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FRANCO v. DISTRICT OF COLUMBIA
3 A.3d 300 (2010)
Samuel N. FRANCO, Appellant,
v.
DISTRICT OF COLUMBIA, Appellee.
No. 09-CV-204.
District of Columbia Court of Appeals.
Argued September 30, 2009.
Decided August 26, 2010.
Emil Hirsch
, with whom Steven A. Pozefsky, Washington, DC, was on the brief, for Autozone Development Corporation and Autozone Stores, Inc., amici curiae, in support of appellant.
Before GLICKMAN and FISHER, Associate Judges, and WAGNER, Senior Judge.
WAGNER, Senior Judge: Appellant, Samuel N. Franco, brought this action in Superior Court for injunctive relief and monetary damages under 42 U.S.C. § 1983 alleging that appellee, District of Columbia (District), violated his constitutional rights by taking his private property for redevelopment solely for a private and non-public purpose. Franco claimed that the asserted public purpose for the taking was pretextual. The trial court granted summary judgment for the District on the ground that the doctrine of collateral estoppel precluded Franco from litigating his pretext claim. On appeal, Franco argues that the trial court erred in giving collateral estoppel effect to an issue resolved in a case to which he was not a party. We conclude that the trial court erred in giving collateral estoppel effect to an issue decided in a case to which Franco was neither a party nor in privity with a party. Under the circumstances of this case, it would be inappropriate to affirm on a ground not relied upon by the trial court as requested by the District. Therefore, we reverse and remand for further proceedings consistent with this opinion. I.We state briefly the factual background for this case and related cases. Other facts pertinent to our consideration of the issues before the court are set forth in the discussion of the issues in Section II. A. Franco's § 1983 ActionFranco is the owner of improved real property located at 2838 Alabama Avenue, S.E. and of a leasehold interest (along with Allan and Nathan Franco) in the adjacent real property located at 2834 Alabama Avenue, S.E. in the District. (referred to collectively as the "Property"). Franco owns and operates a business, Discount Mart, in the Property, which is within the Skyland Shopping Center (Skyland site) located at Alabama Avenue, Good Hope Road, and Naylor Road, S.E. Franco's property was taken through eminent domain to redevelop the Skyland site. Franco brought this action under 42 U.S.C. § 1983 alleging that the taking violated his constitutional rights because it was for a private and non-public purpose and because the asserted public purpose was pretextual. The District filed a motion to dismiss Franco's complaint under Super. Ct. Civ. R. 12(b)(6). It attached to the motion its Motion for Partial Summary Judgment in a related condemnation case against Franco, i.e., District of Columbia v. 0.03 Acres of Land and Samuel N. Franco, et al.,
C.A. 05-5335 (hereinafter Franco Condemnation case). Also before the court was a copy of an order in a condemnation case before the Superior Court involving another property within the Skyland site described as District of Columbia v. 0.40 Acres of Land, et al., C.A. No. 05-5336 (hereinafter DeSilva). The owner and tenant in the DeSilva case asserted as a defense to the taking a claim of pretext similar to the one advanced by Franco in the present case.
1. The application of the doctrine in this case concerns what is described as defensive collateral estoppel in that it was used to prevent Franco, plaintiff below, from relitigating in this case the pretext issue determined in favor of the District in a prior case. See Davis, supra, 663 A.2d at 501 n. 3 (citations omitted) (characterizing as defensive collateral estoppel a defendant's effort to prevent the plaintiff from relitigating a blood testing issue determined against him in their prior divorce proceeding). The present case, unlike Davis, involves the non-mutual application of the doctrine by the trial court. See Modiri, supra, 904 A.2d at 394, 398 (citing Ali Baba Co. v. WILCO, Inc., 482 A.2d 418, 421-22 (D.C. 1984)) (other citation omitted) (describing non-mutual use in cases where one party to the new case was not a party to the previous litigation). 2. Amici, Auto Zone Development Corporation and AutoZone Stores, Inc. (collectively AutoZone), have legal interests in property within the Skyland site. AutoZone is plaintiff in a case against the District asserting a claim under 42 U.S.C. § 1983 which is presently stayed. It also anticipates that the District will file condemnation proceedings against its property. Its concern is that if the collateral estoppel ruling is upheld in this case, it will be used against AutoZone also. 3. Super. Ct. Civ. R. 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. 4. Super. Ct. Civ. R. 12(b)(6) provides that when a motion under Rule 12(b)(6) is filed and "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." 5. Count I of Franco's pretext claim in this case is essentially the same as his pretext defense in Franco I.
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