2021-0213, Tycollo Graham v. Eurosim Construction & a.

the defe ndants, ProCon, Inc. and Eurosim Construction, on res judicata Merrimack County Superior Court (Tucker, J.) dismissing his lawsuit against BASSETT, J. T he plaintiff, T ycollo Graham, appeals an order of the

Hamilton on the joint brief), for defendant ProCon, Inc. O’Connor & Associates, L.L.C., of Sudbury, Massachusetts (Peter J.

Construction. Brown on th e j oint brief, and Trevor J. Brown orally), for defendant Eurosim Sulloway & Hollis, P.L.L.C., of Concord (David W. Johnston and Trevor J.

orally), for the plaintiff. Bussiere & Bussiere, P.A., of Manchester (Keith F. Diaz on the brief and

No. 2021 - 0213 Merrimack

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

Compare Super. Ct. R. 17(d) ( p. 2 2017) (amended Oct. 18, 2017) with Super. Ct. R. 17(f). Rule 17(f). We note that, effective Jan u ary 1, 2018, Rule 17(d) was designated Rule 17(f). The parties agree that the rule controlling parties’ obligations following withdrawal of counsel is 1

judicata as an affirmative defense that must be timely pled to avoid waiver). affirmative def ense of res judicata. See Super. Ct. R. 9(d)(15) (listing res lawsuit. ProCon timely filed an answer to the complaint that did not raise the Superior Court (Graham II). The lawsuit was essentially identical to the first On November 18, p. 2 2019, the plaintiff fil ed a lawsuit in Merrimack Count y

reconsideration, nor did he appeal the dismi ssal. dismissal was with or without prejudice. The plaintiff did not move for S hortly thereafter, the court dismissed the case without specifying whether the Neither the plaintiff nor an attorney filed an appearance before the deadline.

take such action as justice may require. fail to file an appearance by November 19, p. 2 2018, the court may appearance has been entered. If Tycollo Graham or an attorney counsel] has withd rawn from this case . . . and no other Please be advised that the court has been informed that [plaintiff’s

entirety: Notice.” (Bolding and capitalization omitted.) The notice state d, in its 1 counsel to withdraw. On the same day, it issued a noti ce entitled “Rule 17 (d) On October 30, p. 2 2018, the trial court granted a motion by the plaintiff’s

and set a trial date for August p. 2 2019. and, in June 2018, issued a scheduling order, which fixed discovery deadlines answer, the trial c ourt entered a default. The trial court struck the default or warn him that the panels could fall (Graham I). After ProCon failed to file an alleging negligence based on the defendants’ failure to secure the glass panels subcontractor, Eurosim Construction, and the general c ontractor, ProCon, In February 2018, he filed suit in Grafton County Superior Court against the was working at a construction site when he was injured by falling glass panels. The record supports the following facts. In October 2017, the plaintiff

merits” for the purposes of res judicata. prejudice will be deemed to be without prejudice and, therefore, not “on the a plaintiff’s violation of a court order or a procedural rule that is silent as to remand. We als o adopt a prospective rule that a dismissal order resulting from that his suit is not barred by res judicata, and a ccordingly, we reverse and dismissal was not a final judgment on the merits. We agree with the plaintiff dismissal of an identical action against the same defendants because the prior Superior Court was not barred by the Grafton County Superior Court’s prior grounds. The plaintiff argues on appeal that his suit in Merrimack County p. 3 3

considerations of economy of judicial time and public policy favoring the Practice and Procedure § 57.20, at 57 - 11 (4th e d. 2014). Res judicata “rests on J. MacDonald, New Hampshire Practice: Wiebusch on New Hampshire Civil that have been, or should have been, tried in a n earlier action. See 5 Gordon The doctrine of res judicata precludes the relitigation of causes of action

judicata applied as a matter of law, our review is de novo. Id. at p. 3 375. application. Id. at 374 - 75. Because the trial court determined that res which is an affirmative defense, the movant bears the burden of proving its However, when a litigant moves to dismiss based exclusively upon res judicata, construction t hat would permit recovery. Riverben d, 173 N.H. at 374. we consider whether the plaintiff’s allegations are reasonably susceptible of a Generall y, when reviewing a trial court’ s ruling on a motion to dismiss,

to conclude otherwise. was issued without prejudice. Accordingly, it was error for the Graham II court in Graham II. We agree with the plaintiff that the dismis sal order in Graham I and that the procedural history of Graham I supports the trial court’s dismissal dismissal orders that are silent as to their intended effect are with prejudice, that we need not engage in a case - by - case analysis because we presume that the dismissal of Graham I as being with out prejudice. The defendants counter argues that unique circumstances in this matter counsel in favor of construing without prejudice must be determined on a case - by - case basis. He f urther prejudice if it is silent as to prejudice, and that whether a di smissal i s with or it was incorrect f or the trial court to presume a dismissal order is with based on an erroneous interpretation of Foster and Riverbend. He argues that the merits. The p laintiff asserts that the trial court’s ruling in Graham II was issued with out prejudice and therefore does not constitute a final judgment on Graham II on res judicata gr ounds because the order dismissing Graham I was On appeal, the plaintiff argues that the trial court erred in dismissing

dismissal with prejudice.” This appeal followed. prejudice, an order th at is silent on the point weighs generally in favor of circumstances of the case show the court intended t he dismissal to be without Property Maint enance, 17 p. 3 3 N.H. 372 (2020), reasoning that “unless the 136 N.H. 728 (1993), and Riverbend C ondo Ass’n v. Groundhog Landscaping & dismissed the case. The trial court relied on our decisions in Foster v. Bedell, grounds. Over the plaintiff’s objection, t he trial court granted the motion and In August 2020, the defendants filed a motion to dismiss on res judicata

the motion. answer to add res judicata as an affirmative defense. T he trial court granted res judicata. Approximately six months later, ProCon moved to amend its January 21, 2020, Eurosim filed an answer that pled the affirmative defense of Eurosim filed a motion to strike the default, which the court granted, and on Eu rosim failed to file an answer and the trial court entered a default against it. p. 4 4

of evidence, a statute, or an administrative rule, we will first look to the plain N.H. 716, 722 (2010). When interpreting a Superior Court Rule, as with a rule how we interpret statutes. See Lillie - Putz Trust v. Downe ast Energy Corp., 160 We interpret Superior Court Rules de novo and in a manner similar to

analysis, we look to all applicable sections of Rule 17. failing to file an appearance in compliance with Rule 17. In conducting this dismissal in Graham I as on the merits, we must examine the consequences of determine whether it was error for the court in Graham II to construe the Superior Court Rule 17 governs a ppearances. See Super. Ct. R. 17. To (Citation omitted.) appearance by the deadline, the Complaint is dismissed. November 19, 2018. The plaintiff or his attorney having failed to file an himself or through an attorney or non - attorney representative by Office issued a Rule 17(d) notice directing the plaintiff to appear by Following the withdrawal of plaintiff’s counsel from this case, the Clerk’s

of counsel. The dismissal order in Graham I reads, in its entirety: case due to the plaintiff’s failure to file an appearance following the withdrawal present in Graham I. See id. at 376. In that case, the trial court dismissed the on the merits for the purposes of res judicata, we e xamine the circumstances To determine whether the dismissal of Graham I const ituted a judgment

court rules. See, e.g., Riverbend, 173 N.H. at 375 - 77. procedural,” when they have arisen from a plaintiff’s failure to comply with prejudice — and therefore on the merits — even if they appeared to be “purely have at times construed dismissals that are silent as to prejudice as with cause alleged is without substantive merit” (quotation omitted)). However, we procedural ground, but rather upon the conclusion of the trial judge that the “on the merits,” because such a dismissal “does not rest upon a purely 186, 189 (1993) (construing dismissal for failure to state a cause of action as rendered for “purely procedural” reasons. See ERG, Inc. v. Barnes, 137 N.H. case, such as dismissal s for failure to state a viable claim, as opposed to those the merits” would seem to refer to only dismissals based on the substance of a merits” and bars any attempt to revive the previous action. Id. The phrase “on A judgment entered “with prejudice” constitutes a judgment “on the

the merits. whether the trial court’ s dismiss al in Graham I constituted a final judgment on first two elements of res judicata are satisfied, the only question befor e us is merits. Riverbend, 173 N.H. at 37 p. 5 5. Here, because the parties agree that the both instance s; and (3) the first action ended with a final judgment on the in privity with one another; (2) the same cause of action was before the court in applies if three elements are met: (1) the parties in both actions are the same or establishment of certainty in legal relations.” Id. at 57 - 15. The doctrine 5

is not generally an “other order as justice requires” under Rule 17(b). assessment of damages.”). We therefore conclude that dismissal with prejudice hearing s hould be given to a party in default prior to the entry of judgment and the use of defaults as a sanction,... both notice and an opportunity for 127 N.H. 762, 763 (1986) (“[I]n view of the potentially serious consequences of the kind contemplated by Rule 17(b). C f. Donovan v. Canobie Lake Park Corp., omitted)). In comparison, d ismissal with prejudice is a severe sanc tion, not of things of the same kind or class as those specifically me ntioned” (quotation ... such general words... are to be held as applying only to persons or provides that “where general words follow an enumeration of persons or things (describing the canon of statutory constr uction ejusdem generis, which remedies. See In the Matter of Preston and Preston, 147 N.H. 48, p. 5 51 (2001) justice requires” in th e context of Rule 17 (b) as generally referencing similar rule specifies such a provisory remedy, we construe the phrase “other order as party moves to strike the conditional default (emphasis added)). Given that the vacated” if answer is provided within ten days after receiving notice thereof and failure to timely answer interrogatories or requests for production “shall be condition by a stated date.”); c f. Super. Ct. R. 29(d) (conditional default for default will be entered unless the defaulted party fulfills the terms of a stated makes it clear that an order of conditional default is an order that an absol ute 126 N.H. 255, 256 (1985) (“Customary practice in the courts of this jurisdiction requirement before a default is entered. See OptRx Laboratories v. Cavanaugh, provides the party an additional opportunity to comply w ith the underlying not defined in Rule 17, a conditional default is not a final dismissal — rather, it party’s failure to file an appearance may result in a conditional default. W hile We find it significant that Rule 17(b) specifies that a self - represented

added). default or other order as justice requires.” Super. Ct. R. 17(b) (emphasis self - represented party to file an appearance “shall result in a conditional file an appearance, he was self - repres ented. Under Rule 17(b), the failure of a represented parties. See Super. Ct. R. 17(b). At the time the plaintiff failed to conjunction with Rule 17(b), which governs appearances filed by self action as ju stice may require.” Super. Ct. R. 17(f). We read Rule 17(f) in representative by a date fixed by the court,” or else “the court may take such file a new appearance “by himself, herself, attorney or non - attorney withdraws, as happened in Graham I, Rule 17(f) provides that the party must person entering the [a]ppearance.” Super. Ct. R. 17(a). If counsel for a party Association member identification number, and telephone number of the name, street address, mailing address, email address, New Hampshire Bar 17(a) - (d). Rule 17(a) explain s that an appearance is a “form containing the Every party to an action must file an appearance. See Super. Ct. R.

Harvey Indus., 1 p. 5 57 N.H. 211, 213 (2008). isolation, but rather within the context of the rule as a whole. See Chesley v. meaning of the words. Id. We do not consider the words and phrases in p. 6 6

rule: a dismissal order resulting from a plaintiff’s violation of a court order or a to exercise our supervisory role under RSA 490:4 (2010) and establish a clear the merits” for res judicata purposes. We now conclude that the time has come procedural defaults that are silent as to prejudice should be construed as “on filed which require that we discern whether dismissal orders based on this case”). Nonetheless, as this appeal demonstrates, appeals continue to be it was dismissed with prejudice would have prevented much of the confusion in Foster, 13 p. 6 6 N.H. at 730 (stating that “an express indication in the first suit that dismissal is issued with or without prejudice.” Riverbend, 173 N.H. at 377; see one will be avoided if, when dismissing a case, courts specify whether the than one occasion, we have reminded trial courts that “a ppeals such as this Leasing, 129 N.H. 270, 273 (1987) (quotation omitted). Therefore, on more finality in our legal system.” Eastern Mari ne Const. Corp. v. First Southern “[s]purred by considerations of judicial economy and a policy of certainty and is antithetical to the objectives of the doctrine of res judicata, which is in volving the preclusive ef fect of a dismissal order that is silent as to prejudice Requiring trial courts — and this court — to do so in every case or appeal based on the circumstances present in a given case is a difficult u ndertaking. As demonstrated by this case, interpreting trial courts’ dismissal orders

court erred. We therefore reverse the dismissal in Graham II and remand. as a dismissal with prejudice. In concluding otherwise, the Graham II trial Rule 17. Therefore, we decline to interpret the trial court’s order in Graham I warranted dismissal with prejudice as a sanction for the pla intiff’s violation of Here, t he record lacks any indication that the circumstances in Graham I

N.H. 512, 515 (1995) (quotation omitted). on a “procedural technicality.” In re Proposed Rules of Civi l Procedure, 139 fundamental principle that, in New Hampshire, a party should not lose a case suit with prejudice because the party violate s this rule would undermine the have updated information as to the party ’s representation. To dismiss a party’s appearan ce is primarily administrative — to ensure the court and other parties consent ed to the court’s jurisdiction, the requirement that a party file a new is implicated only after a party has already filed an initial appearance and how to contact that representative. See Super. Ct. R. 1 p. 7 7(a). Because Rule 17(f) have the necessary information as to who is appearing on behalf of a party and serv es an administrative purpose: ensuring that the court and other parties “appearance”). However, Rule 17 makes evident that filing an appearance also jurisdiction. S ee Black’s Law Dictionary 122 (11th ed. 2019) (defining appearances historically serves as a party’s submission to the court’s personal Lillie - Putz Trust, 1 p. 6 60 N.H. at 722. The requirem ent that parties file all parts of a statute together to effectuate its overall purpose....”); see also Avery v. Comm’r, N.H. Dep’t of Corr., 173 N.H. 726, 733 (2020) (“W e construe Our construction of Rule 17(b) effectuates the purpose of Rule 17(f). See 7

M AC DONALD, C.J.