2012-0754, In re Estate of Jack Michael Bergquist

petitioner filed a motion for periodic payments in the district court pursuant to interest. After the decedent failed to make any payment on the judgment, the entered a default judgment for the petitioner for $5, 136.99, including costs and to an agreement to purchase loggi ng equipment. In February 2002, the court against the de cedent in Colebrook District Court for $5, 000.00 owed pursuant facts. In November 2001, the petitioner brought a small claim complaint The parties either do not dispute, or the record establishes, the following

interest. We reverse and remand. petitioner $544.21 and excluding the petitioner’s claim for post - judgment respondent, the E state of Jack Michael Bergquist (the e state), owes the the Circuit Court – L ancaster Probate Division (Hampe, J.) ruling that the LYNN, J. The petitioner, Eddie Nash & Sons, Inc., appeals an order of

orally), for the respondent. Parnell & McKay, PLLC, of Londonderry (Rory J. Parnell on the brief and

Jonathan S. Frizzell on the brief, and Ms. Mee n an oral ly), for the petitioner. Waystack Frizzell, Trial Lawyers, of Colebrook (Erin S. Mee n an and

No. 2012 - 754 1st Circuit C ourt – Lancaster Probate Division

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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any 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

damages, exclusive of interest and costs, does not exceed $7,500.” RSA 503:1, I ( p. 2 2010). “A small claim is any right of action not involving the title to real estate in which the debt or 1

( p. 2 2010). 1 awarded to a prevailing plaintiff in a small claim action. See RSA 503:7 of allowing post - judgment interest). In addition, b y statute, interest shall be N.H. 280, 283 (1916) (referring to this state’s lon g and uninterrupted practice N & L Dev. Co., 146 N.H. 35, 3 6, 39 (2001); see also Lombar d v. Co mpany, 78 statute even wh en the original judgment i s silen t on that matter. S ee Nault v. However, we have held tha t plaintiffs can receive post - judgment interest by did not explicitly call for an award of continuing pos t - judgment interest. The probate division based its ruling on the fact that the 2002 judgment

judgment interest is contrary to the purpose of RSA 5 p. 2 24:6 - a. paymen t order. Alternatively, the estate contends that an award of post of res judicata and is an attempt to retroactively mo dify the 2003 periodic that the petitioner’ s claim for post - judgment interest is barred by the doctrine excluded its claim for statutory post - judgment interes t. The e state counters On appeal, the petitioner argues that the probate division erred when it

probate division agreed, and entered judgment for the petitioner for $544. p. 2 21. claim, because the periodic payment order was silent on the subject. T he judgment interest had not been award ed, and should be excluded from the $5, 394.26 specified in the periodic payment order, but argued that post that the petitioner was owed $544.21 as the remaining balance due on the act ions always included continuing post - judgment interest. The e state agreed extensive experience in small claims court, that judgments in small claims Nash represented the petitioner and stated her belief, based on her own post [-] judgment interest on that amount.” At a hearing on the objection, Susan $3, 697.57 for the remaining balance on the court judgment, “plus statutory objected to the claim, which the petitioner later amended to consist only of the of Court Judgment,” and reque st ed the total claim “Plus Interest.” T he estate filed a creditor’s claim against the estate that included $3, 697.57 for “Balance 2011; the petitioner was made aware of his death in June 2011. The petitioner The decedent made payments under the order each month until M ay

entitlement to continuing post - judgment interest. p. 2 2002 judgment nor the 200 p. 3 3 order made explicit refe rence to the petitioner’s in the thirteen months following entry of the original judgment. Neither the $5, 394.26, but did not indicate why that total had increased more than $250 the “judgment and all costs are paid in full.” The order listed the total due as payment order requiring monthly payments of $50 to begin in May 2003 unt il RSA 524:6 - a (2007) (amended 2009). In 2003, t he court entere d a periodic 3

court that would have changed this legal reality. interest as a matter of law, there was simply nothing the decedent could have said to the trial this argument is illogical. Because we hold that a judgment creditor is entitled to post - judgment which resulted in the entry of a default judgment against him, the more important p oint is that from the fact that any lack of “opportunity to litigate” was due to the decedent ’s own actions, interest when it originally filed suit, it did not have the “opportunity to litigate” the issue. Aside The e state also claims that, because the petitioner did not specif ically request post - judgment 2

Ingenieurgesellschaft, 16 p. 3 3 N.H. 46, 49 (2011). review de novo.” Hansa Consult of N. Am. v. Hansaconsult merits.” Id. “The applicabil ity of res judicata is a question of law, which we both instances; and (3) the first action ended with a final judgment on the privity with one another; (2) the same cause of action was before the court in doctrine applies if three elements are met: (1) the parties are the same or in action.” Appeal of Morrissey, 165 N.H. 87, 92 (2013) (quotation omitted). “The matters actually litigated and matters that could have been litigated in the first action. “The doctrine of res judicata prevents the parties from relitigating T he estate also argues that the doctrine of res judicata bars the curren t

whether the court ’s order explicitly awarded such interest. whether the plaintiff made a request for such interest in the trial court or the judgment as a matter of law until payment is made in full, regardless of awarded a money judgment is entitled to continuing post - judgment interest on the extent that our holding in Nault is unclear, we now clarify it: A p laintiff matter of law should the money judgment not be satisfied. In any event, t o 2 require a plaintiff to specifically request relief to which it will be entitled as a is of no consequence. Furthermore, it would be unnecessarily formalistic to claim in probate, rather than an action to recover a deficiency on a judgment — pursuant to the 2002 judgment. The difference — that this case arose from a analogous to that here, in which the petitioner seek s to assert a claim obtained. Nault, 146 N.H. at p. 3 36. The factual scenario in that case is the original judgment, not in the civil a ction in which the judgment was first requested post - judgment interest in their new action to recover a deficiency on interest, which it contends is lacking here. However, the plaintiffs in Nault Nault. The e state asserts that Nault involved a request for post - judgment district court. T his argument is based on an incorrect reading of the facts in judgment interest because it did not specifically request such interest in the T he e state contends that the petitio ner is not entitled to continuing post -

division erred in excluding its claim for that interest. entitled, as a matter of law, to continuing post - judgment interest, the probate $257.27 from the $5, 1 p. 3 36.99 default judgment. Because the petitioner w as judgment, listed $5, 39 p. 4 4.26 as the total due to the petitioner, an increase of order for payments, issued thirteen months after the court’s initial entry of judgment against Bergquist included continuing post - judgment interest: T he Indeed, in this case, the d istrict c ourt apparently found that its initial 4

payments), not a new source of payment.” Sheedy v. Merrimack Cty. Super. a new method of obtaining payment (periodic rather than lump - sum “[t] he legislature’ s intent in passing RSA 52 p. 4 4:6 - a was to give judgment creditors authority for this proposition, nor can we find any. However, we have said that when determining when his obligation has been met.” The e stat e cites no their cases” and set a fixed payment that the defendant “can rightly refer to and defendant a specific set schedule that they can utilize to obtain finality in to RSA 5 24:6 - a is to fix the amount due so as to “provide the court, plaintiff The e state contends that the purpose of an order for payments pursuant

or “upon petition of the plaintiff af ter judgment.” discretion deems appropriate” either “at the time of rendition of the judgment” ... order the defendant to make such periodic payments as the court in its any person in this state, the court in which the j udgment is rendered ... may 52 p. 4 4:6 - a. RSA 524:6 - a provides that “[w]henever judgment is rendered against continuing post - judgment interest would be contra ry to the purposes of RSA Alternatively, the e state argues that allowing the petitioner’s claim for

from the State for payments made to third parties). same cause of action as case involving town’s right to obtain indemnification application because action brought under right to enforce contract was not th e Assoc ’s v. State, 126 N.H. 266, 270 (1985) (holding that res judicata had no agreement against same opposing party in a different action); Morgenroth & not the same cause of action as party’s moti on to enforce a settlement because par ty’s New Hampshire statutory and common law tort claims were res judicata. Cf. Hansa, 163 N.H. at 50 (holding that res judicata did not apply in that cause of action, and thus its claim here is not barred by the doctrine of but instead is merely seeking to enforce its entitlement to the relief it obtained existing judgment. The petitioner is not re - asserting the same cause of action, question before us is wha t amount the petitioner is already owed under that asserting its existing rights under the judgment against the e state, and the purchase agreement or the 2002 default judgment. R ather, the petitioner is relief based on the decedent’s original failure to pay pursuant to the 2001 Contrary to the estate’s argument, the petitioner is not requesting ne w

was asserted for the first time in the petitioner’s claim against the estate. transaction as the original small claims complaint against the decedent, but petitioner’s request for statutory post - judgment inte rest arises out of the same Morrissey, 16 p. 5 5 N.H. at 92 (quotations omitted). The e state argues that the could be claimed on the basis of the f actual transaction in question.” of the theory of recovery,” and as referring to “all theories [up on] which relief (quotation omitted). We have also defined it as “the right to recover, regar dless underlying right that is preserved by bringing a suit or action.” Id. at 50 disagree as to the sec ond element. We have defined a “cause of action” as “the The parties agree that the first and third elements are satisfied, but they 5

DALIANIS, C.J.