ERG, Inc. v. Barnes

HORTON, J.,

concurring specially: The trial court erred when it dismissed these cases on the grounds of collateral estoppel. What was decided by Judge Gray in the Rockingham Barnes case was that the original writ failed to state a cause of action. He did not determine the presence or absence of probable cause. It is the determination of the question of law, whether the writ supported a cause of action, that would have been precluded in the Hillsborough cases. Because the Hillsborough court permitted amendment, a different issue was before the court.

The majority opinion, implicitly acknowledging this error, properly moves to a consideration of res judicata. Does dismissal for failure to state a claim preclude reassertion of the cause of action in a subsequent proceeding? The correct answer is given. The Hills-borough plaintiff, being in privity with the Rockingham plaintiff, is precluded from reasserting the cause of action against Barnes. We refine the rule in Colebrook Water Co. v. Commissioner of Dep’t of Pub. Works, 114 N.H. 392, 324 A.2d 713 (1974), by limiting the res judicata preclusive effect of such a dismissal to cases where opportunity to amend has been granted before dismissal or where, as in this case, such opportunity has been denied and no appeal taken from the denial. I am satisfied with this rule, as refined.

In addition to finding that res judicata bars the Hillsborough case against Barnes, and thereby finding grounds to support the dismissal, the majority reviews the amended pleading against Barnes and finds that it fails to state a cause of action. I disagree with this alternate ground for affirming the Hillsborough dismissal against Barnes. Review of the amended pleading convinces me that it states a cause of action with sufficient factual allegations, which, if proven, would support a finding against Barnes. Because the case is properly dismissed, my disagreement is nothing more than intellectual.

The res judicata preclusion does not support a dismissal of the Hillsborough Schmelzer case. This is a different cause of action. Both the element of probable cause and the element of malice take on completely different faces when asserted against the client, rather than the lawyer. Nor, as we have seen, is collateral estoppel appropriate on this amended writ. The reversal of the Hillsborough Schmelzer dismissal is correct. Since the language of the amended writs against Barnes and Schmelzer is quite similar, I am troubled by the majority’s conclusion that ERG, Inc. v. Barnes & a. fails to state a claim, but impliedly, ERG, Inc. v. Schmelzer does. Since I am convinced that the former does state a claim, my trouble is also intellectual. I concur in the result reached by the majority.