Cook v. Sullivan
| Decision Date | 22 August 2003 |
| Docket Number | No. 2002–080.,2002–080. |
| Citation | 829 A.2d 1059,149 N.H. 774 |
| Parties | Janice J. COOK & a. v. John D. SULLIVAN & a. |
| Court | New Hampshire Supreme Court |
Walker & Varney P.C., of Wolfeboro (Mark S. Derby and Robert C. Varney on the brief, and Mr. Derby orally), for the plaintiffs.
Normandin, Cheney and O'Neil, of Laconia (Philip P. Bonafide on the brief and orally), for the defendants.
The defendants, John and Diane Sullivan, appeal a decision of the Superior Court (T. Nadeau , J.) finding that they created a nuisance on the plaintiffs' property by filling and regrading jurisdictional wetlands and constructing a home on their property. We affirm.
Since 1946, the plaintiffs, Janice J. Cook, Vanessa Cook Jacobsohn, Cecil D. Driver, individually and as trustee of the John Cook Driver Trust, Carole Evans Sands, Susan Evans Burkley, Liane Evans Gigas, Melissa Evans Voteur, and Jonathan Richard Evans, have owned property on Lake Winnipesaukee in Moultonboro. Over the years, they have built various structures on the property, including a main house, a garage and a guest house/ chalet. In 1996, the defendants purchased an abutting parcel of property.
At the time of the purchase, the defendants obtained a building plan for the construction of a septic system for a four-bedroom house, prepared by Charles Bollinger, a certified wetlands scientist. In late 1996, the defendants had a three-bedroom modular house placed on their property. Defendant John Sullivan testified that his modular house was primarily pre-built at a factory, then driven to the site and placed on the foundation with a crane. In the course of construction, the defendants used large quantities of fill in the area where they were building the house. In 1997, the plaintiffs began experiencing increased wetness, which they claim lasted for extended periods of time, on their property. Specifically, the plaintiffs claimed, among other things, that, since the construction, standing water accumulated in their garage and underneath the chalet, and that the water has interfered with their ability to use their property as they had in the past. They also claimed that this condition persisted each summer from 1997 to 2001. In 1998, however, the lake reached its highest level in one hundred years, which worsened the wetness on the plaintiffs' property.
In 1999, the plaintiffs complained to the defendants, who attempted to remedy the problem by removing some fill along the parties' common boundary line, digging a drainage ditch and moving a wall. The plaintiffs, however, claimed that the condition of their land did not change. They filed a petition for injunctive relief in July 2000 alleging: 1) common law nuisance; 2) water diversion; 3) trespass; and 4) negligence per se based upon a violation of RSA chapter 482–A. In addition, the plaintiffs filed a complaint with the New Hampshire Department of Environmental Services Wetlands Bureau (wetlands bureau).
The wetlands bureau investigated the complaint and eventually approved a remediation plan, which required the defendants to remove some of the fill placed on the property during construction. The plaintiffs were not allowed to go on the defendants' property during the investigation to observe and were not included in the remedial plan negotiations. According to the wetlands bureau, the defendants satisfactorily complied with the remediation plan. The plaintiffs maintained, however, that the defendants' actions did not remedy the water damage to their property and requested reconsideration of the wetlands bureau decision, which was denied. Prior to trial, the defendants filed a motion in limine arguing that the plaintiffs were precluded, under the doctrines of res judicata and collateral estoppel, from claiming that the defendants failed to comply with RSA chapter 482–A or that the defendants should be subject to a remedy different from that required by the wetlands bureau remediation plan.
The trial court denied the motion. The defendants subsequently sought to introduce the entire wetlands bureau file at trial, which the court also denied.
The trial court ruled that the defendants' construction activities constituted a nuisance that damaged the plaintiffs' property, and that the remedy was to remove the fill and foundation from the jurisdictional wetlands, which would necessarily require the defendants' house to be moved. In its order, the trial court referred to a chart prepared by the plaintiffs' expert and used during trial but not admitted into evidence, as illustrating the area where the defendants' house encroached upon jurisdictional wetlands. By way of clarification, the court subsequently allowed the chart to be marked for identification and incorporated into its order. The trial court denied the defendants' motion to reconsider and this appeal followed.
The defendants first argue that the plaintiffs should be barred, under the doctrines of res judicata and collateral estoppel, from litigating the issue of whether the defendants violated RSA chapter 482–A and what the appropriate remedy should be for such a violation.
"Spurred by considerations of judicial economy and a policy of certainty and finality in our legal system, the doctrines of res judicata and collateral estoppel have been established to avoid repetitive litigation so that at some point litigation over a particular controversy must come to an end." Eastern Marine Const. Corp. v. First Southern Leasing, 129 N.H. 270, 273, 525 A.2d 709 (1987) (quotation omitted). Under res judicata, a final judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent litigation involving the same cause of action. West Gate Village Assoc. v. Dubois, 145 N.H. 293, 296, 761 A.2d 1066 (2000). Whether a claim is barred by res judicata is determined on a case-by-case basis. Hallisey v. DECA Corp., 140 N.H. 443, 445, 667 A.2d 343 (1995).
We have stated previously that the reasons underlying the doctrine of res judicata are fully applicable to some administrative proceedings. Meserve v. State, 119 N.H. 149, 154, 400 A.2d 34 (1979). Res judicata has been applied to a decision of an administrative agency, such as the labor commissioner or his deputy, which was rendered in a judicial capacity, resolved disputed issues properly before it and which the parties had an opportunity to litigate. Morin v. J.H. Valliere Co., 113 N.H. 431, 434, 309 A.2d 153 (1973). In order for res judicata to apply to an administrative decision, however, the officer or board must have been acting in a judicial capacity. See 46 Am.Jur.2d Judgments § 580 (1994) ; see also Restatement (Second) of Judgments § 83 (1982) ().
A review of the record in this case reveals that the wetlands bureau was not acting in a judicial capacity when it investigated the plaintiffs' complaint. As the trial court correctly found, the plaintiffs did not actively participate in the proceedings before the wetlands bureau and were not included in the negotiations between the wetlands bureau and the defendants regarding the remediation plan. Thus, unlike a typical adjudicative proceeding, the plaintiffs were not afforded the opportunity to present evidence of their damages and could not rebut the defendants' remediation plan prior to its acceptance. The focus of the wetlands bureau was to investigate and enforce the wetlands regulations under RSA chapter 482–A to ensure compliance, not to protect the plaintiffs' rights. Cf. Gray v. Seidel, 143 N.H. 327, 330, 726 A.2d 1283 (1999) ().
Nor were the plaintiffs parties to the underlying enforcement action. In situations such as this, where the victim of a statutory wrong complains to the appropriate agency but is not given control over the enforcement proceeding, it is the agency rather than the victim that is the party to whom the rules of res judicata apply. See Restatement (Second) of Judgments § 83 comment c at 272. As a result, the plaintiffs were not barred from bringing their claims under the doctrine of res judicata.
Nor do we agree that the doctrine of collateral estoppel precludes the plaintiffs from litigating claims before the superior court.
[T]he doctrine of collateral estoppel bars a party to a prior action, or a person in privity with such a party, from relitigating any issue or fact actually litigated and determined in the prior action. Three basic conditions must, then, be satisfied before collateral estoppel will arise: the issue subject to estoppel must be identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared as a party in the first action, or have been in privity with someone who did so. These conditions must be understood, in turn, as particular elements of the more general requirement, that a party against whom estoppel is pleaded must have had a full and fair prior opportunity to litigate the issue or fact in question.
Gephart v. Daigneault, 137 N.H. 166, 172, 623 A.2d 1349 (1993) (quotation and citation omitted).
"The relationship between party and non-party implied by a finding of privity in the estoppel context has been described as one of virtual representation, and substantial identity." Daigle, 129 N.H. at 571, 534 A.2d 689 (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. Thus, privity is found to exist, for example, when a person controls or substantially participates in controlling the presentation or if a non-party authorizes a party in litigation to represent his or her...
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