Tutt v. Doby, No. 24248.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtFAHY, Senior Circuit , and LEVENTHAL and MacKINNON, Circuit
Citation459 F.2d 1195
PartiesCecil TUTT, Appellant, v. Lewis DOBY, Appellee.
Docket NumberNo. 24248.
Decision Date16 March 1972

459 F.2d 1195 (1972)

Cecil TUTT, Appellant,
v.
Lewis DOBY, Appellee.

No. 24248.

United States Court of Appeals, District of Columbia Circuit.

Argued December 16, 1971.

Decided March 16, 1972.


459 F.2d 1196
COPYRIGHT MATERIAL OMITTED
459 F.2d 1197
Miss Marilyn Fisher, Washington, D. C., with whom Messrs. C. Christopher Brown, Baltimore, Md., and Richard B. Wolf, Washington, D. C., were on the brief, for appellant

Mr. Herman Miller, Washington, D. C., for appellee.

Before FAHY, Senior Circuit Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

LEVENTHAL, Circuit Judge:

In 1967, landlord Lewis Doby filed a suit for possession of an apartment against his tenant, Cecil Tutt, in the Landlord and Tenant Branch of what was then the District of Columbia Court of General Sessions. The complaint alleged that Tutt was in default for $275 rent. The complaint was served by a United States Marshal by "posting" on the door to the apartment. A default judgment was entered fifteen days after the action was filed when Tutt failed to appear. Tutt then vacated the premises.

In 1968, Doby sued Tutt again, this time for $275 plus interest. This action was grounded in the non-payment of the rent which had given rise to the possessory action the year before.1 He obtained a summary judgment, which the District of Columbia Court of Appeals (DCCA) affirmed.

The DCCA stated: "A judgment in a suit for possession, including one by default, is res judicata as to those issues litigated and determined therein in any subsequent suit for rent." It held that Doby's entitlement to the $275 was conclusively established by the first lawsuit under principles of res judicata.2 We reverse.

I.

While the term res judicata is sometimes used broadly, as in the DCCA opinion, it may help analysis to confine it to its classic and precise reference, as interposing an absolute bar to the relitigation of the same cause of action between the parties or their privies. If the doctrine of res judicata applies, both parties are concluded, not only as to things which were determined but as to all matters which might have been determined as well. Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877); Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122 (1955).

The case before us involves what is more precisely referred to as the doctrine of collateral estoppel. That rule prohibits parties who have litigated one cause of action from relitigating in a second and different cause of action matters of fact which were, or necessarily must have been, determined in the first litigation. That collateral estoppel is the principle involved in the case at bar ensues from the condition that an action for money due is different from a possessory action to recover property or its use. These actions are differently focused, they serve different purposes, and are governed by significantly different procedures. Our statutes provide a landlord with a summary action for possession. 16 D.C.Code §§ 1501-1503, 45 D.C.Code § 910. This action may be begun without personal service of process; if no person can be found for service of process, the complaint may be "posted" upon the door of the dwelling, or elsewhere on the premises "where it may be conveniently read." 16 D.C.Code § 1502.

459 F.2d 1198
On the other hand, if the landlord seeks a money recovery, process must be served personally. Paregol v. Smith, 103 A.2d 576 (D.C.Mun.App.1954); Mahoney v. Campbell, 209 A.2d 791 (D.C. App.1965). And if the landlord seeks to combine repossession and a money recovery, personal service is requisite. Bell v. Tsintolas Realty Co., 139 U.S.App.D.C. 101, 430 F.2d 474 (1970)

There are special considerations that justify a summary proceeding limited to recovery of possession from a tenant no longer entitled to remain. See Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L.Ed.2d 36 (1972):

There are unique factual and legal characteristics of the landlord-tenant relationship that justify special statutory treatment inapplicable to other litigants. The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be able to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the landlord, continue to accrue whether a tenant pays his rent or not. Speedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession when his lease or rental agreement gives him the right to peaceful and undisturbed possession of the property. Holding over by the tenant beyond the term of his agreement or holding without payment of rent has proved a virulent source of friction and dispute.

The summary procedure is provided by the legislature to provide Court relief to the landlord, otherwise trapped by the "relatively slow, fairly complex and substantially expensive procedure" of the common law possessory action of ejectment; to avoid resort to self-help and force, condoned at common law as justified; and to permit an expeditious judicial determination of what remains a possessory action.

While there is no summary action for money due, the provision of a summary proceeding for the possessory action harmonizes considerations of fairness with the felt need for expedition in settling possessory rights. On the one hand, there is need for dispatch in determining the right of the businessman to occupancy of rented premises. On the other hand, tenants may be relatively unconcerned with the matter of possession—they may indeed be ready to quit the premises of the landlord with whom they have had bitter disputes—but may be far from acquiescent on the matter of whether, and how much, money is owed.

II.

The summary action determines who is...

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44 practice notes
  • McCord v. Bailey, No. 79-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 15, 1980
    ...different cause of action matters of fact which were, or necessarily must have been, determined in the first litigation." Tutt v. Doby, 459 F.2d 1195, 1197 (D.C.Cir. 1972). See Nasem v. Brown, 595 F.2d 801, 805 (D.C.Cir. 1979); Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, Apri......
  • Otherson v. Department of Justice, I.N.S., No. 82-1991
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 1983
    ...cf. United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953) (consent judgment); Tutt v. Doby, 459 F.2d 1195, 1199-200 (D.C.Cir.1972) (default judgment). The reasoning behind this rule is apparent from the Restatement's articulation of the actual litigat......
  • Natural Resources Defense Council, Inc. v. Thomas, Nos. 85-1488 and 86-1331
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 13, 1988
    ...all matters which were determined in the previous litigation, but also as to all matters that might have been determined. Tutt v. Doby, 459 F.2d 1195, 1197 (D.C.Cir.1972). Moreover, enforcement of the 60-day time limits imposed by the statute providing for review, 42 U.S.C. Sec. 7607(b)(1),......
  • Miller v. Poretsky, No. 77-1115
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 28, 1978
    ...Shoe Machinery Corp. v. United States, 258 U.S. 451, 459, 42 S.Ct. 363, 66 L.Ed. 708 (1922); Tutt v. Doby, 148 U.S.App.D.C. 171, 173, 459 F.2d 1195, 1197 (1972). The Supreme Court has made clear that collateral estoppel must be construed narrowly to apply only to instances where there has b......
  • Request a trial to view additional results
44 cases
  • McCord v. Bailey, No. 79-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 15, 1980
    ...different cause of action matters of fact which were, or necessarily must have been, determined in the first litigation." Tutt v. Doby, 459 F.2d 1195, 1197 (D.C.Cir. 1972). See Nasem v. Brown, 595 F.2d 801, 805 (D.C.Cir. 1979); Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, Apri......
  • Otherson v. Department of Justice, I.N.S., No. 82-1991
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 1983
    ...cf. United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953) (consent judgment); Tutt v. Doby, 459 F.2d 1195, 1199-200 (D.C.Cir.1972) (default judgment). The reasoning behind this rule is apparent from the Restatement's articulation of the actual litigat......
  • Natural Resources Defense Council, Inc. v. Thomas, Nos. 85-1488 and 86-1331
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 13, 1988
    ...all matters which were determined in the previous litigation, but also as to all matters that might have been determined. Tutt v. Doby, 459 F.2d 1195, 1197 (D.C.Cir.1972). Moreover, enforcement of the 60-day time limits imposed by the statute providing for review, 42 U.S.C. Sec. 7607(b)(1),......
  • Miller v. Poretsky, No. 77-1115
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 28, 1978
    ...Shoe Machinery Corp. v. United States, 258 U.S. 451, 459, 42 S.Ct. 363, 66 L.Ed. 708 (1922); Tutt v. Doby, 148 U.S.App.D.C. 171, 173, 459 F.2d 1195, 1197 (1972). The Supreme Court has made clear that collateral estoppel must be construed narrowly to apply only to instances where there has b......
  • Request a trial to view additional results

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