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Avery v. HPCS

March 13, 2003

WILLIAM AVERY, APPELLANT,
v.
HPCS, INC., APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-280-98) (Hon. A. Franklin Burgess, Jr., Trial Judge)

Before Terry and Schwelb, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Senior Judge Pryor

Submitted February 6, 2003

Dissenting opinion by Associate Judge SCHWELB, at p. 6.

After judicial resolution of an earlier civil action regarding the leasing of dental equipment involving the same parties as are presently before the court in the instant appeal, a motion for summary judgment was granted in the trial court in favor of appellee in response to a second complaint filed by appellant, asserting virtually the same causes of action as before, arising from the same dispute. We affirm.

I.

(A)

Appellant filed a civil action against appellee in August 1995 alleging defamation, intentional infliction of emotional distress, and violation of the District of Columbia Human Rights Act. *fn1 The case arose out of events surrounding appellee's attempts to collect an overdue balance regarding the lease of equipment from appellee. In response, appellee filed a counterclaim for the overdue balance. Following a trial, a jury returned a verdict on July 30, 1997 in favor of appellant for $8,000.00. On August 7, 1997 the court, however, entered judgment in favor of appellee in the amount of $7,834.94 on the counterclaim. Neither party appealed.

In January 1997, six months before the jury trial in the pending case, appellant attempted to refinance his house. Appellant learned at this time that his credit report reflected an unpaid debt to appellee. Appellant testified during trial that he owed a sum of money on the leased equipment and had not made the payments. The information regarding appellant's delinquency remained on his credit report until 1999, although the overdue balance was satisfied subsequent to the entry of the judgments in July and August.

On January 13, 1998, appellant filed a second complaint against appellee, again alleging defamation and intentional infliction of emotional distress. He also alleged harassment. *fn2 He asserts in the latter complaint that appellee was the cause of inaccurate entries in his credit report in January 1997, pending the earlier trial, resulting in financial injury to him at that time.

(B)

In the main, the trial judge concluded that appellant's assertions in the present case were governed by the doctrine of "issue preclusion." *fn3 The judge noted:

. . . Plaintiff has testified under oath that, as of July, 1997, his debt to the defendant was unpaid. More importantly, the Court in the first litigation determined, after a full and fair opportunity to be heard, that the plaintiff owed the defendant $7,834.94. This finding was essential to a determination of defendant's counterclaim, it was embodied in a final judgment, and the issue was actually litigated. Thus, under the doctrine of issue preclusion, plaintiff is now barred from asserting in this litigation that he did not have an unpaid debt to the defendant at the time of the credit report. . . . [P]laintiff's claim for intentional infliction of emotional distress also must fail. To prove that claim, the plaintiff must prove among other things that the defendant's conduct in making the information available for inclusion in the credit report was 'extreme and outrageous conduct.' Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 935 (D.C. 1995). If the information was true, as the Court held as matter of law it was, then defendant's conduct could not have been extreme and outrageous. . . . [F]or reasons discussed above, defendant's conduct in this case cannot as a matter of law be the predicate for a harassment claim.

Accordingly, the trial judge granted the motions for summary judgment as to all three claims, on the basis of issue ...


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