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Warren v. Town Of East Kingston9/6/2000
Rockingham
The plaintiff, Edward Warren, appeals an order of the Superior Court (McHugh, J.) dismissing his action for equitable relief against the defendant, the Town of East Kingston, on the ground that the issues in the present action mirrored those in his previously decided civil case. We affirm in part, reverse in part, and remand.
In November 1995, the plaintiff filed a three-count writ in superior court seeking damages for "conspiracy to deprive fire fighter of privileges," defamation, and negligence. Although styled as a conspiracy claim, the first count was in substance a claim for wrongful termination from his positions as deputy fire chief and fire fighter for the East Kingston Fire Department.
The plaintiff alleged that the chief of the East Kingston Fire Department and the East Kingston Board of Selectmen conspired to deprive him of his job and his "fire fighting privileges," and that his termination violated the East Kingston Fire Department's standard operating procedures. The other two counts are not implicated in our analysis of the present case.
In February 1996, the plaintiff filed an equity action in superior court requesting reinstatement as deputy fire chief and as a volunteer fire fighter with the East Kingston Fire Department, reinstatement as deputy forest fire warden for the East Kingston district, and that the defendant be enjoined from denying the plaintiff access to the facilities of the East Kingston Fire Department. In addition to repeating the allegations set forth in his writ, the plaintiff also contended in the equity action that since his dismissal, he "has been offered similar positions with the East Kingston Rescue Squad and with the Office of Emergency Management, but the Board of Selectmen have blocked appointment to these positions."
The defendant filed a motion to dismiss the plaintiff's writ dated August 22, 1996. The trial court dismissed the claim for wrongful termination for failure to state a cause of action. The plaintiff's motion to reconsider was denied. The plaintiff appealed the dismissal to this court. On June 12, 1997, we summarily affirmed the trial court's decision. Edward Warren v. Town of East Kingston & a., No. 97-062 (N.H. June 12, 1997).
In December 1997, the defendant moved to dismiss the equity action, arguing that it was barred by res judicata and collateral estoppel. On January 2, 1998, the trial court granted the motion, reasoning that " he issues in the within equity action mirror those of the previously decided civil case . . . which in turn were considered by our Supreme Court."
On appeal, the plaintiff argues that the trial court erred in dismissing the equity action. The defendant counters that the plaintiff has waived his arguments against the application of res judicata and collateral estoppel because he failed to raise them below. We disagree. The defendant's motion to dismiss clearly argued that res judicata and collateral estoppel barred the plaintiff's equity action. The plaintiff stated in his objection to the motion that the defendant argued that "because the civil action was dismissed, the equity action must also fail." This statement was a reference to the defendant's res judicata and collateral estoppel arguments. Because the trial court had an opportunity to consider the application of res judicata and collateral estoppel, the plaintiff's arguments concerning these issues have not been waived. Cf. State v. Schachter, 133 N.H. 439, 440, 577 A.2d 1222, 1223 (1990); Miller v. Basbas, 131 N.H. 332, 337-38, 553 A.2d 299, 302-03 (1988).
We also reject the defendant's argument that the plaintiff has waived any argument in opposit
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