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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Rockingham No. 2009-798

JEFFREY M. GRAY v. TERI E. KELLY & a. Submitted: September 8, 2010 Opinion Issued: November 24, 2010 Jeffrey M. Gray, by brief, pro se. Romeo & Ryan, of Lowell, Massachusetts (Michael T. Ryan on the brief), for defendant, Teri E. Kelly. Lisa A. Sorenson, pro se, filed no brief. DUGGAN, J. The plaintiff, Jeffrey Gray, appeals the granting of defendant Teri Kelly's motion to dismiss by the Superior Court (Nadeau, J.). We affirm in part, vacate in part and remand. The record supports the following facts. Gray lived at Kelly's residence following his 2002 divorce until approximately August 2004, when he moved out. Gray, however, left some of his personal property at Kelly's home. On February 7, 2006, the Salem Family Division (DalPra, M.) issued a final order

in a domestic violence action filed by Kelly against Gray providing that "[Gray] shall retrieve his belongings from [Kelly's] residence in 30 days. His failure to do so shall result in [Kelly] being allowed to dispose of same." Gray did not attend this hearing, nor did he appeal the order. The order became final on March 10, 2006, and the parties agree that Kelly did not dispose of any of Gray's property prior to that date. Gray made no attempt to retrieve his property until April 1, 2006. Gray then filed two separate actions against Kelly, both of which demanded the return of his property. On April 3, 2006, he filed a domestic violence action in the Salem Family Division, but later agreed to dismiss the suit after the court determined it could not resolve any matters relating to his property. On April 17, 2006, he filed a civil action in superior court that is the subject of this appeal, alleging that Kelly wrongfully disposed of and refused to return his personal property. He later amended the writ to add a count for replevin and to add his sister, Lisa Sorenson, as a defendant after he learned that Kelly gave Sorenson some of the property in question. Soon after filing suit, Gray filed for an ex parte attachment of Kelly's property, which the superior court granted. However, the court vacated the attachment after a hearing "based on Master DalPra's order of 2/7/06." Then, in January 2008, Kelly filed her first motion to dismiss, which claimed that the parties had previously litigated Gray's property claims and that res judicata precluded further litigation. Gray contended that res judicata did not apply because the prior domestic violence proceeding and his current suit involved two different causes of action. The court denied the motion "for the reasons contained in [Gray's] objection." In October 2009, the court held a trial management conference at which Kelly again argued that res judicata barred Gray's suit. The court requested that Kelly re-file her motion to dismiss, which Kelly did. She argued that Gray's claims were precluded by both res judicata and collateral estoppel. The court granted Kelly's motion the next day because it "determine[d] that it should have granted the original motion." Gray then appealed. On appeal, Gray first argues that res judicata does not preclude his suit because a "domestic violence action is fundamentally different from a replevin and damages action." He also claims that collateral estoppel is inapplicable because he defaulted in the February 2006 domestic violence action, and, therefore, did not actually litigate ownership of his property. In addition to arguing that his claims are not precluded, Gray contends that the trial court unsustainably exercised its discretion when it reversed its initial decision to deny Kelly's first motion to dismiss. Finally, he argues that the February 2006 order did not take effect until the expiration of the appeal period and he had thirty days from that time to retrieve his property.

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Generally, when reviewing a trial court's ruling on a motion to dismiss, we consider "whether the petitioner's allegations are reasonably susceptible of a construction that would permit recovery." State v. Lake Winnipesaukee Resort, 159 N.H. 42, 45 (2009). Kelly, however, moved to dismiss based exclusively upon res judicata and collateral estoppel. Both doctrines are affirmative defenses and Kelly bears the burden of proving that they apply. McNair v. McNair, 151 N.H. 343, 354 (2004); In re Zachary G., 159 N.H. 146, 151 (2009). Because the trial court determined that res judicata applied as a matter of law, our review is de novo. Lake Winnipesaukee Resort, 159 N.H. at 45. We begin with the plaintiff's argument that res judicata and collateral estoppel do not preclude his claim. In its most basic formulation, the 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. Res judicata, or "claim preclusion," is a broader remedy and bars the relitigation of any issue that was, or might have been, raised in respect to the subject matter of the prior litigation. McNair, 151 N.H. at 352-53 (quotation omitted). Gray contends that collateral estoppel does not apply because he did not appear at the February 2006 hearing on Kelly's domestic violence action and the Salem Family Division final order was entered upon his default. We need not address this argument, however, because even if a default judgment cannot constitute collateral estoppel, see id. at 353, a default judgment can constitute res judicata in subsequent litigation involving the same cause of action, id. "The doctrine of res judicata prevents 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 (1985) (quotation omitted; emphasis added). The doctrine applies if three elements are met: (1) the parties are the same 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 (2005). Gray does not contest the first and the third elements. Accordingly, we must determine only whether the February 2006 domestic violence action involved the same cause of action as the plaintiff's subsequent suit for replevin and damages. As an initial matter, Gray asserts throughout his brief that the prior action in this litigation is the domestic violence action that he filed in April 2006 and then voluntarily dismissed in June 2006. The court in that case

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found that "it [could not] resolve the matters relating to property." Accordingly, Gray claims that the court's ruling has no preclusive effect because it did not adjudicate any of the property issues. However, Gray's argument is misplaced because the February 2006 order did make a final ruling regarding his property, and we consider only that order in determining whether Gray's claims are precluded. Turning to the preclusive effect of the February 2006 order, we have defined the term "cause of action" as "the right to recover, regardless of the theory of recovery." McNair, 151 N.H. at 353 (quotations omitted). It "refers to all theories on which relief could be claimed on the basis of the factual transaction in question." Aubert v. Aubert, 129 N.H. 422, 426 (1987) (quotation and brackets omitted). To determine whether Gray's claim is precluded we must determine whether the type of relief available concerning property in a replevin action is available in a domestic violence action. We hold that the same type of relief is available in both cases and that res judicata precludes Gray from re-litigating his claim. Replevin is a proceeding in which the plaintiff seeks to recover possession of personal property that has been taken from him. See 66 Am. Jur. 2d Replevin

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