the

three-year limitation period did not begin to run until the

March 5, 2019 deposition of the IRS agent who handled the Sky-

Skan OIC. The Trustee’s argument, however, misapprehends the

statute. As stated above, RSA § 508:4 tolls the three-year

limitation when “the injury and its causal relationship to the

act or omission were not discovered and could not reasonably

have been discovered at the time of the act or omission.” Thus,

it is not enough that Sky-Skan did not actually discover

Ratner’s alleged breaches until the March 5, 2019 deposition.

Rather, the Trustee must also show that Sky-Skan could not

10 reasonably have discovered them. As discussed below, the

undisputed facts demonstrate the opposite.

Although the determination of whether the discovery rule

applies usually turns upon a question of fact, it does not on

this record. The Trustee offers no evidence that Sky-Skan would

have been unable to determine that Ratner had failed to disclose

that he had obtained the OIC extension had it made any effort to

do so. He concedes that Sky-Skan did not attempt to inquire

about the status of the OIC extension with either Ratner or the

IRS. Further, he does not allege that either Ratner or the IRS

would have refused to divulge the existence of the extension to

the company or to bankruptcy counsel prior to filing had Sky-

Skan inquired. Indeed, there is evidence in the record that Sky-

Skan’s bankruptcy counsel had been advised by its prior IRS-

credentialed agent that the company could call the IRS on its

own behalf to inquire about the OIC. Doc. no. 11-42.

Instead, the Trustee argues that “Sky-Skan was reasonable

in assuming that if there had been anything to report on the

extensions that [Ratner] would have reported it to them.” Doc.

no. 15-1 at 18; see also id. at 20 (“Although the Defendants

attempt to shift the blame for their inaction to the Plaintiff,

a jury could determine that it was reasonable that the Savages

did not call the IRS directly and that [Sky-Skan’s bankruptcy

attorney] did not contact the IRS, since the Defendants, tax

11 specialists, had been actually engaged.”); id. at 2 (“A jury

could find that Sky-Skan had acted reasonably and was not

required to undertake further inquiry into the Defendants’

actions.”). In sum, the Trustee attempts to argue that, on the

one hand, the lack of an OIC extension was a “major factor” that

led Sky-Skan to declare bankruptcy, but on the other hand, Sky-

Skan acted reasonably when it made no effort whatsoever to

ascertain the status of this critical extension before filing

for bankruptcy.

Even if Sky-Skan’s failure to take any action to confirm

the existence of the OIC extension prior to filing for

bankruptcy could constitute “reasonable diligence” — which it

could not — that is simply not the standard for the discovery

rule to apply. “[T]he discovery rule exception does not apply

unless the plaintiff did not discover, and could not reasonably

have discovered, either the alleged injury or its causal

connection to the alleged negligent act.” Perez v. Pike Indus.,

Inc.,

(2005) (emphasis added). Only if the

plaintiff makes this showing does the court then consider when,

in the exercise of reasonable diligence, the plaintiff should

have discovered his injury and the causal connection to the

defendant’s act or omission. The Trustee, however, leapfrogs the

initial question and argues only that Sky-Skan’s inaction was

reasonable. Although required by the statute, he offers no

12 evidence that could allow a jury to conclude that Sky-Skan could

not reasonably have discovered the existence of the OIC

extension, which he must do at this stage to avoid summary

judgment.6

At the hearing, the Trustee raised a new argument in favor

of applying the discovery rule. Viewing the argument generously,

the Trustee contends that Sky-Skan was unaware that Ratner would

be negotiating with the IRS because Ms. Savage never spoke to

him. Thus, Sky-Skan had no basis to make any effort to determine

whether Ratner’s efforts were successful. This argument fails

for at least three reasons.

First, the Trustee did not include this argument in his

summary judgment papers and instead raised the issue for the

first time at the hearing. He offered no reason to depart from

6 To the extent that the Trustee intended to argue that a plaintiff’s “reasonable diligence” is all that is required for application of the discovery rule in RSA § 508:4, that argument is in direct conflict with the statute’s plain language. Indeed, as it did in the former version of another section of Chapter 508, the New Hampshire legislature could have omitted the “reasonably could have discovered” language entirely. See RSA § 508:4-g, II (amended 2020) (requiring only that a plaintiff commence a personal action within “[t]hree years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of”). It did not do so, and the court must give effect to every part of the statute. See, e.g., Connecticut Nat’l Bank v. Germain,

(1992) (noting the “cardinal canon” of statutory interpretation is “that a legislature says in a statute what it means and means in a statute what it says there”).

13 the familiar rule that, “‘except in extraordinary circumstances,

arguments not raised in a party’s initial brief and instead

raised for the first time at oral argument are considered

waived.’” Lieber v. Marquis Mgmt., LLC, No. 1:21-CV-968-JL,

, at *13 n.69 (D.N.H. Aug. 31, 2023) (quoting

Conduragis v. Prospect Chartercare, LLC,

, 518 n.2

(1st Cir. 2018)).

Even if the court did consider the argument, it would not

carry the day. The record evidence demonstrates not only that

Ms. Savage and Ratner spoke about him representing Sky-Skan

before the IRS in October 2017, but also that she was

specifically aware that Ratner would be seeking an extension of

time for Sky-Skan to complete an OIC. Gleicher informed Ms.

Savage and Sky-Skan’s bankruptcy attorney on October 23 that

Coastal was “hiring a tax specialist” and that he would speak to

the IRS agent to explore “the possibility of getting a short

extension . . . without jeopardizing your current deal.” Doc.

no. 11-38 at 1. Ms. Savage emailed Ratner and others on October

26 with the subject line “Sky-Skan – IRS OIC,” offering to give

Ratner power of attorney so that he could “talk to the IRS about

our case.” Doc. no. 11-45 at 1. As described above, Ms. Savage

testified that she also spoke with Ratner about his plan to seek

an extension to consider and fund the OIC. Doc. no. 11-2 at 9-

10. Ratner sent an email to Gleicher on October 27 confirming

14 that he “spoke[] with Virginia,” doc. no. 11-45 at 1, and Ms.

Savage signed the IRS “Power of Attorney and Declaration of

Representative” form on that same date. Ratner also states in

his affidavit that he spoke to Ms. Savage and told her that he

would be seeking a 30-day extension for the OIC. Doc. no. 11-14,

¶ 10.

Despite this record evidence, the Trustee argued at the

hearing that there is a dispute as to whether Ratner ever spoke

to Ms. Savage. The Trustee’s argument is based upon a single

statement made by Ratner in a bankruptcy deposition on January

3, 2020. When asked whether he had ever spoken to Ms. Savage,

Ratner answered: “Not that I can recall.” Doc. no. 15-13 at 5.

That single statement, which is belied by contemporaneous

emails, Ms. Savage’s own testimony (which she does not dispute

or abandon), and Ratner’s affidavit, “is insufficient to give

rise to a genuine factual dispute in light of the overwhelming

evidence, identified in the motion for summary judgment,”

showing that Ratner spoke to Ms. Savage in October 2017. Jones

v. Secord, No. 10-CV-146-PB,

, at *1 n.2 (D.N.H.

Apr. 26, 2011), aff’d,

(1st Cir. 2012); see Scott v.

Harris,

(2007).

Even if there were a dispute of fact on this issue, and

even if the Trustee had not waived it, the Trustee’s argument

would fail for a third reason: a dispute over whether Ms. Savage

15 and Ratner actually spoke is not material. The Trustee does not

dispute — nor could he — that Ms. Savage emailed Ratner on

October 26, 2017 about him representing Sky-Skan before the IRS.

And the Trustee acknowledges that the following day Ms. Savage

gave Ratner power of attorney to represent Sky-Skan before the

IRS. In other words, the Trustee concedes that Ms. Savage

authorized Ratner to negotiate with the IRS on Sky-Skan’s behalf

and was aware that he would be doing so. Thus, regardless of

whether Ms. Savage and Ratner spoke, the Trustee does not point

to any evidence to show, or even to suggest, that Sky-Skan could

not reasonably have discovered the results of Ratner’s

discussion with the IRS and the existence of the OIC extension

prior to November 30, 2017.

The court notes that the Trustee’s argument that Sky-Skan

was not obligated to take any affirmative action may be well-

founded as to Ratner’s liability for breaching his duty to his

client, Sky-Skan. But, given that this suit was filed nearly

four years after the alleged injury, the Trustee is required to

show more than a dispute of fact as to whether a breach

occurred. To take shelter in the discovery rule, he must

demonstrate a dispute of fact as to whether Sky-Skan could

reasonably have discovered the breach or its injury. He has

failed to do so. On this record, the court concludes that the

16 Trustee’s claims are not timely by application of the discovery

rule.

B. Fraudulent Concealment Doctrine

The Trustee also argues that the fraudulent concealment

doctrine should toll the three-year statute of limitations. A

plaintiff’s burden under the fraudulent concealment doctrine is

to “present some evidence of an affirmative act on the part of

the defendant to conceal or cover up the underlying wrongful

conduct that gave rise to the plaintiff’s asserted injury.”

Maggi v. Grafton Cnty. Dep’t of Corr.,

, 516

(D.N.H. 2022). Moreover, the affirmative act must be designed to

prevent, and must actually prevent, the discovery of the fact

giving rise to the cause of action. Sykes v. RBS Citizens, N.A.,

(D.N.H. 2014). The Trustee asserts only

that Ratner engaged in a “deliberate cover up . . . because the

Defendants failed to ever communicate with Sky-Skan” but

“actually communicated the extension to Coastal[.]” Doc. no. 15-

1 at 19-20. The Trustee does not explain how the act of

informing Coastal supports any allegation that Ratner worked to

conceal or cover up his failure to communicate the IRS’s

extension to Sky-Skan. And, for the reasons discussed above,

there is no evidence to suggest that Ratner’s silence prevented

Sky-Skan from discovering the existence of the extension. No

17 reasonable juror could find that informing Coastal of the

extension supports the application of the fraudulent concealment

doctrine.

C. Summary

There is no dispute that the Trustee filed his claims after

the expiration of the three-year limitation period. The Trustee

points to no evidence that could support the application of the

discovery rule or the fraudulent concealment doctrine.

Therefore, his claims are time-barred.

II. Causation

Because the court determines that the Trustee’s claims are

time-barred, it need not address Ratner’s arguments regarding

causation.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (doc. no. 11) is granted. The clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge November 6, 2023 cc: Counsel of Record.

18