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Warren v. Town Of East Kingston9/6/2000
of this case, the plaintiff was given an opportunity to amend. Because he did not seek to amend, the dismissal operates as a final judgment on the merits. See id. at 189, 624 A.2d at 557.
Finally, the dismissal for failure to state a cause of action also satisfies the condition that the plaintiff be given a full and fair opportunity to litigate the issue in the first action. The plaintiff had an opportunity to state his case in his writ, in his objection to the defendant's motion to dismiss, and at the trial court's hearing on the motion to dismiss.
We note that the plaintiff's argument that the dismissal of the civil action for failure to state a cause of action did not resolve the equity action on the merits fails because collateral estoppel requires only that the first action be resolved on the merits. See Bruzga's Case, 142 N.H. at 745, 712 A.2d at 1079.
Similarly, the plaintiff's argument that he did not have a full and fair opportunity to litigate or amend the equity action also fails because collateral estoppel requires only that he be given an opportunity to do so in the first action. See id.
Finally, the plaintiff's argument that new evidence he gathered after dismissal of the first action precludes application of collateral estoppel is without merit. See Restatement (Second) of Judgments ยง 27 comment c at 253 (1980).
Accordingly, we conclude that collateral estoppel precludes the plaintiff from relitigating issues relating to his positions as deputy fire chief and volunteer fire fighter with the East Kingston Fire Department. Because of this conclusion, we need not consider whether res judicata applies to these issues.
In his equity petition, the plaintiff claimed for the first time that the defendant wrongfully dismissed him from his position as deputy forest fire warden in violation of RSA 224:9 (1989) (repealed effective Jan. 1, 1996). At oral argument, the defendant conceded that neither res judicata nor collateral estoppel bars this claim. Valid alternative grounds exist, however, to support its dismissal. See Echo Consulting Services v. North Conway Bank, 140 N.H. 566, 569, 669 A.2d 227, 230 (1995).
RSA 224:9 provided that " he director of the division of forests and lands shall have the power . . . to remove any . . . deputy warden . . . from office." The director of the division of forests and lands is an officer of the State of New Hampshire Department of Resources and Economic Development. RSA 12-A:9-a (1988). The equity petition fails to allege grounds that would support a claim against the town for wrongful dismissal in violation of RSA 224:9 because RSA 224:9 does not address the authority of towns to dismiss deputy forest fire wardens.
The plaintiff, therefore, failed to state a claim upon which relief could be granted because the allegations in his pleadings were not "reasonably susceptible of a construction that would permit recovery." Ronayne v. State, 137 N.H. 281, 283, 632 A.2d 1210, 1211 (1993) (quotation omitted). Thus, while the plaintiff may have a claim against the State for wrongful dismissal in violation of RSA 224:9, the trial court properly dismissed this claim against the defendant.
The plaintiff also alleged for the first time in his equity petition that since his dismissal, the defendant has "blocked" his appointment to new positions. "The essence of the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent litigation involving the same cause of action." Eastern Marine Const. Corp. v. First Southern Leasing, 129 N.H. 270, 273, 525 A.2d 709, 711-12 (1987) (quotation omitted). "Cau
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