Appeal from the Superior Court of the District of Columbia; (Hon. Paul R. Webber, III, Trial Judge)
Before Terry, Steadman, and Schwelb,* Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant was injured in a fall in the bathroom of her apartment. She sued the owner of the apartment building, Southeast Mortgage Company (SEMCO), and the property manager, Inner City Property Management, Inc. (ICPM), in the Superior Court. Appellant also filed suit against SEMCO (but not ICPM), based on the same cause of action, in the United States District Court for the District of Columbia. The Superior Court action was then stayed. In the trial of the federal case, the District Court granted SEMCO a directed verdict on three of appellant's four claims, but the jury returned a verdict in her favor on the fourth. The Superior Court stay was dissolved soon thereafter, and appellant proceeded with her case in that court against ICPM and SEMCO. After her claims against SEMCO were dismissed, the court granted ICPM's motion for summary judgment on the ground that appellant was barred by res judicata (or claim preclusion) and collateral estoppel (or issue preclusion) from litigating claims which the federal court had previously decided. From that ruling appellant noted this appeal. We hold that, for different reasons, neither res judicata nor collateral estoppel bars appellant's claim; accordingly, we reverse. *fn1
Appellant suffered various injuries when the floor of her bathroom collapsed, causing her to fall. She filed a four-count complaint against SEMCO and ICPM in the Superior Court alleging negligence, intentional infliction of emotional distress, "outrageous conduct" (citing RESTATEMENT (SECOND) OF TORTS § 46 (1965)), and fraud. *fn2 Appellant filed an identical suit against SEMCO alone in the United States District Court. A few months later, on appellant's motion, the Superior Court case was stayed so that the federal case could proceed to trial. In the latter case, after appellant had presented evidence, SEMCO moved orally for a directed verdict. The District Judge heard extensive argument from both parties and then made a brief oral ruling that only the negligence count would go to the jury. *fn3 On that count the jury returned a verdict in appellant's favor against SEMCO.
After final judgment was entered in the District Court case, SEMCO and ICPM filed a motion in the Superior Court for summary judgment or, in the alternative, dismissal of appellant's complaint. The court dismissed all claims against SEMCO and the negligence claim against ICPM. After a further hearing, the court granted ICPM's motion for summary judgment on the intentional tort claims, on the ground that the District Court's directed verdict against appellant on those claims in the case against SEMCO barred her from litigating them in the Superior Court in her suit against ICPM.
"Under the doctrine of res judicata, a prior judgment on the merits raises an absolute bar to the relitigation of the same cause of action between the original parties or those in privity with them." Goldkind v. Snider Brothers, Inc., 467 A.2d 468, 473 (D.C. 1983) (citations omitted; emphasis added). It is true, of course, that ICPM was not a party to the litigation in the District Court. ICPM maintains, however, that as SEMCO's agent *fn4 it was "in privity" with SEMCO, so that the directed verdict on appellant's intentional tort claims against SEMCO in that court bars appellant from litigating the same claims against ICPM in the Superior Court. *fn4
This court has held that, for res judicata purposes, "agents and principals . . . are not ordinarily in privity with each other." Usher v. 1015 N Street, N. W., Cooperative Ass'n, 120 A.2d 921, 922 (D.C. 1956) (footnote omitted); accord, 46 AM. JUR. 2D Judgments § 569 (1969). Thus a decision on the merits in an action against the principal is res judicata in a later action against the agent only "if the prior action concerned a matter within the agency." Tamari v. Bache & Co. (Lebanon) S.A.L., 637 F. Supp. 1333, 1341 (N.D. Ill. 1986) (citation omitted); see Lober v. Moore, 135 U.S. App. D.C. 146, 150, 417 F.2d 714, 718 (1969). *fn5 In this case, viewing the record - as we must - in the light most favorable to appellant, *fn6 we see that appellant's claims against ICPM are based on conduct allegedly outside the agency relationship. ICPM offered no evidence in support of its motion for summary judgment which would suggest otherwise. *fn7 At the very least, there is a material issue of fact as to whether ICPM's alleged efforts to force appellant to move out of the apartment were within the scope of its agency relationship or, as appellant maintains, beyond it. We therefore hold that res judicata does not bar the present action against ICPM because ICPM has not shown that it was in privity with SEMCO.
With respect to collateral estoppel, appellant makes several alternative arguments, but her main one is that no collateral estoppel flows from a judgment, such as the one in the District Court, that is based on two or more independent grounds. *fn8 We need not decide whether she is correct on this point, *fn9 for we find merit in one of her other contentions.
In order for a claim of collateral estoppel to succeed,
the issue in the new case must be one that was actually litigated and decided in the prior case, by a final and valid Disposition on the merits, after a full and fair opportunity for litigation by the same parties or their privies, where the issue was necessarily decided in disposing of the first action, and not mere dictum.
Smith v. Jenkins, 562 A.2d 610, 617 (D.C. 1989) (citation omitted); accord, Ali Baba Co. v. Wilco, Inc., 482 A.2d 418, 421 (D.C. 1984) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982)); Goldkind v. Snider Brothers, Inc., supra, 467 A.2d at 473. "The burden is on the party asserting preclusion to show actual decision of the specific issues involved." 18 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4420, at 185 (1981) (footnote omitted) (hereafter WRIGHT & MILLER). In addition, it has long been the rule that when the record does not clearly disclose the grounds on which the ...