Davis v. Davis

• Citation: 663 A.2d 499
• Decision Date: 07 August 1995
• Docket Number: No. 93-FM-254.,93-FM-254.
• Parties: Lilton I. DAVIS, Appellant, v. Mary O. Short DAVIS, Appellee.
• Court: D.C. Court of Appeals

663 A.2d 499

Lilton I. DAVIS, Appellant, v. Mary O. Short DAVIS, Appellee.

No. 93-FM-254.

District of Columbia Court of Appeals.

Argued February 10, 1995.

Decided August 7, 1995.

Patricia A. Berlin, Arlington, VA, for appellant.

Chukwuma I. Odelugo, Washington, DC, for appellee.

Before FERREN, FARRELL, and RUIZ, Associate Judges.

FARRELL, Associate Judge:

On this appeal from a denial of declaratory relief, the issue is whether the trial court correctly applied the doctrine of collateral estoppel to block appellant from relitigating the issue of whether his estranged wife and her two minor children could be made to undergo blood testing in connection with the issue of paternity. We affirm.

I. The Facts

Appellee Mary O. Short Davis was married to Julius R. Short until she filed for divorce in late 1978. Also in 1978, Mrs. Davis gave birth to Kelli Davis, and in 1980 she gave birth to Lilton Davis, Jr. In June 1984 Mrs. Davis married appellant Lilton Davis. On May 25, 1989, Mr. Davis filed a complaint for divorce to which, on July 2, 1989, Mrs. Davis filed an answer and counterclaim. Mr. Davis moved to compel Mrs. Davis, Kelli, and Lilton Jr. to undergo HLA/DNA blood tests to determine whether Mr. Davis is the biological father of the children. Following four days of evidentiary hearings on the motion, Judge George W. Mitchell denied it on February 2, 1990, nunc pro tunc to December 8, 1989, the final hearing date. He concluded that Mr. Davis had "only shown a `mere suspicion' of non-paternity. He has not overcome the statutory presumption of paternity, see D.C.Code §§ 16-909(a), -909(a)(3) (1989)." Judge Mitchell scheduled a date for trial of the divorce action, but on April 24, 1990, Mr. Davis voluntarily dismissed his complaint for divorce. Mrs. Davis' counterclaim remained outstanding.

On August 8, 1990, Mr. Davis, alleging that he had discovered that Mrs. Davis had been married to another man at the time of Kelli's birth, moved pursuant to Super.Ct.Civ.R. 60(b) to vacate the denial of the motion for an HLA blood test. On October 4, 1990, Judge Mitchell held a hearing on the asserted newly discovered evidence, and on January 10, 1991, he denied the renewed request for a blood test.¹

Also in January 1991, Mrs. Davis was granted leave to amend her counterclaim to include a prayer for absolute divorce. The amended claim stated that the parties had separated on February 16, 1989. In May 1991 Judge Zinora Mitchell-Rankin granted Mr. Davis' motion to dismiss the counterclaim on the ground that it failed to allege the jurisdictional requirement that the parties had been separated for six months "next preceding the commencement of the action." D.C.Code § 16-904(a)(2) (1989). It appears that no subsequent action for divorce has been filed.

On May 23, 1991, Mr. Davis filed in Superior Court the present complaint for a declaratory judgment that he was entitled to have Mrs. Davis and the two minor children undergo blood testing. Then—Judge Eric H. Holder, Jr. heard argument on the complaint and, in a written memorandum order and opinion, denied declaratory relief on the ground that collateral estoppel barred appellant from relitigating the issue already twice decided in the divorce action. Following the denial of his motion to reconsider, Mr. Davis brought this appeal.

II. Analysis

Our task is to determine whether Judge Holder correctly applied collateral estoppel to the facts of this case.² That is a legal issue which we decide de novo. See Smith v. Jenkins, 562 A.2d 610, 613 (D.C.1989).

Collateral estoppel, or issue preclusion,

renders conclusive in the same or a subsequent action determination of an issue of fact or law when (1) the issue is actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum.

Washington Medical Center v. Holle, 573 A.2d 1269, 1283 (D.C.1990); see Smith v. Jenkins, 562 A.2d 610, 617 (D.C.1989); Ali Baba Co. v. WILCO, Inc., 482 A.2d 418, 421 (D.C.1984).³ Of the four requirements, only the second—determination by a valid, final judgment on the merits—presents analytical difficulty here. We therefore defer discussion of that requirement until last.

A. "Actually litigated"

The issue raised in the complaint for declaratory judgment was whether Mrs. Davis and her children should be compelled to undergo HLA blood testing. That issue had already twice been submitted for the trial court's determination: first, in Mr. Davis' 1989 motion for a blood test, and second, in his August 8, 1990 Rule 60(b) motion to vacate the earlier denial. Thus, as appellant concedes in his brief, "the issue of HLA testing was actually litigated." The fact that the related issues of divorce, child custody, and child support were not litigated (because appellant dismissed his complaint for divorce) is beside the point. In suggesting that these unresolved questions made issue preclusion inapplicable, appellant mistakenly relies on Holle, supra. In that case the issues asserted to have been preclusively resolved in an earlier proceeding (in bankruptcy) had been "specifically reserved" by the bankruptcy judge "for resolution in another forum," 573 A.2d at 1280, a very different situation than that presented here.

B. "Full and fair opportunity for litigation"

In Oubre v. District of Columbia, 630 A.2d 699 (D.C.1993), an appeal from an administrative agency decision, "an evidentiary hearing had been held on petitioner's claim, and the parties were given an opportunity to make opening and closing statements, to call witnesses, to cross-examine witnesses, and to introduce exhibits. The hearing examiner made findings of fact and conclusions of law on the issues...." This court therefore found that the parties had "had an adequate opportunity to litigate" for purposes of issue preclusion. Id. at 703.⁴ So, too, Mr. Davis had a full and fair opportunity to litigate the issue whether Mrs. Davis and the two children should be required to undergo blood testing. Judge Mitchell held successive hearings on November 28, November 30, December 4, and December 8, 1989, at which Mr. Davis had the opportunity to present witnesses and challenge contrary evidence. Indeed, he cannot presently maintain otherwise, since he has furnished us with no transcript of those hearings. Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982). Appellant argues that Mrs. Davis' failure to disclose at these hearings her marriage to another man at the time of Kelli's birth prevented full litigation of the paternity issue; but even if that were true, appellant received a full and fair opportunity to litigate the effect of this newly discovered evidence at the October 4, 1990 hearing, where, as Judge Holder found, the evidence was presented and there was "vigorous argument" by counsel as to its significance. Once more, Mr. Davis has failed to make the October 4 transcript part of the record on appeal, and thus is in no position to question the adequacy of his opportunity to renew the issue of blood testing.

C. "Determination essential to the judgment"

Judge Holder found that the issue of whether Mrs. Davis and the two children could be made to submit to HLA tests had become the parties' "primary concern" in the divorce claim and counterclaim. On the scant record of the proceedings appellant has provided us, we cannot say that that determination is erroneous. Judge Mitchell's February 2, 1990 and January 10, 1991 orders were therefore "essential" to any judgment that might subsequently be entered. Compare Lassiter v. District of Columbia, 447 A.2d 456, 460 & n. 8 (D.C.1982) (police officer's reason for responding to situation by striking appellant on the head was "a key issue in the dispute" before the earlier tribunal (citation omitted)) with Goldkind v. Snider Bros., Inc., 467 A.2d 468, 473 (D.C.1983) ("claim based on breach of an agency relationship was irrelevant to the prior foreclosure proceeding," hence collateral estoppel "raised no bar to appellants' cross-claim" based on the same breach). Indeed, given appellant's zeal in pursuing the issue by the motion to vacate based on newly discovered evidence, and the successive orders issued denying his request for a blood test, there is no question but that the testing issue lay at the heart of the parties' controversy. The fact that no judgment on the merits of the divorce action was actually entered brings us to the remaining issue for consideration.

D. "A valid, final judgment on the merits"

The novel question we must decide is whether an order of the trial court not "final" for purposes of appellate review may nonetheless justify application of collateral estoppel when every other requirement of the doctrine has been met. In the particular circumstances of this case, where Mr. Davis' voluntary dismissal of his complaint is responsible for his inability to obtain appellate review, we answer this question affirmatively.

An aggrieved party may appeal as of right from a "final order or judgment" of the Superior Court. D.C.Code § 11-721(a)(1). "To be final, and therefore reviewable, an order must dispose of the whole case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already rendered." Dyer v. William S. Bergman & Assocs., 635 A.2d 1285, 1287 (D.C.1993) (citations and internal quotation marks omitted). Accordingly, subject to limited exceptions not applicable here, Section 11-721 "bars an appeal unless the order appealed from disposes of all issues in the case; it must be final as to all the parties, the whole subject matter, and all of the causes of action involved." L.A.W. v. M.E., 606 A.2d 160, 161 (D.C.1992).

Judge Mitchell's February 2, 1990 order denying the motion for a blood test was not final in this sense because it left...