Jeffrey Bradley & a. v. Wells Fargo Bank, N.A. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0232, Jeffrey Bradley & a. v. Wells Fargo
Bank, N.A. & a., the court on February 21, 2019, issued the
following order:

Having considered the briefs 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, Jeffrey Bradley, appeals the denial by the Superior Court
(Wageling, J.) of his motion for a new trial, see RSA 526:1 (2007), in a case in
which he had sought to enjoin a 2006 foreclosure by the defendant, Wells
Fargo Bank, N.A., and had sought related damages. The record reflects that
the 2006 case was dismissed, without prejudice, in 2007 because the
defendant had abandoned the relevant foreclosure. The record further reflects
that the defendant reinstituted, and completed, a foreclosure in 2011, that the
plaintiff brought a second suit against the defendant in 2012 for damages
based upon the defendant’s alleged actions prior to and after the 2011
foreclosure, and that the 2012 suit was ultimately litigated to a final judgment
in the United States District Court for the District of New Hampshire. See
generally Bradley v. Wells Fargo Bank, N.A., 663 F. App’x 4 (1st Cir. 2016).

In seeking to revive the 2006 case, the plaintiff argued that the federal
court’s final judgment did not preclude his claim for damages because “no
court has determined whether [the defendant’s] pre-foreclosure conduct
constitutes” intentional infliction of emotional distress. But see id. at 5-6
(rejecting plaintiff’s argument that the federal district court, in dismissing
claims for intentional infliction of emotional distress against the defendant for
failure to state a claim upon which relief may be granted, had failed to address
intentional infliction of emotional distress claims that were based upon pre-
foreclosure conduct); see also Bradley v. Wells Fargo Bank, N.A., No. 12–cv–
127–PB, 2013 WL 6681610, at *5 (D.N.H. Dec. 18, 2013) (ruling that fraud
claims based upon alleged misrepresentations of the defendant’s counsel at the
2007 court conference that led to dismissal of the 2006 case were time-barred).
He further argued that the motion for a new trial was timely, notwithstanding
the relevant three-year limitations period, see RSA 526:4 (2007), because the
defendant’s counsel had allegedly committed “fraud on the court” for purposes
of Conant v. O’Meara, 167 N.H. 644, 652 (2015) in procuring the dismissal
without prejudice in 2007.
 In rejecting these arguments, the trial court reasoned that the plaintiff
had not established “fraud on the court” sufficient to vitiate the 2007 judgment
under Conant, and that, for purposes of res judicata, the plaintiff had an
opportunity to litigate, and in fact did litigate, the defendant’s liability for its
alleged pre-foreclosure conduct within the context of the 2012 lawsuit. Thus,
the trial court ruled both that the motion for a new trial was time-barred and
that the claims that the plaintiff sought to litigate were precluded by the federal
court judgment under the doctrine of res judicata. On appeal, the plaintiff
challenges these rulings, arguing that he made a sufficient showing of fraud so
as to entitle him to reopen the 2006 lawsuit, or at least to engage in discovery
and an evidentiary hearing on whether the defendant’s counsel committed
fraud, and that res judicata does not apply under the facts of this case. As to
the latter argument, he relies upon Restatement (Second) of Judgments
§ 26(1)(f) (1982), a provision that provides an exception to the general
prohibition on “claim splitting” when “[i]t is clearly and convincingly shown
that the policies favoring preclusion of a second action are overcome for an
extraordinary reason, such as . . . the failure of the prior litigation to yield a
coherent disposition of the controversy.” Specifically, he contends that the
federal court “mistakenly” read his complaint as not asserting an intentional
infliction of emotional distress claim based upon the defendant’s pre-
foreclosure conduct and, thus, that the federal court litigation failed to yield a
coherent disposition of that claim.

As the appealing party, the plaintiff has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s orders denying the plaintiff’s motion for a new trial
and motion for reconsideration, the plaintiff’s challenges to those orders, the
relevant law, and the record submitted on appeal, we conclude that the plaintiff
has not demonstrated reversible error. See id.

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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