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

                    THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________

Hillsborough-northern judicial district
No. 2019-0264



                         RIVERBEND CONDO ASSOCIATION

                                          v.

      GROUNDHOG LANDSCAPING AND PROPERTY MAINTENANCE, INC.

                             Submitted: January 9, 2020
                             Opinion Issued: June 5, 2020

       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.

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

       The following facts were found by the trial court. In July 2017, the
plaintiff brought a breach of contract action against the defendant. In October
2017, the trial court issued a case structuring and alternative dispute
resolution order, together with a notice of jury trial, which scheduled a trial
management conference for August 6, 2018. Included in the case structuring
order was a directive to the parties that “[f]ailure to appear at the trial
management conference or trial may result in dismissal, default or other
sanctions.” See Super. Ct. Civ. R. 35(I)(a) (requiring that parties “be present or
available by telephone [at the trial management conference], prepared to
discuss conduct of the trial and settlement”). On August 6, 2018, neither party
appeared at the scheduled trial management conference. That day, the Trial
Court (Abramson, J.) entered an order stating: “Neither party appeared at final
trial management conference this date. Trial is canceled and case is
dismissed.”1

      On August 21, 2018, the plaintiff filed a “Motion to Re-Open,” asking the
court to reopen the matter and reschedule the trial management conference.
The Trial Court (Abramson, J.) denied this motion, stating that the plaintiff’s
pleading constituted a motion to reconsider that was untimely filed.2

       Shortly thereafter, on September 17, 2018, the plaintiff brought a second
action against the defendant, alleging, among other things, breach of contract.
The defendant moved to dismiss the complaint, arguing that it was barred on
res judicata grounds by the trial court’s prior dismissal order. Following a
hearing in January 2019, the Trial Court (Anderson, J.) concluded that the
prior dismissal constituted a judgment on the merits, as it was effectively
issued “with prejudice.” The court’s decision was informed by Foster v. Bedell,
136 N.H. 728 (1993), in which we held that the trial court’s dismissal of the
plaintiffs’ suit barred a second action, see Foster, 136 N.H. at 729-30, and by
“the general rule followed by other jurisdictions” that a dismissal order is
presumed to be “with prejudice” when silent as to its intended effect. The
plaintiff filed a motion to reconsider, which was denied by the trial court, and
this appeal followed.

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

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


                                                  2
       The doctrine of res judicata prevents parties from relitigating matters
actually litigated and matters that could have been litigated in a previous
action. Appeal of Silva, 172 N.H. 183, 190 (2019). Under res judicata, a final
judgment by a court of competent jurisdiction is conclusive upon the parties in
a subsequent litigation involving the same cause of action. Cook v. Sullivan,
149 N.H. 774, 777 (2003). The doctrine applies if three elements are met: (1)
the parties in both actions are the same or in privity with one another; (2) the
same cause of action was before the court in both instances; and (3) the first
action ended with a final judgment on the merits. 412 S. Broadway Realty v.
Wolters, 169 N.H. 304, 313 (2016). The parties agree that the first two
elements of res judicata are met. Thus, the sole question before us is whether
the trial court’s dismissal constituted a final judgment on the merits.

      A judgment entered “with prejudice” constitutes a judgment on the
merits of a matter, even if it resulted from a violation of a procedural rule, and
bars any attempt to revive the previous action. Moulton-Garland v. Cabletron
Systems, 143 N.H. 540, 542 (1999). A trial court has the power to dismiss an
action with prejudice when the plaintiff has not complied with court rules.
Roberts v. General Motors Corp., 140 N.H. 723, 727 (1996).

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

       Following the trial court’s dismissal, the plaintiffs in Foster moved for
reconsideration twice, and were twice denied. Foster, 136 N.H. at 729. The
plaintiffs did not appeal, but instead initiated a second action against the
defendants. Id. The defendants filed a motion to dismiss on res judicata
grounds. Id. At a hearing on the defendant’s motion to dismiss, the trial court
stated that if, after a careful review of the record, there was no indication in the
file that any of the orders in the previous lawsuit could be construed as being
without prejudice, it would grant the motion. Id. at 730. Thereafter, the
defendants’ motion to dismiss was granted, and the plaintiffs’ subsequent
motion for reconsideration was denied. Id. at 729.

       Our holding in Foster was based on the “circumstances present” in that
case. Id. at 730. A voluntary dismissal, if allowed by the court, is not a bar to
a second action. Id. However, when a party has failed to comply with court
rules, an involuntary dismissal may be issued by the court with prejudice.
Roberts, 140 N.H. at 727. The circumstances in Foster led us to conclude that,


                                          3
although the trial court’s order was silent on whether it was issued with or
without prejudice, it was a judgment on the merits precluding the plaintiffs
from availing themselves of the saving statute. Foster, 136 N.H. at 730.

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

       The plaintiff contends that it was error for the trial court to presume that
the order was issued with prejudice when it was silent on that matter. The
plaintiff maintains that the order should, instead, be presumed to be without
prejudice, as it was “purely procedural.” See Jenks v. Menard, 145 N.H. 236,
238 (2000) (stating that “[w]e distinguish between ‘purely procedural’
dismissals, which do not bar subsequent actions, and those dismissals which
are ‘procedural,’ but rest also on a substantive decision on the merits of the
case, which do bar subsequent actions”). We are not persuaded that the trial
court’s silence requires reversal in this case.

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

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


                                         4
that it was dismissed with prejudice would have prevented much of the
confusion in this case”). This practice will eliminate uncertainty as to the issue
of prejudice and the need for further litigation.

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

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

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




                                         5
