Argued: November 28, 2018
Hillsborough-southern judicial district
Greenblott & O'Rourke, PLLC, of Contoocook (Seth W.
Greenblott on the brief and orally), for the plaintiff.
Bielagus Law Offices PLLC, of Milford (Jason A. Bielagus on
the brief and orally), for the defendant.
plaintiff, Samuel Rogers, appeals an order of the Superior
Court (Nadeau, C.J.) dismissing his complaint
against his son, Joseph Rogers, upon finding that the circuit
court, probate division (probate court), and not the
superior court, maintains exclusive subject matter
jurisdiction over his cause of action. We reverse and remand.
trial court found or the record otherwise supports the
following facts. The plaintiff's wife died in March 2012
and the parties' dispute arose after the disposition of
her estate. The decedent's will named the defendant as
the executor of the estate, which was comprised, in pertinent
part, of two properties in Hollis - the plaintiff's
marital home and the decedent's 50% ownership interest in
94.3 acres of undeveloped land on Rocky Point Road (Rocky
Point). In her will, the decedent devised
one-third of the estate to the plaintiff and devised the
remaining two-thirds of the estate to the defendant.
probate court appointed the defendant as the executor of the
estate in May 2012 and, pursuant to his duties as the
executor, he contracted for appraisals of both properties.
The defendant's appraiser valued the decedent's 50%
interest in Rocky Point at $550, 000 and the marital home at
$273, 000. Based upon these valuations, the defendant
suggested to the plaintiff that they settle the estate by the
plaintiff taking title to the marital home, in his name
alone, in exchange for the defendant assuming the
estate's entire interest in Rocky Point. The plaintiff
accepted this offer in light of his apparent impression that
his one-third interest in the estate's ownership of Rocky
Point closely approximated the defendant's two-thirds
interest in the marital home.This exchange of property
interests was accomplished by way of an exchange of fiduciary
deeds in September 2012.
point in 2015, the plaintiff learned that the Town of Hollis
had either offered to purchase or agreed to purchase Rocky
Point for $2, 500, 000, but, for reasons not established by
the record, the sale was never consummated. Thereafter, the
plaintiff discovered that his son had commissioned an
appraisal of Rocky Point in 2005 which estimated that the
value of the property, at that time, was $1, 950, 000. These
valuations suggested that following the parties' exchange
of property interests, the defendant's interest in Rocky
Point would have been worth approximately $975, 000.
with these discoveries, the plaintiff sued the defendant in
the superior court in September 2016 alleging claims of
breach of fiduciary duty, fraud, negligence, and unjust
enrichment. The defendant moved to dismiss the suit in
October 2016 arguing, inter alia, that the
plaintiff's claims were barred by the time limitations
set forth in RSA 556:3 (2007), because all claims against the
estate needed to be filed within six months of the probate
court's issuance of the certificate of appointment in May
2012, and barred by the doctrines of res judicata
and collateral estoppel, because he could have, but did not,
raise these claims in the original probate matter. The Trial
Court (Ignatius, J.) denied the motion upon finding
that: (1) the defendant mischaracterized the nature of the
plaintiff's claims as against the estate rather than the
defendant, personally; and (2) the res judicata
doctrine did not apply because the plaintiff could not have
previously litigated his claims in the initial probate matter
since he did not become aware of the defendant's
actionable conduct until 2015, three years after the
probating of the estate.
January 2017, the defendant filed another motion seeking to
dismiss the plaintiff's complaint, or in the alternative,
to transfer the matter to the probate court. In his pleading,
the defendant argued that "[a]ll of [the]
[p]laintiff's claims are related to the [e]state, and the
administration of the [e]state, and the values of estate
assets, and the disbursement of the estate assets" and,
therefore, the probate court has exclusive jurisdiction over
the parties' dispute pursuant to RSA 547:3 (Supp. 2018).
In March 2017, the trial court denied the defendant's
motion, citing its previous ruling that the defendant had
mischaracterized the nature of the plaintiff's claims.
the defendant moved to consolidate the plaintiff's action
with a petition he filed in the probate court against the
plaintiff seeking to enforce his mother's will. In his
motion, he again argued that the probate court maintained
jurisdiction over the parties' disputes. The plaintiff
objected, arguing that: (1) the court had already determined
this issue; and (2) the superior court was the proper forum
to determine the plaintiff's tort claims and the probate