Shin v. Portals Confederation Corp.

615 unclear, complaint it [arbitrator’s] that he relied to his detriment decision is and allegedly unprofessional provided actually on advice thus uncertain whether the issue was by Hopper merger. him to before the necessarily decided in arbitration [the and opposition Hopper’s affidavit filed to mo- relitigation proceeding], then of the issue is summary judgment, Hogue unambig- tion for precluded.” Mining Connors Tanoma uously representa- that asserts some of the Co., 286, 288, 682, U.S.App.D.C. 953 F.2d 293 by Hopper Hogue complains tions of which (1992) (citations omitted). Hopper there allegedly Hogue: directly were made to summary judgment fore is not entitled to

Hopper specifically advised me that respect Hogue’s wrongful to claims of with merger any would' have minimal if tax pre-merger representations by Hopper. consequences and that I would receive a IY.

distribution from the assets MFL. Hopper further advised me that I would reasons, foregoing judgment For the liability have no further and that there the trial court is affirmed in and re- were sufficient retained assets to cover part. versed The case is remanded for liabilities. proceedings opin- further consistent with this that, Hogue claims in brief at least ion.

part, [Hopper’s] “[t]his lawsuit is for mal- So ordered.4 practice pre-merger period, in the in which Hogue concerning advised Mr. the tax and consequences merger.” financial

Hopper has not demonstrated that

Hogue’s regarding Hopper’s alleged claims pre-merger representations Hogue were Henry SHIN, Appellant B.Y. arbitrator, before the and he therefore has not shown that the arbitrator decided these adversely Hogue. preclu claims “Issue PORTALS CONFEDERATION apply sion does not whén the issues in the CORPORATION, al., et prior identical, litigation and current are not Appellees. [they though even are] similar.” Hutchinson No. 96-CV-618. v. District Employee Columbia Office of 227,

Appeals, (quot Appeals. District of Columbia Court of ing 18 James Wm. MooRE, Moore’s FedeRal 25, Sept. 1997. Submitted (3d ed.1997)). Hop 132.02[2][a] Practice April Decided 1999. per showing has the burden of present litigation as to which he seeks preclusion is identical to one that was decid by arbitrator,

ed “if the basis of the court, that, conclude, record, Hopper Hogue, In the trial contended aside we at least on this estoppel, right Hogue from the issue of collateral he was accountant has action. An summary judgment closely entitled to because his con- be held liable to stockholders of held Hogue, (or, tract was with MFL and corporation arguably, knew if accountant duty Hogue. known) because he therefore owed no that the stockholders if he should have granted summary judge The trial on rely representation. would See, on the accountants’ estoppel grounds, collateral and she did not Berman, F.Supp. e.g., Ind. v. Coleco Hopper's reach alternative contention. In his (E.D.Pa.1976), part, pertinent 309-10 'd in aff court, Hopper as a brief in this has not identified Guarente, (3d Cir.1977); White v. F.2d 569 question presented appeal the existence or 474, 372 N.E.2d N.Y.2d 401 N.Y.S.2d duty allegedly Hop- non-existence of owed (1977) (limited partner). requirement "The Although briefly per Hogue. Hopper has justifi attorney liability] plaintiff] is that [for [the point, touched on the he has not asked us to attorney’s ably detrimentally relies on the not addressed affirm the undertaking,” Ronald E. Legal Mallen, et al.. judge. the trial 8.2, (4th ed.1996); Malpractice see also at 557 id., Hogue complains wrongful repre- and we discern no reason to as Insofar directly differently. allegedly by Hopper sentations treat accountants made DC, Dietz, Washington, was on

Bernard C. appellant. the brief for Greenberg and Glenn W.D. Robert E. DC, Golding, Washington, were on brief appellee. RUIZ, TERRY, STEADMAN, and Before Judges. Associate rent, January February TERRY, and in Judge: Associate any rent at all. pay did not appellant’s trial court dismissed 30, 1994, Proper- Republic November On for fraudulent and breach general partner Corporation, ties judicata. of contract on the of res building, managed the partnership which appeal he contends that the court erred On in the complaint against Mr. Shin filed a in granting appellees’ motion to dismiss be- Superior Branch of the Landlord and Tenant judicata apply to claims cause res does Court, partially un- seeking payment of the previously prej- that were dismissed without prem- leased paid possession rent and of the particular the and somewhat udice. Given complaint, filed an answer to the ises. Shin cáse, unusual facts of this we affirm. alleging misrepre- along with a counterclaim Republic orally moved to After sentation. I Super. pursuant to strike the counterclaim agree- 5(b),2 voluntarily appellant case from a retail lease This arises L T Rule Ct. & 16, 1992, A trial July appellant, prejudice. it bench ment dated between withdrew without Henry Kennedy, Shin, Judge Henry appellees, then held before and Portals Confeder- was meaning main was the of in which the Corporation Republic Properties ation and landlords”). occupied” in the lease phrase “leased and Corporation (collectively “the Kennedy that the agreement. Judge found Appellant agreed square feet of to lease 580 fully integrated and that a reason- lease was space large building retail a office interpret and oc- person would “leased able Avenue, S.W., Maryland in which he intend- cupied” refer to the time at which the to operate drycleaning ed to business.1 The legal right possess tenants have provided lease that it would become effective actually property, property when the is twenty on “the first date on which at least Therefore, May physically occupied.3 percent of the of the rentable area Office Judge Kennedy granted a Space occupied by is leased and tenants” and Republic entered a mone- possession for partially that the landlords would abate the tary judgment against Mr. Shin fifty percent rent until least of the renta- “at $26,058.62, representing unpaid amount Space ble area of the Office is leased and charges. rent related 7, 1993, occupied tenants.” On June twenty per- landlords notified Mr. 19, 1995, almost seven December On leased, building cent of the had been and he months after resolution of the landlord-ten- began pay February In the reduced rent. the instant action dispute, ant Mr. Shin filed they landlords, alleging 1994 the landlords advised him that had fraudulent against fifty percent leased more than of the office breach of contract4 misrepresentation and agree- space, obliged seeking which meant that he was then rescission the lease rent, pay beginning money damages. the full in March 1994. The landlords ment and Shin, however, rent, ground of to dismiss on the res pay failed to the full filed a motion opposition.’ filed an continuing pay only judicata, the reduced and Shin instead to prosecution claims in other appellees, corporations, of such two are the dice 1. The named general partners partnerships in the two limited of the Court. Branches building. manage which own and large gov- principal was a tenants 3. One 5(b) perti- 2.Super. provides Ct. L & T Rule space agency, but had which had leased ernment part: nent personnel yet into the build- of its not moved In actions in this Branch for Counterclaims. ing. recovery property possession of in which the recovery nonpayment ... of rent basis that he Although his brief Mr. Shin states in equitable defense of assert an misrepresentation, only for fraudulent sued recoupment set-off or a counterclaim for or complaint alleged land- that the count of his fifth payment money of rent or based on agreed "to construct cer- in the lease lords had expenditures as credits claimed dry install a so that he could tain build-outs” premises. relief related or for they conveyor, had counterclaims, cleaning and that clothes per- whether based on No other by failing otherwise, do so. "breached the contract” injury in this be filed sonal preju- exclusion shall be without Branch. This Interdonato, v. court, merits.” Interdonato concluding that claim arose Shin’s (cita- A.2d 1131-1132 n. nucleus of facts” as from the same “common omitted). addition, Pipher ap- proceeding and that tions the landlord-tenant (D.C.1996), Odell, we claim as a de- pellant could have raised his action, which plaintiffs’ cause of held that the proceeding, granted the motion. fense a cross- transaction as arose out of the same áppeal. noted this Shin then they brought in an earlier had which II which had been dismissed proceeding and prejudice, not barred res without was correctly the trial court Whether a claim “a dismissal of with- because facts of applied judicata principles to the suit prejudice out does not bar legal decide de this ease is a issue that we arising the same cause of out of issues Argana, 618 A.2d novo. See Osei-Kuffnor Id.; Thoubboron v. Ford action.” see also (D.C.1993). 712, the doctrine of 713 Under (D.C.1993). Co., 1210, 1216 624 A.2d Motor preclusion, prior “a judicata, or claim res Therefore, adjudi- a final because it was not an absolute judgment on the merits raises cation, voluntary of his dismissal Mr. Shin’s relitigation cause of of the same bar to not, itself, bar does earlier counterclaim original parties or those action between present his claim. privity them.” v. Snider Goldkind 468, Brothers, Inc., 473 467 A.2d inquiry not end there. But our does omitted). (citations relit The doctrine bars prejudice does not forev A dismissal without every ground of recov igation “not as to in a later protect a claim from dismissal er actually presented in ac ery or defense If judicata. of res proceeding on the tion, might every ground also as to which but resulting in a subsequent litigation there is _” v. presented Cromwell have been merits, party has in which a decision on the 351, Sac, 353, 24 L.Ed. 195 County 94 U.S. litigate an and fails opportunity to accord, (1877) added); e.g., (emphasis Molo so, may rely an party to do Inc., Monterey Cooperative, 689 vinsky v. prejudice to shield earlier dismissal without (D.C.1996); 531, Faulkner v. Gov A.2d 533 judicata-based from a res his later claim Co., 618 A.2d Employees ernment Insurance violate the a result would dismissal. Such Goldkind, (D.C.1992); supra, 467 183 judgment all principle that a “final embodies at 473 n. 10. rights arising out the transac party’s of a a com- seeking A dismissal of defendant involved, foreclosed party and a will be tion judicata grounds bears the plaint on res seeking the basis of later relief on from persuasion separate on two is- burden might have been raised issues which First, that the he must demonstrate sues. Founda prior action.” Kaiser Stutsman bases his res prior decision on which he States, Health Plan the Mid-Atlantic tion on the mer- judicata claim was a decision (D.C.1988) (citations Inc., 546 A.2d 370 its; second, he must establish that added). omitted; emphasis the same litigation was based on earlier cause of action. case, voluntari after Mr. Shin this (D.C. Shelton, 497 A.2d Amos v. counterclaim, there was ly his dismissed omitted). 1985) (citations court, in which in Landlord and Tenant litigated present claims could have been judica

Appellant contends that res liability denial of part general of his as apply to this case because ta does not itself challenges to the contract action rent. As in the landlord-tenant counterclaim claims, they him) equitable would It rather than (by prejudice. without was dismissed 5(b), supra L T Rule barred & element of have been certainly crucial “[t]he true types equitable limits the merits note which final on the is a a defendant counterclaims that defenses and beyond dispute that a dismissal ... and it is possessory Notwith may in a action.5 assert prejudice does not determine without equitable de- 5(b) possessory "assert provides action that a defendant in 5. L & T Rule Brokers, Ltd., (D.C. has minster 5(b), always A.2d 130 standing Rule present any legal right 1987), defense as that a claim of fraud arose out we held See Barnes general liability. of a denial of cause of action as an earlier of the same (D.C.1993) (“In Scheve, addi 633 A.2d foreign in a court. breach of contract case denial, general tion to a [in the defendant alleged the issue of Westminster’s “[B]ecause possessory is limited to an action] litigat might one which have been fraud was set-off, recoupment defense of certain ... original [earlier] ed in the action money judgment, for a and a counterclaims raises an absolute bar to Laufer’s (footnote omitted; emphasis plea of title” alleged counterclaims based on the same added)). allegations though Even Shin’s (citation omitted). Id. at 136 Simi fraud.” fraudulent and breach of Fistere, (D.C. larly, in Comer v. presentable in contract not have been 1954), a claim for fraud should we held that of a Rule the form counterclaim because of compulsory as a counter have been raised 5(b), legal he still could have them raised as claim in an earlier breach of contract defenses claim for back landlord’s ... attacked] the same “[t]he because allegations challenges rent.6 These are subject of [the contract which was the matter and, true, if the lease itself would have made also Id. at 208. See original] action.” unenforceable, the lease void and or at least Brothers, Inc., Henderson v. Snider markedly would have affected the total (“the (D.C.1981) (en banc) -defense of money judgment.7 amount of the independent fraud is not an claim and cannot being separate be considered as and distinct res

Shin contends that nevertheless underlying agreement judicata does not from the and the obli it bar his because is case, gation upon”). In this sued Shin’s based on the same cause of action as the Faulkner, See proceeding. claim arose out of the same contract and landlord-tenant Jenkins, supra, 183; Smith v. surrounding negotiations 618 A.2d at the landlord-ten as (D.C.1989). conclude, therefore, In proceeding. 613 determin that ant We ing whether two cases are based on the same it and should have offered as a could been cause of case, “the courts have considered in landlord-tenant defense the the nature the two actions and the facts res present hence that the action is barred each one.” Amos v. sought proved in to be judicata. Shelton, supra, 497 A.2d at 1085 (citation Jenkins, supra, omitted); see Smith v. Ill (citing

A.2d at 613 contention, 24(2) (1982)). it Mr. Shin’s other that specifi We have judicata res cally inequitable apply misrep held that for would be claims fraudulent damages seeks his claim because the he now resentation arise out of the same cause of proceeding (monetary damages action an and rescission of the con as earlier based on the tract) v. West- example, contract. in greater For are than he could have recov- Laufer set-off_” Staten, recoupment Management Corp. fense of Both re- 7. Winchester coupment really nothing (D.C.1976), and set-off defenses are inapposite because A.2d 187 is here requests any more than that the court reduce equi an the in that case raised tenant-defendants plaintiff by any award to the sums owed to the alleged set-offs based on table defense of rent tenancy. aas result of the See Pernell (D.C.1972) violations, general housing code rather than Realty, v. Southall (affirming liability. denial of See id. at 189-190 (characterizing paid recoupment back rent as based on lack of hot water but revers the set-offs money spent repairing premises and off), as set- finding ing that an intermittent the trial court’s grounds, rev’d.on other 416 U.S. conditioning equipment violated the failure of air (1974). S.Ct. 40 L.Ed.2d 198 code). equitable housing de Our limitation on precluded would not have fenses in Winchester proceed- 6.Shin contended landlord-tenant asserting legal present as a claims Shin from ing language that the of the lease excused his proceeding. in the landlord-tenant defense non-payment just also as well rent. He could Moreover, was the in Winchester the not, argued, have but did that the lease itself was right possession; no landlord's engaged appellees in unenforceable because had unpaid sought or entered. rent was fraudulent and had breached contract, belatedly alleges. as he now (mit multiple prevent and vexa- adjudication rule intended to ered in the landlord-tenant litigation, res.judicata is not available tious unpersuasive. This igated damages), is also agreed “in terms or in litigant has to a who discrepancy in court has held that such 26(l)(a), effect,” a claim “sub- id. damages is not relevant amount of available action,” possible for a second sists as a basis judicata bars a claim. Osei- whether res 26(1).2 case, judicata In this res id. at A.2d at 715 Argana, supra, Kuffnor reasons, applied for both as should not be (“The jurisdictional amount of fact that the (defendants-appellees) now seek to' landlords Superior greater is than the the D.C. Court suit preclude (plaintiff-appellant’s) Mr. Shin’s [Maryland] jurisdictional amount of fraudulently in- claiming that the landlords demonstrate that the under Court does not into lease and subse- duced him to enter lying claims in the instant case facts and terms, at an earli- its when quently breached already adjudicated in the been have possession proceeding for er landlord-tenant (citations omitted)). Maryland case” they properly opposed Mr. and back event, precluded from recover Shin was not theo- based on the same Shin’s counterclaims damages. raised ing full He could have of fraud and breach on ries in and breach of contract as defenses fraud 5(b) L T R. “limited Shin’s Super. Ct. & proceeding, received landlord-tenant ability his claims in the Landlord to assert and, damages, if the issues were available Branch.” and Tenant favor, brought decided 5(b) provides: Rule seeking on collat full based recovery Branch for In actions this estoppel. eral property in which the basis possession of recovery nonpayment rent or is IV recovery joined a claim for which there correctly applied Because the trial court arrears, may as- the defendant of rent to the facts of the doctrine of recoupment or defense of sert case, its order of dismissal is this money judg- for a set-off or a counterclaim payment rent or on on the of ment based Affirmed. against expenditures claimed as credits RUIZ, dissenting: Judge, Associate related to the equitable or for relief rent counterclaims, wheth- premises. No other judicata precludes re- doctrine of res The otherwise, injury personal or er based on litigation a claim that has or could have of may Branch. This exclu- be filed this litigated previous in a action. See Jon been pros- prejudice to the sion shall be without Adams, v. 534 A.2d athan Co. Woodner Branches of claims in other ecution of such (D.C.1987). Thus, as a rule of 295 n. 6 the Court. if, finality, apply be does' Shin, who is procedural jurisdictional limita no doubt that Mr. cause of or There is alia, damages tions, suing, for prior proper not a one now inter suffered forum was dry cleaning as a result of by business3 (Second) for the claim. See Restatement of breach, Judgments 26(1)(c) (1982).1 Further, could not fraud and § as a the landlords’ 26(l)(a) remedy action relief in the first or form of 1. Judgments (Second) (c) subject matter provides: limitations on the because of the jurisdiction Concerning Split- of the courts or restrictions Exceptions General Rule to the multiple authority or ting theories their entertain (1) following circumstances When multiple remedies or forms of for demands exists, apply general rule of 24 does not plaintiff de- single and the relief in a claim, all of the extinguish or theory rely action to on that sires in the second possible basis a second as a for claim subsists remedy or form of relief. or to seek that against plaintiff the defendant: (a) parties agreed in terms or in have The 1, supra. 2. See note claim, may split plaintiff or effect that the therein; acquiesced or defendant has requests lease be de- complaint that the 3. The damages in the amount ah initio and clared void (c) rely a plaintiff was unable to $500,000. theory or to seek a certain certain of the case (1972)); brought Campos Aguila, 464 A.2d have these claims under the limited see (D.C.1983) (dismissing defense tenant’s procedures available in the Landlord-Tenant rent); obligation pay Weis unrelated to governing Branch. rules the Land “[T]he Middleton, 390 A.2d 1001-02 man v. narrowly specif Tenant Branch lord and (D.C.1978) (distinguishing between claim of ically strictly cir limit its reach.... Rule 5 eviction, retaliatory defense to suit which is a cumscribes the defenses and counterclaims prose possession, and suit for malicious may assert in the Landlord and bringing possession, a suit for which Scheve, cution Tenant Branch.” Barnes action). Therefore, if independent even (D.C.1993). defending 64-65 a land avoided prevailed in his defense and had possession, action for a tenant lord-tenant obligation in the amount of the back rent against forestall eviction and defend $26,000, have recovered could not obligation pay making back rent allegedly the landlord-tenant action the general plea denial title and greater amount of for his loss equitable recoupment “assert an defense of Thus, judgment in business. landlord- money or set-off or a counterclaim for a court cannot render Mr. Shin’s civil tenant payment based on the rent or on of against Rose, judicata. complaint res See Carr v. expenditures claimed as credits (D.C.1997) (citing 701 A.2d Re premis or for relief related to the 30(2)).4 statement (quoting Super. es.” Id. at 65 n. 6 L & T Ct. 5(b)) (other added). (emphasis R. Defenses that, contest at their The landlords do not denial) general than a are limited to those instance, his counter- Mr. Shin withdrew payment based on the of or credits prejudice prosecution claims “without only rent because the reason the landlord- in other Branches of the of such claims empowered tenant court is to determine rent Court,” 5(b), they L Super. Ct. & T R. nor do owed is “to allow the tenant avoid eviction argue court consid- that the landlord-tenant by paying the rent due.” Man Winchester adjudicated ered and Mr. Shin’s claims Staten, 187, 192 agement Corp. v. n. Indeed, makes fraud and breach. the record (D.C.1976); Young, see Brown v. clear that the issue before the landlord- (disallowing breach of interpretation of one tenant court was possession). lease as defense to lease, suit for occupied by phrase in “leased and power “[T]he to assess the of rent tenants,” amount the lease’s which determined when summary possessory owed action does provision terminated and Mr. rent abatement give expanded authority rise to an simul full rent the land- Shin became liable for the adjudicate taneously conflicting to all claims attempting lords to collect. The land- were contend, however, between the landlord and tenant.” Winches that Mr. could lords Shin Management Corp., ter for supra, 361 A.2d have asserted the substance of his claims (citing Doby, .S.App. 192 n. 13 Tutt v. as a defense to their suit 148 U fraud and breach that, rent, 171, 174-75, and be- possession for and back D.C. 459 F.2d 1198-99 Thus, added). (D.C. (emphasis Argana, Id. at 715 618 A.2d 712 land case.” Osei-Kuffnor 1993), contrary. Osei-Kuffnor, is not to the appears on col- the court to have been focussed plaintiff personal injury the filed a action in preclusion. estoppel, not More- lateral claim and, Maryland small claims after it was court over, preclu- party against case the whom in that defendant, in favor of the filed another decided sion was asserted chose the first forum personal injury action of Columbia in the District Here, only jurisdiction. was Mr. limited arising from the same automobile accident. She Shin a defendant in the landlord-tenant however, judicata argued, be that res should not drop his counterclaim but he was induced applied to bar her District of Columbia lawsuit Finally, Osei-Kuffnor, the the landlords. jurisdictional subject because it was not to the any argue differ- plaintiff did not that there was damages limitation on of her earlier small claims two See id. at 714. ence between the Here, lawsuits. disagreed, Maryland. action in This court stat consistently argued that the Shin has Mr. jurisdictional ing that amount "[t]he that fact the was the landlord-tenant court issue before Superior greater D.C. Court is than the interpretation rent abatement the of the lease’s jurisdictional Georges the Prince amount of complaint provision, in his civil while the issues County Court does not demonstrate that District inducement of the lease are fraud in the underlying instant case the and claims in the facts adjudicated Mary- breach of its terms. already have not been so, precluded permissible scope cause he did not do he is now exceeded the under Rule 5(b), bringing present complaint voluntarily from the the withdrew his coun prej if for fraud and breach “without civil branch. Not so. Even Mr. Shin terclaims pro arguably udice” and the landlord-tenant could have defended the solely interpretation on the issue of ceeded landlord-tenant action with some of the same provision. the rent abatement In these cir arguments complaint he makes in his for withdrawal, cumstances, breach,5 voluntary such like for prejudice” the “dismissal without that that does mean that landlord-tenant entered, court have see otherwise would adjudicated court could have defense id., preclusive Pipher has no effect. See such a manner would have established (D.C.1996) Odell, (citing A.2d his counterclaim.6 We have noted that Co., Thoubboron v. Ford Motor portion where a of a defendant’s counter v. In and Interdonato fits, “partially but to some extent ex (D.C. terdonato, n. 11 5(b), scope permitted by ceeds” the Rule 1987)).7 juris landlord-tenant branch does not have remedy proper diction and the is for the governed by particular This is case court to dismiss the counterclaim without proceedings limitations of in the landlord- prejudice or transfer to the the ease civil noting, tenant branch. It also worth how- is Barrett, branch. See Mathis v. ever, preclusion the rules of are some- (D.C.1988). Here, 288-89 the landlord-ten plaintiffs applied what different as ant court did not dismiss Mr. Shin’s counter Although language in cases defendants. our prejudice, clear, pre- claim without nor did it transfer is far from or claim Rather, upon plaintiffs’ the case to the civil generally applicable branch. clusion is claims, the landlords’ motion that the counterclaim but not to defenses. In Stutsman v. housing proposition. 5.This is a doubtful As far as the do not contravene the code and thus concerned, possession warranty implied suit for fraud and would not breach the of habita- Thus, non-payment bility. way breach are no defense to of rent. See id. there was no Mr. Shin Brown, supra, majori prevailed "general See 364 A.2d at 1173. The could have denial” of a ty attempts distinguish obligation. this case from Winches back rent At most Mr. Shin what Management Corp., supra, ter 361 A.2d at attempted present argu- could have was to lease, that that case involved an ment that the landlords breached caus- possession, not, defense to but the landlord-tenant strictly ing damages. speaking, him This is rent, action here also included a claim for back obligation pay rent. It "defense” is a successful, to which Mr. Shin could somehow have asserted which, counterclaim if would affect legal (or defenses so as to have rendered the "lease payable the net amount as rent could even unenforceable, markedly void and or at least ... Shin). payment have resulted in a net to Mr. money judg affected the total amount of the required Deciding Mr. Shin's claims would have however, 5(b), See ante at 619. Rule ment." go beyond the landlord-tenant court to determin- only “equitable authorizes the assertion of fenses," de owed, ing the amount to decide Mr. relief,” request “equitable and the for Shin’s contract claims based on the lease. But joined even in a case "in which there is a claim ("Here, Campos, supra, ap- see 464 A.2d at 133 recovery Super. Ct. L & of rent in arrears.” payment pellant’s upon defense is not based 5(b). Moreover, majority speci T.R. does not disallowed.”). properly of rent and was fy legal how defense Mr. Shin could have asserted would defeat the landlords’ claim for 6. Mr. Shin would need to establish not rent, apparent. back and none is Fraud in the landlords, by the but also fraud and breach con- lease, example, inducement of the even if it sequential damage and to his busi- foreseeable lease, necessarily were void would not to the ness. resulting payment obligations excuse all from tenancy premises, Mr. actual in the and Shin’s that, majority’s argument 7. The even after volun provided the amount of rent for in the lease counterclaims, tarily withdrawing Mr. determining the amount would be considered in could have asserted their essence as a defense in Capitol House As of rent due. See Dameron "subsequent litigation” (D.C. ac in the landlord-tenant Partnership, socs. Ltd. 584 tion, 620, ignores 1981). the fact that the warranty see ante at Only implied breaches of the of objections to Mr.- Shin’s counter give complete landlords’ claims, habitability can rise to set- responsive withdrawal of the counter Management Corp., supra, off. See Winchester claims, trial, the all were of the same A.2d at The breaches of the and 361 commer Shin, alleged by particu no ."subse landlord-tenant action. There was cial lease breach of lease, litigation.” signage provisions quent lar build-out and

623 extinguishes the Mid- The “rule of bar” also Foundation Health Plan the Kaiser of Inc., (D.C. States, Atlantic 546 A.2d 367 losing plaintiff plaintiff’s claim and bars a 1988), judg that once a final the court held See claim. subsequent action on the from a plaintiffs ment had been entered in the favor 17(2), & 24. The same rule of id. at §§ ... of consortium his “survival/loss un- applies extinguish a defendant’s bar [plaintiffs] wrongful cause of action death §at See id. 23.12 successful counterclaim. merged nucleus] on the same factual [based preclusion, is estoppel, not claim Collateral into, judgment separate the final and his de- respect to a defendant’s applicable with Id. at 370. extinguished.” This is claim was supra. 17(3), § id. at note 8 fenses. See merger” extinguishes because the “rule of not the rules of Usually, it is plaintiff’s replaces the the claim and it with assert a counter- require a defendant precluding plaintiff judgment, a successful extinguishment; is the pain of claim on seeking from other remedies based on the compulsory on coun- function of court rules (Sec See extinguished claim. Restatement Judgments 22(2)(a).13 § & 24.10 terclaims. See id. 17(1),8 There is ond) §§ of 8. Restatement 9. Restatement 10. vides: vides: Judgment Effects of Former vides: Merger Dimensions or Bar—General judgment judgment A valid the claim is sive between the claim is other direct § bars a (2) ed and determined if its determination was When action between them on the same or a different claim, (1) rendered (3) essential to that have action on the of, pursuant action (2) (1) dant cannot §§ in an action action. rights defendant transaction, (1) tions, 19); 18, A If the If the although When a valid and final In an action interposed, judgment out of defendant is upon of the 19), subsequent and plaintiff valid judgment for Plaintiff—the General in favor of judgment (see 18); to the rules of of “Claim” for respect the claim final which the action arose. (Second) (Second) avail himself of defenses he extinguished or series of connected review, extinguishes plaintiff original extinguished and the § Rule a new claim Adjudication respect judgment; in favor of either upon cannot thereafter personal judgment or did parties, except is in conclusive, final action on that claim is in favor of the Concerning “Splitting” plaintiff: to the extinguished of be claim or to remedies favor interpose, personal judgment Judgments Judgments judgment, able to maintain an (see 27). all Purposes Merger merger and judgment —General or following extent: plaintiff's claim in a any part there- actually litigat- merged any part arise on the maintain an or bar includes all in the first against defendant, § is conclu- the defen- judgment appeal § rendered plaintiff, Rule of plaintiff Rules transac- might of the pro- pro- pro- (see (see or Restatement 12. 11. Restatement 13. Restatement vides: vides: vides: Judgment Judgment Bar Effect of Failure business unit conforms to the facts motivation, ing weight ies”, Where the defendant A valid and final in favor of the rales of bar rendered action”, (2) counterclaim (1) precluded, as a counterclaim but ed in Subsection posed taining after the rendition that rale of a counterclaim in (2) claim if: successful (a) (b) What Where the A defendant who thereby precluded action, unit, are to be determined The plaintiff by compulsory and the court; for Plaintiff and what for Defendant—The understanding or are related in factual a counterclaim is action on that and whether their treatment as relationship prosecution of the second from whether (Second) (Second) (Second) are and a valid and final or such consideration as whether defendant bars another action plaintiff’s grouping (2). Interpose him on the maintaining the same claim. personal judgment rendered applicable an action but fails to groupings constitute a “ser- may interpose on Defendant’s they form a convenient from interposes a claim as a parties’ expectations of he fails to do counterclaim time, space, origin, or between may interpose a claim claim, except as stat- Judgments Judgments Judgments required usage. constitutes Counterclaim claim is subsequently pragmatically, counterclaim, General Rule of an action the counter- judgment is to be a claim judgment. § 19 § 22 such that statute or so, he is Counter- do so is "trans- on the action main- inter- pro- pro- pro- giv- or as however, would not exception, an for even when a coun tation and breach of the lease compulsory, judgment terclaim is not in the landlord-ten- invalidate (or defense) previously action, the claim not premised lose ant which was on exis- prior judgment if the would be un asserted tence of lease.16 by subsequent action dermined successful considerations, Beyond ap these doctrinal (or defense). on the same claim See Laufer plication judicata of res this case would Brokers, Ltd., v. 532 A.2d Westminster underlying principles not advance the (D.C.1987) (precluding counterclaim that appel in which doctrine. “This is not a case could have been raised as defense to an trying get lant ‘a second bite of the English earlier action before courts because ” Employ apple.’ Faulkner v. Government guise allow ... in the “[t]o the defenses (D.C.1992). Co., ees Ins. impermissibly counterclaims would ‘undercut noted, already court As the landlord-tenant validity [prior English] judgment of the adjudi only did not but it could not have not permit relitigate ... and him to the case de for fraud and cated Mr. Shin’s counterclaims novo.’”) (quoting v. Bank Montreal (per breach. The fact that Mr. Shin failed (9th Cir.1980)); Kough, 612 F.2d inadvertently) haps erroneously to inter but Bros., Inc., Henderson v. Snider pose to the landlord-tenant action defenses (D.C.1981) (en banc) (precluding 486-87 him means that have been available to subsequent claim for fraud the induce possession property that he lost prior ment that would invalidate foreclosure money judgment had a entered action, allowing but claim for only him-—the relief that the landlord-tenant fiduciary and breach of mean, grant; court could it does not howev duty “separate aas and distinct cause of er, claimant, thereby gave up that as a action, which was not of the foreclosure Fistere, that court tort and contract actions which proceeding”); Comer could not address. (noting party that a fail ing compulsory to file a counterclaim is are not the current the landlords filing independent from barred being multiple hounded and vexatious liti- such claim and that res barred sub gation brought by party seeking to reliti- sequent its nec action where success “would gate have never his claim. Shin’s claims essarily depend upon” contrary determina litigated. The landlords now face the been point already prior tion of established totally anticipated consequences of their mo- Judg litigation); Restatement (Second) tion before the landlord-tenant court dis- 22(2)(b).14 ments miss Mr. Shin’s counterclaims. principles present Applying these Lastly, generally do not countenance we ease, first, estoppel there is no collateral here appeal inconsis arguments made on that are as the landlord-tenant court did not consider arguments the trial court. Second, tent with made to claims. Mr. Shin’s fraud and breach Ltd. Part case, seen, See District Wical Columbia this as we have- Mr. Shin’s (D.C.1993). 174, 182 That compelled, nership, 630 A.2d but counterclaim was argu usually applied in the context of by Super. L T R. rule is prohibited was Ct. & 5(b).15 Third, appeals in the court of judgment for Mr. in the ments made misrepresen- arguments differ from made before the present action for for judgment judgment precluded nullify would initio would be would impair rights the initial or court, predicated action. established in the initial was landlord-tenant which claims the existence of a valid lease. Mr. Shin’s 13, supra. 14. See note alleged misrepre- damages resulting from the breach, however, would not be sentation and If the landlords’ case had been filed in the precluded for Mr. Shin because a branch, Mr. Shin’s counterclaims civil action "nullify ... would not the initial compelled by Super. Ct. Civ. R. would have been 13(a). rights impair established in the initial action." Id. 16. Under 22(b), appear supra, see note it would request void ab Mr. Shin's to declare the lease In this appeal is taken. court from which equally applicable a con it when

context in a different

trary argument has been made arguing preclu litigant

case It appeal on such other case.

sion on based litigant who the other case’s

is the asserts litigant’s

preclusive effect that makes to be litigation claimed

actions the other judi-

preclusive important of the res op inquiry. cata See 26(1)(a). Moreover, liti

gant proof. See id. has the burden Thus, that we do not

cmt. f. to the extent

have the record landlord-tenant that we evaluate whether

before us so agreed “in or effect” that

the landlords terms bring

Mr. be able to his counter Shin should id. at

claims in a see 26(1)(a), deficiency supra, is to note detriment. See Cobb v. Stan

the landlords’ (D.C. Co., Inc., Drug

dard

1982). reasons, respectfully I dissent

For these remand the case to

and would reverse and prosecute his claims for

allow his business occasioned to breach of

landlords’

the lease. SOFAER, Respondent.

In re Abraham D.

No. 97-BG-1096. Appeals. Court of

District Columbia

Argued April 1998. April

Decided

Case Details

Case Name: Shin v. Portals Confederation Corp.

Court Name: District of Columbia Court of Appeals

Date Published: Apr 22, 1999

Citation: 728 A.2d 615

Docket Number: 96-CV-618

Court Abbreviation: D.C.