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
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.
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,
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,
“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,
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 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,
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 § 1 (2001). While Gray points out that the purpose of a domestic violence action is to determine whether domestic violence occurred, RSA 173-B-.5 clearly provides authority for the court to grant other forms of relief, including resolving disputes regarding personal property. See RSA 173-B:5,1(b)(3) (Supp. 2009). In this case, both actions are based on the same factual transaction — that is, the dispute concerning Gray and Kelly’s separation. See Appeal of Univ. System of N.H. Bd. of Trustees,
Gray also asserts that the Salem Family Division did not have the authority under RSA 173-B:5 to make an order regarding his property because he exclusively owned it and had no legal duty to support Kelly or her children. “[T]his court is the final arbiter of the intent of the legislature as expressed in the words of a statute. When construing a statute’s meaning, we first examine its language, and where possible, we ascribe the plain and ordinary meaning to words used.” Monahan-Fortin Properties v. Town of Hudson,
The provision Gray relies upon specifically authorizes the court to grant the plaintiff “the exclusive right of use and possession of the household furniture, [or] furnishings . . . unless the defendant exclusively owns such personal property and the defendant has no legal duty to support the plaintiff or minor children.” RSA 173-B:5, 1(b)(3). Therefore, for a court to make an order regarding the right to use or possess household property, it must make a determination regarding ownership of that property. The Salem Family Division made such a determination when it allowed Gray to “retrieve his belongings.”
While the court provided that Gray could retrieve his property, it was also concerned for Kelly’s safety as it found that Gray had abused Kelly. RSA chapter 173-B is primarily concerned with protecting domestic violence victims and their families, and when making a domestic violence order, the court has latitude in order to achieve this goal. See Walker v. Walker,
Additionally, at the February 2006 hearing, Gray had the opportunity to litigate the disposition of his property. He relinquished that opportunity when he did not appear before the Salem Family Division. See Osman v. Gagnon,
Gray next argues that the trial court unsustainably exercised its discretion in reversing its denial of Kelly’s motion to dismiss because Kelly did not present any new evidence or arguments. A trial court, however, has the authority to revisit an earlier ruling on a motion to dismiss if it becomes aware that the ruling may be incorrect. See Route 12 Books & Video v. Town of Troy,
Gray also contends that the February 7, 2006 order did not become final until thirty days after the expiration of the appeal period — on April 9, 2006 — and that he asked Kelly to return his property on April 1. He argues that because a judgment does not become final until thirty-one
“Superior Court Rule 74 provides that a decree does not go to final judgment if a timely appeal is taken to [the Supreme Court].” Rollins v. Rollins,
Accordingly, the Salem Family Division order became effective on the date it was rendered — February 7, 2006. Gray then had thirty days to appeal the order or request a stay. See SUPER. CT. R. 74. He did neither. Thus, the Salem Family Division order remained in effect during the period for filing an appeal. See Looney,
RSA chapter 173-B provides further support for this conclusion. The entire statutory scheme is based upon providing immediate protection for victims of domestic violence. See, e.g., RSA 173-B:4 (2002) (providing for temporary ex parte relief). If we were to agree with Gray and hold that the Salem Family Division order did not take effect until the conclusion of the appeal period, trial courts would be unable to provide domestic violence victims with immediate and effective relief. Moreover, the February 2006 domestic violence final order itself states, “THESE ORDERS ARE EFFECTIVE IMMEDIATELY AND REMAIN IN EFFECT FOR ONE YEAR.” Gray does not dispute that he was properly served with a copy of the order. Accordingly, the restraining order itself put Gray on notice that the 30-day period began immediately and his argument is without merit.
Finally, Gray argues that even if res judicata bars further litigation against Kelly, the trial court erred in dismissing
Affirmed in part; vacated in part; and remanded.