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October 6, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Richard A. Levie, Trial Judge)

Before Ferren and Wagner, Associate Judges, and Reilly, Senior Judge. Opinion by the court Per Curiam. Opinion by Associate Judge, Ferren, Concurring in part and Dissenting in part. Concurring opinion by Associate Judge Wagner. Opinion by Senior Judge Reilly, Dissenting in part and Concurring in the judgment.

The opinion of the court was delivered by: Per Curiam


The judgment of the superior Court is affirmed based on the analysis in Parts II.-III. of Judge FERREN's opinion, which Judge WAGNER joins and, further, based on the result reached by Judge WAGNER and JUDGE REILLY for different reasons, as indicated in their separate opinions.

WAGNER, Associate Judge, Concurring: I join in Parts II and III Of Judge FERREN's opinion, but I concur with Judge REILLY in affirming the order of the trial court granting summary judgment for appellee on different grounds. In my view, the trial court properly granted summary judgment for appellee based upon the effect of the judgment in the prior suit in which appellant sued on an identical claim and failed to join the additional theory of recovery advanced in this case to redress the same alleged wrong. *fn1 A review of the record fails to disclose a genuine

issue of material fact in dispute regarding either the applicability of the doctrine or any defenses to its use. Although enforcement of the rule against claim-splitting, a part of the doctrine of res judicata may be waived by a defendant either by express or implied consent, appellant failed to produce in opposition to appellee's motion for summary judgment evidence that appellee consented by words or conduct to claim-splitting. Moreover, the record reflects appellee's timely objection to defending simultaneously two lawsuits, thus defeating any theory of acquiescence which would preclude appellee from claiming the benefit of the doctrine.

The salient facts pertinent to the issues raised on appeal are as follows. On April 27, 1987, appellant filed a complaint for damages in the Superior Court of the District of Columbia naming appellee, Clifton Ware, as the sole defendant. *fn2 The complaint, which is against Ware in his individual capacity only, is based on claims of negligence and violation of "plaintiff's constitutional and civil rights." Almost two years earlier, appellant had commenced an action in the United States District Court for the District of Columbia against the District of Columbia and several District government officials in their "administrative and individual capacities" based, inter alia, on claims of violation of his constitutional rights and negligence. Appellee Ware was not named as a party nor even mentioned in the original complaint in District Court. Appellant filed an amended complaint on July 9, 1985 in the action in District Court, deleting some previously named defendants and adding others, including Ware, and alleging only constitutional claims. Touchstone, supra, note 1, 676 F. Supp. at 343-44. The District Court granted a motion to dismiss the case against two of the five defendants, and appellant voluntarily dismissed the action against two others. Id. at 344. Therefore, Ware was the only remaining defendant when the District Court heard and granted judgment in his favor. Id. The action in the federal court and in this case arose out of the same core of operative facts, which are summarized in the Touchstone decision. See id.

On May 22, 1987, appellee filed a motion to stay the action in Superior Court, and the trial court granted a stay pending resolution of the case in the District Court. After the stay was set aside, appellee filed an answer asserting as affirmative defenses, res judicata, collateral estoppel and the District Court's decision in Touchstone. Appellee later filed a motion for summary judgment, which clearly raises the res judicata bar based on the "rule against splitting a cause of action." The trial court entered an order granting the motion without opinion.

In reviewing a grant of summary judgment, this court applies the same standard that the trial court applies initially. Thompson v. Shoe World, Inc., 569 A.2d 187, 189 (D.C. 1990). In doing so, this court undertakes an independent review of the record to determine whether there are genuine issues of material facts in dispute. Id. Although the nonmoving party is entitled to the benefit of all favorable inferences of fact, the nonmoving party must contest material issues of fact with specific evidence and argue pertinent legal theories in opposition to the motion. Thompson v. Seton Investments, 533 A.2d 1255, 1257 (D.C. 1987). We will affirm the decision granting summary judgment if the record shows there are no genuine issues of material facts in dispute and that, as a matter of law, the moving party is entitled to judgment. Williams v. Gerstenfeld, 514 A.2d 1172, 1176 (D.C. 1986). *fn3

Appellant concedes in his brief that res judicata bars here the identical constitutional claim for which judgment was entered against him in the prior lawsuit. See Henderson v. Snider Bros., Inc., 439 A.2d 481, 485 (D.C. 1981) (res judicata bars, after valid, final adjudication on the merits, relitigation of the same claim between the same parties); see also Hagans Management Co., Inc. v. Nichols, 409 A.2d 179, 181 (D.C. 1979); Gullo v. Hirst, 207 A.2d 662, 663 (D.C. 1965). However, he argues that res judicata does not defeat his negligence claim because: (1) it was not adjudicated in the prior action; (2) appellee caused him to file two separate lawsuits; and, (3) the federal suit was adjudicated on summary judgment, rather than after a trial. Essentially for the reasons stated in Part III of Judge FERREN'S opinion, I agree that appellant improperly split his cause of action when he failed to plead his negligence claim in the federal lawsuit; that res judicata principles operate to bar the action in this case, unless appellee waived the rule against claim-splitting; and, that Disposition of the federal claim by summary judgment does not preclude application of the doctrine. Therefore, appellant's only remaining basis for claiming that there is a factual dispute for trial is that appellee "cause the second action." This claim can be premised only on the legal theory of appellee's waiver of the preclusive effect of the prior judgment by consent or by acquiescence.

Acquiescence is a recognized exception to claim preclusion rules. Rennie v. Freeway Transport, 294 Or. 319, 656 P.2d 919,, 656 P.2d 919, 925 (1982) (en banc). Waiver by acquiescence can occur when a defendant fails to interpose a timely objection to claim-splitting. Story v. Rivers, 220 Ga. 232, 220 Ga. 232,138 S.E.2d 304, 305 (1964). However, the record here reflects that appellee objected timely to prosecution of the second lawsuit. Appellee promptly moved to stay this case, and the court granted the motion pending final Disposition of the suit in federal court. The amended complaint in the federal action, containing only appellant's constitutional claims, was filed in December 1985. It had been pending for one and a half years before appellant filed in this court the same constitutional claims and an additional claim based on negligence. Not until appellant filed the second action on April 27, 1987 asserting the additional claim was appellee obligated to object to claim-splitting. He did so expeditiously on May 22, 1987 by filing before answer the motion to stay. Appellee was not entitled at that time to dismissal or judgment in Superior Court because there was as yet no res judicata bar to the action. Appellee pursued successfully the only available remedy against simultaneous defense of the two lawsuits, a stay of one of them. After the stay was set aside, appellee immediately filed an answer asserting as an affirmative defense the bar to the claim based on res judicata, collateral estoppel, and the court's decision in the federal court.

By filing in this action the motion to stay, appellant timely made known his objection to defending simultaneously in two forums. No more is required of a defendant in order to preserve the res judicata defense based on claim-splitting than a timely plea that another cause is pending. Rennie, supra, 294 Or. at 327, n.9, 656 P.2d at 924, 925 n.9 (motion to dismiss or abate based on pending federal action sufficient to defeat acquiescence exception to claim preclusion rules); Story, supra, 220 Ga. at 233, 138 S.E.2d at 305 (waiver of rule against splitting cause of action waived by failure to plead pending action); Funkhouser v Hurricane Fence Co., 524 S.W.2d 780, 783 (Tex. Ct. App. 1st Dist. 1975) (failure to file plea of another cause pending or other form of objection amounts to consent to splitting the cause of action). Contrary to Judge FERREN's assertion, the foregoing cases do not demonstrate that more than a motion for a stay is required to preserve a res judicata defense under the circumstances. In Rennie, the court found that the defendants had timely raised objection to the simultaneous prosecution of separate actions based on the same factual transaction. 656 P.2d at 924-25. The defendants had filed a motion to dismiss or abate the action based on the pendency of another suit. Id. at 920. The trial court denied the motion to dismiss, but granted the plea in abatement, staying the action pending resolution of the earlier filed federal proceeding. Id. The Rennie court found that the case did not fall within "any 'acquiescence' or 'reserved issue' exception to the claim preclusion rules." Id. at 925. In Funkhouser, the court concluded that the defendant had consented to the splitting of a cause of action "by failing to file in either action a plea of another cause pending, or to move for consolidation, or in any manner to bring to the attention of the trial court the fact that defendant objected . . . ." 524 S.W.2d at 783 (emphasis added). That is not the case here because appellee timely registered his objection to proceeding in two forums by filing the motion to stay. I cannot agree, as Judge FERREN seems to suggest, ante at 27-29, that a motion for stay must be couched in terms of "an objection based on 'other action pending.'"

Thus, assuming this jurisdiction were to recognize a presumption of waiver absent a timely objection, appellee's timely motion to stay prevented its application. *fn4 See Rennie, 294 Or. at , 656 P.2d at 925 (where a defendant timely objects to claim-splitting, onus is upon plaintiff to accomplish any necessary joinder). Without such a presumption operating in appellee's favor, once appellee met his initial burden on summary judgment, the burden shifted to appellant to show evidence supporting any legal theory which would defeat the res judicata bar to his claim. For after the moving party makes a prima facie showing that no genuine issue of fact is in dispute and as a matter of law he is entitled to judgment, the burden shifts to the opposing party to rebut that prima facie showing with specific evidence demonstrating contested facts. Thompson v. Seton Investments, supra, 533 A.2d at 1257; Landow v. Georgetown-Inland West Corp., 454 A.2d 310, 313 (D.C. 1982); Nader v. de Toldano, 408 A.2d 31, 48 (D.C. 1979), cert. denied, 444 U.S. 1978 (1980). To defeat the motion, it is insufficient for the nonmoving party to simply assert a legal theory in defense of the moving party's prima facie case. See Hill v. White, 589 A.2d 918, 921 (D.C. 1991). The nonmoving party's burden is to produce evidence supporting a claimed factual dispute which requires resolution by the trier of fact and which is predicated on a viable legal theory. Id.; de Toledano, 408 A.2d at 48. The record reflects that appellant failed to do so.

One of the issues which accounts for the different result reached by my Dissenting colleague, Judge FERRIN, concerns who had the burden of production on the claim of acquiescence. Therefore, I elaborate further to make clear my position. In my view, consent and acquiescence are not essential elements of appellee's res judicata defense. Therefore, in order to meet his initial burden on summary judgment, it was not necessary for appellee to anticipate such legal theories which, if shown by the other side, might preclude him from claiming the benefit of the prior judgment. Rather, the burden was upon appellant, the nonmoving party, to identify evidence to support the legal theories of consent or acquiescence if he contended that these principles prevented appellee from relying on the res judicata bar.

"The general rule is that a party asserting or pleading an issue has the burden of proof - i.e., burden of persuasion - and its constituent burden of production - i.e., the initial burden of going forward with evidence - as to each material element of such issue in order to prevail." de Toldani, supra, 408 A.2d at 48; Imboff v. Walker, 51 A.2d 309, 311 (D.C. 1947); National Motor Freight Traffic Ass'n v. United States, 242 F.Supp. 601, 605 (D.D.C. 1965); United Electrical Radio & Mach. Workers v. General Electrical Co., 127 F. Supp. 934, 942 (D.D.C. 1954); Doughty v. Prettyman, 219 Md. 83,48 A.2d 438, 441 (Md. 1959). Once a party meets his or her burden of production on all issues which establish his or her prima facie case, the burden shifts to the opposing party to produce contradictory evidence or evidence supporting a viable legal defense to the claim. See de Toledano, 408 A.2d at 48. The burden of evidentiary production shifts from side to side on summary judgment as it does at trial. See id. Applying these principles to this case, once appellee discharged his initial burden of demonstrating undisputed facts supporting the res judicata bar of the prior action, the burden shifted to appellee to offer competent evidence showing some basis to preclude appellee from relying on the defense. See id.; see also Landow, supra, 454 A.2d at 313. Appellant failed to identify evidence, and the record contains none, showing a disputed factual issue or evidence which, if proved, would estop appellant from relying on the bar of the prior judgment.

Essentially, appellant asserted in his opposition that the District Court ruled in Touchstone, and appellee argued before the District Court, that the suit should have been filed in a local court. Appellant supported these assertions with three quotations: the first from the Touchstone opinion; the second from a motion to dismiss appellant's original complaint in which appellee is not named as a party; *fn5 and the third purportedly taken from a Memorandum of Points and Authorities in support of Defendant's (appellee here) Motion to Dismiss or In the Alternative for Summary Judgment. *fn6 Appellant contends that the following quote from Touchstone reflects the District Court's ruling that appellant's tort claims should have been brought in a local court:

"substantive mistakes by administrative bodies in applying local ordinances do not create a federal claim so long as correction is available by the state's judiciary." Cohen v. City of Philadelphia, 736 F.2d 81, 86 (3rd Cir.), cert. denied, 469 U.S. 1019, 105 S. Ct. 434, 83 L.Ed.2d 360 (1984)."

Touchstone, supra, 676 F. Supp. at 345. The quotation is taken out of context, and appellant's characterization does not reflect accurately the District Court's holding. In fact, the court determined that appellant had, but did not avail himself of, adequate remedies to appeal the adverse administrative decision of the District of Columbia Bureau of Motor Vehicles Services (BMVS). *fn7 The court observed that due process is satisfied by the existence of these adequate state remedies and that the "failure of to exercise his rights of appeal does not mandate that a due process violation existed." Id. at 345-46. The opinion makes clear that the adequate remedies referred to are the appeal procedures for correcting the adverse administrative action. It was on this basis that the court granted summary judgment for Ware, holding that "failure of to exercise available adequate state remedies not entitle to compensation for due process violations." Id. The Touchstone decision does not address, as appellant argues, the effect of the availability to an aggrieved party of separate tort remedies against a government employee whose negligence results in adverse administrative action. Thus, there is no basis for concluding that the District Court ruled that appellant's pendent claims, if any, should have been filed in local court nor that its decision was premised on an argument to that effect made by appellee Ware which can be considered in this case as evidence of appellee's consent or acquiescence to claim-splitting.

The second quote upon which appellant relies as evidence of acquiescence is taken from a pleading filed in the Touchstone case before appellee was even made a party to the action. That motion, which was filed by the former defendants, was never resolved and became moot when appellant amended his complaint, eliminating the tort claims which had been joined originally, deleting some defendants, and naming additional defendants, including appellee. See Touchstone, supra, 676 F. Supp. at 343-44. Appellee cannot be held to have acquiesced in claim-splitting through a pleading filed by other defendants in a case in which he was not then a party. The fact that appellee was represented by the same lawyer as the defendants in the original complaint does not alter the result. As to appellee, the case in District Court commenced with the filing of the amended complaint which alleged only constitutional claims. See Peabody v. O'Leary, 102 N.H. 496, 498,, 161 A.2d 167, 169 (1960); Lewis v. Hines, 81 N.H. 24, , 120 A. 728 (1923). I can locate no authority, and JUDGE FERRIN provides none, which binds an added party to representations or arguments in a pleading filed on behalf of the original parties before he was joined, particularly with respect to his individual rights related to claims never asserted against him in that action. *fn8 Moreover, the language in the excerpt upon which appellee relies cannot be viewed as an assent to a second suit. *fn9 The statement from the pleading of other parties in Touchstone appears to be simply a legal argument that a constitutional claim, such as the one asserted, does not lie for ordinary tort claims.

Finally, appellant quotes one other passage, purportedly from the Memorandum of Points and Authorities filed by appellee in the Touchstone case, which reads as follows:

Thus, since the local courts are available to plaintiff to redress any alleged negligence on the part of defendants . . . his complaint must be dismissed.

I use the word purportedly because appellant failed to provide the court below with a copy of the pleading, authenticated, certified or otherwise. See Super. Ct. Civ. R. 56 (e). *fn10 The unavailability of the complete pleading impedes consideration of the significance of the statement. Appellant must bear any consequences of his failure to support the opposition as required by Super. Ct. Civ. R. 56. However, the foregoing quotation appears to be no more than a reiteration of the legal proposition that a section 1983 action is not viable for wrongs for which local courts provide remedies. See Cohen v. City of Philadelphia, supra, 736 F.2d at 81. In my opinion, standing alone, this quote from a legal argument cannot be regarded as evidence that appellee assented to or acquiesced in appellant's filing of a separate tort action in Superior Court, and it is insufficient evidence of acquiescence to rebut appellee's initial showing of entitlement to summary judgment.

At best, appellant offered no more than a conclusory assertion of the availability of evidence of acquiescence. A conclusory assertion is insufficient to defeat a movant's prima facie showing of entitlement to summary judgment as a matter of law. See Spellman v. American Security Bank, N.A., 504 A.2d 1119, 1122-23 (D.C. 1986). The opposing party must rebut that showing with specific evidence which supports his legal theory. See id. In my opinion, appellant's opposition to the motion failed to meet that burden. Nor is there anything else in the record on appeal which supports the claim that appellee consented to or acquiesced in defending separate lawsuits. If there were such evidence of record, it is appellant who has the burden of demonstrating error and producing "a record sufficient to show affirmatively that error occurred." See Cobb v. Standard Drug Co., Inc., 453 A.2d 110, 111 (D.C. 1982); see also Tung v. W.T. Cabe & Co., Inc., 492 A.2d 267, 269-70 n.4 (D.C. 1985). Appellant has failed to do so.

Although the trial court's order granting summary judgment was entered without opinion, I cannot agree with Judge FERREN that the acquiescence issue was not considered and properly resolved by the trial court. Appellee specifically argued the claim-splitting theory in his memorandum of points and authorities in support of summary judgment, as excerpts from his pleading, which are reproduced in footnote 9 (supra) , show. *fn11 Judge FERRIN agrees that appellant sought to defeat the motion by a claim of acquiescence. There is no reason to conclude that the trial court failed to examine the record, as it was required to do, *fn12 or failed to apply all pertinent legal principles in reaching its decision. Since appellant asserted what may be viewed as the legal theories of consent or acquiescence, the trial court necessarily considered as a matter of law the effect of the motion to stay on appellant's claim of consent or acquiescence. See supra note 3.

For the reasons stated previously, the legal effect of the timely filing of another action pending is to preclude operation of any presumption of waiver of the preclusive effect of the former judgment. If there is reason for the trial court to have concluded otherwise, it is appellant's burden to demonstrate it. There is a presumption of the validity of the trial court's judgment, and the burden is upon appellant to convince the court that the trial court erred. Cobb, supra, 453 A.2d at 111. "In meeting that burden, it is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred." Id. The record on appeal in this case does not support a claim of error. Given the absence of any presumption of waiver and appellant's failure to show sufficient evidence supporting a factual dispute predicated on the legal theories of consent or acquiescence, the trial court properly granted summary judgment for appellee based on the res judicata effect of the prior judgment. Accordingly, for the foregoing reasons, I join with Judge REILLY in affirming the decision of the trial court.

FERREN, Associate Judge, Concurring in part and Dissenting in part: For the reasons that follow, in particular in Part IV., I would reverse the grant of summary judgment and remand the case for trial.


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