The plaintiff, Randall Meier, appeals a ruling of the Superior Court (Burling, J.) dismissing his suit against the defendants, the Town of Littleton (town) and the State of New Hampshire (State), on grounds of res judicata. We reverse and remand.
The facts are not in dispute. Raymond P. Zolton, individually and as the executor of his wife’s estate, sued all the parties in this case to recover for his personal injuries and for the death of his wife. The suit arose from a traffic accident in which Randall Meier struck the Zoltons with his truck while they were crossing Main Street in Littleton at a crosswalk that was allegedly improperly designed. Meier filed a brief statement asserting several defenses, including that: “[t]he carelessness, recklessness and negligence of a person or persons other than [him were] the sole proximate cause of the plaintiffs’ damages, if any.”
The case settled before trial, and all parties stipulated that the docket be marked: “Neither party. No costs. No interest. No further action for the same cause.” In exchange for the settlement, Zolton executed releases in favor of all the defendants, but neither the town nor the State requested Meier to execute a release in its favor.
Shortly after the docket markings were filed, Meier initiated this action against the town and the State, his former co-defendants. He claimed to have suffered damages — emotional harm and loss of income — as a result of the negligence of the town and the State in creating the deficient crosswalk the Zoltons were using at the time of the accident. He does not seek indemnification or contribution for the settlement he paid Zolton. The town, joined by the State, moved to dismiss Meier’s suit on grounds of res judicata. The trial court granted the motion, and this appeal followed.
Meier argues that res judicata does not apply because the claims he raises in this ease could only have been raised in the prior case (hereinafter Zolton) as cross-claims, and in New Hampshire, cross-claims are permissive rather than compulsory. He contends that by enforcing the *342 res- judicata bar in this case, we would, in effect, be instituting a compulsory cross-claim rule.
The applicability of res judicata is a question of law we review
de novo. Berthiaume v. McCormack,
While the docket markings in
Zolton
are not a final judgment on the merits for the purpose of applying collateral estoppel,
see Waters v. Hedberg,
The record before us reveals that this case and Zolton are not actions between the same parties. The plaintiff and the defendants in this case were all parties to Zolton, but that case was between Zolton and all of the parties to this case, while this case is between one Zolton defendant and his two co-defendants. In an opinion both parties rely upon, and we find persuasive, the United States Court of Appeals for the Sixth Circuit explained:
Michigan recognizes that for res judicata to apply, both actions must involve the same parties or their privies. The same parties means adversarial parties. Generally, codefendants are not adversaries for the purposes of res judicata, even though a codefendant could have filed a cross-claim against the other defendant. Adverse parties have been defined as those who, by the pleadings, are arrayed on opposite sides. Opposite sides in this sense is not restricted to the plaintiffs against the defendants, since codefendants having a controversy inter se may come within such a classification.
Executive Arts v. City of Grand Rapids,
As in
Executive Arts,
there is no evidence that the plaintiff and defendants in this case were actual adversaries in
Zolton.
There is little doubt that each
Zolton
defendant preferred that its co-defendants bear as much of the liability as possible for Zolton’s damages and that all three
Zolton
defendants negotiated toward that end during settlement discussions. However, the town and the State have not shown (or argued) that they and Meier were ever formally arrayed on the opposite side of any issue in the
Zolton
pleadings.
See Executive Arts,
Not only are this case and
Zolton
not actions between the same parties, they are not for the same cause of action. The term “cause of action” is defined as the right to recover, regardless of the theory of recovery.
McNair v. McNair,
Our cases do contain language suggesting a somewhat more expansive definition of “cause of action.” For example, we have stated that “the term [cause of action] connotes facts which give rise to one or more relations of right-duty between two or more persons.”
Eastern Marine Const. Corp. v. First Southern Leasing,
We conclude by addressing the defendants’ two principal arguments contending that the causes of action in
Zolton
and this case are the same. First, the town argues that our decision in
Osman v. Gagnon,
Second, the town argues that a ruling in favor of Meier would impede judicial economy. Again, we disagree. There are facts unique to Meier’s case. It is not clear that judicial economy would have been enhanced by requiring Meier to add his claims against the town and the State to a case that was already complicated by the presence of three different defendants and multiple theories of liability.
Because res judicata does not bar the plaintiff’s suit against the town and the State, the trial court erred in granting the defendants’ motion to dismiss. Accordingly, we reverse and remand.
Reversed and remanded.