2007-257, HARRY A. SLEEPER v. THE HOBAN FAMILY PARTNERSHIP & a.

The petitioner, Harry A. Sleeper, appeals the order of the

orally), for the respondents. Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the brief and

and orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Devine, Millimet & Branch, P.A., of Manchester (David P. Eby on the brief

editorial errors in order that corrections may be made before the opinion goes No. 2007-257 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Belknap Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. 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 p. 2 22 as 2

p. 2 2007). exclusive.

respondents continued to post “no trespassing” signs. purchasing the Drews’ property, the petitioner removed the fence. The

either because he has an easement to do so or pursuant to RSA p. 2 231:43 (Supp. Street, he may use it to access his property and/or the beach and dock area uninterrupted use of the shaded area, they had not proved that their use was point as it runs along his property; and (2) even if he does not own Beech petition, finding that although they had proved twenty years of continuous and declaration that: (1) he is the rightful owner of Beech Street to the center-line In 2005, the petitioner brought the instant petition, seeking, inter alia, a

Street and the Drews’ property and posted “no trespassing” signs. Shortly after After this decision, the respondents erected a fence at the edge of Beech

beach, was included in the shaded area. The court dismissed the Drews’ portion of Beech Street, including the end of the street on which there is a a shaded portion of a map submitted with their petition (the shaded area). A and westerly of” their land “with frontage on Lake Winnipesaukee” as shown in title under a theory of adverse possession to “the parcel of land adjacent to, 55-1, brought a quiet title action against respondent John J. Hoban, claiming In 1991, Albert S. and Joan K. Drew, who then owned tax lots 55 and

petitioner purchased tax lot 36 in 1991 and tax lots 55 and 55-1 in 1998. blocks away from the shore. A portion of tax lot 55 abuts tax lot 76. The discontinued became tax lot 76. There is a beach at the end of this lot. 55-1 run along the shore of Lake Winnipesaukee; tax lot 36 is located a few public servitude and interests. The portion of Beech Street that was The petitioner owns tax lots 36, 55 and 55-1 in Alton. Tax lots 55 and of Beech Street that ran from Lake Shore Avenue to Railroad Avenue from all 57 on which they have a home. Tax lot 57 borders tax lot 76. of access to and use of the said beach area.” The respondents also own tax lot favor of the Grantors, their heirs and assigns, for the benefit of Tax Lot 36 . . . the beach area on the shore of Lake Winnipesaukee” and “to a reservation in subject to “whatever rights may exist in others to cross and recross and to use deed conveying tax lot 76 to the respondents stated that the lot was conveyed The respondents now own tax lot 76, having purchased it in 1991. The

Town of Alton’s board of selectmen released Lake Shore Avenue and the portion shoreline, bisecting Railroad Avenue and ending on Main Street. In 1979, the ran perpendicular from Lake Shore Avenue to the Lake Winnipesaukee depicted on a plan recorded in 1889 by the Winnipesaukee Land Company. It The record supports the following facts. Beech Street was originally p. 3 3

justified based on a variety of pre-existing substantive legal relationships

petitioner’s appeal and then the respondents’ cross-appeal. of Beech Street. This appeal and cross-appeal followed. We first examine the

2171-72 (construing federal common law). “[N]onparty preclusion may be original judgment, this rule is subject to exceptions. Sturgell, 128 S. Ct. at Although generally res judicata does not apply to nonparties to the

Judgments § 4 p. 3 3 (1982). also Taylor v. Sturgell, 128 S. Ct. 2161, 2172 (2008); Restatement (Second) of successor in interest. See Innie v. W & R, Inc., 116 N.H. 315, 316 (1976); see the contrary, the petitioner was in privity with the Drews because he was their of an easement over respondents’ tax lot 76 to access the beach area at the end represented and protected.” Cook v. Sullivan, 149 N.H. 774, 779 (2003). To privity did not exist because his interests in their litigation “were not in fact bar because he was not in privity with the Drews. Specifically, he asserts that The petitioner first contends that the Drew litigation could not act as a

rendered in the first action. Id. The petitioner contests elements (1) and (2). in both instances; and ( p. 3 3) a final judgment on the merits must have been privity with one another; (2) the same cause of action must be before the court apply, three elements must be met: (1) the parties must be the same or in between the same parties for the same cause of action. Id. For the doctrine to decided, and matters that could have been litigated, in an earlier action (2006). Res judicata precludes the litigation in a later case of matters actually to which petitioner’s tax lot 36 was the dominant estate to be benefited by use of law that we review de novo. Meier v. Town of Littleton, 154 N.H. 340, 342 deed to the respondents’ property created an appurtenant easement, pursuant easement or under RSA 231:43. The applicability of res judicata is a question other than his claim to have an easement by deed. The court ruled that the claims to have a right to use the street for access either because of an that res judicata barred his claims to ownership of Beech Street as well as his The petitioner first challenges the trial court’s post-trial determination

disputed issues of material fact remained, a trial was held. I

the doctrine of res judicata barred all of the petitioner’s claims to Beech Street Following the trial, which included a view, the court ruled that, in fact,

was not at issue in the Drews’ quiet title action were not barred. Because action, but ruled that the petitioner’s claims to the portion of Beech Street that to the portion of Beech Street that had been litigated in the Drews’ quiet title doctrines of res judicata and collateral estoppel barred the petitioner’s claims All parties moved for summary judgment. The trial court ruled that the p. 4 4

their interests in the property and in effect a conveyance from the losing party

ownership interest in the object. It is therefore an involuntary realignment of judgment “is to delimit, as between such parties, what each has by way of an interests” in the “property involved in the action.” The effect of such a “[c]onclusively determines the claims of the parties to the action regarding their in an action that determines interests in real or personal property Under the Restatement (Second) of Judgments, supra § p. 4 43, a judgment basis of the factual transaction in question.” (2002). action collectively to refer to all theories on which relief could be claimed on the purposes. New Hampshire embraces the modern trend “to define cause of the first action. Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 455-56 action to present evidence or grounds or theories of the case not presented in will bar a second action even though the plaintiff is prepared in the second Univ. System of N.H. Bd. of Trustees, 147 N.H. 626, 629 (2002). Res judicata requirement. causes of action arise out of the same transaction or occurrence.” Appeal of the substantive legal relationship between them satisfies the privity for the purpose of applying res judicata, we consider whether the alleged to settle.” the Drews also were in privity by virtue of their functional relationship because Generally, “[i]n determining whether two actions are the same cause of action transfer of property would unsettle controversies which an action was intended 415, 417 (2001); Restatement (Second) of Judgments § 24, at 197 (1982). First Southern Leasing, 129 N.H. 270, 275 (1987); see Goffin v. Tofte, 146 N.H.

cause of action do not constitute the “same cause of action” for res judicata The petitioner next asserts that his claims in this lawsuit and the Drews’

Contrary to the petitioner’s assertions, we need not examine whether he and to his predecessor in interest serves important policy interests. “[O]therwise a (Second) of Judgments, supra § p. 4 43(1)(b); see also Innie, 116 N.H. at 316. them and is bound by the judgment in their prior action. See Restatement the petitioner is the successor in interest to the Drews, he is in privity with and protected in the prior litigation.” Cook, 149 N.H. at 779. Here, because which, at a minimum, the interests of the non-party were in fact represented have used the term more broadly to refer to a “functional relationship, in collectively referred to as ‘privity,’” Sturgell, 128 S. Ct. at 2172 n.8, although we “The substantive legal relationships justifying preclusion are sometimes

Restatement of Judgments § 89 comment c at p. 4 435 (1942).

§ p. 4 43(1)(b). The rule that a successor in interest is bound by a judgment issued successor in interest. Id.; see Restatement (Second) of Judgments, supra Qualifying relationships include that between a property owner and his between the person to be bound and a party to the judgment.” Id. at 2172. p. 5 5

subsequently litigating issues determined in the action.”

instructive: Illustration 4 to Restatement (Second) of Judgments, supra § 43 is

added).

action, does not preclude a person who is a successor in interest thereof from real or personal property “[w]ith respect to other property held by a party to the § 43 comment over the course of the claimed easement. c at 4- p. 5 5. A judgment in an action that determines interests in are in the non-shaded area. an easement over Whiteacre by virtue of A’s long adverse passage See Restatement (Second) of Judgments, supra property owned by the respondents, including the portions of Beech Street that not preclusive, at least with respect to the petitioner, as regards any other While the Drew litigation is preclusive as regards the shaded area, it is

the shaded area, including an easement claim. precluded them and the petitioner from raising any other claim with regard to under a theory of adverse possession. The court’s judgment against them an easement over this area. Illustration 2 to In the Drew litigation, the Drews argued that they owned the shaded area portion of Beech Street included in the shaded area, but also to his claim for

thereafter conveys Blackacre to S. S is precluded from asserting the ground that the conveyance did not give A an easement. A redress as against [the respondents] with regard to” the shaded area. reason of a certain conveyance from B. Judgment is given for B on owner of Whiteacre, asserting an easement over Whiteacre by A, the owner of Blackacre, brings an action against B, the

Judgments, supra § 43, is on point:

judgment in the Drew litigation extends not only to his claims to own the Contrary to the petitioner’s assertions, the preclusive effect of the

comment b at 3.

different theories, relying on different evidence, or asserting further claims to precludes the petitioner from “seeking different kinds of relief, advancing Drews’ successor in interest. The judgment in the Drew litigation, therefore, area and settled the petitioner’s interests in this area because he was the Drew litigation settled the interests of the Drews and the respondents in this The property at issue in the Drew litigation was the shaded area. The

comment a at 2. to the winning party.” Restatement (Second) of Judgments, supra § 43 p. 6 6

entitled to judgment as a matter of law. genuine issue of material fact exists, we determine whether the moving party is

and that the trial court’s findings in that litigation are dispositive. the prescriptive easement claim was “actually litigated” in the Drew litigation

de novo. Id. 15 p. 6 6 N.H. 429, 431 (2007). We review a trial court’s application of law to facts

the evidence in the light most favorable to the non-moving party and, if no In reviewing the superior court’s summary judgment rulings, we consider of Beech Street up to the center line,

summary judgment on his claim for a prescriptive easement. He asserts that Finally, the petitioner contests the trial court’s denial of his motion for

further proceedings consistent with this opinion. area. We reverse the trial court’s rulings on these claims and remand for prescriptive easement over the part of Beech Street that is in the non-shaded Beech Street for access to his garage, see id. at 733; and (4) to have a 732 (1978); (3) to have an implied easement in the non-shaded portion of the second home . . . .

Beech Street that is not in the shaded area; (2) to own the non-shaded portion claims: (1) to access pursuant to RSA 231:43 as it pertains to any part of Street that is not in the shaded area. These claims include the petitioner’s res judicata barred the petitioner’s claims with respect to the part of Beech should be regarded as having a single claim that is barred by the judgment.” so in this litigation. Accordingly, the court erred to the extent that it ruled that concerning the two homes,” that they were not sold to B, “implies that . . . A shaded area, their failure to do so does not preclude the petitioner from doing Thus, while the Drews could have brought claims regarding the non-

it.” Id. predecessor in interest had an opportunity to do so but did not avail himself of not litigate a claim concerning what is now his property because his precluded from bringing an action against B to establish S’s title to considerations, however, there seems no good reason for saying that he may A then sells his interest in the other mobile home to S. S is not acquired the property. for a declaration that they were not sold to B. Judgment is for B. Id. “Assuming S is not precluded by such equitable preclusion to S, unless S had knowledge of the dispute over title when he Id. § 43 comment c at 5. It would be unfair, however, to apply this same rule of

regarding the second home “because the identity of the basis of his claim In this illustration, A would likely be precluded from bringing an action

sold to him. A brings an action with respect to one of the homes A is the owner of two mobile homes that B contends were p. 7 7

conflicts in evidence. the court may have been conflicting, it was for the trial court to resolve evidence included the trial court’s view of the area. While the evidence before to which the deed referred was the beach area at the end of Beech Street. This

BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

court’s finding, we uphold it.

court unless they lack evidentiary support or are erroneous as a matter of law. that there is evidence to support the trial court’s finding that the “beach area” located at the end of Beech Street. We will not disturb the findings of the trial Based upon our review of the record submitted on appeal, we conclude separate triangular piece of land adjacent to Beech Street, rather than land

(quotation and brackets omitted). are within its sound discretion, particularly when a view has been taken.” Id. decision is consonant with applicable law. Id. “The findings of the trial court the trial court reasonably supports its findings, and then whether the court’s for error. Id. Our inquiry is to determine whether the evidence presented to review legal conclusions, as well as the application of law to fact, independently of Beech Street continuously for twenty years, it did New Hampshire Dep’t of Envtl. Servs. v. Marino, 155 N.H. p. 7 709, 717 (2007). We

failing to find that the beach area to which tax lot 36 is entitled access is a adverse claim was being made to it. In their cross-appeal, the respondents assert that the trial court erred in uninterrupted in such a manner as to give notice to the respondents that an Beech Street for twenty years and that this use was adverse, continuous, and II

they exercised “adverse use” over the disputed area. adverse. The trial court specifically denied the Drews’ request for a finding that

trial court in the Drew litigation found that the Drews used the shaded portion a matter of law on his prescriptive easement claim. To the contrary, while the found all of these elements to exist and, therefore, he is entitled to judgment as 642 (2001). The petitioner argues that the trial court in the Drew litigation

balance of the probabilities, that he or the Drews used the shaded portion of To establish a prescriptive easement, the petitioner had to show, by a