Qualters v. Winchester CV-04-390-SM 02/09/05 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Terrance P. Qualters,

Plaintiff

v. Civil No. 04-390-SM

Opinion No. 2005 DNH 014

Town of Winchester,

Defendant

O R D E R

Pro se plaintiff, Terrance Qualters, brings this action

challenging “the Town of Winchester’s right to seize [his]

property based upon the unconstitutionality of a State statute.” 

Complaint at para. 3. In 2003, after plaintiff failed to pay

local property taxes for the years 1999, 2000, and 2001, title to

his property was transferred to the Town by tax deed. That act,

says plaintiff, amounted to an unconstitutional taking because it

was based, at least in part, upon his non-payment of a tax that

the New Hampshire Supreme Court declared unconstitutional in

November of 2001. The Town moves to dismiss plaintiff’s

complaint, asserting that it is barred by principles of res

judicata, as well as the Rooker-Feldman doctrine. 

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Standard of Review

When ruling on a motion to dismiss, the court must “accept

as true the well-pleaded factual allegations of the complaint,

draw all reasonable inferences therefrom in the plaintiff’s favor

and determine whether the complaint, so read, sets forth facts

sufficient to justify recovery on any cognizable theory.” Martin

v. Applied Cellular Tech., 284 F.3d 1, 6 (1st Cir. 2002). 

Dismissal is appropriate only if “it clearly appears, according

to the facts alleged, that the plaintiff cannot recover on any

viable theory.” Langadinos v. American Airlines, Inc., 199 F.3d

68, 69 (1st Cir. 2000). See also Gorski v. N.H. Dep’t of Corr.,

290 F.3d 466, 472 (1st Cir. 2002). Notwithstanding this

deferential standard of review, however, the court need not

accept as true a plaintiff’s “bald assertions” or conclusions of

law. See Resolution Trust Corp. v. Driscoll, 985 F.2d 44, 48

(1st Cir. 1993) (“Factual allegations in a complaint are assumed

to be true when a court is passing upon a motion to dismiss, but

this tolerance does not extend to legal conclusions or to ‘bald

assertions.’”) (citations omitted). See also Chongris v. Board

of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). 

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Here, in support of its motion to dismiss, the Town relies

upon various court filings by plaintiff in prior state-court

litigation, as well as decisions issued by New Hampshire’s courts

in those cases. Typically, however, a court must decide a motion

to dismiss exclusively upon the allegations set forth in the

complaint (and any documents attached to that complaint) or

convert the motion into one for summary judgment. See Fed. R.

Civ. P. 12(b). But, there is an exception to that general rule: 

[C]ourts have made narrow exceptions for documents the

authenticity of which are not disputed by the parties;

for official public records; for documents central to

plaintiffs’ claim; or for documents sufficiently

referred to in the complaint.

Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (citations

omitted). See also Beddall v. State St. Bank & Trust Co., 137

F.3d 12, 17 (1st Cir. 1998). Since plaintiff does not dispute

the authenticity of the documents upon which the Town relies, the

court may properly consider those documents without converting

the Town’s motion to dismiss into one for summary judgment. 

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Background

Plaintiff is the former owner of property identified in the

Town of Winchester Tax Records as Tax Map 6, Lots 15, 17, and 20. 

In April of 2000, he filed a petition for declaratory judgment in

state superior court, asserting that the Winchester Tax Collector

had “no authority to collect the excavation activity tax” under

N.H. Rev. Stat. Ann. (“RSA”) ch. 72-B (“Qualters I”). The court

dismissed the action and denied plaintiff’s motion to reconsider. 

He did not appeal that dismissal to the New Hampshire Supreme

Court. 

A few months later, in August of 2000, plaintiff filed a

“Petition to Appeal Tax Abatement” in the state superior court,

again asserting that the excavation activity tax was illegal

(“Qualters II”). While that petition was pending, the New

Hampshire Supreme Court declared the excavation activity tax

levied under RSA 72-B unconstitutional. See Nash Family Inv.

Props. v. Town of Hudson, 147 N.H. 233 (2001). Subsequently,

however, for reasons that are not clear, plaintiff withdrew his

tax abatement petition, before any ruling on the merits of his

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Although the record is not fully developed, the “Tax 1

History for Terrance Qualters,” which was submitted by the Town,

suggests that the excavation activity tax was “abated” with

respect to lots 15, 17 and 20 for the tax year 2001 - that is,

after the state supreme court declared the excavation activity

tax to be unconstitutional. The Town did not, however,

retroactively abate the excavation activity tax levied against

plaintiff’s property for the prior years. That, it appears,

would have required plaintiff to file (and pursue to a final

resolution on the merits) a petition for abatement. See, e.g.,

Johnson & Porter Realty Co. v. Comm’r of Rev. Admin., 122 N.H.

696, 699-700 (11982) (holding that individuals who paid a tax

which was subsequently declared unconstitutional were “entitled

to a refund of the tax they paid under that provision, provided

that they timely file[d] their demand for reimbursement” as

provided by state law) (emphasis supplied). 

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claims. The court held that withdrawal to be with prejudice and

plaintiff did not appeal that ruling. 

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In April of 2003, as a result of plaintiff’s failure to pay

property taxes in the years 1999, 2000, and 2001 (which included,

but was not limited to, his failure to pay the excavation

activity tax assessed against his property in 1999 and 2000),

Lots 15, 17, and 20 were conveyed to the Town by tax deed. In

July, plaintiff filed a petition for declaratory judgment in

state superior court (“Qualters III”). Essentially, plaintiff

sought an abatement of the Town’s assessment of an excavation

activity tax on his property for the years 1999 and 2000. The

court denied plaintiff relief, concluding that, as to the 1999

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tax assessment on plaintiff’s property, his petition was barred

by the doctrine of res judicata, since the same issue was

presented in Qualters II. And, as to the 2000 tax assessment on

plaintiff’s property, the court held that he had not filed a

timely petition for abatement, as is required by state law. It

does not appear that plaintiff appealed that decision. 

After failing to prevail on his claims in state court,

plaintiff filed this federal action, challenging the Town’s

authority to convey his property by tax deed based, in part, on

his failure to pay a local tax which the state supreme court

subsequently declared unconstitutional. 

Discussion

In support of its motion to dismiss, the Town asserts that

plaintiff’s complaint is barred by the doctrine of res judicata. 

It also says that the Rooker-Feldman doctrine precludes this

court from exercising jurisdiction over plaintiff’s claims. 

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I. The Rooker-Feldman Doctrine. 

The Rooker-Feldman doctrine precludes a federal district

court from reviewing a final judgment entered in a state court,

and from considering claims that are inextricably intertwined

with those raised in the state court proceeding. See Rooker v.

Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983). 

See also Wang v. New Hampshire Bd. of Registration in Medicine,

55 F.3d 698, 703 (1st Cir. 1995). Federal claims are

inextricably intertwined with state court proceedings (even if

precisely the same claims were not raised previously in state

litigation) if the party had an opportunity to raise those claims

in the state court and if their resolution in federal court would

effectively provide a form of federal appellate review of the

state court’s decision. See Pennzoil Co. v. Texaco, Inc., 481

U.S. 1, 25 (1987) (Marshall, J., concurring). 

Moreover, once a state court issues a final judgment, a

federal district court lacks jurisdiction to review that decision

even if the state judgment is patently wrong or was entered

following patently unconstitutional proceedings. See Feldman,

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460 U.S. at 486. Thus, a litigant may not seek to reverse a

final state court judgment “simply by casting his complaint in

the form of a civil rights action.” Ritter v. Ross, 992 F.2d

750, 754 (7th Cir. 1993) (citation omitted). 

Here, the constitutionality of the tax assessments against

plaintiff’s property for the years 1999 and 2000 was squarely

presented to the state superior court in Qualters III. That

court held that plaintiff’s challenge to the 1999 assessment was

barred by res judicata and his challenge to the 2000 assessment

was precluded by operation of state law, since plaintiff

procedurally defaulted by failing to file a timely petition for

tax abatement. Plaintiff’s federal complaint in this case is

plainly an attempt to relitigate the very issues resolved against

him in state court. The proper forum in which to seek review of

those claims was the New Hampshire Supreme Court, not the federal

district court. Consequently, plaintiff’s constitutional claims

are “foreclosed by a textbook application of the Rooker-Feldman

doctrine.” Picard v. Members of the Employee Ret. Bd., 275 F.3d

139, 145 (1st Cir. 2001). 

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II. Res Judicata. 

Even if the plaintiffs’ constitutional claims were not

precluded by the Rooker-Feldman doctrine, they would be barred by

the doctrine of res judicata. 

The federal full faith and credit statute, 28 U.S.C. § 1738,

commands federal courts to employ state rules of res judicata

when determining the preclusive effect, if any, to be given to a

prior state court determination. See Marrese v. American Academy

of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Kremer v.

Chemical Constr. Corp., 456 U.S. 461, 468 (1982). Accordingly,

if the Rooker-Feldman doctrine did not preclude this court from

hearing plaintiffs’ constitutional claims, principles of res

judicata, as developed by the New Hampshire Supreme Court, would

apply. 

Under New Hampshire law, “[t]he doctrine of res judicata

precludes the litigation in a later case of matters actually

litigated, and matters that could have been litigated, in an

earlier action between the same parties for the same cause of

action.” In re Alfred P., 126 N.H. 628, 629 (1985) (citations

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omitted). “In order for res judicata to apply to a finding or

ruling, there must be ‘a final judgment by a court of competent

jurisdiction [that] is conclusive upon the parties in a

subsequent litigation involving the same cause of action.’” In

re Donovan, 137 N.H. 78, 81 (1993) (quoting Marston v. U.S.

Fidelity & Guar. Co., 135 N.H. 706, 710 (1992)). 

In other words, for the doctrine of res judicata to apply,

“three elements must be met: (1) the parties must be the same or

in privity with one another; (2) the same cause of action must be

before the court in both instances; and (3) a final judgment on

the merits must have been rendered on the first action.” Brzica

v. Trustees of Dartmouth College, 147 N.H. 443, 454 (2002). The

term “cause of action” means the “right to recover, regardless of

the theory of recovery.” Eastern Marine Constr. Corp. v. First

S. Leasing, 129 N.H. 270, 274 (1987) (citations omitted). 

Here, each of those three essential elements is present. As

to the existence of the first and third elements, there can be

little doubt that the parties in the two proceedings are

identical, the state superior court resolved plaintiff’s claims

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against him on the merits, and plaintiff did not appeal that

ruling to the New Hampshire Supreme Court. Finally, the “causes

of action” advanced (and the underlying facts upon which those

claims are based) in the two proceedings are also identical. In

the earlier state court proceeding, plaintiff asserted that the

Town’s assessment of the excavation tax (and subsequent

conveyance of his property by tax deed) was unconstitutional -

the very claim he seeks to advance in this forum. State

principles of res judicata preclude him from relitigating that

claim in this forum. To the extent plaintiff believed that the

state superior court erred in its legal conclusions, the proper

avenue of recourse would have been to file an appeal with the New

Hampshire Supreme Court. And, if he was dissatisfied with the

outcome in that forum, he could have filed a petition for

certiorari with the United States Supreme Court. He did not. 

Conclusion

The tax sale of plaintiff’s property and subsequent

conveyance of that property to the Town by tax deed based, at

least in part, upon plaintiff’s failure to pay an

unconstitutional tax might appear to be completely unjust or

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unfair. But, at this point, the arguments advanced by plaintiff

are of little more than academic interest. His property was

conveyed to the Town by tax deed because he failed to pay not

only 1999 and 2000 assessments for the unconstitutional

excavation activity tax, but also because he failed to pay other

legitimate and constitutional taxes assessed against his property

as well. Consequently, even if plaintiff had not been assessed

the excavation activity tax in 1999 and 2000, his property still

would have been conveyed to the Town based upon his long-standing

failure to pay his fair share of the taxes assessed against his

property. Even then, however, had he properly invoked readily

available state procedures, plaintiff could have easily obtained

an abatement for the 1999 and 2000 excavation activity taxes. He

did not. Nor does it appear that he attempted to redeem his

property from the Town in accordance with state law, by tendering

payment for the several tax years for which he made no payments. 

In the end, however, whether plaintiff availed himself of

available state remedies, whether he was justified in refusing to

pay any of the taxes assessed against his property for several

years, or whether the Town lawfully took title to his property by

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tax deed are not questions properly before this court. 

Regardless of the merits of plaintiff’s claims, this is not the

proper forum in which to litigate what is essentially an appeal

of an adverse decision issued by the state superior court. 

For the foregoing reasons, as well as those set forth in

defendant’s memorandum, defendant’s motion to dismiss (document

no. 3) is granted. The Clerk of Court shall enter judgment in

accordance with this order and close the case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 9, 2005

cc: R. Matthew Cairns, Esq.

Terrance P. Qualters

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