2005-715, RICHARD PORTER & a. v. KEVIN COCO & a.

The petitioners, Richard and Paula Porter, appeal the decision

David S.V. Shirley on the brief, and Mr. Morrissette orally), for the respondents. McDowell & Osburn, P.A., of Manchester (Mark D. Morrissette and

orally), for the petitioners. to press. Errors may be reported by E-mail at the following address: Brown and LaPointe, P.A., of Exeter (Scott W. LaPointe on the brief and

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-715 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as in the local newspaper, the

p. 2 contested that notice of the petition was published by the Town of Fremont and

time. It is unknown whether the Willeys ever received this letter. It is not

property was undeveloped land and the Willeys actually lived in Epping at the annulled . . . .” letter was addressed to the Willeys’ land in Fremont, although the Fremont estate in and to the subject matter of this action.” informing them of the quiet title action by their abutters, the Therriaults. The successors and assigns; [and] the unknown persons who claim any interest or chain of title, including the Trickeys, the heirs to such persons, “their unknown

estate in and to the subject matter of this action, are hereby removed and

produced a letter dated October 28, 1982, addressed to the Willeys and

Bessie Healey. The petition named as defendants persons in the Therriaults’

a petition to quiet title and establish boundary line on June 9, 2003. The

known defendants herein, and unknown persons who claim any interest or pertinent part: “That all the right, title, interest, claim and demand of the parcel now owned by the Porters. The attorney representing the Therriaults acres described in the 1972 Healey to Therriault deed. The decree provided, in 2 the time of the quiet title proceeding, the Willeys owned the twenty-three acre 1982, the Therriaults filed a petition to quiet title for the land acquired from increased in size over the years by subtraction from this adjoining parcel.” At specific description of the land that includes the disputed acreage. In April Bessie Healey conveyed the property to the Therriaults, she included a more that the disputed 2.2 acres were part of the Porters’ property. The Porters filed

the petition and issued a decree quieting title in the Therriaults to the five

in the subject property “since it appears that the subject premises were

Deed, which described the property only as “five acres Clough Land.” When In 2002, the Porters had their property surveyed. The survey indicated

In December 1982, the trial court entered a default judgment granting

premises” were the only other parties that “could conceivably have any interest” Exeter News. Therriaults that “the present owners of the 23 acre parcel abutting the subject Healey. Bessie Healey acquired title to the property in 1957 by a Tax Collector interests of unknown persons. The GAL informed the attorney representing the Therriaults acquired title to the property in 1972 by quitclaim deed from Bessie and the description of the property also included the disputed land. The

A guardian ad litem (GAL) was appointed by the court to represent the

from C. Larry and Doris Therriault. The deed conveyed “5 acres, more or less”

Porters’ chain of title since 1897.

The Cocos acquired title to their property by warranty deed in April 1986

the disputed land. This description has remained unchanged throughout the acres, more or less” and contains a description of the property that includes matter of law.

p. 3 over any material fact and the right to judgment as a

proponent has established the absence of a dispute the non-moving party to determine whether the discovery and affidavits in the light most favorable to 3

publication and/or mail . . . . Accordingly the court

bar to subsequent claims; (2) the tax deed statute of repose,

trial court is required to construe the pleadings,

quiet, and in providing notice to said parties either by

fact is material if it affects the outcome of the litigation.” Id. Panciocco v. Lawyers Title Ins. Corp., 147 N.H. 610, 613 (2002). “An issue of Willeys on notice of an adverse claim. judgment in their favor based upon: (1) the 1982 quiet title decree acting as a even if the notification letter had been sent, it was insufficient to put the the petition pursuant to RSA 498:5-a (1997). The Porters further argued that

In acting upon a motion for summary judgment, the

(2003); and (3) the doctrine of laches. interest in the property, title to which they sought to

to identify all potential parties who may have had an see RSA 80:39 title, [the Therriaults], acted reasonably in attempting

petition. The Cocos counter that the trial court properly granted summary quieted against the Willeys because they were not named as parties to the 1982 because as interested parties, they were required to be named as defendants in summary judgment, holding: The Porters appeal, asserting that title to the disputed land was not

motion for summary judgment. law . . . .

finds that the notice was sufficient as a matter of

The Court finds that the respondents’ predecessor in

Porters claimed that the petition did not quiet title as against the Willeys, reversed its earlier decision and granted the Cocos’ renewed motion for had received notice by means of the October 28, 1982 letter. In response, the Sua sponte, the trial court subsequently denied the Cocos’ renewed motion for summary judgment and the Porters’ 1982 decree “barred any claim by any person in interest” and that the Willeys predecessor in title received notice of the 1982 action.” The trial court also because “there is a genuine issue of material fact whether petitioners [sic] The trial court initially denied the Cocos’ motion for summary judgment

grounds for dismissal of the Porters’ petition. Primarily, they claimed that the Cocos moved for summary judgment on March 17, 2004, alleging several action, even if their interest was only speculative.

p. 4 omitted.) This alone warranted naming the Willeys as defendants in the 1982 owners of the 23 acre parcel abutting the subject premises. . . .” (Quotation property other tha[n] those named in the Petition, it would be the present

any parties that could conceivably have any interest in any portion of the

property.”

Accordingly, the Willeys and their successors, as necessary parties to the 1982

from the court regarding the parties’ land interests. we will affirm the trial court’s decision. expense of the Willey parcel and further stated: “It appears that if there are the plaintiff acquired such claim, interest or title and which noted the increase in acreage of the Therriault parcel at the apparent supplied by the Therriaults’ attorney references the letter received by the GAL,

The evidence in the record belies this assertion. The affidavit

was because “[they] were not identified as having an interest in the Coco as defendants in the 1982 Quiet Title Action and Decree,” but claim that this The Cocos concede that in 1982, the Willeys “were not expressly named

N.H. 294, 296 (1990). parties whose rights may be affected by the court’s decree.” Radkay v. Confalone, 133 (emphasis added). Quiet title petitions essentially seek a declaratory judgment the land at issue. persons who [movant] was entitled to judgment as a matter of law, may claim such adverse estate or interest.” RSA 498:5-a

question and state the plaintiff’s claim, interest or title and the manner in which 1982 decree cannot be enforced against them. provides: “The petition in . . . such action shall describe the property in RSA 498:5-a sets the standard for bringing quiet title petitions. It

parties claimed no interest and the petition so alleged.” Id. absence of parties with a duly recorded interest in the property, unless those court may not render judgment quieting title to disputed property “in the

“[t]he burden . . . is on . . . [the] party to prove good title as against all other

A petition to quiet title quiets title as against the world with respect to we find no genuine issue of material fact and that the

the light most favorable to the [non-moving party]. If evidence, as well as all proper inferences therefrom, in

Because the Willeys were not named as defendants, the Porters argue, the petition and, as such, were required to be named as defendants in that action. The Porters claim that the Willeys were necessary parties to the 1982

Id. (citation omitted).

the . . . motion, we consider the affidavits and other To determine whether the trial court erred in granting attorney.

p. 5 successors. Accordingly, the Porters may collaterally attack the 1982 decree. 498:5-a and a lack of jurisdiction by the court over the Willeys and their This omission resulted in a failure to meet the express requirements of RSA

received actual notice through the letter sent to them by the Therriaults’

that the Willeys were persons the sufficiency of notice, the fact remains, based upon the record before us, of jurisdiction in some cases, we do not reach this issue here. Regardless of

was not articulated, and they were not present at the quiet title proceeding.

the proceedings through publication. Finally, they argue that the Willeys 5 Trickeys. Second, they assert that the Willeys were given constructive notice of necessarily included the Willeys as their title can be traced back to the

and notifying potential parties. While insufficient notice may constitute a lack

collaterally.

expressly named as defendants in the petition, their potential interest therein notification letter allegedly sent to the Willeys. However, the Willeys were not evidenced by the GAL letter, the Therriaults’ attorney’s affidavit, and the

(permitting defendants to collaterally attack a previous quiet title judgment that the petition named all the heirs of the Trickeys as defendants, which See Atlantic Richfield Co. v. Tomlinson, 859 P.2d 1088, 1097-98 (Okla. 1993)

issue of notice by finding that the Therriaults acted reasonably in identifying

by the quiet title decree. If it did, the Porters cannot now attack the decree

the property and further, that the nature of their claim was known. This is

jurisdiction over the Willeys in the 1982 quiet title petition. First, they argue

The trial court’s summary judgment order focuses specifically upon the

1982 had jurisdiction over the Willeys so as to bind them and their successors

lack of jurisdiction.

express purpose of attacking it.” its force and effect, in some incidental proceeding not provided by law for the collateral attack is an attempt to avoid, defeat, or evade a judgment, or to deny The Cocos assert three arguments in favor of finding that the court had

657, 661 (1996). Thus, the issue in this appeal is whether the trial court in judgment.” See Glen Condo. at Linderhof Assoc. v. Rosatto, 140 N.H. subject-matter of the suit and whose rights may be concluded by the (quotation omitted). A collateral attack on a prior judgment is permitted for a

it is a collateral attack on the 1982 decree, which is a prior judgment. “A Nonetheless, the Cocos argue that the Porters’ petition is barred because

1967). Lake Garda Improvement Association v. Battistoni, 231 A.2d 276, 280 (Conn. has not been named a party to the action is not bound by the judgment. See

Jones v. Herbert, 77 N.H. 282, 284 (1914). A necessary party who

parties to any proceeding, . . . are those . . . who have an interest in the action, may not be bound by the 1982 quiet title decree. “The necessary p. 6 Porters in 2002, at which point the Porters soon after filed their petition. potential infringement on their rights until the survey was conducted by the

that the Porters or their predecessors-in-interest were ever aware of any

the record before us does not support a finding of laches. It does not appear

concurred.

Land.” Finally, we hold that viewed in the light most favorable to the Porters, the validity of the tax sale, which conveyed an indefinite “five acres Clough That statute is not triggered in this case, since the Porters are not contesting

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

are not entitled to summary judgment. precluded from collaterally challenging the 1982 decree. Therefore, the Cocos than ten years after the recording date, does not preclude the Porters’ claim. the trial court in 1982 had jurisdiction over the Willeys, the Porters are not Accordingly, we hold that because the Cocos failed to demonstrate that

parties to the 1982 quiet title action.

which bars suits contesting the validity of a tax sale or collector’s deed more parties to the action.” (quotation omitted)). We also conclude that RSA 80:39, 1097 (“Judgments bind only parties and privies – not strangers or persons not

contained in the 1982 decree since they were not parties or in privity with favor. The Porters’ claim is not barred by res judicata or the injunction remaining arguments do not support the grant of summary judgment in their We also conclude that, based upon the record before us, the Cocos’

original quiet title action). (permitting collateral attack where plaintiffs were not named as defendants in named as parties); Jeurissen v. Harbeck, 127 N.W.2d 437, 438 (Minn. 1964) where defendants were known to have an interest in the action but were not