Stacie Ayn Murphy Corcoran
2011 graduate of Suffolk University,
practicing in Mass. and NH

No. 2018-0202

July 2, 2019


  • Issue:Whether the Superior Court erred in granting a petition to partition.

The defendant continued to reside in property, under the terms of a never executed agreement, that was jointly awarded by will to the plaintiff and the defendant. When the defendant failed to pay property taxes, the plaintiff filed a petition for partition, which was granted by the court. The defendant appealed the denial of a motion for reconsideration and a motion to stay the order.

The Court, relying on DiGaetano v. DiGaetano, rejected the defendant’s argument that the probate court had subject matter jurisdiction because it was acquired through the settlement of the decedent’s estate. Where the probate court and the Superior Court have concurrent jurisdiction, the Court concluded that the matter did not require the probate court’s expertise because the estate was tangential; it was merely the manner by which they gained title. (See Rogers, 171 N.H. at 747).

Next, the defendant argued the claim was barred by res judicata. The Court reviewed de novo and disagreed with the defendant finding that the plaintiff could have filed a petition for partition when she became co-owner of the property but was not required to do so and “could … reserve her right to file.” (Boddiker v. McPartlin, 41 N.E..2d 756, 761 (Ill.1942).

Finally, the defendant argued, and the Court disagreed, that the action should have been dismissed on laches grounds or because of the action was really for breach of contract. On the breach of contract grounds, the Court found that plaintiff sought partition, not a remedy for breach of contract and that the plaintiff “does not have an adequate remedy at law.” On the laches grounds, the Court found the trial court had not erred because the delay in petitioning for partition was reasonable and the defendant was not prejudiced by the delay, but in fact benefitted from the delay.

Law Office of Joshua Gordon, of Concord (Joshua L. Gordon on the brief and orally) for the plaintiff. Nixon, Vogelman, Slawsky & Simoneau of Manchester (Leslie C. Nixon on the brief and orally) for the defendant.