Lougee v. Beres

313 A.2d 422, 113 N.H. 712, 1973 N.H. LEXIS 358

• Court: Supreme Court of New Hampshire
• Decided: December 28, 1973
• Docket: 6676
• Status: Published

Opinions

Griffith, J.

This is an appeal from the dismissal on grounds of res judicata of plaintiff’s bill in equity. Plaintiff’s exception to the granting of defendants’ motion to dismiss by Keller, C. J., was reserved and transferred by Grant, J.

A previous bill in equity for an accounting was brought by plaintiff against defendant Beres and after trial by the court, there was a verdict for defendant Beres which went to judgment August 8, 1968. The present bill in equity seeks to establish a constructive trust in the property which was the subject matter of the first action and alleges that subsequent to the first judgment the property was sold to The East Side Drive Realty Corp., a corporation controlled by Philip Shapiro who knew of plaintiff’s interest in the property.

Except for the allegations relating to the transfer of the property subsequent to the first judgment the facts alleged in the two actions are identical. Plaintiff claims in both actions that in 1956 she gave $1,500 to the defendant Beres for a joint venture in certain property in Concord. That defendant Beres took title in his own name to the property and obtained the balance of the $3,000 purchase price by a mortgage to the Merrimack County Savings Bank. That the plaintiff furnished other sums to defendant Beres in amounts and dates she cannot recall and that in June 1964 Beres encumbered the property by a mortgage to the Merrimack Bank in the amount of $9,800.

In both bills in equity plaintiff alleged that Beres failed to account to the plaintiff with respect to the venture although often requested. In the first action she prays for an accounting for the moneys paid and received on account of the venture. In the second action plaintiff recites this prayer was denied in the first action and she asks for a decree that under a constructive trust Beres held the property for his and her benefit, that East Side Drive Realty Corp. acquired title subject to her rights and that Beres be required to account for the venture.

The only new facts alleged relate to the transfer of the property to defendant The East Side Drive Realty Corp., a corporation it is alleged is owned and controlled by defendant Philip Shapiro, and that it took the property with full knowledge of plaintiff’s rights in the property. Since the present bill in equity alleges that the transfer of the property to the newly-named defendants took place after the judgment in the original action, res judicata bars maintenance of the action against the new defendants unless it can be maintained against the defendant Beres. 50 C.J.S.Judgments §§787, 788 (1947); 46 Am. Jur. 2d Judgments §533 (1969); Restatement of Judgments §89 (1942);Robinson-Shore Dev. Co. v. Gallagher, 26 N.J. 59, 138 A.2d 726 (1958); Lyon v. Bloomfield, 355 Mass. 738, 247 N.E.2d 555 (1969).

Generally a judgment on the merits concludes the parties both as to what was actually litigated and as to everything that might have been litigated. Bottomly v. Parmenter, 85 N.H. 322, 159 A. 302 (1932); Ainsworth v. Claremont, 108 N.H. 55, 226 A.2d 867 (1967); Restatement of Judgments §65 (1) (1942); Restatement (Second) of Judgments §61 (Tent. Draft No. 1, 1973).

Plaintiff claims that since she seeks now to recover on the basis of a constructive trust she is not barred by the previous judgment. Although the words “constructive trust” do not appear in that action no other basis for recovery is apparent. See Pleakas v. Juris, 107 N.H. 393, 224 A.2d 74 (1966). If we are to assume that the plaintiff now seeks to recover on the basis of a new theory or remedy, she still cannot escape the bar of the judgment against her in the first action arising out of the same transaction and based upon the same allegations of fact.

“Having been defeated on the merits in one action, a plaintiff sometimes attempts another action seeking the same or approximately the same relief but adducing a different substantive-law premise or ground. This does not constitute the presentation of a new claim when the new premise or ground is related to the same transaction or series of transactions, and accordingly the second action should be held barred.” Restatement (Second) of Judgments §61.1, Comment d (Tent. Draft No. 1, 1973). “[A] change in labels is not sufficient to remove the effect of the prior adjudication.” Grace v. Grace, 394 F.2d 127, 128 (2d Cir. 1968); P. I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972); Wasoff v. American Auto. Ins. Co., 451 F.2d 767 (5th Cir. 1971); Eidelberg v. Zellermayer, 6 N.Y.2d 815, 159 N.E.2d 691, 188 N.Y.S.2d 204 (1959); Moore v. Lebanon, 96 N.H. 20, 69 A.2d 516 (1949); see Sibson v. Robert’s Express, 104 N.H. 192, 182 A.2d 449 (1962).

The trial court correctly dismissed the present action as barred by the judgment in the prior case.

Exception overruled; judgment for the defendant.

Grimes, J., dissented; the others concurred.