Following a hearing in January 2019, the Trial Court (Anderson, J.) concluded that the prior dismissal constituted a judgment on the merits, as it was effectively issued "with prejudice." The court's decision was informed by Foster v. Bedell, 136 N.H. 728, 621 A.2d 936 (1993), in which we held that the trial court's dismissal of the plaintiffs' suit barred a second action, see Foster, 136 N.H. at 729-30, 621 A.2d 936, and by "the general rule followed by other jurisdictions" that a dismissal order is presumed to be "with prejudice" when silent as to its intended effect. The plaintiff filed a motion to reconsider, which was denied by the trial court, and this appeal followed.
In general, a voluntary nonsuit "arises from the plaintiff's choice and has no conclusive effect on the merits of the underlying action." 5 R. Wiebusch, New Hampshire Practice, Civil Practice and Procedure ยง 1062 (1984); see Foster v. Bedell, 136 N.H. 728, 730, 621 A.2d 936, 937, cert. denied, 510 U.S. 844 (1993). Because "a former judgment is not conclusive upon a matter in issue unless the judgment was on the merits," Barton v. Barton, 125 N.H. 433, 434, 480 A.2d 199, 200 (1984) (quotation omitted), "[a] voluntary nonsuit, if allowed by the court, is not a bar to a second action," Foster, 136 N.H. at 730, 621 A.2d at 937; see Milford Quarry, 78 N.H. at 177, 97 A. at 983.
Over the plaintiff's objection, the trial court granted the motion and dismissed the case. The trial court relied on our decisions in Foster v. Bedell, 136 N.H. 728, 621 A.2d 936 (1993), and Riverbend Condo Ass'n v. Groundhog Landscaping & Property Maintenance, Inc., 173 N.H. 372, 239 A.3d 989 (2020), reasoning that "unless the circumstances of the case show the court intended the dismissal to be without prejudice, an order that is silent on the point weighs generally in favor of dismissal with prejudice." This appeal followed.
Town of Plaistow v. Riddle, 141 N.H. 307, 310, 681 A.2d 650, 652 (1996) (quotation omitted). Although the saving statute protects the "diligent suitor" and is liberally construed in favor of litigating the merits of an action, see Roberts v. General Motors Corp., 140 N.H. 723, 725, 673 A.2d 779, 781 (1996) (quotation omitted), it cannot revive a lawsuit in which a final judgment on the merits has been rendered, see Foster v. Bedell, 136 N.H. 728, 729-30, 621 A.2d 936, 938, cert. denied, 510 U.S. 844 (1993). A judgment entered "with prejudice" constitutes a judgment on the merits of a matter, even if it resulted from a violation of a procedural rule, see Roberts, 140 N.H. at 727, 673 A.2d at 782; Foster, 136 N.H. at 730, 621 A.2d at 938, and bars any attempt to revive the previous action, cf. Town of Plaistow, 141 N.H. at 310, 681 A.2d at 653.
Finally, Judge Temple dismissed the claims in Amatucci I with prejudice, which was a final judgment on the merits. See Moulton-Garland v. Cabletron Sys., Inc., 143 N.H. 540, 542 (1999) ("[a] judgment entered 'with prejudice' constitutes a judgment on the merits of a matter, even if it resulted from a violation of a procedural rule") (citing Roberts v. GMC, 140 N.H. 723, 727 (1996) and Foster v. Bedell, 136 N.H. 728, 730 (1993)). Because defendants have satisfied all three elements of claim preclusion as to Claim 3(a), based on Judge Temple's order of dismissal in Amatucci I, Claim 3(a) is barred by res judicata.
Other state courts have held that a saving statute does not constitute an exception to the doctrine of res judicata for judgments of dismissal on the merits. Foster v. Bedell, 136 NH 728, 730, 621 A2d 936, 937, cert denied, 510 US 844 (1993) (dismissal for failure to file pretrial statements was a judgment on the merits, precluding application of saving statute); LaBarbera v. Batch, 10 Ohio St 2d 106, 116, 227 NE 2d 55, 63 (1967) (dismissal of state court action based on statute of limitations barred second action based on res judicata despite saving statute).
5 WIEBUSCH, supra ยง 1416 (Supp. 1994); Foster v. Bedell, 136 N.H. 728, 730, 621 A.2d 936, 938, cert. denied, 114 S.Ct. 133 (1993). The trial court's discretion in dismissing cases with or without prejudice, or in denying a plaintiff's motion for voluntary nonsuit, is sufficient to prevent an infinitude of successive actions being filed.
It still is practically impossible to lose an action because of a "procedural technicality." Compare Foster v. Bedell, 136 N.H. 728, 730, 621 A.2d 936, 938, cert. denied, 114 S.Ct. 133 (1993) (a dismissal resulting from a party's failure to comply with a court order on the filing of pretrial statements is a judgment on the merits and precludes resort to the saving statute, RSA 508:10) with Barton v. Barton, 125 N.H. 433, 435, 480 A.2d 199, 200 (1984) ("[A] default, by definition, is a failure to take a step required by the rules of procedure" and results in a dismissal on the merits.). We distinguish between "purely procedural" dismissals, which do not bar subsequent actions, and those dismissals which are "procedural," but rest also on a substantive decision on the merits of the case, which do bar subsequent actions. E.g., ERG, Inc., 137 N.H. at 189, 624 A.2d at 557.