Gray v. Kelly, 161 N.H. 160

Gray lived at Kelly's home after 2002 divorce until Aug 2004, leaving his personal property there.
A February 7, 2006 Salem Family Division order required Gray to retrieve his belongings within 30 days and stated Kelly could dispose if not retrieved; order became final March 10, 2006.
Gray did not retrieve property before the order became final; he did not attend the February 2006 hearing.
Gray filed a DV action (April 2006) and a separate civil action (April 2006) seeking return of property; he later added a replevin count and joined Sorenson after discovering Sorenson had some of the property.
Kelly obtained an ex parte attachment which was vacated after a hearing; Kelly sought dismissal based on res judicata and collateral estoppel; the court granted the motion to dismiss; Gray appealed.
On appeal, the court held that res judicata barred Gray’s claim; the dismissal as to Sorenson was vacated and remanded for privity analysis; otherwise affirmed in part, vacated in part, remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether res judicata precludes Gray’s suit.	Gray contends DV action and current suit involve different causes.	Kelly argues same cause of action and relief sought were precluded.	Res judicata bars re-litigation.
Whether collateral estoppel applies given Gray’s default.	Gray says no collateral estoppel due to default.	Kelly contends collateral estoppel may apply but res judicata suffices.	Court need not resolve collateral estoppel since res judicata controls.
Whether the trial court properly revisited its prior denial of dismissal.	Gray asserts no new evidence; court erred in reconsidering.	Court may revisit a ruling when itself might be incorrect.	Court properly revisited and affirmed, then reversed as to dismissal.
When the February 2006 order became effective and final for purposes of property retrieval.	Order did not take effect until after appeal period.	Order was effective upon rendering and remained in effect during appeal unless stayed.	Order was effective from rendering; Gray had 30 days and then 31 days if no appeal.
Whether Sorenson is in privity with Kelly for purposes of res judicata.	Sorenson was not a party; res judicata may still apply if privity.	No findings on privity; dismissal as to Sorenson should stand.	Remanded to determine privity.

McNair v. McNair, 151 N.H. 343 (N.H. 2004) (res judicata burden on proving applicability)
In re Zachary G., 159 N.H. 146 (N.H. 2009) (res judicata and collateral estoppel standards)
Morgenroth & Assoc’s v. State, 126 N.H. 266 (N.H. 1985) (preclusion in res judicata analysis)
Aubert v. Aubert, 129 N.H. 422 (N.H. 1987) (definition of 'cause of action' for res judicata)
Kalil v. Town of Dummer Zoning Bd. of Adjustment, 159 N.H. 725 (N.H. 2010) (causes of action not limited to theories)
Osman v. Gagnon, 152 N.H. 359 (N.H. 2005) (final judgment defeats defenses not raised earlier)
Rollins v. Rollins, 122 N.H. 6 (N.H. 1982) (finality of judgment; stays and appeals)
Looney v. State, 154 N.H. 801 (N.H. 2007) (rendered vs. final judgment; effectiveness upon rendering)
Walker v. Walker, 158 N.H. 602 (N.H. 2009) (purpose of RSA 173-B to protect victims)
State v. Lake Winnipesaukee Resort, 159 N.H. 42 (N.H. 2009) (de novo review of res judicata issues on a motion to dismiss)