Ensley v. Pitcher

• Decision Date: 02 November 2009
• Docket Number: No. 61537-8-I.,No. 61723-1-I.
• Citation: Ensley v. Pitcher, 222 P.3d 99, 152 Wash.App. 891 (Wash. App. 2009)
• Court: Washington Court of Appeals
• Parties: Nicholas ENSLEY, Respondent, v. Clifford PITCHER and "Jane Doe" Pitcher, husband and wife, and the marital community composed thereof, Petitioners.

222 P.3d 99

152 Wash.App. 891

Nicholas ENSLEY, Respondent, v. Clifford PITCHER and "Jane Doe" Pitcher, husband and wife, and the marital community composed thereof, Petitioners.

No. 61537-8-I.

No. 61723-1-I.

Court of Appeals of Washington, Division 1.

November 2, 2009.

Jennifer L. Brown, Maggie E. Diefenbach, Melissa O'Loughlin White, Cozen O'Connor, Seattle, WA, for Petitioners.

Aaron Lewis Adee, The Adee Law Firm, PLLC, Seattle, WA, for Respondent.

APPELWICK, J.

¶ 1 Ensley sued Pitcher, a bartender, claiming he negligently overserved alcohol to a woman who crashed her car, causing serious injuries to Ensley. Pitcher asked the trial court to dismiss on the grounds of res judicata and collateral estoppel. Summary judgment had been granted in a separate lawsuit, dismissing Ensley's identical negligence claim against Pitcher's employer. The trial court denied Pitcher's motion to dismiss and certified a question for this court on discretionary review: whether Pitcher's alleged admissions to a third party, which had been excluded as hearsay in the suit against the employer, would be admissible as admissions of a party opponent, therefore supporting this lawsuit, because there was not "substantially the same evidence." Because Ensley's suit against Pitcher is barred by res judicata, we remand for dismissal with prejudice.

¶ 2 Ensley also filed a motion for discretionary review, asking the court to find that the trial court erred in denying his motion to amend the complaint to add the owner of Red Onion as a defendant, and add a claim of vicarious liability against him. Because the suit against Pitcher is barred by res judicata, Ensley's motion is moot.

FACTS

¶ 3 Nicholas Ensley suffered serious injuries when Rebecca Humphries crashed her car into two parked cars after an evening of drinking. Ensley first brought suit against the owner of Red Onion Tavern, Humphries, and two other businesses that served alcohol to Humphries the night of the collision. Red Onion moved for summary judgment based on the evidence that Humphries was at Red Onion for less than 30 minutes, she consumed less than one alcoholic drink at that location, others present at Red Onion observed that Humphries was not apparently intoxicated while at Red Onion, and she consumed several additional drinks after leaving Red Onion and before the accident.¹

¶ 4 Ensley opposed summary judgment, relying in part on the deposition of Daniel Ahern, in which Ahern recalled a conversation he had with Clifford Pitcher, the bartender at Red Onion. Ahern recalled that Pitcher acknowledged that Humphries had kind of glassy eyes and that he should not have served her. Ahern testified:

Q Since the crash who have you talked to about the facts of that night?

A I've discussed it with Chris, Stacy, Cliff the owner, and Cliff the bartender at the Red Onion.

Q What did you and Cliff at the Red Onion discuss?

A I was just asking — I just kind of wanted to get a sense of what he saw from that — from that night, and just if — how everybody looked. And I just kind of wanted to get — just to get a sense of that.

Q When did this conversation take place?

A A couple days after the accident.

Q At the Red Onion?

A Yes.

Q Were you drinking at the time?

A No. I just stopped in after work and was on my way home.

Q What did Cliff the bartender at Red Onion tell you?

A He said Rebecca looked a little glassy-eyed, and I don't remember what he said about Nick.

Q From your — well, do you remember anything else about that conversation?

A No.

Q Did he say how you looked?

A He said I looked a little glassy, but not enough that he wouldn't serve me a beer.

Q Did he say that Rebecca looked in a condition where he wouldn't serve her a beer?

A He said she looked a little more glassier than us, but . . . (Pause.)

Q So —

A Yes.

Q — did he say that Rebecca was in a condition where he would not have served her a beer?

A Yes. I believe so, yes.

¶ 5 Red Onion moved to strike Ahern's testimony as hearsay. Ensley argued that Pitcher was a speaking agent for Red Onion, and thus the testimony was admissible as an admission of a party opponent. The trial court granted the motion to strike Ahern's testimony as inadmissible hearsay, granted partial summary judgment dismissing Ensley's claims against Red Onion, and denied reconsideration.

¶ 6 On June 18, 2007, Ensley asked the court for entry of final judgment of the court's order granting Red Onion's motion for summary judgment. Red Onion opposed entry of final judgment, because Ensley had already sought discretionary review of the order granting Red Onion's motion for summary judgment. A commissioner denied Ensley's motion for discretionary review on June 25, 2007.² On July 13, 2007, the trial court denied Ensley's motion for entry of final judgment.³

¶ 7 On November 21, 2007, Ensley asked the trial court to allow him to amend his complaint to include a claim against Pitcher individually. The motion was filed well into discovery and Ensley had known of Pitcher's alleged statements to Ahern since at least February 2007. The trial court denied the motion to amend, noting that it would not be fair to the defendants to delay the case so close to the scheduled trial.

¶ 8 Ensley then filed a new lawsuit, the subject of this appeal, naming Pitcher as the defendant, for negligent service of alcohol to Humphries at the Red Onion. Pitcher moved to dismiss, arguing that summary judgment in favor of the owner of Red Onion in the first lawsuit barred the new lawsuit. The trial court denied the motion to dismiss. The order stated that the plaintiff's claims against Pitcher are neither res judicata nor barred by collateral estoppel.⁴ The court also denied Pitcher's motion for reconsideration. The trial court then entered a certification pursuant to RAP 2.3(b)(4), with a statement explaining the reasons for certification:

The threshold issue in this case is the potential application of res judicata and/or collateral estoppel where the scope of evidence presented in successive lawsuits may potentially differ. At issue are significant public policy issues critical to a defendant's right to finality following a dismissal and a plaintiff's right to present a case. There are substantial grounds for differences of opinion on these important issues, as reflected in the arguments and case law submitted by the parties in this case. This is an issue of first impression in Washington. Immediate interlocutory review by the Court of Appeals will allow for immediate dismissal of this action, without the need for potentially unnecessary development of this case.

The trial court also certified its order denying defendant's motion to dismiss. Based on the certification, a commissioner granted review.

¶ 9 Meanwhile, Ensley filed a motion to amend the complaint in this case to add the owner of Red Onion as a defendant and to add a claim of vicarious liability against him. The trial court denied Ensley's motion to amend the complaint and his motion to reconsider. Ensley filed a motion for discretionary review of the court's denial of his motion to amend the complaint, which a commissioner consolidated with our review of the order denying the defendant's motion to dismiss, and passed the motion to the panel deciding Pitcher's motion on the merits.⁵

DISCUSSION

I. Res Judicata

¶ 10 "Filing two separate lawsuits based on the same event — claim splitting — is precluded in Washington." Landry v. Luscher, 95 Wash.App. 779, 780, 976 P.2d 1274 (1999). "`The doctrine of res judicata rests upon the ground that a matter which has been litigated, or on which there has been an opportunity to litigate, in a former action in a court of competent jurisdiction, should not be permitted to be litigated again. It puts an end to strife, produces certainty as to individual rights, and gives dignity and respect to judicial proceedings.'" Marino Prop. Co. v. Port Comm'rs, 97 Wash.2d 307, 312, 644 P.2d 1181 (1982) (quoting Walsh v. Wolff, 32 Wash.2d 285, 287, 201 P.2d 215 (1949)). Res judicata bars such claim splitting if the claims are based upon the same cause of action. See 14A KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE § 35.33, at 479 (1st ed.2007) (distinguishing collateral estoppel's requirement that the issue be actually litigated from res judicata's more lenient standard where issues that could have been litigated and resolved are barred). Whether res judicata bars an action is a question of law we review de novo. Kuhlman v. Thomas, 78 Wash.App. 115, 120, 897 P.2d 365 (1995); Atl. Cas. Ins. Co. v. Or. Mut. Ins. Co., 137 Wash.App. 296, 302, 153 P.3d 211 (2007).

¶ 11 The threshold requirement of res judicata is a valid and final judgment on the merits in a prior suit.⁶ Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 865, 93 P.3d 108 (2004). We have held that summary judgment can be a final judgment on the merits with the same preclusive effect as a full trial, and is therefore a valid basis for application of res judicata. DeYoung v. Cenex Ltd., 100 Wash.App. 885, 892, 1 P.3d 587 (2000).

¶ 12 Ensley contends that the summary judgment granted in favor of Red Onion in the suit against the tavern owners was not a final judgment, because the trial court had not entered the requisite order of finality pursuant to CR 54(b).⁷ However, the finality requirement for preclusion⁸ is distinct from the finality requirement for purposes of appeal. See Cunningham v. State, 61 Wash. App. 562, 566-67, 811 P.2d 225 (1991); 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4432, at 52-60 (2d ed.2002). In Cunningham, we addressed the definition of finality for collateral estoppel purposes by looking to the Restatement (Second) of Judgments (1982) and other federal authority. We do the same here to address the definition of finality for res judicata.

¶ 13 The Restatement (Second) of Judgments states "[t]he rules of res judicata are applicable only...