412 South Broadway Realty, LLC & a. v. John M. Wolters, Jr. & a., 147 A.3d 417

Background

Defendants Wolters and Lospennato claimed a deeded right-of-way (from an 1874 reservation by John A. Messer) across Cuomo Drive, which crosses State railroad land, Cumberland Farms, 392 South Broadway, and a disputed “cross-hatched” strip of what became FUN Trust property (formerly 412 South Broadway).
Plaintiffs (initially 412 South Broadway and Salem Rockingham; 412 later sold to FUN Trust) sued to declare no right-of-way across their parcel; defendants counterclaimed for adverse possession or prescriptive easement to the cross-hatched area.
Trial court found defendants failed to prove adverse possession/prescriptive easement to the cross-hatched area (interruption by a berm and lack of specific description) and concluded Messer’s 1874 reservation was a personal easement in gross tied to a life estate and therefore did not create a perpetual right for the defendants’ property.
The court alternatively found subsequent deeds conveyed the right-of-way only to lots east of the railroad and not to the defendants’ lot, so no deeded right-of-way existed across 392 South Broadway.
FUN Trust later asserted slander of title and abuse of process based on the defendants’ 2012 planning-board appeal; the court held statements in the appeal were judicially privileged (no slander) but found defendants liable for abuse of process and awarded attorney fees for defending the planning-board appeal.
On appeal the Supreme Court affirmed most rulings but vacated the abuse-of-process judgment because the trial court improperly admitted settlement communications barred by Rule 408; remanded for retrial on that claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Existence of deeded right-of-way over 392 South Broadway	Messer’s 1874 reservation did not create a perpetual right; subsequent deeds limited benefit to east-side lots	Even if Messer’s grant was defective, subsequent conveyances ratified or recreated a right-of-way for defendants’ lot	Affirmed: Messer’s reservation was an easement in gross tied to a life estate; defendants did not preserve/plead ratification by later conveyances so claim not considered by court
Res judicata / collateral estoppel to bar FUN Trust’s abuse-of-process claim	FUN Trust’s fee requests in planning-board litigation resolve issues, so abuse-of-process claim is barred	Abuse-of-process arises from defendants’ motives and is a separate cause; prior fee rulings do not preclude new claim	Affirmed: Res judicata and collateral estoppel do not bar the abuse-of-process claim because it arises from different facts/issues and FUN Trust lacked full opportunity on defendant motives
Admissibility of settlement communications (Rule 408)	Settlement email showing defendants’ quid pro quo and extortionate demands proves improper motive for appeal	Emails show state of mind and are admissible for non-liability purpose	Reversed in part: Trial court erred to admit settlement communications under Rule 408; evidence should have been excluded and abuse-of-process judgment vacated and remanded
Slander of title based on planning-board statements	FUN Trust contends defendants made slanderous statements in planning-board proceedings and appeals	Defendants say statements were made in judicial/proceeding context and absolutely privileged	Affirmed: Court correctly held statements in the appeal were absolutely privileged; FUN Trust did not plead or preserve claims based on pre-board statements

Key Cases Cited

Perron v. Aranosian, 128 N.H. 92 (notice pleading requires pleadings to inform opponent of theory/relief sought)
Thompson v. C&C Research & Dev., 153 N.H. 446 (limitations on raising new theories late in trial)
Cohoon v. IDM Software, 153 N.H. 1 (factors for judicial estoppel analysis)
Merriam Farm, Inc. v. Town of Surry, 168 N.H. 197 (res judicata three-part test)
Mahindra & Mahindra v. Holloway Motor Cars of Manchester, 166 N.H. 740 (elements for collateral estoppel)
Petition of Kalar, 162 N.H. 314 (review standard for collateral estoppel applicability)
Axenics, Inc. v. Turner Constr. Co., 164 N.H. 659 (Rule 408’s spirit supports excluding settlement materials)
Jackson v. Morse, 152 N.H. 48 (amount of damages is factual, appellate review for clear error)
Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365 (standard for awarding attorney’s fees for bad faith litigation)