Decision Date06 October 1992
Docket NumberNo. 89-CV-1436,89-CV-1436
Citation615 A.2d 533
PartiesGerald J. GILLES, Appellant, v. Clifton WARE, Appellee.
CourtD.C. Court of Appeals

Appeal from the Superior Court, Richard A. Levie, J.

Edward F. Kearney, Washington, D.C., for appellant.

Susan S. McDonald, Asst. Corp. Counsel, with whom Herbert O. Reid, Sr., Corp. Counsel at the time of filing, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief for appellee.

Before FERREN and WAGNER, Associate Judges, and REILLY, Senior Judge.


The judgment of the Superior Court is affirmed based on the analysis in Parts II.-III. of Judge FERREN's opinion, which Judge WAGNER joins and, further, based on the result reached by Judge WAGNER and Judge REILLY for different reasons, as indicated in their separate opinions.

FERREN, Associate Judge, concurring in part and dissenting in part:

For the reasons that follow, in particular in Part IV., I would reverse the grant of summary judgment and remand the case for trial.


Appellant Gilles appeals from a summary judgment rejecting his constitutional, civil rights, and negligence claims on the ground that they were barred by the doctrine of res judicata (claim preclusion). Appellant's suit arose out of appellee Ware's allegedly negligent placement of 44 points on appellant's driver's record, resulting in the wrongful suspension of his license and his ultimate loss of livelihood as a taxicab driver. The issues on appeal are (1) whether the trial court had jurisdiction to decide the preclusion issue when appellant failed to pursue an administrative remedy for his license revocation; (2) if there was jurisdiction, whether res judicata precluded appellant from pursuing his negligence claim in "state" court1 after dismissal on the merits of his constitutional and civil rights claims in federal court, when appellant had not joined his negligence claim as an alternative theory of recovery in the federal action, invoking the court's discretionary exercise of pendent jurisdiction; (3) even if res judicata ordinarily would apply because of a failure to invoke the federal court's pendent jurisdiction, whether res judicata does not apply when the federal claim is summarily dismissed before trial and, as a consequence, the federal court presumably would have declined to exercise its pendent jurisdiction; and (4) in any event, whether appellee Ware waived the right to invoke res judicata by either expressly consenting to, or at least implicitly acquiescing in, appellant's decisionto prosecute his federal and state claims separately.

I conclude, and Judge WAGNER concurs, that (1) the trial court had jurisdiction over the negligence claim because appellant was not required to exhaust administrative remedies; (2) appellant improperly split his cause of action because the negligence claim arose out of the same factual transaction that gave rise to the federal lawsuit, and the federal court could have exercised pendent jurisdiction over the state (negligence) claim; and (3) ordinarily, under these circumstances, res judicata would bar the Superior Court lawsuit, unless the defendant has waived the benefit of the rule against claim-splitting either explicitly or implicitly.

More specifically, Judge WAGNER and I in the majority agree on two significant issues. First, to avoid problems inherent in "claim-splitting," a party who files a claim in federal court should invoke that court's pendent jurisdiction and join in the federal complaint all theories of relief under state law arising out of the same transaction. Second, a litigant who fails to do so and later attempts to bring the state claim in state court will find the state claims barred by res judicata unless (A) the federal court has clearly indicated it would not have exercised its pendent jurisdiction, or (B) the party seeking to rely on res judicata has waived it by express or implied consent.

Judge WAGNER and I part company, however, over whether appellee has stated a prima facie case supporting his motion for summary judgment based on res judicata. Judge WAGNER concludes that appellee has stated that prima facie case, and that appellant failed to rebut it. I conclude that appellant, in opposing summary judgment, has sufficiently met his burden of production to rebut appellee's prima facie defense. As a consequence, I believe that appellee can be said as a matter of law to have acquiesced in appellant's claim-splitting because he failed to object when appellant dropped his tort claim from his federal complaint in order to file the present tort action in Superior Court. The judgment accordingly should be reversed and the case remanded for trial.


In April 1984, appellant, a taxi driver in the District of Columbia, received a notice from the Bureau of Motor Vehicles Services (BMVS) proposing to revoke his driver's license because his driving record showed traffic violations totalling 44 points.2 The notice informed appellant of a hearing on the proposed revocation in three weeks. At the May 1984 hearing, appellant contended that he had not accumulated 44 points. The hearing examiner ruled against him and revoked appellant's license on the day of the hearing. Appellant did not exercise his right to appeal the examiner's decision to an Appeals Board. See D.C. Code §§ 40-632, -634 (1990); 18 DCMR § 1004.1, 3014.1, 3014.9 (1987); Kuflom v. Bureau of Motor Vehicle Services, 543 A.2d 340, 344 (D.C. 1988). Four days after the revocation, the hearing examiner issued appellant a restricted driver's license authorizing him to operate his taxi Monday through Saturday, from 9:00 a.m. to 7:00 p.m.3

One year later, in May 1985, appellant's counsel wrote a letter to the Administrator of the Transportation Systems Administration asking him to review appellant's record and to overturn the revocation. In June 1985, the Administrator responded that "this revocation was issued in errorsince points are not assessed until a moving traffic infraction is adjudicated. Your client should have been suspended at that time for unsatisfied traffic infractions. . . ." He voided the revocation and issued a Notice of Proposed Suspension. By August 1985, the 44 points had been removed from appellant's driving record.

On July 9, 1985, appellant filed suit in United States District Court for the District of Columbia against a number of District officials (the "District defendants") alleging that their inaccurate maintenance of his driver's license record had violated his constitutional rights and constituted libel, intentional infliction of emotional distress, and negligence. He demanded $4.5 million in damages. Appellant's pleading recognized that the federal court had "pendent jurisdiction to consider other claims which arise out of the same set of facts as the federal claims." In December 1985, however, appellant filed an amended complaint alleging only the constitutional due process claim and dropping all state law claims. By August 1987, all defendants had been dismissed except Clifton Ware, a BMVS supervisor responsible for physically entering the incorrect points onto appellant's driver's record. On November 12, 1987, the federal court granted the District's motion for summary judgment, concluding from the motions, the stipulated facts, and other materials of record that there was no genuine triable issue of material fact. See Gilles v. Touchstone, 676 F. Supp. 341, 346 (D.D.C. 1987).

Meanwhile, on April 27, 1987, appellant had filed suit in Superior Court alleging that Clifton Ware had "negligently or in violation of [appellant's] constitutional and civil rights placed points on [appellant's] Driver's Record. . . . As a result, [appellant] was denied his employment as a taxicab driver and was refused citizenship."4 Appellant demanded $4.5 million in damages. Within the month, appellee Ware filed a motion requesting a stay of these proceedings pending the outcome of the federal lawsuit. The stay was granted. Two years later, after the stay had been lifted, appellee filed his answer, asserting that the state claim was barred by the federal court judgment and citing Gilles v. Touchstone. Six months later, on November 17, 1989, the Superior Court granted appellee's motion for summary judgment, ruling that "plaintiff's action is precluded by the prior federal court judgment on the same cause of action."


Appellee Ware argues for the first time on appeal, and Judge REILLY agrees, that appellant's failure to appeal the suspension of his driver's license to the Department of Transportation Appeals Board, see D.C. Code § 40-631 (1990), barred his negligence claim in court under the doctrine requiring exhaustion of administrative remedies. Accordingly, appellee contends, we should sustain the trial court's dismissal of appellant's claim on the ground that the trial court lacked jurisdiction over the negligence claim. It would follow that we need not — and should not — reach the issue of res judicata. We agree that if the exhaustion of administrative remedies doctrine were to apply to appellant's negligence claim, the trial court would not have jurisdiction. See D.C. Code §§ 1-1510 (1987), 40-635 (1990). The exhaustion doctrine, however, does not apply here.

Judge REILLY reasons that one "who suffers harm by his own failure to appeal a decision he could have challenged — and arguably prevented — has no standing to recover damages in a trial court for the collateral consequences of not availing himself of his legal rights." Post at 555. The issue of who caused appellant's damages, however, is distinct from the issue of the Superior Court's subject matter jurisdiction to hear the case. It may very well be that appellant's failure to pursue an administrative remedy at the time his license was suspended was a "but for" cause of the damages he alleges. See, e.g., McCord v. Green, 362 A.2d 720, 725-26 (D.C. 1976)(discussing...

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