New Hampshire Case Law

PORTER v. COCO, 2005-715 (N.H. 11-3-2006) RICHARD PORTER &
a. v. KEVIN COCO & a. No. 2005-715 Supreme Court of New
Hampshire Rockingham Argued September 12, 2006 Opinion
Issued November 3, 2006

Brown and LaPointe, P.A., of Exeter (Scott W. LaPointe on
the brief and orally), for the petitioners.

McDowell & Osburn, P.A., of Manchester (Mark D.
Morrissette and David S.V. Shirley on the brief, and Mr.
Morrissette orally), for the respondents.


The petitioners, Richard and Paula Porter, appeal the
decision of the Superior Court (Morrill, J.) granting
summary judgment to the respondents, Kevin and Susan Coco,
on the Porters’ petition to quiet title and establish
boundary line. We reverse and remand.

The record supports the following. The parties own
adjacent parcels in Fremont. They dispute ownership of 2.2
acres. The record reveals that at least as far back as
1862, the Porter parcel, the disputed land, and a portion
of the Coco parcel were commonly owned by the Trickeys. The
Porters acquired title to their property by warranty deed
in July 2002 from Ryan and Charles Willey, who obtained
title to the property in 1946. The deed conveyed
“twenty-three acres, more or less” and contains a
description of the property that includes the disputed land.
This description has remained unchanged throughout the
Porters’ chain of title since 1897.

The Cocos acquired title to their property by warranty deed
in April 1986 from C. Larry and Doris Therriault. The deed
conveyed “5 acres, more or less” and the description of the
property also included the disputed land. The Therriaults
acquired title to the property in 1972 by quitclaim deed
from Bessie Healey. Bessie Healey acquired title to the
property in 1957 by a Tax Collector Deed, which described
the property only as “five acres Clough Land.” When Bessie
Healey conveyed the property to the Therriaults, she
included a more specific description of the land that
includes the disputed acreage. In April 1982, the
Therriaults filed a petition to quiet title for the land
acquired from Bessie Healey. The petition named as
defendants persons in the Therriaults’ chain of title,
including the Trickeys, the heirs to such persons, “their
unknown successors and assigns; [and] the unknown persons
who claim any interest or estate in and to the subject
matter of this action.”

A guardian ad litem (GAL) was appointed by the court to
represent the interests of unknown persons. The GAL informed
the attorney representing the Therriaults that “the present
owners of the 23 acre parcel abutting the subject premises”
were the only other parties that “could conceivably have
any interest” in the subject property “since it appears
that the subject premises were increased in size over the
years by subtraction from this adjoining parcel.” At the
time of the quiet title proceeding, the Willeys owned the
twenty-three acre parcel now owned by the Porters. The
attorney representing the Therriaults produced a letter
dated October 28, 1982, addressed to the Willeys and
informing them of the quiet title action by their abutters,
the Therriaults. The letter was addressed to the Willeys’
land in Fremont, although the Fremont property was
undeveloped land and the Willeys actually lived in Epping
at the time. It is unknown whether the Willeys ever
received this letter. It is not contested that notice of
the petition was published by the Town of Fremont and in
the local newspaper, the Exeter News.

In December 1982, the trial court entered a default
judgment granting the petition and issued a decree quieting
title in the Therriaults to the five acres described in the
1972 Healey to Therriault deed. The decree provided, in
pertinent part: “That all the right, title, interest, claim
and demand of the known defendants herein, and unknown
persons who claim any interest or estate in and to the
subject matter of this action, are hereby removed and
annulled. . . .”

In 2002, the Porters had their property surveyed. The
survey indicated that the disputed 2.2 acres were part of
the Porters’ property. The Porters filed a petition to
quiet title and establish boundary line on June 9, 2003.
The Cocos moved for summary judgment on March 17, 2004,
alleging several grounds for dismissal of the Porters’
petition. Primarily, they claimed that the 1982 decree
“barred any claim by any person in interest” and that the
Willeys had received notice by means of the October 28,
1982 letter. In response, the Porters claimed that the
petition did not quiet title as against the Willeys,
because as interested parties, they were required to be
named as defendants in the petition pursuant to RSA 498:5-a
(1997). The Porters further argued that even if the
notification letter had been sent, it was insufficient to
put the Willeys on notice of an adverse claim.

The trial court initially denied the Cocos’ motion for
summary judgment because “there is a genuine issue of
material fact whether petitioners [sic] predecessor in
title received notice of the 1982 action.” The trial court
also denied the Cocos’ renewed motion for summary judgment
and the Porters’ motion for summary judgment. Sua sponte,
the trial court subsequently reversed its earlier decision
and granted the Cocos’ renewed motion for summary judgment,

The Court finds that the respondents’ predecessor in
title, [the Therriaults], acted reasonably in attempting
to identify all potential parties who may have had an
interest in the property, title to which they sought to
quiet, and in providing notice to said parties either by
publication and/or mail. . . . Accordingly the court finds
that the notice was sufficient as a matter of law. . . .

The Porters appeal, asserting that title to the disputed
land was not quieted against the Willeys because they were
not named as parties to the 1982 petition. The Cocos
counter that the trial court properly granted summary
judgment in their favor based upon: (1) the 1982 quiet
title decree acting as a bar to subsequent claims; (2) the
tax deed statute of repose, see RSA 80:39 (2003); and (3)
the doctrine of laches.

In acting upon a motion for summary judgment, the trial
court is required to construe the pleadings, discovery and
affidavits in the light most favorable to the non-moving
party to determine whether the proponent has established
the absence of a dispute over any material fact and the
right to judgment as a matter of law.

Panciocco v. Lawyers Title Ins. Corp., 147 N.H. 610, 613
(2002). “An issue of fact is material if it affects the
outcome of the litigation.” Id.

To determine whether the trial court erred in granting
the . . . motion, we consider the affidavits and other
evidence, as well as all proper inferences therefrom, in
the light most favorable to the [non-moving party]. If we
find no genuine issue of material fact and that the
[movant] was entitled to judgment as a matter of law, we
will affirm the trial court’s decision.

Id. (citation omitted).

The Porters claim that the Willeys were necessary parties
to the 1982 petition and, as such, were required to be
named as defendants in that action. Because the Willeys
were not named as defendants, the Porters argue, the 1982
decree cannot be enforced against them.

A petition to quiet title quiets title as against the
world with respect to the land at issue. Sorenson v.
Wilson, 124 N.H. 751, 757 (1984). However, “[t]he burden .
. . is on . . . [the] party to prove good title as against
all other parties whose rights may be affected by the
court’s decree.” Id. at 758. A trial court may not render
judgment quieting title to disputed property “in the
absence of parties with a duly recorded interest in the
property, unless those parties claimed no interest and the
petition so alleged.” Id.

RSA 498:5-a sets the standard for bringing quiet title
petitions. It provides: “The petition in . . . such action
shall describe the property in question and state the
plaintiff’s claim, interest or title and the manner in
which the plaintiff acquired such claim, interest or title
and shall name the person or persons who may claim such
adverse estate or interest.” RSA 498:5-a (emphasis added).
Quiet title petitions essentially seek a declaratory
judgment from the court regarding the parties’ land
interests. Radkay v. Confalone, 133 N.H. 294, 296 (1990).

The Cocos concede that in 1982, the Willeys “were not
expressly named as defendants in the 1982 Quiet Title
Action and Decree,” but claim that this was because “[they]
were not identified as having an interest in the Coco
property.” The evidence in the record belies this
assertion. The affidavit supplied by the Therriaults’
attorney references the letter received by the GAL, which
noted the increase in acreage of the Therriault parcel at
the apparent expense of the Willey parcel and further
stated: “It appears that if there are any parties that
could conceivably have any interest in any portion of the
property other tha[n] those named in the Petition, it would
be the present owners of the 23 acre parcel abutting the
subject premises. . . .” (Quotation omitted.) This alone
warranted naming the Willeys as defendants in the 1982
action, even if their interest was only speculative. See
RSA 498:5-a. Accordingly, the Willeys and their successors,
as necessary parties to the 1982 action, may not be bound by
the 1982 quiet title decree. “The necessary parties to any
proceeding, . . . are those . . . who have an interest in
the subject-matter of the suit and whose rights may be
concluded by the judgment.” Jones v. Herbert, 77 N.H. 282,
284 (1914). A necessary party who has not been named a
party to the action is not bound by the judgment. See Lake
Garda Improvement Association v. Battistoni, 231 A.2d 276,
280 (Conn. 1967).

Nonetheless, the Cocos argue that the Porters’ petition is
barred because it is a collateral attack on the 1982
decree, which is a prior judgment. “A collateral attack is
an attempt to avoid, defeat, or evade a judgment, or to
deny its force and effect, in some incidental proceeding
not provided by law for the express purpose of attacking
it.” Colby v. Colby, 96 N.H. 452, 455 (1951) (quotation
omitted). A collateral attack on a prior judgment is
permitted for a lack of jurisdiction. See Glen Condo. at
Linderhof Assoc. v. Rosatto, 140 N.H. 657, 661 (1996).
Thus, the issue in this appeal is whether the trial court in
1982 had jurisdiction over the Willeys so as to bind them
and their successors by the quiet title decree. If it did,
the Porters cannot now attack the decree collaterally.

The Cocos assert three arguments in favor of finding that
the court had jurisdiction over the Willeys in the 1982
quiet title petition. First, they argue that the petition
named all the heirs of the Trickeys as defendants, which
necessarily included the Willeys as their title can be
traced back to the Trickeys. Second, they assert that the
Willeys were given constructive notice of the proceedings
through publication. Finally, they argue that the Willeys
received actual notice through the letter sent to them by
the Therriaults’ attorney.

The trial court’s summary judgment order focuses
specifically upon the issue of notice by finding that the
Therriaults acted reasonably in identifying and notifying
potential parties. While insufficient notice may constitute
a lack of jurisdiction in some cases, we do not reach this
issue here. Regardless of the sufficiency of notice, the
fact remains, based upon the record before us, that the
Willeys were persons known to have a potential interest in
a portion of the property and further, that the nature of
their claim was known. This is evidenced by the GAL letter,
the Therriaults’ attorney’s affidavit, and the notification
letter allegedly sent to the Willeys. However, the Willeys
were not expressly named as defendants in the petition,
their potential interest therein was not articulated, and
they were not present at the quiet title proceeding. This
omission resulted in a failure to meet the express
requirements of RSA 498:5-a and a lack of jurisdiction by
the court over the Willeys and their successors.
Accordingly, the Porters may collaterally attack the 1982
decree. See Atlantic Richfield Co. v. Tomlinson, 859 P.2d
1088, 1097-98 (Okla. 1993) (permitting defendants to
collaterally attack a previous quiet title judgment where
defendants were known to have an interest in the action but
were not named as parties); Jeurissen v. Harbeck, 127
N.W.2d 437, 438 (Minn. 1964) (permitting collateral attack
where plaintiffs were not named as defendants in original
quiet title action).

We also conclude that, based upon the record before us,
the Cocos’ remaining arguments do not support the grant of
summary judgment in their favor. The Porters’ claim is not
barred by res judicata or the injunction contained in the
1982 decree since they were not parties or in privity with
parties to the 1982 quiet title action. See Atlantic
Richfield Co., 859 P.2d at 1097 (“Judgments bind only
parties and privies — not strangers or persons not
parties to the action.” (quotation omitted)). We also
conclude that RSA 80:39, which bars suits contesting the
validity of a tax sale or collector’s deed more than ten
years after the recording date, does not preclude the
Porters’ claim. That statute is not triggered in this case,
since the Porters are not contesting the validity of the
tax sale, which conveyed an indefinite “five acres Clough
Land.” Finally, we hold that viewed in the light most
favorable to the Porters, the record before us does not
support a finding of laches. It does not appear that the
Porters or their predecessors-in-interest were ever aware of
any potential infringement on their rights until the survey
was conducted by the Porters in 2002, at which point the
Porters soon after filed their petition.

Accordingly, we hold that because the Cocos failed to
demonstrate that the trial court in 1982 had jurisdiction
over the Willeys, the Porters are not precluded from
collaterally challenging the 1982 decree. Therefore, the
Cocos are not entitled to summary judgment.

Reversed and remanded.