No.

10-CV-724
DISTRICT OF COLUMBIA COURT OF APPEALS
________________

DARRYL L. BEASLEY,
Appellant
v.

ROWE CONTRACTING SERVICES, INC.

Appellee

Initial Brief of Appellant Darryl L. Beasley

On Petition for Review from District of Columbia Superior Court

Filed by:

___________________
DARRYL L. BEASLEY,
Pro Se Appellant
851 Lake Shore Drive
Mitchellville, MD 20721
(301) 221-1132

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CERTIFICATE OF PARTIES, RULINGS UNDER REVIEW, AND
RELATED CASES PURSUANT TO CIRCUIT RULE 28 (a) (1)

1. Parties. Parties to this action are Petitioner Darryl L.

Appellant, Pro Se and Appellee Rowe Contracting Services

represented by Amy K. Walburn, of Brown Rudnick, LLP, 601

Thirteenth St., N.W., Ste. 600, Washington D.C., 2005.

2. Rulings Under Review. The petition for review states

that the Superior Court of the District of Columbia erred by

dismissing Appellant’s case.

3. Related Cases. There are no related cases.

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 JURISDICTIONAL STATEMENT

The Superior Court entered a final order on this case on May 5, 2010,

dismissing the Appellant’s complaint. Because the Superior Court order

was a final decision, Appellant appeals to this court pursuant to DCCA 3,

Appeal as of Right.

TABLE OF CONTENTS

CERTIFICATE OF PARTIES, RULINGS UNDER REVIEW, AND

RELATED CASES PURSUANT TO CIRCUIT RULE 28 (a) (1)..........2
JURISDICTIONAL STATEMENT.................................................3
TABLE OF AUTHORITIES.........................................................4
STATEMENT OF THE ISSUES...................................................6
STATEMENT OF THE CASE......................................................6
STATEMENT OF FACTS...........................................................7
ARGUMENT...........................................................................8
STANDARD OF REVIEW................................................................8
II. THE SUPERIOR COURT ERRED IN GRANTING ROWE
CONTRACTING SERVICES MOTION TO DISMISS BASED ON FAILURE
TO STAT E A CLAIM UPON WHICH RELIEF COULD BE GRANTED......10
III. THE SUPERIOR COURT ERRED IN GRANTING ROWE
CONTRACTING SERVICES MOTION TO DISMISS BASED ON
COLLATERAL ESTOPPEL. ..........................................................12
A. The issue sought to be precluded was not the same as that involved in
a prior action...........................................................................................13
B. The issue has not been determined by a valid, final judgment on the
merits...................................................................................................... 13
D. The determination was essential to the judgment..............................16
CONCLUSION....................................................................... 17
CERTIFICATE OF COMPLIANCE..............................................18
CERTIFICATE OF SERVICE.....................................................19

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 TABLE OF AUTHORITIES

CASES

Arnoff v. Lenkin Co., 618 A.2d 669, 684 (App. D.C. 1992)...........................8

Atkins v. Industrial Telecommunication Ass’n 660 A.2d. 885, 891 (App.

D.C. 1995)...................................................................................................7

Cauman v. George Washington Univ., 630 A.2d 1104 (App. D.C. 1993)......6

Duncan v. Children’s National Medical Ctr., 702 A.2d 207, 212, (App. D.C.

1997)............................................................................................................6

Dyer v. Williams S. Bergman & Assocs. 635 A.2d 1285, 1287 (App. D.C.

1993)..........................................................................................................10

Flavor Corp. of Am. v. Kemin Indus., 493 F.2d 275, 279 ( 8th Cir. 1974)... .10

McBryde v. Amoco Oil Co., 404 A.2d 200, 203 (App D.C. 1979).................8

Oubre V. District of Columbia, 630 A.2d 699, 703 (App. D.C. 1993)........11

Owens v. Tiber Island Condominium Ass’n, 373 A.2d 890, 891 (App. D.C.

1997)............................................................................................................7

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Smith v. Jenkins, 562. A. 2d 610, 613 (App. D.C. 1989)................................7

Vincent v. Anderson,. 621 A.2d 367, 372 (D.C. App. 1993)..........................7

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 STATEMENT OF THE ISSUES

1. Whether the Superior Court erred in granting Appellee’s Motion to

Dismiss for failure to state a claim upon which relief can be granted.

2. Whether the Superior Court erred in granting Appellee’s Motion to

Dismiss that was granted on the basis of collateral estoppel, as the elements

required for a proper showing of collateral estoppel were not met.

STATEMENT OF THE CASE

Appellant Beasley, hereinafter referred to as “Appellant” was

terminated from employment with Appellee Rowe Contracting Services,

hereinafter referred to as “Appellee”. Appellant sought unemployment

relief benefits but was denied by the District of Columbia Office of

Administrative Hearings. Appellant then filed a complaint alleging libel,

slander, malice, and gross negligence by the Appellee towards him, in the

District of Columbia Superior Court. The trial court on the basis of

collateral estoppel dismissed appellant’s petition. The Superior Court also

6
mentioned but never made a ruling on whether or not the complaint was

actually being dismissed on the basis of failure to state a claim as well.

Collateral estoppel was not a valid basis of dismissal of Appellant’s

complaint. The action brought in Superior court couldn’t have been

considered in an Administrative hearing because litigation of tort claims is

grounded in the jurisdiction of the Superior court. The Administrative

Board could only consider and did only consider whether or not Appellant

was eligible for unemployment benefits and not the issues presented by

Appellant’s complaint.

STATEMENT OF FACTS

Appellant Beasley filed a complaint against the Appellees alleging that he

had been the victim of libel, slander, malice, and gross negligence.

(Complaint). 1 The appellant had previously been denied unemployment

benefits. On January 25, 2010 appellee filed a motion to dismiss alleging

that Appellant’s complaint did not state sufficient ground upon which to

base relief. (Motion to Dismiss, 1/25/2010). The court denied that motion

and granted Appellant time to amend his complaint. (Order dated

1
Appellant had previously filed for unemployment benefits and was denied as a
result of a hearing at the District of Columbia Office of Administrative Hearings Case
no. ES=P=09-114596.

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2/23/2010). Appellant filed an Amended complaint on March 6, 2010

(Amended Complaint). On March 19, 2010 the Appellee filed another

motion to dismiss alleging that the Appellant’s claims were barred by

collateral estoppel and failure to state a claim upon which relief could be

granted. (Motion to Dismiss, 3/19/2010). The Superior Court dismissed the

Appellants claims based on the fact that the unemployment hearing

constituted a final hearing on the case and implying that the complaint

requested the court to institute a review of an administrative order. (Order

dated 5/10/2010).

ARGUMENT

STANDARD OF REVIEW

Appellate review of a superior court’s grant of a motion to dismiss for

failure to state a claim is de novo. Duncan v. Children’s National Medical

Ctr., 702 A.2d 207, 211 (App. D.C. 1997). When considering a motion to

dismiss for failure to statue a claim, the court [must] construe the facts on

the face of the complaint in a light most favorable to the Appellant and its

allegations as true. Cauman v. George Washington Univ., 630 A.2d 1104

8
(App. D.C. 1993). A complaint will be deemed sufficient as long as it fairly

puts the Appellee on notice of the claim against him or her. Duncan v.

Children’s National Medical Ctr., 702 A.2d 207, 212, (App. D.C. 1997).

Liberal rules of pleading will normally protect a Appellant from dismissal at

the pleading stage if all inferences are drawn in the Appellant’s favor. Id.

Dismissal for failure to state a claim upon which relief can be granted is

impermissible unless it appears beyond doubt that the Appellant can prove

no set of facts in support of his claim, which would entitle him to relief.

Owens v. Tiber Island Condominium Ass’n, 373 A.2d 890, 891 (App. D.C.

1997). The appellate court will apply the same standard as the trial court,

basically accepting all allegations as true and construing all facts and

inferences in favor of the Appellant. Atkins v. Industrial Telecommunication

Ass’n 660 A.2d. 885, 891 (App. D.C. 1995).

When the Court of Appeals is called upon to review a case that deals

with collateral estoppel, the correct standard of review will also be denovo.

Smith v. Jenkins, 562. A. 2d 610, 613 (App. D.C. 1989). In effect this means

that the Court of Appeals is not bound by the findings of the trial court.

Owens v. Tibor Island Condominium Ass’n, Id. at 892.

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II. THE SUPERIOR COURT ERRED IN GRANTING ROWE
CONTRACTING SERVICES MOTION TO DISMISS BASED ON
FAILURE TO STAT E A CLAIM UPON WHICH RELIEF
COULD BE GRANTED.

The District of Columbia Superior Court rule 12(b) (6) states that a

motion to dismiss for failure of the pleadings to state a claim upon which

relief can be granted is a defense that can be asserted via motion. A

compliant cannot be dismissed under this section unless it appears that a

Appellant can provide no facts in support of the claim, which would entitle

the Appellant to relief. Vincent v. Anderson, 621 A.2d 367, 372 (D.C. App.

1993).

The only issues on review of a dismissal made pursuant to 12 (b) (6)

are the legal sufficiency of the complaint. Arnoff v. Lenkin Co., 618 A.2d

669, 684 (App. D.C. 1992). D. C. Superior Court Rule 8 governs the

sufficiency of pleadings. In pertinent part, a pleading must (1) contain a

short and plain statement of the grounds for the court’s jurisdiction unless

the court already has jurisdiction and the claim needs no new jurisdictional

support; (2) a short and plain statement of the claim showing that the

Appellant is entitled to relief; (3) a demand for the relief sought, which can

contain alternative or different types of relief.

Appellant was pro se and therefore his complaint did not contain the

10
nuances and lingo of that of a skilled attorney. However, upon amending his

complaint the cases continue to proceed. The order dismissing the case

almost relied solely on the issue of issue preclusion and not that of the

insufficiency of the Appellant’s complaint. In fact in one order the judge

noted that the D.C. jurisdiction is a notice pleading state, and that Appellant

had made met his basic burden of pleading. Appellant’s complaint was

sufficient to put the Appellee on notice of the relief being sought and the

legal causes of action in which the Appellant was pursuing. If the facts

within the Appellant’s complaint are viewed in a light most favorable to the

Appellant, it is clear that the Motion to Dismiss for failure to state a claim

was error. The court is not to look at the Appellant’s complaint to determine

if he or she is going to succeed at trial. A complaint should not be dismissed

under subdivision (b)(6) because the Court doubts that the Appellant will

prevail in the action. McBryde v. Amoco Oil Co., 404 A.2d 200, 203 (App

D.C. 1979).

The parties never entered the discovery process, nor did the court

engage in any type of fact finding that would meet the burden required to

dismiss Appellant’s complaint.

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III. THE SUPERIOR COURT ERRED IN GRANTING ROWE
CONTRACTING SERVICES MOTION TO DISMISS BASED ON
COLLATERAL ESTOPPEL.

The Superior Court incorrectly held that collateral estoppel, or issue

preclusion bars Appellee Appellant’s claims in this case. The District of

Columbia court of appeals will find that an issue is barred by the principal of

collateral estoppel 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; (4) under circumstances where the determination

was essential to the judgment, and not merely dictum. Davis v. Davis, 663

A.2d 499, 501 (App. D.C. 1995). As the following discussion shows, the

issue litigated in the District of Columbia Administrative Hearings Office

was not brought again in the Superior Court action. Therefore, collateral

estoppel is not applicable to the current case. The court viewed the

Appellant’s complaint as a bid for review of an administrative hearing, and

denied jurisdiction. However the issues presented by the complaint (libel,

slander, gross negligence, and malice) were ones that could not possibly

have been considered by the administrative board because they didn’t have

jurisdiction to decide them.

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A. The issue sought to be precluded was not the same as that involved in a prior
action
In order for collateral estoppel to apply, the issue that is sought to be

barred must be the same as the issues that were actually litigated. The D.C.

court of appeals has taken this to be issues that have been preclusively

resolved in an earlier proceeding. Id. at 501.

When Appellant brought an action for wrongful termination with the

District of Columbia Office of Administrative Hearings, the only issue that

was presented was whether or not Appellant was entitled to unemployment

benefits. The action brought in the Superior Court dealt with the employers

conduct towards Appellant for libel, slander, malice, and gross negligence.

These issues were not litigated nor even addressed in Appellant’s

administrative hearing. The only issue considered dealt with Appellant’s

actions in the workplace and had no bearing on the employers conduct

toward Appellant. Therefore the issues brought forth in Appellant’s superior

court complaint were not actually litigated in the OAH case, nor were they a

request for review of the administrative boards ruling.

B. The issue has not been determined by a valid, final judgment on the merits.

Collateral estoppel also requires that the issue has been previously

determined by a valid final judgment. It long has been the principle that

13
 to be final and therefore reviewable, an order must dispose of the whole

case on its merits, so that the court has nothing to do but execute the

judgment or decree already rendered. Dyer v. Williams S. Bergman &

Assocs. 635 A.2d 1285, 1287 (App. D.C. 1993)

Where the second action between the same parties is upon a

Different cause or demand, the principle of res judicata, is
applied more narrowly. In this situation, the judgment in the
prior action operates as estoppel, not as to matters which might
have been litigated and determined, but only as to those matters
in issue or points controverted, upon the determination of which
the finding or verdict was rendered… Since the cause of action
involved in the second proceeding is not swallowed by
judgment in the prior suite, the parties are free to litigate points
which were not at issue in the first proceeding, even though
such points might have been tendered and decided at that time.
Flavor Corp. of Am. v. Kemin Indus., 493 F.2d 275, 279 (8th
Cir. 1974).

The OAH hearing was an administrative cause of action solely for the

purpose of determining whether or not Appellant was eligible for

unemployment and insurance benefits. It was only these issues upon which

a valid, final judgment was entered. The issues that Appellant pleaded to in

the Superior Court Action. As a matter of fact the issues that Appellant

sought to have resolved in the superior court arose out of the workplace but

that was the extent to the crossover and inclusion of same.

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C. There was no full and fair opportunity for litigation of the subject issues by the

parties.

In order for a party to have been given a full and fair opportunity for

litigation of the subject issues, certain occurrences must have taken place.

For instance there must be an opportunity to make opening and closing

statement, to call witnesses, to cross-examine witnesses, and to introduce

exhibits. Also pivotal is whether or not there were findings of fact and

conclusions of law on the issues. Oubre V. District of Columbia, 630 A.2d

699, 703 (App. D.C. 1993).

Appellant without question was given full and fair opportunity for

litigation of the issue that dealt directly with the availability of

unemployment benefits. However, this was not the legal issue focus of the

instant action. Appellant’s claims of malice, libel, and slander were not

given a full and fair opportunity for litigation. There was no discovery had,

there were no procedural actions as far as making opening and closing

statements, calling witnesses, or any other items that might be construed as

full and fair opportunity for litigation of the aforestated issues.

The sum total of the actions in the Superior Court dealt with procedural

issues such as motions to dismiss, and motions to vacate judgments, or

allowing the Appellant to amend his complaint. There was never a hearing

15
on any of the claims that Appellant made in his original and/or amended

complaint. Appellant was never able to present any evidence, or even begin

the discovery process to provide more information that could tend to show

or support the allegations made within his complaint. Appellant was at all

times aware that for the issues that he wanted to bring against the Appellee

he couldn’t seek the jurisdiction of the OAH, because they had none.

Appellant had no choice, considering the nature and elements of the

causes of action he alleges he is owed just recompense for, but to file for an

action in Superior Court. The OAH is a court of limited jurisdiction. Even if

all of the aforestated issues were before them, legally the only order they

could render or final judgment they could pass down was that on denying

Appellant unemployment benefits.

D. The determination was essential to the judgment.

The determination by the OAH was not even related to the judgment that

was handed down by the Superior Court. The issue of unemployment

benefits does not “lay at the heart of the parties controversy”, Davis v.

Davis, 663 A.2d 499, (App. D.C. 1995). The heart of the parties’

controversy in the Superior court dealt with the actions that the employer

took against Appellant. This behavior or these actions were alleged by

16
Appellant to rise to the level of actionable offenses. The action in the OAH

was in no way related to the causes of action alleged in the Superior Court

complaint, nor was the appellant seeking to have them revisited.

CONCLUSION

For the foregoing reasons, Appellant is requesting that this matter be

remanded back to the Superior Court and his Petition reinstated.

Dated:

September 2, 2010

Respectfully submitted by:

___________________________

Darryl L. Beasley

17
Pro Se Appellant
851 Lake Shore Drive
Mitchellville, MD 20721
(301) 221-1132

CERTIFICATE OF COMPLIANCE

I hereby certify, pursuant to Fed. R. App. P. 32(a)(5) and (7)(B), that the

foregoing brief was prepared in 14 point Times New Roman font and

contains 2,569 words, excluding the parts exempted by Fed. R. App. P. 32(a)

(7)(B)(iii) and Cir. R. 32(a)(1)

Dated: September 2, 2010

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___________________________

Darryl L. Beasley
Pro Se Appellant
851 Lake Shore Drive
Mitchellville, MD 20721
(301) 221-1132

CERTIFICATE OF SERVICE

I hereby certify, pursuant to Fed. R. App. P. 25 (c) that on September _,

2010, the foregoing was Fedexed to the Clerk of Court. A copy of the
foregoing brief was also sent to Appellee’s counsel at the following address:

Amy Kingston Walborn

Brown Rudnick, LLP
601 Thirteenth Street, N.W.
Suite 600
Washington, D.C. 20005

19
Dated: September ________, 2010

___________________________

Darryl L. Beasley
Pro Se Appellant
851 Lake Shore Drive
Mitchellville, MD 20721
(301) 221-1132

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