The Bibbo Poulin Revocable Trust v. Nestle Waters North America, Inc.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0576, The Bibbo Poulin Revocable Trust v.
Nestle Waters North America, Inc., the court on October 13,
2022, issued the following order:

Having considered the parties’ briefs, oral arguments, and the record on
appeal, we conclude that a formal written opinion is unnecessary in this case.
The plaintiff, The Bibbo Poulin Revocable Trust, appeals an order of the
Superior Court (Schulman, J.) granting the motion to dismiss filed by the
defendant, Nestle Waters North America, Inc. (Nestle Waters). We affirm.

The following facts are supported by the record. In the span of
approximately three years, Matthew Poulin filed two small claim complaints in
circuit court, both of which were removed to superior court. In both suits, he
sought damages plus costs, asserting that Nestle Waters damaged his driveway
when delivering water to his house. He filed the first suit individually and the
second suit as a trustee of The Bibbo Poulin Revocable Trust. The first suit
was dismissed with prejudice due to Poulin’s failure to comply with several
case structuring and discovery orders. Nestle Waters moved to dismiss the
second suit on res judicata grounds, arguing that Poulin as trustee and Poulin
as beneficiary were in privity with each other. Following a hearing, the
superior court granted the motion to dismiss. This appeal followed.

On appeal, the plaintiff argues that “privity is lacking in the instant
matter because the Trust was not afforded virtual representation and there was
no substantial identity between the plaintiffs.” Nestle Waters counters that
privity exists here due to the functional relationship between Poulin as
beneficiary and as trustee rather than the “rigid formalities” and “Trust-Trustee
and Trust-Beneficiary relationship” emphasized by the plaintiff.

The applicability of res judicata is a question of law, which we review de
novo. Merriam Farm, Inc. v. Town of Surry, 168 N.H. 197, 199 (2015). Res
judicata precludes the litigation in a later case of matters actually decided, and
matters that could have been litigated, in an earlier action between the same
parties for the same cause of action. Meier v. Town of Littleton, 154 N.H. 340,
342 (2006). For res judicata to apply, three elements must be met: (1) the
parties must be the same or in privity with one another; (2) the same cause of
action must be before the court in both instances; and (3) a final judgment on
the merits must have been rendered in the first action. Id.
 Poulin as beneficiary was a named party in the first suit, while Poulin as
trustee was a “non-party” in that matter and not expressly named or
discussed. The relationship between party and non-party implied by a finding
of privity has been described as one of “virtual representation” and “substantial
identity.” Daigle v. City of Portsmouth, 129 N.H. 561, 571 (1987) (quotations
omitted). These phrases imply not a formal, but a functional, relationship, in
which, at a minimum, the interests of the non-party were in fact represented
and protected in the prior litigation. Id. (quotations omitted).

Here, the record before the trial court lacks any information regarding
the number and identities of other beneficiaries and trustees, as well as
specific details about the trust itself. However, the limited record does show
that these two suits involve the same facts and damages. There is no evidence
regarding any interests of the trust that were not initially represented. Indeed,
the limited record before us indicates that the same interests were represented
in both suits. Likewise, there is no evidence that Poulin initially lacked
authority to represent the trust. Therefore, we conclude that privity exists
under the circumstances of this case.

Accordingly, res judicata applies in this instance. The superior court,
therefore, did not err in granting Nestle Waters’ motion to dismiss. We have
reviewed the plaintiff’s remaining arguments and determine that they are
without merit and do not warrant further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993).

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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