2019-0264, Riverbend Condo Association v. Groundhog Landscaping and Property Maintenance, Inc.

plaintiff brought a breach of contract action against the defendant. In October The following facts were found by the trial court. In July 2017, the

dismissal was not a final judgment on the merits. We affirm. the trial court’s dismissal of its first action against the defendan t, as that judicata grounds. The plaintiff contends that its complaint was not barred by defendant, Groundhog Landscaping and Property Maintenance, Inc., on res of the Superior Court (Anderson, J.) dismissing its complaint against the H ICKS, J. The plaintiff, Riverbend Condo Association, appeals an order

brief), for the defendant. Gallagher, Callahan & Gartrell, P.C., of Concord (John A. C urra n on the

brief), for the plaintiff. Prieto Law, of Manchester (Joseph Prieto and Wesley Gardner on the

No. 20 19 - 0264 Hillsborough - northern judicial district

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

of the date on the written Notice of the order or decision. . ..” Super. Ct. Civ. R. 1 p. 2 2(e). Pursuant to Superior Court Civil Rule 12(e), a motion to reconsider must be filed “within 10 days 2 this violation. Super. Ct. Civ. R. 35 (I) (b). However, the trial court’s dismissal of the first action was not based on Both parties also failed to file pretrial statements in violation of Superior Court Civil Rule 35. 1

judicata applied as a matter of law, our review is de novo. Id. proving its application. Id. Because the trial court determined that res judicata, which is an affirmative defense, the movant bears the burden of ( p. 2 2010). However, when a litigant moves to dismiss based exclusively upon res construction that would permit recovery. Gray v. Kell y, 161 N.H. 160, 164 we consider whether the petitioner’s allegations are reasonably susceptible of a Generally, when reviewing a trial court’s ruling on a motion to dismiss,

this appeal followed. plaintiff filed a motion to reconsider, which was denied by the trial court, and presumed to be “with prejudice” when silent as to its intended effect. The “the general rule followed by other jurisdictions” that a dismissal order is plaintiffs’ suit barred a second acti on, see Foster, 136 N.H. at 7 p. 2 29 - 30, and by 136 N.H. 728 (1993), in which we held that the trial court’s dismissal of the issued “with prejudice.” The court ’ s decision was informed by Foster v. Bedell, prior dismissal constituted a judgment on the merits, as it was effectively hearing in January 2019, the T rial C ourt (Anderson, J.) concluded that the res judicata grounds by the trial court’s prior dismissal order. Following a The defendant moved to dismiss the complaint, arguing that it was barred on action against the defendant, alleging, among other things, breach of contract. Shortly thereafter, on September 17, 2018, the plaintiff brought a second

pleading constituted a motion to reconsider that was untimely filed. p. 2 2 The T rial C ourt (Abramson, J.) denied this moti on, stating that the plaintiff’s court to reopen the matter and reschedule the trial management conference. On August 2 1, 2018, the plaintiff filed a “Motion to Re - Open,” asking the

dismissed.” 1 trial management conference this date. Trial is canceled and case is C ourt (Abramson, J.) entered an order stating: “Neither party appeared at final appeared at the scheduled trial management conference. That day, the T rial discuss conduct of the trial and settlement”). On August 6, p. 2 2018, neither party available by telephone [at the trial management conference], prepared to sanctions.” See Super. Ct. Civ. R. p. 3 35 (I) (a) (requiring that parties “be present or management conference or trial may result in dismissal, default or other order was a directive to the parties that “[f]ailure to ap pear at the trial management conference for August 6, 2018. Included in the case structuring resolution order, together with a notice of jury trial, which scheduled a trial 2017, the trial court issued a case structuring and alternative dispute 3

Roberts, 140 N.H. at 727. The circumstances in Foster led us to conclude that, rules, an involuntary dismissal may be issued by the court with prejudice. a second action. Id. However, whe n a party has failed to comply with court case. Id. at 7 p. 3 30. A voluntary dismissal, if allowed by the court, is not a bar to Our holding in Foster was based on the “circumstances present” in that

motion for reconsideration was denied. Id. at 729. defendants’ m otion to dismiss was granted, and the plaintiffs’ subsequent without prejudice, it would grant the motion. Id. at 7 p. 3 30. Thereafter, t he file that any of the orders in the previous lawsuit could be construed as being stated that if, after a careful review of the record, there was no indication in the grounds. Id. At a hearing on the defendant’s motion to dismiss, the trial cour t defendants. Id. The defendants filed a motion to dismiss on res judicata plaintiffs did not appeal, but instead initiated a second action against the reconsideration twice, and were twice denied. Foster, 136 N.H. at 729. The Following the trial court’s dismissal, the plaintiffs in Foster moved for

judicata is determined on a case - by - case basis). p. 3 30; Cook, 149 N.H. at 777 (stati ng that whether a claim is barred by res Foster was our examination of that case’s procedural history. See id. at 729 called “saving statute.” Foster, 136 N.H. at 730. Important to our holding in precluding the plaintiffs from availing themselves of RSA 508:10 (2010), the so to file court - ordered pretrial statements was a judgment on the merits case, we held that the trial court’s order dismissing the plaintiffs’ suit for failing judgment on the merits, the trial court relied on our decision in Foster. In that In determining that the dismissal of the previous suit constituted a

Roberts v. General Motors Corp., 140 N.H. 72 p. 3 3, 727 (1996). action with prejudice when the plaintiff has not complied with court rules. Systems, 143 N. H. 540, 542 (1999). A trial court has the power to dismiss an bars any attempt to revive the previous action. Moulton - Garland v. Cabletron merits of a matter, even if it resulted from a violation of a procedural rule, and A judgment entered “with prejudice” constitutes a judgment on the

the trial court’s dismissal constituted a final judgment on the merits. elements of res judicata are met. Thus, the sole question before us is whether Wolters, 169 N.H. p. 3 30 p. 4 4, 313 (2016). The parties agree that the first two action ended with a final judgment on the merits. 412 S. Broadway Realty v. same cause of action was before the court in both instances; and (3) the first the parties in both actions are the same or in privity with one another; (2) the 149 N.H. 774, 77 7 (2003). The doctrine applies if three elements are met: (1) a subsequent litigation involving the same cause of action. Cook v. Sullivan, judgment by a court of competent jurisdiction is conclusive upon the parties in action. Appeal of Silva, 172 N.H. 183, 190 (20 19). Under res judicata, a final actually litigated and matters that could have been litigated in a previous The doctrine of res judicata prevents parties from relitigating matters 4

See Foster, 136 N.H. at 730 (stating that “an express indication in the first suit case, courts specify whether the dismissal is issued with or without prejudice. trial courts that appeals such as this one will be avoided if, when dismissing a Notwithstanding our holding today, we take this opportunity to remind

plaintiff’s action was “with prejudice.” events lends ample support to the trial court’s conclusion that dismissal of the plaintiff were free to restart the case from the beginning.” This sequence of would have had little effect and simply delayed resolution of the matter if was untimely filed. As the trial court noted, “the denial of the motion to reopen court denied the plaintiff’s motion, treating it as a moti on to reconsider that dismissal order on the first action to be without prejudice. Instead, the trial powers would have been an efficient remedy had the trial court intended its waive the application of any rule.”). I ndeed, such an exercise of its equitable Civ. R. 1(d) (“As good cause appears and as justice may require, the court may light of the circumstances, it was going to reinstate the case. See Super. Ct. first action, could have exercised its equity powers and determined that, in asserted that the trial court, in deciding the plaintiff’s motion to reopen the At the hearing on the defendant’s motion to dismiss, defense counsel

court’s silence requires reversal in this case. case, which do bar subsequent actions”). We are not persuaded that the trial are ‘procedural,’ but rest also on a substantive decision on the merits of the dismissals, which do not bar subsequent actions, and those dismissals which 238 (2000) (stating that “[w]e distinguish between ‘purely procedural’ prejudice, as it was “purely procedural.” See Jenks v. Menard, 1 p. 4 45 N.H. 236, plaintiff maintains that the order should, instead, be presumed to be without the order was issued with prejudice when it was silent on that matter. The The plaintiff contends that it was error for the trial court to presume that

the plaintiff’s case on res judicata grounds. See id. at 730. judgment on the merits, and, therefor e, the trial court did not err by dismissing reasons set forth in Foster, we conclude the trial court’s order constituted a following a hearing, the court dismissed the plaintiff’s case. Thus, for the defendant. The defendant moved to dismiss on res judicata grounds and, appeal that denial, and instead filed a subsequent complaint against the motion for reconsideration and denied it a s untimely. The plaintiff did not reconsideration, the trial court treated the plaintiff’s motion to reopen as a motion to reopen the case. Although the plaintiff did not move for appear at a court - ordered trial management conference, the plaintiff filed a before us is nearly identical. Following a dismissal for the parties’ failure to As the trial court noted, the procedural history presented in the case

f ro m availing themselves of the saving statute. Foster, 136 N.H. at 730. without prejudice, it was a judgment on the merits precluding the plaintiffs although the trial court’s order was silent on whether it was issued with or p. 5 5

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

and affirm the trial court’s order. address the other arguments raised by the plaintiff. We find Foster controlling the trial court’s order constituted a judgment on the merits, we need not In light of our determination that, under the circumstances of this case,

the same. Given this practice by our court, it was not erroneous for the trial court to do applying res judicata. Opinion of the Justices, 131 N.H. p. 5 573, 580 - 81 (1989). running of a statute of limitations is a judg ment on the merits for purposes of Procedure 41(b) in an advisory opinion stating that a dismissal based on the impression). Moreover, this c ourt has consulted Federal Rule of Civil look to other jur isdictions for guidance” in cases that present issues of first Stateline Steel Erectors v. Shields, 150 N.H. 332, 334 (2003) (stating that “we jurisdictions in interpreting state statutes that are inconsistent on their face); In t he Matter of Barrett & Coyne, 150 N.H. 520, 523 - 25 (2004) (looking to other “that a majority of other jurisdictions appear to be in accord with our holding”); retrospectively, that it could be applied retrospectively, and, in so doing, noting issue was silent on whether it was to be applied prospectively or Estate of Sharek, 156 N.H. 28, 30 - 33 (2007) (concluding, wh ere the statute at them for guidance when deciding issues of first impression. See, e.g., In re courts in other jurisdiction s are not binding on our court, we often look to in its order on the plaintiff’s motion fo r reconsideration, although opinions f r om adjudication on the merits.” Fed. R. Civ. P. 41(b). As noted by the trial court jurisdiction, improper venue, or failure to join a party. . . operates as an otherwise, an inv oluntary dismissal other than a dismissal “for lack of rule in New Hampshire. Rule 41(b) provides that, unless the court specifies Civil Procedure 41(b), arguing that this reliance was error as there is no similar Lastly, the plaintiff challenges the trial court’s reliance on Federal Rule of

of prejudice and the need for further litigation. confusion in this case”). This practice will eliminate uncertainty as to the issue that it was dismissed with prejudice would have prevented much of the