Crossley v. Pelham CV-94-322-M 05/23/95 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donald E. Crosslev, and Wendy C. Crosslev

v. #C-94-322-M

Town of Pelham and John E. Tucker

ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS

Defendants Town of Pelham and John E. Tucker, individually

and in his capacity as Pelham Town Planner, pursuant to Rule

1 2 (c) of the Federal Rules of Civil Procedure have moved for

judgment on the pleadings.

BACKGROUND

The plaintiffs, husband and wife, reside at South Shore

Drive on Little Island Pond, in Pelham, New Hampshire.

Plaintiffs' property is part of a neighborhood of 52

residences, most of which at one time were seasonal dwellings.

Litigation between the parties has been long, contentious

and acrimonious as evidenced from the pleadings.

Defendant Town of Pelham in June, 1991 filed a Petition for

Preliminary and Permanent Injunction in Hillsborough County Supe­

rior Court against the plaintiffs. The petition alleged that the plaintiffs had violated zoning, building and health regulations

by "converting" their cottage from seasonal to year-round res­

idency and by occupying the cottage on a year-round basis. The

petition sought to temporarily and permanently enjoin the occu­

pancy of the cottage. Plaintiffs further allege that the Town

had not notified them of the zoning and building code violations

prior to filing the petition.

Plaintiffs allege that the petition was commenced without

probable cause, without knowledge that the plaintiffs had

violated zoning and building codes, maliciously in retribution

for the plaintiffs1' success in a 1987 zoning variance appeal and

with malice and bad faith because of Donald Crossley1s outspoken

criticism of the Town's administration of planning and zoning

matters.

Plaintiffs further allege that the Town had established a

pattern of non-enforcement of its regulations relative to

conversion of seasonal dwellings that was so systematic as to

constitute an official policy of non-enforcement, that it was

selective against the plaintiffs and was intentional.

Plaintiffs have brought this action pursuant to

, succinctly stated are egual protection violations

relative to the zoning ordinance enforcement, building code

enforcement, and health code enforcement. Plaintiffs also seek

2 recovery for malicious prosecution under the Fourteenth

Amendment, negligent supervision under the Fourteenth Amendment

violation of First Amendment rights, state law claims for

malicious prosecution and negligent supervision.

The defendants in this motion allege plaintiffs' claims are

barred by the doctrine of res judicata and their failure to set

forth the essential elements necessary to support their claims

and present a substantial federal guestion.

Attached to defendants' motion is an order of Judge Hampsey

from the Southern District of Hillsborough County dated July 9,

1993 and an undated consent decree.

The parties entered into the consent decree agreeing that

the plaintiffs could not occupy the cottage in guestion until a

septic system was installed, electrical, plumbing and building

code violations were corrected, a new water service installed and

the meeting of state and local health codes.

Judge Hampsey at page 8 of his order found that section

103.3 of the Pelham Building Code is controlling as the defend­

ants asserted. Further, that by the plain language of this

section, the building code reguirements are not applicable to

unaltered portions of the residence.

3 STANDARD OF REVIEW RULE 1 2 (c) MOTIONS

Fed. R. Civ. P. 1 2 (c)-Motion for Judgment on the Pleadings-

provides:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Further, all facts and reasonable inferences thereof must be

taken as pled in the complaint and viewed in the light most

favorable to the moving party, WRIGHT & MILLER § 1368. The

objective of Rule 12 is to expedite and simplify the pretrial

phase of federal litigation while at the same time promoting the

just disposition of the case. WRIGHT & MILLER § 1342.

With the above principles in mind, the court reviews the

specifics of defendants' motion.

DISCUSSION: RES JUDICATA

Defendants contend that plaintiffs' discriminatory

enforcement claim is barred by the doctrine of res judicata.

The doctrine of res judicata precludes the litigation in a

later case of matters actually litigated, and matters that could

have been litigated, in an earlier action between the same

4 parties for the same cause of action. In Re Alfred P .,

(1985). The doctrine of res judicata has no application

to a later case unless the cause of action is the same in both

the earlier and the later cases. I_ci. at 630.

It is now settled that a federal court must give to a state

court judgment the same preclusive effect as would be given that

judgment under the law of the State in which the judgment was

rendered. Migra v. Warren City School District Board of

Education,

(1984). State law governs the

application of the doctrine of res judicata. Roy v. Augusta,

(1st Cir. 1983). Res judicata bars causes of action,

not types of damages recoverable under some other claim not

subject to adjudication in the tribunal rendering the judgment.

Scarfo v. Cabletron Systems, Inc., slip op. at page 61 (1st Cir.,

May 12, 1995) .

There is no mandatory rule or statute reguiring mandatory

counterclaims in New Hampshire. 4 N.H. PRACTICE, Weibusch, Civil

Practice and Procedure, Sec. 374 (e) :

In the instant case, the Town of Pelham's petition for

injunctive relief was limited to specific facts in which the

current plaintiffs in this action were deemed to have violated

zoning, building and health regulations. The Section 1983

amended complaint against the Town of Pelham alleged violations

5 of constitutional and state law including violation of the First

Amendment, Equal Protection Clause, malicious prosecution, and

negligent supervision. See Crosslev v. Pelham,

(1990) (where the plaintiffs won a prior zoning case between the

parties). The two actions are not similar.

Moreover, defendant Tucker's reliance upon the doctrine of

collateral estoppel as support for his motion for judgment on the

pleadings is misplaced. Given that Tucker is being sued as both

an individual and in his official capacity, he was not a party to

the superior court proceeding for injunctive relief. Collateral

estoppel precludes the relitigation by a party in a later action

of any matter actually litigated in a prior action in which he or

someone in privity with him was a party. Caouette v. New

Ipswich,

(1984). Such is not the case here.

The doctrines of res judicata and collateral estoppel are

not apposite and defendants' motion to dismiss on these bases is

denied.

DISCUSSION: MALICIOUS PROSECUTION

The majority of courts require a federal plaintiff to prove

the elements of malicious prosecution under state law. Torres v.

Superintendent of Police,

(1st Cir. 1990).

6 The essence of an action for malicious prosecution has been

stated succinctly as follows: "A malicious prosecution is one

that is begun in malice, without probable cause to believe it can

succeed, and which finally ends in failure." MacRae v. Brant,

(1967).

Further, Restatement Second - Torts, section 653 states:

A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if

(a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and (b) the proceedings have terminated in favor of the accused.

In the case at hand, the defendants did not institute any

criminal proceedings against the plaintiffs. A malicious

prosecution suit or count is thus not appropriate under the

circumstances of this case.

The count alleging malicious prosecution is dismissed as to

the state and federal claims.

DISCUSSION: SUBSTANTIAL FEDERAL QUESTION

In the last issue raised in defendants' motion to dismiss,

defendants contend that plaintiffs have failed to present a

substantial federal guestion.

7 In Nestor Colon Medina & Sucesores, Inc. v. Custodio,

(1st Cir. 1992) the court stated that it had

never had occasion to consider whether the denial of a land use

permit in unjustifiable retaliation for the applicant's

expressions of his political views is a First Amendment

violation. However, the court went on to state that Cerame

Viva's First Amendment claim concerning denial of the residential

permits was pleaded with sufficient particularity to entitle him

to survive summary judgment at the current stage and to conduct

further discovery.

In this case the plaintiffs have sufficiently pled facts to

withstand summary dismissal of a substantial federal guestion,

and thus they will be allowed to progress forward on that claim.

May 23, 1995

Martin F. Loughlin Senior Judge

Michael Donovan, Esg. Barton Mayer, Esg.