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Warren v. Town Of East Kingston9/6/2000
ion to the application of res judicata because he failed to brief it. Although the plaintiff has couched his argument in "collateral estoppel" terminology, he refers to issues relating to res judicata in his brief. We will therefore address both collateral estoppel and res judicata. Cf. Aubert v. Aubert, 129 N.H. 422, 425, 529 A.2d 909, 911 (1987).
"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." In re Alfred P., 126 N.H. 628, 629, 495 A.2d 1264, 1265 (1985).
For it to apply in a particular proceeding, the issue subject to estoppel must be identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared in the first action, or have been in privity with someone who did so. Further, the party to be estopped must have had a full and fair opportunity to litigate the issue, and the finding must have been essential to the first judgment. Bruzga's Case, 142 N.H. 743, 745, 712 A.2d 1078, 1079 (1998) (quotation omitted).
The plaintiff concedes that he was a party to both actions. Furthermore, the plaintiff has waived any argument on the issue of whether the trial court's findings were essential to the dismissal due to his failure to brief the issue. See Stewart v. Cunningham, Warden, 131 N.H. 68, 71, 550 A.2d 96, 98 (1988). Therefore, we need not address those conditions of collateral estoppel.
The plaintiff argues that the issues in the equity action relating to his positions with the East Kingston Fire Department are not identical to the issues in the civil action requesting damages for wrongful termination. The plaintiff concedes in his brief, however, that they are "arguably" the same as " oth theories address [the plaintiff's] belief that the Board of Selectmen and Chief Davis conducted an improper and unfair termination hearing."
The plaintiff attempts to distinguish the issues in the two actions by arguing that the equity action maintained that his termination violated the rules and procedures for termination set forth in the East Kingston Fire Fighter's Policy and Procedure Manual, and therefore violated public policy. This argument is without merit because his writ in the civil action alleged that his termination violated "the East Kingston's Fire fighters Standard Operating Policy." Therefore, we conclude that the issues relating to the plaintiff's positions as deputy fire chief and volunteer fire fighter with the East Kingston Fire Department are identical in each action.
The condition that the first action finally resolved the issue on the merits is also satisfied. The trial court's dismissal of the plaintiff's claims for wrongful termination for failure to state a cause of action was a final judgment on the merits. See ERG, Inc. v. Barnes, 137 N.H. 186, 189, 624 A.2d 555, 557 (1993). "A dismissal for failure to state a cause of action does not rest upon a purely procedural ground, but rather upon the conclusion of the trial judge that the cause alleged is without substantive merit." Id. (quotation omitted). Such a dismissal will have preclusive effect once the plaintiff has been given leave to amend and "the plaintiff fails to amend or the amendment fails to cure the deficiency." Id. at 189, 624 A.2d at 558.
Although the superior court order on its face dismisses the action without giving express leave to amend, it does so implicitly by stating that "it will address the substance of counts so as to avoid future hearings in this matter should the plaintiff seek to amend his writ." We conclude that on the facts
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