Civil Procedure

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

No. 2019-0264
June 5, 2020

  • Whether the plaintiff’s complaint was improperly dismissed on res judicata

The plaintiff brought a complaint against the defendant for breach of con- tract that was dismissed by the trial court when neither party appeared at a scheduled trial management conference. The plaintiff filed a motion to re-open that  was denied because it was not timely  filed within 10 days. Then, the plaintiff filed suit against the defendant on various charges including breach of contract. The defendant argued that the breach of con- tract compliant was barred on res judicata and the trial court agreed that the prior dismissal “constituted a judgment on the merits, as it was effectively issued “with prejudice.””

The Court reviewed de novo. The only question before the Court was whether the dismissal of the previous suit “with prejudice” constituted a judgement on the merits and would therefore satisfy the last element of res judicata. The Court looked at the case’s procedural history. The present case’s procedural history is nearly identical to Foster, 136 N.H. at  730 and the Court followed that Court’s reasoning in concluding the trial court did not err in dismissing the case on res judicata grounds.

The plaintiff argues, and the Court disagrees, that where the order was silent and procedural it should have been presumed to be “without prejudice.” The Court reasoned that the trial court could have reopened the case rather than treating it as a motion to reconsider as untimely but that would have had little effect and delayed the resolution. Therefore, the trial court’s conclusion that the dismissal was “with prejudice” was supported by the events and the reasoning in Foster so the Court affirmed the trial court’s order.

Prieto Law, of Manchester (Joseph Prieto and Wesley Gardner on the brief for the plaintiff. Gallagher, Callahan & Gartrell,

P.C. of Concord (John A. Curran on the brief) for the defendant.