Richard Coleman v. Shirley Coleman

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0310, Richard Coleman v. Shirley
Coleman, the court on April 20, 2017, issued the following order:

Having considered the briefs, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The plaintiff, Richard Coleman, appeals the order of the Superior Court
(Garfunkel, J.) dismissing his claims against the defendant, Robert Coleman,
on grounds of res judicata and failure to state a claim.1 The plaintiff argues
that the court erred in: (1) ruling that res judicata applies to all but one of his
claims; and (2) dismissing his remaining claim of fraud.

In a prior action, the plaintiff filed a complaint against the defendant, his
brother, alleging that the brother: (1) obtained title to the family homestead by
fraud; (2) as guardian for their mother, mismanaged her affairs; (3) prevented
him from visiting their mother at the nursing home; and (4) prevented the
plaintiff’s adult son from redeeming a $5,000 certificate of deposit received
from the plaintiff’s mother. After affording the plaintiff an opportunity to
amend his complaint to cure its deficiencies, see ERG, Inc. v. Barnes, 137 N.H.
186, 189 (1993), the trial court dismissed it for failure to state a claim. The
plaintiff appealed, and we affirmed. See Richard Coleman v. Robert Coleman &
a., No. 2011-0773 (N.H. May 3, 2012).

The plaintiff filed this action after his mother died. In this action, the
plaintiff alleges the same claims of fraud against the defendant. In addition, he
alleges that the defendant fraudulently failed to notify him of their mother’s
death and funeral arrangements. The trial court ruled that res judicata bars
all the claims except for the death notice claim.

“The doctrine of res judicata prevents the parties from relitigating
matters actually litigated and matters that could have been litigated in the first
action.” In re Estate of Bergquist, 166 N.H. 531, 534-35 (2014) (quotation
omitted). “The doctrine applies if three elements are met: (1) the parties 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

1 Robert Coleman died after the plaintiff filed this appeal.
On February 6, 2017,
Shirley L. Coleman, the executrix of the estate of Robert Coleman, was substituted for
Robert Coleman as the defendant. For clarity, this order refers to Robert Coleman as
the defendant.
on the merits.” Id. at 535 (quotation omitted). “The applicability of res judicata
is a question of law, which we review de novo.” Id. (quotation omitted).

The plaintiff first argues that res judicata does not apply because he only
learned of the defendant’s fraud after his mother died, and after he received the
estate’s final accounting, which allegedly showed that his mother had sufficient
funds to give the plaintiff’s adult son a $5,000 certificate of deposit, as she
allegedly had intended. However, in the prior action, the plaintiff alleged that
the defendant defrauded him by preventing the plaintiff’s son from receiving
the certificate of deposit, which is the same cause of action alleged in this suit.
The fact that the parties’ mother died did not create a new cause of action. See
Sleeper v. Hoban Family P’ship, 157 N.H. 530, 534 (2008) (“Res judicata will
bar a second action even though the plaintiff is prepared in the second action
to present evidence or grounds or theories of the case not presented in the first
action.”). Moreover, in the prior action, the trial court ruled that the plaintiff
had “no vested interest in his stepmother’s estate nor was he damaged in
connection with his son’s CD.” The plaintiff has failed to demonstrate why the
trial court’s reasoning does not compel the same result in this claim filed after
his mother’s death.

The plaintiff next argues that the cause of action in the prior case is not
the same as in the present case because there were multiple defendants in the
prior case whom he did not include in the present case. However, the
defendant named in the present case was named in the prior case. The fact
that the plaintiff’s prior action named additional defendants does not bar
operation of res judicata. See Montville v. Hamblin, 96 N.H. 356, 358 (1950)
(“The fact that there are now fewer parties is immaterial.”).

The plaintiff next argues that the trial court erred in ruling that he failed
to state a claim of fraud against the defendant for neglecting to notify him of
their mother’s death. When reviewing a trial court’s decision to dismiss for
failure to state a claim, we assume all allegations in the plaintiff’s pleadings to
be true and construe all reasonable inferences in the light most favorable to the
plaintiff. Snierson v. Scruton, 145 N.H. 73, 76 (2000). We will reverse the trial
court when the allegations in the pleadings are reasonably susceptible of an
interpretation that would permit recovery. Id. at 76-77.

The defendant was the mother’s guardian until her death. The plaintiff
alleges that the defendant “abused his role as Guardian by maliciously
withholding the event of her death, and funeral arrangements from the
Plaintiff.” “To establish fraud, a plaintiff must prove that the defendant made a
representation with knowledge of its falsity or with conscious indifference to its
truth with the intention to cause another to rely upon it.” Id. at 77. “In
addition, a plaintiff must demonstrate justifiable reliance.” Id. “A plaintiff
cannot allege fraud in general terms, but must specifically allege the essential
details of the fraud and the facts of the defendants’ fraudulent conduct.” Id.

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 First, we note that the defendant’s role as his mother’s guardian
terminated upon her death. See RSA 464-A:40, I (2014). Moreover, even
assuming that the defendant’s alleged omission could constitute a
misrepresentation under these circumstances, we conclude that the plaintiff
has failed to specifically allege the essential details sufficient to support a claim
of fraud regarding the defendant’s failure to notify him of their mother’s death.
See Snierson, 145 N.H. at 76. In addition, the plaintiff failed to allege
justifiable reliance. Accordingly, we conclude that he failed to state a claim
upon which relief may be granted. See id.

Finally, the plaintiff argues that the trial court erred in awarding
attorney’s fees to the defendant for having to defend against precluded claims.
He asserts that he brought the claims in good faith and that he supported
them with facts discovered only after his mother’s death.

A prevailing party may be awarded attorney’s fees “as compensation for
those who are forced to litigate in order to enjoy what a court has already
decreed.” In the Matter of Mason & Mason, 164 N.H. 391, 399 (2012)
(quotation omitted). We defer to the trial court’s decision on attorney’s fees. Id.
We will not overturn the court’s decision absent an unsustainable exercise of
discretion. Id.

The trial court found that, with the exception of the death notice claim,
“the plaintiff has done little more than rearrange his allegations and has again
asserted that the same exact alleged behavior was fraudulent because the
defendant abused his guardian authority.” The court concluded that “the
defendant has been forced to relitigate the same allegations that were decided
on the merits in his favor by this court and affirmed on appeal.” The court
awarded the defendant fees of $3,511.27.

The plaintiff did not object to the defendant’s request for attorney’s fees;
nor did he appear at the hearing on fees. Assuming, without deciding, that he
preserved his objection to the fee award, we cannot conclude, based upon this
record, that the trial court’s fee award constituted an unsustainable exercise of
discretion. See id.

We have considered the plaintiff’s remaining arguments, and have
concluded that they do not warrant further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993).

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk
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