Bews v . Town of Carroll CV-06-431-PB 06/15/09

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Douglas P. Bews and Naruko K. Bews

v. 06-CV-431-PB Case N o .

Town of Carroll, et a l .

MEMORANDUM AND ORDER

Doug and Naruko Bews have filed an action pursuant to

against the Town of Carroll, New Hampshire (the

“Town”), as well as other defendants, alleging violations of

their rights under the First and Fourteenth Amendments of the

United States Constitution. The Bews also bring state law

claims. Defendants have filed a motion for summary judgment, and

for the reasons set forth in this Memorandum and Order, I grant

the motion with respect to the Bews’ federal claims.

I. BACKGROUND

In February 2000, the Bews purchased a motel business named

Lyons Hospitality. Before making the purchase, the Bews claim

that they inquired with the Town as to what permits would be

needed to develop the property. They further claim that a Town

representative informed them that no permits were required and the “property could be used as desired.” (Compl., Doc. N o . 1

12.) At some point on or before June 1 1 , 2001, the Bews

installed and operated a public Laundromat and an Off-Highway

Recreational Vehicle (“OHRV”) rental business on the site. (Id.

¶¶ 13-15.) The Bews allege that Myriam O’Neill, who ran the OHRV

rental business, received verbal confirmation from the Town to

operate that venture on the Bews’ property.

The Bews continued to rent OHRVs for several months, but in

late 2002, the Town informed them that they would have to appear

before the Town Planning Board, because under a local ordinance

the rental of OHRVs constituted a “change of use” from the

property’s initial use as a motel. (Defs.’ Mot. for Summ. J.,

Doc. N o . 4 7 , at 3.) The Bews refused, claiming both that there

was no such ordinance that prohibited their activity and that the

OHRV rental business did not constitute a “change of use” because

it did not alter the commercial lot. 1 (Compl., Doc. N o . 1 , ¶

19.)

On December 3 1 , 2002, the Board of Selectmen sent the Bews a

letter informing them that they were in violation of a town

1 The Bews also claimed that other, similar business were not required to appear before the Planning Board. (Compl., Doc. N o . 1 , ¶¶ 17-18.) Doug Bews requested permission from the Planning Board to inspect Site Plan Review documents for certain businesses to determine whether those businesses had obtained Planning Board approval before changing the use of their properties. (Id. ¶ 21.) Selectman Frederick Hollis allegedly informed Bews that none of the businesses about which Bews inquired submitted site plans. (Id. ¶ 24.)

-2- zoning ordinance and requesting their presence before the

Planning Board for a Site Plan Review.2 (Defs.’ Mot. for Summ.

J., Doc. N o . 4 7 , at 3-4.) Doug Bews appeared before the Board of

Selectmen at a February 2 3 , 2003 meeting, at which time he

objected to the Town’s assertions that his business was in

violation of local law. (Compl., Doc. N o . 1 , ¶¶ 26-28.) Shortly

thereafter, in March 2003, the Town amended its zoning ordinances

to require a special exception for the sale or rental of OHRVs.

(Id. ¶ 29.) Doug Bews appeared at subsequent Board of Selectmen

meetings, and asserted that his business was “grandfathered” and

therefore exempt from the special exception requirement. (Id. ¶¶

32-33.)

The Bews also argued that the Town was selectively enforcing

its regulations against them.3 For example, at a January 5 , 2004

Board of Selectmen meeting, Doug Bews argued that his snowmobile

business was “grandfathered” much like another rental business

named Garneau’s Garage. The Town maintained that Garneau’s

2 The December 3 1 , 2002 letter identified two potential problems for the Bews’ rental business. First, the letter stated, “[y]our operation of a business on your property for snowmobile rentals and/or tours is clearly a change or expansion of use of your property.” (Doc. N o . 47-3, at 32.) Second, they were informed that “there is the issue of whether snowmobile rentals is permitted under the Town of Carroll Zoning Ordinance.” (Id.) The Town informed the Bews that an appearance before the Planning Board was required to resolve the matter. 3 “The Defendants were repeatedly warned by M r . Bews that the Town was violating their (Plaintiffs’) rights by the actions taken against the Bews and by the favorable treatment given to others.” (Compl., Doc. N o . 1 , ¶ 38.)

-3- Garage was “grandfathered” because it had been in existence for

many years, but Bews believed that because Garneau’s Garage

“doubled the size of their building used for OHRVs sales and

storage without going through the required board reviews,”

Garneau’s Garage was also in violation of the local ordinance.

(Id. ¶ 34.) The Bews also claim that at a Board of Selectmen

meeting in February 2004, the Town “actively participated in

instructing the Mount Washing [sic] Hotel and Resort and Northern

Extremes of North Conway, NH on how to circumvent the ordinances

to allow them to continue renting OHRVs for the remainder of the

season without seeking approval.” (Id. ¶ 36.) During a July 2 6 ,

2004 Board of Selectmen meeting, Doug Bews also complained that

Selectman Jay Ouellette owned property that was in violation of

zoning regulations. (Id. ¶ 42.)

Apparently resigned to the fact that the matter could not be

resolved outside of court, the Town filed a Petition for

Injunctive Relief and Fines on August 1 3 , 2004, and the Bews were

served with notice on August 1 8 . The Town amended the petition

on September 2 8 , 2004, seeking the following relief from the Coos

County Superior Court: first, that the court issue a permanent

injunction prohibiting the Bews from renting snowmobiles at their

place of business until they were granted approval for such use;

second, that the court issue a permanent injunction prohibiting

the Bews from renting snowmobiles at their place of business

-4- until they obtained a special exception from the Zoning Board of

Adjustment; third, that the court fine the Bews $275.00 for each

day that they continued to operate their rental business without

approval from the Town; and finally, that the court award

attorneys’ fees and costs to the Town. Although the Town

disputes this allegation, the Bews now claim that the petition

“was filed in retaliation for the Plaintiffs’ [Bews] exercise of

their rights to free speech in complaining about other

violations, and their assertion of their rights to equal

protection under the laws, under both the United States and State

of New Hampshire Constitutions . . . [and] constitutes unequal

treatment . . . .” (Id. ¶ 48.)

The matter was ultimately resolved on November 2 2 , 2004,

with the Bews “agreeing not to rent snowmobiles from their

property without further order from the town.” (Id. ¶ 47.) The

stipulation states in its entirety:

NOW COME the parties in the above-captioned matter and stipulate and agree, subject to the approval of the Court, that the following may be entered on the docket as a final order in this case:

1 . The Defendants, Douglas P. and Naruko K. Bews, agree not to establish or conduct snowmobile rental operations upon the premises (Tax Map 2 0 7 , Lot 21) of the establishment owned by the Defendants and known as Lyons Hospitality, L.L.C., until such time as the Defendants are approved to engage in such use in accordance with the Town of Carroll’s Zoning Ordinance and Site Plan Regulations.

-5- 2 . The Plaintiff, the Town of Carroll, agrees to settle the instant action without an award of fines, pursuant to RSA 676:17, 1 ( b ) , or an award of its attorney’s fees and costs, pursuant to RSA 676:17, I I .

3 . This Stipulation is a compromise of a disputed matter and is not to be construed as an admission of any party’s liability.

4 . The parties shall bear their own Court fees and costs in the aforementioned matter, subject to Paragraph 5 of this Stipulation.

5 . In the event any action is instituted by either party to enforce the provisions of this Stipulation, the prevailing party shall be entitled to recover its attorney fees and costs.

(Stipulation, Doc. N o . 47-4.) The Bews maintain that they only

agreed to the Stipulation because they lacked sufficient means to

fight the matter in court. They also claim that the entire affair

cost them money and resulted in a “substantial loss to their

business, [as well as to their] reputation.” (Compl., Doc. N o .

1 , ¶ 67.)

As a result, on November 2 0 , 2006, the Bews filed a seven

count Complaint in this court. In Count 1 , the Bews bring a

claim pursuant to

and argue that the defendants

“selectively enforced their zoning ordinances against Plaintiff,

and refused to look into violations Plaintiffs brought to their

attention . . . thereby violating their rights to equal

protection and due process, under the law, contrary to the United

States Constitution, Amend. XIV.” (Id. ¶ 75.) In Count 2 , the

Bews assert a similar equal protection claim under the New

-6- Hampshire Constitution. In Count 3 , the Bews allege that the

actions about which they complain “constitute retaliation for

Plaintiffs’ public criticism of Defendant Town, including for

their unequal application of town zoning and land use

regulations.” (Id. ¶ 79.) They claim that the defendants

violated their right to free speech as protected by both the

United States Constitution and the New Hampshire Constitution.

The remaining counts assert claims for emotional distress and

abuse of process under state law.

The Bews seek “all damages as allowed by law,” including

enhanced compensatory damages, liquidated damages, double

damages, liberal compensatory and punitive damages, reasonable

attorneys’ fees, interest and costs, and “an additional amount to

be awarded to make up for the tax consequences of any settlement

or verdict on the entire amount of the award including attorneys’

fees, interest and costs.” (Id. at 20-21.)

In response, the defendants have filed a motion for summary

judgment asserting that the Bews’ federal claims for selective

enforcement of zoning laws (and for the failure to investigate

improper activities of other persons allegedly in violation of

zoning laws) are barred by res judicata. (Defs.’ Mot. for Summ.

J., Doc. N o . 4 7 , at 10-11.) They argue that the previous

litigation in New Hampshire Superior Court and the stipulation

that ended that dispute foreclose the Bews from asserting their

-7- current First and Fourteenth Amendment claims.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for i t ; if that party cannot produce such evidence, the motion

must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996); see Celotex,

III. ANALYSIS

Defendants argue that because the Bews could have raised

their First and Fourteenth Amendment claims as defenses to the

Town’s enforcement action, the doctrine of res judicata bars them

from doing so now. (Defs.’ Mot. for Summ. J., Doc. N o . 4 7 , at 10-

11.) I now turn to the doctrine of res judicata and its

application here.

-8- Under the doctrine of res judicata, “a final judgment on the

merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that

action.” Kremer v . Chemical Constr. Corp.,

6 1 , 466-67

n.6 (1982). Thus, causes of action litigated and resolved by a

final action of a state court, as well as claims arising from the

same set of facts at issue in that state court cause of action,

cannot be litigated in a later federal court suit. See Migra v .

Warren City Sch. Dist. Bd. of Educ.,

5 , 83-85 (1984).

The U.S. Supreme Court has held that the preclusive effect of a

state court judgment applies with equal force to federal claims

arising under

.

(“Section 1983 . . .

does not override state preclusion law and guarantee petitioner a

right to proceed to judgment in state court on her state claims

and then turn to federal court for adjudication of her federal

claims.”); see also Allen v . McCurry,

0 , 105 (1980)

(state courts are capable of rendering decisions on

constitutional questions and upholding federal l a w ) . Absent a

showing that the state court would not have been able to

adjudicate a petitioner’s federal claims had they been presented

in the original suit in state court, a petitioner is barred from

litigating the related federal claims in a federal court. See

Migra, 465 U.S. at 85

-9- The U.S. Court of Appeals for the First Circuit has held

that res judicata also applies with equal force to bar those

claims that could have been raised as affirmative defenses in

previous state court actions. Lovely v . Laliberte,

(1st Cir. 1974) (“Res judicata precludes even ‘perfect

defenses . . . of which no proof was offered . . . . [A] judgment

estops not only as to every ground of recovery or defense

actually presented in the action, but also as to every ground

which might have been presented.’” (internal citations omitted)).

In Lovely v . Laliberte, Lovely brought a § 1983 action in federal

court alleging that Laliberte was unconstitutionally employing

state process to evict him from a mobile home park. That suit

followed a previous action where Laliberte had sought a Writ of

Possession against Lovely in state court. Id. at 1262. Lovely

responded by exercising his right to a de novo trial in state

court, and at trial, Laliberte argued that Lovely violated the

landlord’s mobile home park rules. At no point during that

proceeding did Lovely raise his federal § 1983 claim as either a

defense or a counterclaim. Id. at 1263. The trial court ordered

his eviction, and rather than appeal, Lovely brought a new claim

-- alleging a § 1983 violation -- in federal court. The federal

court dismissed the action, holding that it was barred by res

judicata, and the First Circuit affirmed. Id. at 1263-64.

-10- In order to apply the preclusive effect of res judicata to

the federal claims asserted here, two requirements must be met.

First, the Bews’ current § 1983 claims must arise out of the same

set of facts as the injunction proceeding that was filed in

superior court in September 2004. See Lovely,

see also E . Marine Constr. Corp. v . First S . Leasing,

(N.H. 1987) (final judgment bars subsequent

litigation on same cause of action, and cause of action refers

“to all theories on which relief could be claimed on the basis of

the factual transaction in question”). Second, that previous

injunction proceeding must have resulted in a final judgment.4

See Allen, 449 U.S. at 9 4 . I address both requirements, and the

Bews’ arguments with respect to each, in the sections that

follow.5

4 Res judicata also requires identity of parties or their privies in the two suits. Sleeper v . Hoban Family P’ship,

(N.H. 2008). Although the parties do not address this requirement, it is satisfied in a case such as this where a government entity is a party in the first suit, and that same entity is then a defendant in a later suit in which officers of that government are also joined as defendants. Sunshine Anthracite Coal C o . v . Adkins,

8 1 , 402-03 (1940) (“There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government.”); Mandarino v . Pollard,

, 850 (7th Cir. 1983) (“A government and its officers are in privity for purposes of res judicata.”). 5 In order for res judicata to apply in this case, it is necessary to look to New Hampshire law, in other words, the law of the state where the underlying judgment was issued, to determine whether a state court would bar this current action

-11- A. The Federal Claims Now Asserted Arise Out of the Same Set of Facts at Issue in the Superior Court Proceeding

The amended petition at issue in September 2004 requested

that the state court enjoin the Bews from renting or advertising

rentals for snowmobiles until they were granted site plan

approval for that use and obtained “a special exception from the

Zoning Board of Adjustment allowing for such use.” (Pet. for

I n j . , Doc. N o . 47-3, at 6.) Similarly, the Bews describe the

injunction petition brought against them as one that “sought to

enjoin them from renting snowmobiles because [the Town] alleged

it was a ‘change of use.’” (Pls.’ Opp’n to Summ. J., Doc. N o .

36-2, at 4.) The Bews now assert § 1983 claims alleging that by

bringing that injunction action, the defendants violated the

Bews’ First and Fourteenth Amendment rights. More specifically,

the Bews claim that the defendants selectively enforced the

zoning ordinances against them, an offense that culminated in the

Town’s seeking an injunction in state court. Moreover, the Bews

claim that because they criticized the defendants for the way in

which they selectively applied the zoning laws, the Bews were

“solely prosecute[d]” and served with a petition for injunction,

thus violating their rights to free speech. (Compl., Doc. N o . 1 ,

¶¶ 7 5 , 79-80; Pls.’ Opp’n to Summ. J., Doc. N o . 36-2, at 18.)

During the superior court action, the Bews did not assert

See Perez-Guzman v . Gracia,

(1st Cir. 2003). -12- either of the constitutional claims now raised in this current

action. It is clear, however, the same facts at issue in that

proceeding are now at issue here. Both cases concern the Town’s

attempt to enjoin the Bews - rightly or wrongly - from renting

snowmobiles without Town approval. In this current action, the

Bews cite that earlier prosecution, including the events leading

up to i t , as a violation of their First and Fourteenth Amendment

rights. Thus, the same facts at issue in the state court action

are at issue here, and the Bews should have brought their § 1983

claims at that time.

First Circuit precedent makes clear that the Bews should

have raised their constitutional arguments in the previous state

court action. Much like the way in which the Town sought an

injunction against the Bews, in Lovely, Lovely’s landlord sued

him in state court alleging that Lovely’s use of the property

violated the park rules. See

. After the

trial court ordered his eviction, Lovely brought a new action in

federal court alleging a § 1983 violation because the landlord

abused state process to evict him.6 Id. Although Lovely’s §

1983 claim involved the same facts at issue in the previous state

court eviction proceeding, he failed to assert it at that time as

6 There is no doubt that the Bews could have presented their selective prosecution and First Amendment retaliation claims as defenses to the initial enforcement action, just as Lovely could have raised his abuse of process claim as a defense to the eviction proceeding.

-13- either a defense or a counterclaim. Faced with these facts, the

First Circuit concluded that Lovely’s § 1983 claim was barred by

res judicata. Similarly, the Bews failed to raise their § 1983

claims during the state court proceeding, and just as the

doctrine of res judicata blocked Lovely from later asserting his

constitutional claim in a new federal action, so too does that

principle bar the Bews from now asserting their § 1983 claims.

See id.

B. The Superior Court Proceeding Ended in a Final Action

Res Judicata prohibits relitigating issues that could have

been raised in a previous action only when the previous action

ended in a final judgment. Allen, 449 U.S. at 9 4 . Thus, the

doctrine’s application in this case turns on whether the

stipulation entered into by the parties on November 4 , 2004 was a

final judgment.

The Bews raise two arguments to support the proposition that

the stipulation reached in the state court action was not a final

judgment. First, they argue that because the stipulation lacks

the traditional docket markings, “neither party, no costs, no

further action for the same cause” or dismissal “with prejudice,”

it does not represent a final judgment. (Pls.’ Opp’n to Summ.

J., Doc. N o . 36-2, at 8.) In short, the Bews argue that absent

these “standard docket markings with prejudice,” the stipulation

is without finality. (Id. at 10.)

-14- As an initial matter, it should be noted that a settlement

agreement, approved by the court, has the same res judicata

effect under New Hampshire law as a final judgment reached

through the usual course of litigation. Moore v . Town of

Lebanon,

(N.H. 1949); see also Langton v . Hogan,

3 0 , 935 (1st Cir. 1995). Moreover, a stipulation with

“neither party” docket markings does constitute “a final judgment

for the purpose of applying res judicata.” See Meier v . Town of

Littleton,

(N.H. 2006); see also Cathedral of

the Beechwoods, Inc. v . Pare,

(N.H. 1994).

The absence of those precise words in a stipulation, however,

does not necessarily require that the stipulation be deemed “not

final.” Rather, those words merely reveal “the intention of the

parties consenting to the marking.” Moore,

; see 5

Richard W . Wiesbusch, New Hampshire Practice: Civil Practice and

Procedure § 34.09 (2d ed. 1998) (“Although the parties can

stipulate to any docket markings that accurately and briefly

reflect the manner in which the case is to be terminated, the

most common stipulations are so-called ‘neither party’ docket

markings.”) (emphasis added). Thus, to evaluate the Bews’

argument, I must examine the language of the stipulation to

discern whether the parties intended the document to be a final

resolution of all matters that could have been litigated in the

enforcement action.

-15- Here, both parties agreed to the stipulation, which read, in

part, “the following may be entered on the docket as a final

order in this case.” (Stip., Doc. N o . 47-4.) This language

suggests that the parties intended this stipulation to be final.

The parties did not use the “no further action for the same

cause” docket markings because they instead chose to specifically

provide for a possible future action to enforce the terms of the

settlement. Thus, rather than state “no further action for the

same cause,” the parties agreed to the following: “In the event

any action is instituted by either party to enforce the

provisions of this Stipulation, the prevailing party shall be

entitled to recover its attorney fees and costs.” (Id.) Given

the nature of the issue that this stipulation sought to resolve,

the use of an enforcement clause was a rational and appropriate

decision consistent with the parties’ manifest intention to avoid

relitigation of the underlying dispute. This enforcement

provision, coupled with the language that the stipulation was to

be docketed as “a final order in this case,” makes clear that the

parties intended the stipulation to be a final judgment.

The Bews next argue that because they made no admission of

liability in the stipulation, it was not a final judgment, “which

means selective enforcement of the regulation may still be

disputed and the violation of their civil rights vindicated.”

(Pls.’ Opp’n to Summ. J., Doc. N o . 36-2, at 8 , 10.) This, too,

-16- is a hollow argument. Acceptance of responsibility is not a

prerequisite for finality. The New Hampshire Supreme Court has

held that the preclusive effect of res judicata “can follow from

a consent judgment resulting in docket markings [Neither party.

No further action for the same cause],” and it has not required

that one party admit liability. Concrete Constr., Inc. v .

Manchester Bank,

1 2 , 614 (N.H. 1977). In fact, when

such docket markings are entered, neither the plaintiff nor the

defendant in the action is admitting fault; rather, the parties

agree to a “consent judgment.” See Waters v . Hedberg,

(N.H. 1985) (neither party “docket markings reflect a

judgment for ‘neither party’”). As explained above, the use of

the standard docket markings is not required, and the parties

here crafted a stipulation where neither party assumed liability

and the Bews agreed to refrain from rental operations until they

obtained approval from the Town. Thus, res judicata can follow

from this stipulation in the same way that it would from one with

the standard “neither party” markings where neither party assumes

liability.

Just as the standard docket markings indicate finality for

res judicata purposes, so too does the stipulation used in this

case because it evinces an intent of the parties to bring closure

to the enforcement matter. Thus, the time for the Bews to raise

their First and Fourteenth Amendment claims was during the state

-17- court injunction proceeding. Having failed to allege that the

state court was somehow unequipped to vindicate their federal

constitutional rights, the Bews presently have no remedy with

respect to those particular claims in this court.

IV. CONCLUSION

The defendants’ motion for summary judgment (Doc. N o . 33) is

granted in part with respect to the Bews’ federal claims, namely

Count 1 and the federal constitutional claim raised in Count 3 .

I decline to exercise supplemental jurisdiction over the

remaining state law claims, and therefore, those claims are

dismissed without prejudice. The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 1 5 , 2009

cc: Leslie H . Johnson, Esq. Garry R. Lane, Esq. Lisa Lee, Esq.

-18-