Tycollo Graham v. Eurosim Construction & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2021-0213

TYCOLLO GRAHAM

v.

EUROSIM CONSTRUCTION & a.

Argued: March 15, 2022
Opinion Issued: March 10, 2023

Bussiere & Bussiere, P.A., of Manchester (Keith F. Diaz on the brief and
orally), for the plaintiff.

Sulloway & Hollis, P.L.L.C., of Concord (David W. Johnston and Trevor J.
Brown on the joint brief, and Trevor J. Brown orally), for defendant Eurosim
Construction.

O’Connor & Associates, L.L.C., of Sudbury, Massachusetts (Peter J.
Hamilton on the joint brief), for defendant ProCon, Inc.

BASSETT, J. The plaintiff, Tycollo Graham, appeals an order of the
Merrimack County Superior Court (Tucker, J.) dismissing his lawsuit against
the defendants, ProCon, Inc. and Eurosim Construction, on res judicata
grounds. The plaintiff argues on appeal that his suit in Merrimack County
Superior Court was not barred by the Grafton County Superior Court’s prior
dismissal of an identical action against the same defendants because the prior
dismissal was not a final judgment on the merits. We agree with the plaintiff
that his suit is not barred by res judicata, and accordingly, we reverse and
remand. We also adopt a prospective rule that a dismissal order resulting from
a plaintiff’s violation of a court order or a procedural rule that is silent as to
prejudice will be deemed to be without prejudice and, therefore, not “on the
merits” for the purposes of res judicata.

The record supports the following facts. In October 2017, the plaintiff
was working at a construction site when he was injured by falling glass panels.
In February 2018, he filed suit in Grafton County Superior Court against the
subcontractor, Eurosim Construction, and the general contractor, ProCon,
alleging negligence based on the defendants’ failure to secure the glass panels
or warn him that the panels could fall (Graham I). After ProCon failed to file an
answer, the trial court entered a default. The trial court struck the default
and, in June 2018, issued a scheduling order, which fixed discovery deadlines
and set a trial date for August 2019.

On October 30, 2018, the trial court granted a motion by the plaintiff’s
counsel to withdraw. On the same day, it issued a notice entitled “Rule 17 (d)
Notice.” (Bolding and capitalization omitted.)1 The notice stated, in its
entirety:

Please be advised that the court has been informed that [plaintiff’s
counsel] has withdrawn from this case . . . and no other
appearance has been entered. If Tycollo Graham or an attorney
fail to file an appearance by November 19, 2018, the court may
take such action as justice may require.

Neither the plaintiff nor an attorney filed an appearance before the deadline.
Shortly thereafter, the court dismissed the case without specifying whether the
dismissal was with or without prejudice. The plaintiff did not move for
reconsideration, nor did he appeal the dismissal.

On November 18, 2019, the plaintiff filed a lawsuit in Merrimack County
Superior Court (Graham II). The lawsuit was essentially identical to the first
lawsuit. ProCon timely filed an answer to the complaint that did not raise the
affirmative defense of res judicata. See Super. Ct. R. 9(d)(15) (listing res
judicata as an affirmative defense that must be timely pled to avoid waiver).

1 The parties agree that the rule controlling parties’ obligations following withdrawal of counsel is

Rule 17(f). We note that, effective January 1, 2018, Rule 17(d) was designated Rule 17(f).
Compare Super. Ct. R. 17(d) (2017) (amended Oct. 18, 2017) with Super. Ct. R. 17(f).

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Eurosim failed to file an answer and the trial court entered a default against it.
Eurosim filed a motion to strike the default, which the court granted, and on
January 21, 2020, Eurosim filed an answer that pled the affirmative defense of
res judicata. Approximately six months later, ProCon moved to amend its
answer to add res judicata as an affirmative defense. The trial court granted
the motion.

In August 2020, the defendants filed a motion to dismiss on res judicata
grounds. Over the plaintiff’s objection, the trial court granted the motion and
dismissed the case. The trial court relied on our decisions in Foster v. Bedell, 136 N.H. 728 (1993), and Riverbend Condo Ass’n v. Groundhog Landscaping &
Property Maintenance, 173 N.H. 372 (2020), reasoning that “unless the
circumstances of the case show the court intended the dismissal to be without
prejudice, an order that is silent on the point weighs generally in favor of
dismissal with prejudice.” This appeal followed.

On appeal, the plaintiff argues that the trial court erred in dismissing
Graham II on res judicata grounds because the order dismissing Graham I was
issued without prejudice and therefore does not constitute a final judgment on
the merits. The plaintiff asserts that the trial court’s ruling in Graham II was
based on an erroneous interpretation of Foster and Riverbend. He argues that
it was incorrect for the trial court to presume a dismissal order is with
prejudice if it is silent as to prejudice, and that whether a dismissal is with or
without prejudice must be determined on a case-by-case basis. He further
argues that unique circumstances in this matter counsel in favor of construing
the dismissal of Graham I as being without prejudice. The defendants counter
that we need not engage in a case-by-case analysis because we presume that
dismissal orders that are silent as to their intended effect are with prejudice,
and that the procedural history of Graham I supports the trial court’s dismissal
in Graham II. We agree with the plaintiff that the dismissal order in Graham I
was issued without prejudice. Accordingly, it was error for the Graham II court
to conclude otherwise.

Generally, when reviewing a trial court’s ruling on a motion to dismiss,
we consider whether the plaintiff’s allegations are reasonably susceptible of a
construction that would permit recovery. Riverbend, 173 N.H. at 374.
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. at 374-75. Because the trial court determined that res
judicata applied as a matter of law, our review is de novo. Id. at 375.

The doctrine of res judicata precludes the relitigation of causes of action
that have been, or should have been, tried in an earlier action. See 5 Gordon
J. MacDonald, New Hampshire Practice: Wiebusch on New Hampshire Civil
Practice and Procedure § 57.20, at 57-11 (4th ed. 2014). Res judicata “rests on
considerations of economy of judicial time and public policy favoring the

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establishment of certainty in legal relations.” Id. at 57-15. 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. Riverbend, 173 N.H. at 375. Here, because the parties agree that the
first two elements of res judicata are satisfied, the only question before us is
whether the trial court’s dismissal in Graham I constituted a final judgment on
the merits.

A judgment entered “with prejudice” constitutes a judgment “on the
merits” and bars any attempt to revive the previous action. Id. The phrase “on
the merits” would seem to refer to only dismissals based on the substance of a
case, such as dismissals for failure to state a viable claim, as opposed to those
rendered for “purely procedural” reasons. See ERG, Inc. v. Barnes, 137 N.H.
186, 189 (1993) (construing dismissal for failure to state a cause of action as
“on the merits,” because such a dismissal “does not rest upon a purely
procedural ground, but rather upon the conclusion of the trial judge that the
cause alleged is without substantive merit” (quotation omitted)). However, we
have at times construed dismissals that are silent as to prejudice as with
prejudice — and therefore on the merits — even if they appeared to be “purely
procedural,” when they have arisen from a plaintiff’s failure to comply with
court rules. See, e.g., Riverbend, 173 N.H. at 375-77.

To determine whether the dismissal of Graham I constituted a judgment
on the merits for the purposes of res judicata, we examine the circumstances
present in Graham I. See id. at 376. In that case, the trial court dismissed the
case due to the plaintiff’s failure to file an appearance following the withdrawal
of counsel. The dismissal order in Graham I reads, in its entirety:

Following the withdrawal of plaintiff’s counsel from this case, the Clerk’s
Office issued a Rule 17(d) notice directing the plaintiff to appear by
himself or through an attorney or non-attorney representative by
November 19, 2018. The plaintiff or his attorney having failed to file an
appearance by the deadline, the Complaint is dismissed.
(Citation omitted.)
Superior Court Rule 17 governs appearances. See Super. Ct. R. 17. To
determine whether it was error for the court in Graham II to construe the
dismissal in Graham I as on the merits, we must examine the consequences of
failing to file an appearance in compliance with Rule 17. In conducting this
analysis, we look to all applicable sections of Rule 17.

We interpret Superior Court Rules de novo and in a manner similar to
how we interpret statutes. See Lillie-Putz Trust v. Downeast Energy Corp., 160
N.H. 716, 722 (2010). When interpreting a Superior Court Rule, as with a rule
of evidence, a statute, or an administrative rule, we will first look to the plain

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meaning of the words. Id. We do not consider the words and phrases in
isolation, but rather within the context of the rule as a whole. See Chesley v.
Harvey Indus., 157 N.H. 211, 213 (2008).

Every party to an action must file an appearance. See Super. Ct. R.
17(a)-(d). Rule 17(a) explains that an appearance is a “form containing the
name, street address, mailing address, email address, New Hampshire Bar
Association member identification number, and telephone number of the
person entering the [a]ppearance.” Super. Ct. R. 17(a). If counsel for a party
withdraws, as happened in Graham I, Rule 17(f) provides that the party must
file a new appearance “by himself, herself, attorney or non-attorney
representative by a date fixed by the court,” or else “the court may take such
action as justice may require.” Super. Ct. R. 17(f). We read Rule 17(f) in
conjunction with Rule 17(b), which governs appearances filed by self-
represented parties. See Super. Ct. R. 17(b). At the time the plaintiff failed to
file an appearance, he was self-represented. Under Rule 17(b), the failure of a
self-represented party to file an appearance “shall result in a conditional
default or other order as justice requires.” Super. Ct. R. 17(b) (emphasis
added).

We find it significant that Rule 17(b) specifies that a self-represented
party’s failure to file an appearance may result in a conditional default. While
not defined in Rule 17, a conditional default is not a final dismissal — rather, it
provides the party an additional opportunity to comply with the underlying
requirement before a default is entered. See OptRx Laboratories v. Cavanaugh, 126 N.H. 255, 256 (1985) (“Customary practice in the courts of this jurisdiction
makes it clear that an order of conditional default is an order that an absolute
default will be entered unless the defaulted party fulfills the terms of a stated
condition by a stated date.”); cf. Super. Ct. R. 29(d) (conditional default for
failure to timely answer interrogatories or requests for production “shall be
vacated” if answer is provided within ten days after receiving notice thereof and
party moves to strike the conditional default (emphasis added)). Given that the
rule specifies such a provisory remedy, we construe the phrase “other order as
justice requires” in the context of Rule 17(b) as generally referencing similar
remedies. See In the Matter of Preston and Preston, 147 N.H. 48, 51 (2001)
(describing the canon of statutory construction ejusdem generis, which
provides that “where general words follow an enumeration of persons or things
. . . such general words . . . are to be held as applying only to persons or
things of the same kind or class as those specifically mentioned” (quotation
omitted)). In comparison, dismissal with prejudice is a severe sanction, not of
the kind contemplated by Rule 17(b). Cf. Donovan v. Canobie Lake Park Corp.,
127 N.H. 762, 763 (1986) (“[I]n view of the potentially serious consequences of
the use of defaults as a sanction, . . . both notice and an opportunity for
hearing should be given to a party in default prior to the entry of judgment and
assessment of damages.”). We therefore conclude that dismissal with prejudice
is not generally an “other order as justice requires” under Rule 17(b).

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 Our construction of Rule 17(b) effectuates the purpose of Rule 17(f). See
Avery v. Comm’r, N.H. Dep’t of Corr., 173 N.H. 726, 733 (2020) (“We construe
all parts of a statute together to effectuate its overall purpose . . . .”); see also
Lillie-Putz Trust, 160 N.H. at 722. The requirement that parties file
appearances historically serves as a party’s submission to the court’s personal
jurisdiction. See Black’s Law Dictionary 122 (11th ed. 2019) (defining
“appearance”). However, Rule 17 makes evident that filing an appearance also
serves an administrative purpose: ensuring that the court and other parties
have the necessary information as to who is appearing on behalf of a party and
how to contact that representative. See Super. Ct. R. 17(a). Because Rule 17(f)
is implicated only after a party has already filed an initial appearance and
consented to the court’s jurisdiction, the requirement that a party file a new
appearance is primarily administrative — to ensure the court and other parties
have updated information as to the party’s representation. To dismiss a party’s
suit with prejudice because the party violates this rule would undermine the
fundamental principle that, in New Hampshire, a party should not lose a case
on a “procedural technicality.” In re Proposed Rules of Civil Procedure, 139
N.H. 512, 515 (1995) (quotation omitted).

Here, the record lacks any indication that the circumstances in Graham I
warranted dismissal with prejudice as a sanction for the plaintiff’s violation of
Rule 17. Therefore, we decline to interpret the trial court’s order in Graham I
as a dismissal with prejudice. In concluding otherwise, the Graham II trial
court erred. We therefore reverse the dismissal in Graham II and remand.

As demonstrated by this case, interpreting trial courts’ dismissal orders
based on the circumstances present in a given case is a difficult undertaking.
Requiring trial courts — and this court — to do so in every case or appeal
involving the preclusive effect of a dismissal order that is silent as to prejudice
is antithetical to the objectives of the doctrine of res judicata, which is
“[s]purred by considerations of judicial economy and a policy of certainty and
finality in our legal system.” Eastern Marine Const. Corp. v. First Southern
Leasing, 129 N.H. 270, 273 (1987) (quotation omitted). Therefore, on more
than one occasion, we have reminded 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.” Riverbend, 173 N.H. at 377; see
Foster, 136 N.H. at 730 (stating that “an express indication in the first suit that
it was dismissed with prejudice would have prevented much of the confusion in
this case”). Nonetheless, as this appeal demonstrates, appeals continue to be
filed which require that we discern whether dismissal orders based on
procedural defaults that are silent as to prejudice should be construed as “on
the merits” for res judicata purposes. We now conclude that the time has come
to exercise our supervisory role under RSA 490:4 (2010) and establish a clear
rule: a dismissal order resulting from a plaintiff’s violation of a court order or a

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procedural rule that is silent as to prejudice will be deemed to be without
prejudice and, therefore, not “on the merits” for the purposes of res judicata in
both the superior and circuit courts.

This rule is consonant with a fundamental principle underlying our court
system: procedural technicalities should not thwart the administration of
justice. See Proposed Rules of Civil Procedure, 139 N.H. at 516. As Chief
Justice Charles Doe observed over a century ago, “[t]he judgment, and any
necessary process for carrying it into effect, being directed to the ends of
justice, cannot be obstructed by imaginary barriers of form.” Walker v. Walker, 63 N.H. 321, 328 (1885). More recently, we have explained that courts should
“make every effort to reach a judgment on the merits.” Roberts v. General
Motors Corp., 140 N.H. 723, 729 (1996). Construing procedural dismissals
that are silent as to prejudice as without prejudice, and therefore not on the
merits, serves the interests of justice, and will be our practice and the practice
of trial courts going forward.

Reversed and remanded.

MACDONALD, C.J., and HICKS and DONOVAN, JJ., concurred.

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