2003-698, MIRVAT OSMAN v. GARY A. GAGNON d/b/a FLOORS & MORE

for the work that was to be performed. Khater gave Gagnon a check for the address. Gagnon negotiated exclusively with Khater concerning the estimates did not own the residence, he regularly stayed there and used it as his legal former spouse, was the record title owner of the residence. Although Khater carpeting and hardwood flo oring at a residence in Amherst. Osman, Khater’s hired the defendant, Gary Gagnon d/b/a Floors & More, to install ceramic tile, The record supports the following facts. In April 2001, Zakaria Khater

barred by the doctrine of res judicata. We affirm. appealed a decision of the Superior Court (Lynn, J.) ru ling that her claim is DUGGAN, J. Following a bench trial, the plaintiff, Mirvat Osman,

orally), for the defendant. Gawryl & MacAllister, of Nashua (Jared O’Connor on the brief and

Mary Lynn Roedel on the brief, and Mr. Wilbert orally), for the plaintiff. Law Offices of Randall E. Wilbert, of Nashua (Randall E. Wilbert and

GARY A. GAGNON d/b/a FLOORS & MORE

No. 2003 - 698 Hillsborough - nor thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

court granted the motion. This app eal followed. alleging that Osman provided false statements to the trial court. The trial that she is entitled to any damages.” Gagnon filed a motion for attorney’s fees, barred by res ju dicata. The court also found that Osman had “failed to prove After a one - day bench trial, the trial court ruled that Osman’s claim was

district court litigation. yet shown that Osman was in privity with Khater in connection with the motion to d ismiss. The trial court denied the motion because Gagnon had not counsel, impleaded Khater as a third - party defendant and filed a renewed because there were factual issues in dispute. Thereafter, Gagnon retained filed a motion to dismiss based upon res judicata, which the trial court denied contract ruled upon in the small claims proceeding. Gagnon, a ppearing pro se, breach of contract and seeking over $15,000 in damages under the same Instead, four months later, Osman filed suit in superior court alleging

Gagnon $4,6 p. 2 20 plus costs and interest. Khater did not appeal. Gagnon had performed according to the terms of the contract, and awarded ruled that Gagnon and Khater were bound by an enforceable contract, that the quality of Gagnon’s work, but did not file a counterclaim. The district court Gagnon in superior court. Khater’s attorney also presented ar guments about Gagnon had sued the wrong person and indicated that Osman intended to sue During the small claims proceeding, Khater’s attorney alleged that

Osman hire a lawyer to sue Gagnon. apprised Osman of this lawsuit and his attorney’s recomm endation that Amherst residence, his legal address as provided on his driver’s license. Khater work performed under their contract. Khater was served with notice at the Khater in the Milford District Co urt seeking payment of the balance due for In September p. 2 2001, Gagnon filed a small claims complaint against

Khater’s attorney suggested to Khater that Osman could sue Gagnon. repairing Gagnon’s work. Upon review of the photographs and estimates, that Khater obtain photographs of the problems and estimates f or the cost of threatened to sue. Khater also consulted with his attorney, who recommended threatened a lawsuit. Khater later informed Osman that Gagnon had argument ensued. Khater refused to pay the balance owed and Gagnon with the installation. Gagnon came to the house to inspect the work and an balance of the payment that was due, Khater told him that there were problems dissatisfied with the final product. When Gagnon called Khater to collect the After the flooring was installed, Osman told Khater that she was

from her bank account. $4,000 down payment that he signed in Osman’s name and that was drawn p. 3 3

same transaction or situation as the plaintiff’s claim may compel removal of the defendant who has a claim for damages in excess of $1,500 arising out of the superior cou rt. See RSA 502 - A:14, III (1997); RSA 50 p. 3 3:1, III (Supp. 2004). A under the statutory provisions that permit transfer of a case from district to process because she or Khater could have pursued their claim for damages Furthermore, applying res judicata does not violate Osman’s right to due

Boucher, 1 17 N.H. at 591. have been raised as a defense or counterclaim in the small claims proceeding. judicata prevents Osman from bringing a claim in superior court that could supported by the record. Thus, because Osman and Khater were in privity, res her interests in the proceedings in the district court.” These findings are contract with Gagnon and that “Khater had authority from Osman to represent The trial court found that Khater and Osman acted jointly in forming the

have been rendered on th e first action. Brzica, 147 N.H. at 454. before the court in both instances; and ( p. 3 3) a final judgment on the merits must same or in privity with one another; (2) the same cause of action must be conditions must be met for res judicata to apply: (1) the parties must be the Boucher v. Bailey, 117 N.H. 590, 591 (1977) (quotation omitted). Three judgment finally negatives every defense that was or might have been raised.” Trustees of Dartmouth College, 147 N.H. 443, 454 (2002). Thus, “[a] valid economy and a policy of certainty and finality in our legal system. Brzica v. judicata attempts to avoid repetitive litigation in order to promote judicial First Southern Leasing, 129 N.H. 270, 273 (1987) (quotation omitted). Res litigation involving the s ame cause of action.” Eastern Marine Const. Corp. v. court of competent jurisdiction is conclusive upon the parties in a subsequent “The essence of the doctrine of res judicata is that a final judgment by a

superior court. See N.H. CONST. pt. I, art. 14. Hampshire Constitution, is violated if res judicata bars a s eparate civil suit in that her due process right to a full remedy, as guaranteed under the New any amount over $5,000 or proceed by regular civil writ). Thus, Osman argues also Dist. Ct. R. 4.2 (small claims li tigants must either waive the right to claim subject to the jurisdictional limitation over small claims, currently $5,000); see Thomas v. Crete, 141 N.H. 708, 709 (1997) (holding that a counterclaim is obtain a full remedy was by filing a separate suit in superior court. See jurisdictional limitations in small claims proceedings, the only way she could barred by res judicata. She contends that because of the district court’s Osman argues that the trial court erred by ruling that her claim was

N.H. 12 1, 12 p. 4 4 (2002). unless they are erroneous as a matter of law. Dow v. Town of Effingham, 148 unsupported by the evidence and we will affirm the trial court’s legal rulings We will affirm the trial court’s factual findings unless they are 4

NADEAU, DALIANIS and GALWAY, JJ., concurred.

Osman’s claim is barred by res judicata. Accordingly, we hold that the trial court did not err in finding that

pursue it. and simply failed to avail themselves of the statutory procedures available to matter was pending, Osman and Khater knew that they had a counterclaim procedural constraints. Here, the facts show th at while the small claims Khater were not confined to the small claims proceeding or limited by its res judicata effects.” MacKinder, 198 Cal. Rptr. at 869. However, Osman and that, on the facts prese nted, “judgments of the small claims court have limited informality and procedural limitations in small claims proceedings by holding denied, p. 4 440 N.E.2d 1172 (Mass. 1981). Some States have relied upon the App. 1984); Smith v. Caggiano, 421 N.E.2d 473, 477 (Mass. App. Ct.), review See, e.g., MacKinder v. OSCA Development Co., 198 Cal. Rptr. 864, 869 (Ct. either limited or precluded the application of res judicata to small claims cases. Osman argues that we should follow decisions in other States that have

judicata bars Osman’s prese nt claim in superior court. failed to use these procedures while the small claims matter was pending, res claim and the procedures for filing a claim in superior court. Because they A: 1 p. 4 4, III(a). Here, Osman and Khater had notice of their potential counter same transaction or situation as a pending case in superior court. RSA 502 - Finally, a defendant may remove a district court case that arises out of the cases in which district court has concurrent jurisdiction with superior court). 503:1, III; see also RSA 502 - A:15, I (1997) (transfer of case for jury trial for request a trial by jury and the case must be transferred to superior court. RSA claimed in a small claims proceeding exceed $1,500, the defendant may case to superior court. RSA 50 2 - A:14, III(b). Likewise, when the damages