In these consolidated appeals, the plaintiffs, Charles and Brenda Kalil, contest two orders of the Superior Court (Vaughan, J.). In one, the court granted the motion to dismiss filed by defendant Town of Dummer (Town) on the ground that res judicata barred the plaintiffs’ writ alleging an inverse condemnation claim. In the other, the court denied the plaintiffs’ motion to amend thеir appeal of the denial of their variance request to add an inverse condemnation claim. We affirm.
This is the second appeal involving the plaintiffs’ land in Dummer. See Kalil v. Town of Dummer Zoning Bd. of Adjustment,
The plaintiffs own land located in both the Town’s conservation and conservation overlay zones. Kalil,
We affirmed the superior court’s decision to remand the variance request to the ZBA for it to clarify its decision based upon the pre-existing record. Id. at 312-13. We remanded the building permit appeal to the superior court for it to “either address the merits of the issues surrounding the building permits or explain why it is reserving its decision upon those issues.” Id. at 313.
Upon remand, the trial court ruled that the building permits were properly denied. Upon review of the ZBA’s report clarifying its earlier decision to deny the plaintiffs’ variance request, the trial court affirmed the ZBA’s decision. The plaintiffs moved for reconsideration, arguing that, without a variance, they “will be substantially deprived of the economically viable use of their land.” See Burrows v. City of Keene,
In October 2008, before the court had ruled upon the Town’s motion to dismiss, the plaintiffs moved to amend their original appeal of the ZBA’s variance decision to add an inverse condemnation claim. The trial court granted thе Town’s motion to dismiss and denied the plaintiffs’ motion to amend. These consolidated appeals followed.
The plaintiffs first argue that the trial court erred by allowing the Town to raise res judicata as an affirmative defense. Relying upon Superior Court Rule 28, they assert that “as of July 31, 2008, the defendant, through its attorneys, had actual notice of [the] defense of res judicata and failed to file in a timely manner [a pleading that raised] that affirmative defense, thereby waiving the same as a matter of law.”
Superior Court Rule 28 provides:
All special pleas and brief statements shall be filed within thirty days following the return date of the writ; otherwise the cause shall be tried upon the general issue. Failure to plead affirmative defenses, including the statute of limitations, within this time will constitute waiver of such defenses. No brief statement or special plea shall be afterwards received except by leave of court as justice may require.
Here, the plaintiffs’ writ was returnable on the first Tuesday of July 2008. Within thirty days of this period, the Town filed its brief statement of defenses, but neglected to include res judicata as an affirmative defense. Eight days after the thirty-day period expired, however, the Town raised res judicata as a defense and, thereafter, sought leave to amend its statement of defenses to include this defense.
Although pursuant to the literal terms of Superior Court Rule 28, the Town may have waived its affirmative defense of res judicаta, Superior Court Rule 28 grants the trial court authority to allow late filing of such a defense “as justice may require.” Additionally, under the Preface to the Superior Court Rules, the trial court may waive the application of any rule “[a]s good cause appears and as justice may require.” See RSA 514:9 (2007) (“Amendments in matters of substance may be permitted in any action, in
Amendment of pleadings is liberally permitted, and the decision to grant or deny a motion to amend rests in the sound discretion of the trial court. Dent v. Exeter Hasp.,
Given our emphasis upon justice over procedural technicalities, see Whitaker v. LA. Drew,
The plaintiffs next assert that the trial court еrroneously denied their motion to amend their original appeal of the ZBA’s denial of their variance request to add an inverse condemnation claim. We find no error in the trial court’s decision.
The plaintiffs sought to amend their original appeal of the ZBA’s denial of their variance long after the trial court’s decision in the apрeal had become a final judgment on the merits. The trial court issued its final order in the ZBA appeal on April 15, 2008. This order became a final judgment thirty-one days later. See SUPER. Ct. R. 74. The plaintiffs, however, did not move to amend their appeal until nearly six months after the judgment became final. By that time, “the trial court’s power to allow amendment... [had] ceased.” Arsenault v. Scanlon,
The plaintiffs next contend that the trial court erred when it dismissed their new writ on res judicata grounds. “The applicability of res judicata is a question of law that we review de novo.” Sleeper v. Hoban
The plaintiffs acknowledge that in Shepherd v. Town of Westmoreland,
In addressing whether res judicata barred the plaintiffs inverse condemnation claim, we relied upon Eastern Marine Construction Corp. v. First Southern Leasing,
[T]he constitutional and inverse condemnation claims raised by the plaintiff arise out of the same factual transaction as did her previous [appellate] claim for a variance. Indeed, the only fact to be added here is that, having been denied a variance, the plaintiff now contends that that denial constitutes a taking of her property. We have consistently barred such claims when, as here, the subsequent action is so closely related to the earlier action. The*731 fact that the plaintiff attaches a new label to her cause of action is insufficient tо remove the bar of the earlier adjudication against her.
Id. at 544 (citations omitted). Accordingly, we held that to have avoided res judicata as a bar, the plaintiff “should have raised her . . . inverse condemnation claim[] in her 1984 appeal to the superior court.” Id. at 545.
As the plaintiffs concede, Shepherd is dispositive. Like the claims at issue in Shepherd, the plaintiffs’ inverse condemnation claim arises out of the same factual transaction as their prior appeal from the denial of the variance. See id. at 544. As in Shepherd, the only additional fact is that the plaintiffs now contend that the denial results in an unconstitutional taking of their property. See id. Because the plaintiffs’ zoning appeal and inverse condemnation claim arise from the same factual transaction, they constitute the same cause of action for res judicata purposes. See id. The trial court, therefore, did not err when it granted the Town’s motion to dismiss on this ground.
The plaintiffs urge us to “revisit” our holding in Shepherd, which necessarily would involve revisiting our holding in Eastern Marine. “We do not lightly overrule a prior opinion.” State v. Duran,
Several factors inform our judgment, including: (1) whether the rule has proven to be intolerable simply in defying practical workability; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling; (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Jacobs,
Further, our rule is practical and workable. “The substantive efficiency” of defining a cause of action according to the transactional theory “is obvious.” Id. at 606. Under such аn approach, “a unitary transaction or occurrence . . . give[s] rise to only one cause of action which must be pursued in one lawsuit.” Id. The transactional approach is also easy to understand and predictable in its application. Id. The approach, as set forth in the Restatement (Second) of Judgments, is precise and well-explained, providing clear guidance to litigants and judges. See id. at 608.
The plaintiffs “make[] no argument specifically directed at any of the factors listed above.” Hilario v. Reardon,
We do not, generally, revisit casеs merely because of perceived unfairness. In Hilario, we took this extraordinary step only because of the unusual facts in that case. In Hilario, the issue was whether a general rule we had adopted in Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A.,
By contrast, the issue here is whether this case is governed by a case that is directly on point. Under these circumstances, the alleged “unfairness” of applying Shepherd, a case that is on all fours with the instant case, does not justify revisiting Shepherd.
Even if unfairness, generally, would allow us to revisit Shepherd, we disagree that any of the above is “unfair.” As the plaintiffs acknowledge, a trial court faced with both an appeal from the denial of a variance request and an inverse condemnation claim arising from the same factual transaction may bifurcate the proceedings, and decide the non-constitutional claim first. Further, a party often uses different claims to vindicate different rights and obtain different remedies. These differences do not render it “unfair” tо treat the claims as the same for res judicata purposes when they arise from the same factual transaction. Under the transactional definition, which we adopted in Eastern Marine and applied in Shepherd, two claims are the same for res judicata purposes “regardless of the number of substantive theories, or variant forms of relief flowing from those theories . . . ; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights.” Restatement (Second) of Judgments, supra § 24 comment a at 197, § 25; see Sleeper,
Finally, we see nothing “unfair” in requiring a landowner to decide, within thirty days of a zoning board’s final decision, both whether to appeal the decision to the superior court and whether to bring an inverse condemnation claim arising from that decision. Because the issue is not before us in this appeal, we express no opinion as to whether, as the plaintiffs contend, a landowner is required to exhaust administrative remedies by bringing an inverse condemnation claim first to the zoning board before bringing it to the superior court. See Blue Jay Realty Trust v. City of Franklin,
Affirmed.