What is “Res Judicata”?

Most people are familiar with the term “double jeopardy” in the context of criminal prosecutions, but what about multiple civil suits?  The doctrine of res judicata prevents redundancy and seeks to ensure finality in civil litigation. Recently, the New Hampshire Supreme Court, in a rare 3-2 order, applied the doctrine to bar a claim that was known, or should have been known, to a plaintiff and could have been brought in an earlier lawsuit.  The context involved a Portsmouth zoning change and planning board approval of a subdivision.

Zoning change and subdivision approval

In 2016, the City of Portsmouth proposed a citywide rezoning initiative to create three "Gateway Districts" with varying densities and building heights. In August 2017, the city identified several properties on Chase Drive and Cutts Avenue, including 200 Chase Drive owned by Bethel Assembly of God, Inc. (the “Church”), for rezoning. The City Council approved the rezoning in December 2017.  In 2020, the Church sought approval from the city's planning board to subdivide its property and build a 22-unit apartment building, which the board granted.

The first lawsuit

The plaintiffs, except for Diane Chalifour, appealed the planning board’s decision.  Both the superior court and the New Hampshire Supreme Court affirmed the planning board's approval of the subdivision.

The second lawsuit

While the appeal of the first lawsuit was still pending before the Supreme Court, the plaintiffs sought declaratory and injunctive relief against the city.  They alleged the zoning initiative approved in 2017 was void because they were not given proper notice of the public hearings leading to its approval. Additionally, they claimed the rezoning of 200 Chase Drive and the abutting properties constituted illegal spot zoning. The plaintiffs sought an injunction to prevent the city from issuing a final construction permit to the Church for its proposed apartment building. The superior court dismissed the second action, concluding the claims were barred by the doctrine of res judicata due to the earlier lawsuit.  The plaintiffs appealed to the Supreme Court.

Res Judicata

Res judicata is a judicial doctrine preventing a losing party from obtaining a second review of a claim after failing to obtain relief in the first attempt. It is based on the policy that disputes, once litigated, should not be reopened.

The doctrine applies if:

1. The parties are the same or in privity with one another.

2. The same cause of action is before the court in both instances.

3. A final judgment on the merits was rendered in the first action.

Majority order

A majority of the Supreme Court concluded res judicata applied because:

1. The parties in the current suit, except Chalifour, were the same as in the prior suit, and Chalifour was in privity with the other plaintiffs.

2.The claims in both suits arose from the same factual transaction: the planning board's approval of the Church’s project.

3. The prior suit resulted in a final judgment on the merits.

The key fact for the majority was that the plaintiffs could have brought their claims regarding the rezoning initiative during the initial litigation but failed to do so, aiming to prevent further delay in the Church's construction project.

Dissenting order

The dissent stated res judicata does not apply because the two suits did not arise from the same factual transaction. The key facts for the dissent were:

1. The current suit challenged the city's rezoning initiative process in 2017, while the prior suit challenged the planning board's 2020 approval of the Church's construction project.

2. The two suits involved different municipal decisions made over two years apart.

3. The dissent emphasized the plaintiffs' statutory right to challenge the rezoning initiative within five years of its enactment, separate from the planning board's project approval.

The dissent believed treating the two suits as arising from distinct transactions aligns with public policy and legal expectations, warranting a reversal of the trial court's dismissal.

The majority seemed to limit the reach of its conclusion, noting current public policy directives for more housing:

Application of the doctrine of res judicata on the facts of this case furthers the public policy that underlies the doctrine — the establishment of certainty in legal relations. Promoting certainty applies with special force in this area of the law. In 2019, the legislature declared that “[a]n adequate supply of housing that is affordable to a range of incomes is essential to New Hampshire’s economic and community development goals. Laws 2019, 346:259, I.  The legislature further found that among the factors that inhibit the ability to meet the demand for new housing are practices that impose costly delays as well as the costs of litigation.  Laws 2019, 346:259, V. This case amply illustrates those concerns: the planning board approved the church’s proposal in February 2020, over four years ago. The appeals from that decision were concluded in June 2022, nearly two years ago. Further delay and further litigation seeking to undo the planning board’s approval of the proposed apartment building based upon claims that were known, or should have been known, to the plaintiffs and that could have been brought in the initial litigation will undermine the certainty that our judicial system should strive to promote.  In sum, res judicata is a judicial doctrine to be applied, on a case-by-case basis, pragmatically, so as to further the public policy favoring the establishment of certainty in legal relations. Because the trial court did not err by applying that doctrine here, we affirm its decision.

Chase Cutts Brigham Neighborhood Association, Inc. v. City of Portsmouth (May 21, 2024 order)  Although Chase Cutts Brigham Neighborhood Association, Inc. v. City of Portsmouth is not a New Hampshire Supreme Court opinion and carries no precedential authority, it may provide guidance on how the Court might rule if presented with similar facts.

For assistance with civil litigation, variances, special exceptions, building permits, lot mergers, subdivisions and other regulatory matters concerning your real estate, please contact our office at (603) 856-8411 or at this link.