Hansa Consult of North America, LLC v. HansaConsult Ingenieurgesellschaft MBH, No. 2011–057.

• Court: Supreme Court of New Hampshire
• Writing for the Court: LYNN
• Citation: 35 A.3d 587,163 N.H. 46
• Parties: HANSA CONSULT OF NORTH AMERICA, LLC v. HANSACONSULT INGENIEURGESELLSCHAFT MBH.
• Docket Number: No. 2011–057.
• Decision Date: 15 December 2011

163 N.H. 46
35 A.3d 587

HANSA CONSULT OF NORTH AMERICA, LLC
v.
HANSACONSULT INGENIEURGESELLSCHAFT MBH.

No. 2011–057.

Supreme Court of New Hampshire.

Argued: Oct. 19, 2011.Opinion Issued: Dec. 15, 2011.

[35 A.3d 589]

Pierce Atwood LLP, of Portsmouth (Lawrence M. Edelman and Michele E. Kenney on the brief, and Mr. Edelman orally), for the plaintiff.

Orr & Reno, P.A., of Concord (Lisa Snow Wade and John L. Arnold on the brief, and Ms. Wade orally), for the defendant.

LYNN, J.

[163 N.H. 48] The plaintiff, Hansa Consult of North America, LLC (HCNA), appeals an order of the Superior Court ( McHugh, J.) granting the motion to dismiss of the defendant, hansaconsult Ingenieurgesellschaft mbH

[35 A.3d 590]

(hansaconsult). We affirm in part, reverse in part, and remand.

I

HCNA, an American company based in Portsmouth, and hansaconsult, a German company, are both involved in the business of detecting fuel leaks at airports. The two companies began their relationship on cooperative terms, having entered into a distribution agreement in 2001 that made HCNA the exclusive distributor of hansaconsult's products and services throughout the United States and Canada. That relationship broke down, however, and the parties terminated their agreement on December 31, 2005.

In 2006, hansaconsult commenced litigation against HCNA in New Hampshire and Germany. The New Hampshire action, filed in March 2006, alleged that HCNA violated various New Hampshire statutes and committed various common-law torts. HCNA asserted several similar counterclaims in its answer. The German action, filed in June 2006, alleged that HCNA had violated the terms of the distribution agreement, whose forum selection clause specified that “Place of Jurisdiction is only Hamburg.” In August 2006, however, the parties entered into a settlement protocol agreement (SPA), which included a provision dismissing both the German and New Hampshire actions without prejudice to pending settlement negotiations.

After years of fruitless settlement efforts, in January 2009 hansaconsult again sued HCNA for breaching the 2001 distribution agreement, but this time only in Germany. Believing this lawsuit to violate the SPA, HCNA moved in superior court, in June 2009, to enjoin hansaconsult's German lawsuit and to enforce the SPA. Before the superior court responded to that motion, apparently out of concerns that the statute of limitations would run on its claims, HCNA filed its own lawsuit against hansaconsult in New Hampshire on December 11, 2009, asserting the same claims it had brought as counterclaims in hansaconsult's original March 2006 New Hampshire action against HCNA. Hansaconsult moved to dismiss that action, and both parties agreed to stay resolution of hansaconsult's motion to dismiss pending the trial court's decision on HCNA's June 2009 motion to enforce [163 N.H. 49] the SPA. On April 7, 2010, the superior court issued a preliminary ruling on the motion to enforce the SPA, concluding that its only task was to determine whether hansaconsult had violated the SPA's good faith requirement, scheduling a hearing to decide that limited issue, and stating that all of the parties' underlying claims should be litigated in Germany because they all arise under the distribution agreement. After the good faith hearing, the court issued a final order on September 28, 2010, deciding that neither party had breached its obligations under the SPA, concluding that a settlement was unlikely, and again stating that the 2001 distribution agreement required all claims between the parties to be heard in Germany. HCNA moved to reconsider, arguing that the SPA should still be enforced, and that the court incorrectly concluded that all of its underlying claims should be litigated in Germany pursuant to the terms of the 2001 distribution agreement. The court denied that motion, and we affirmed that decision by order without addressing the issue of whether HCNA's claims against hansaconsult should be heard in Germany. Hansaconsult Ingenieurgesellschaft mbH v. Hansa Consult of North America, LLC & a., No. 2010–0803 (N.H. Aug. 24, 2011).

On October 28, 2010, having denied HCNA's motion to enforce the SPA, the trial court granted hansaconsult's motion

[35 A.3d 591]

to dismiss HCNA's 2009 lawsuit. HCNA moved to reconsider, arguing: (1) that the motion to dismiss had been withdrawn and thus was not yet ready for adjudication; (2) that, as a result, granting the motion to dismiss deprived HCNA of notice and an opportunity to be heard; and (3) that its 2009 claims against hansaconsult do not arise under the distribution agreement and may therefore be litigated in New Hampshire. The trial court denied HCNA's motion because “the plaintiff cannot separate this case from the provisions of the Distribution Agreement.” This appeal followed.

II

HCNA first argues that the trial court erred in adopting hansaconsult's argument that HCNA's 2009 claims are barred under principles of res judicata and collateral estoppel. Hansaconsult argues that HCNA's claims are barred because the court had decided precisely the same issues and/or causes of action in its September 28, 2010 final order in the previous litigation. The applicability of res judicata is a question of law, which we review de novo. Brooks v. Trustees of Dartmouth College, 161 N.H. 685, 690, 20 A.3d 890 (2011).

“Res judicata prevents the parties from relitigating matters actually litigated and matters that could have been litigated in the first action.” Morgenroth & Assoc's v. State, 126 N.H. 266, 269, 490 A.2d 784 (1985) (quotation omitted). The doctrine applies if three elements are met: (1) the parties are the same [163 N.H. 50] or in privity with one another; (2) the same cause of action was before the court in both instances; and (3) the first action ended with a final judgment on the merits. In re Juvenile 2004–637, 152 N.H. 805, 808, 888 A.2d 422 (2005).

Examination of this doctrine reveals that it does not apply here. A cause of action is “the underlying right that is preserved by bringing a suit or action.” Morgenroth, 126 N.H. at 270, 490 A.2d 784 (quotation omitted). HCNA did not bring the same cause of action in this litigation as it did in the 2009 motion to enforce the SPA; there, it sought to enforce the terms of the August 2006 settlement agreement and enjoin hansaconsult's action against it in Germany. And to the extent that the original causes of action between the parties in the 2006 New Hampshire litigation—both hansaconsult's claims and HCNA's counterclaims—mirror HCNA's claims in this action, those claims had been voluntarily nonsuited by the parties pursuant to the terms of the SPA. Thus, res judicata does not prevent HCNA from arguing, in this action, that its claims against hansaconsult should be litigated in New Hampshire.

Equally inapposite is the doctrine of collateral estoppel. That doctrine 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. Petition of Kalar, 162 N.H. 314, 320, 27 A.3d 756 (2011). Under certain circumstances, collateral estoppel may preclude the relitigation of findings made by a previous court when: (1) the issue subject to estoppel is identical in each action; (2) the first action resolved the issue finally on the merits; (3) the party to be estopped appeared in the first action or was in privity with someone who did; (4) the party to be estopped had a full and fair opportunity to litigate the issue; and (5) the finding at issue was essential to the first judgment. Id. Even assuming the first four requirements have been met in this instance, the trial court's conclusion in its judgment on the motion to enforce the SPA that all of the parties'

[35 A.3d 592]

underlying legal claims should be heard in Germany was unnecessary to dispose of the issue before it—namely, whether hansaconsult should be required to re-enter settlement negotiations under the SPA. Without having been asked to determine whether the underlying disputes fell within the scope of the forum selection clause, the trial court had no need to answer that question in its final judgment in the SPA enforcement action. Thus, doing so was not essential to the judgment and cannot be given preclusive effect. See Restatement (Second) of Judgments § 27(h), at 258 (1982) (“If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded.”).

[163 N.H. 51] III

HCNA's primary argument on appeal is that the trial court erred when it concluded that HCNA's claims against hansaconsult in this action fall within the ambit of the 2001 distribution agreement's forum selection clause and must therefore be brought in Germany. HCNA contends that, although disputes arising out of the distribution agreement must be resolved in Germany, its claims in this action do not so arise. Hansaconsult argues that the forum selection clause language—“Place of Jurisdiction is only Hamburg”—is broad enough to cover “all disputes between the parties arising out of their commercial dealings.” The superior court concluded that all of HCNA's claims...