Wang v. 1624 U Street, Inc.

Notice: This opinion is subject to formal revision before publication in the

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-CV-0324

GUANGSHA WANG, APPELLANT,

V.

1624 U STREET, INC., ET AL., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(CAB-7009-19)

(Hon. Heidi M. Pasichow, Trial Judge)

(Submitted January 7, 2021 Decided June 24, 2020)

Guangsha Wang, pro se.

William D. Day was on the brief for appellees.

Before EASTERLY and DEAHL, Associate Judges, and FISHER, Senior Judge.

DEAHL, Associate Judge: Guangsha Wang owns a residential condominium

unit directly above Chi Cha Lounge, a bar operated by 1624 U Street, Inc. She sued

Chi Cha for negligence, private nuisance, and breach of a settlement agreement all

stemming from the bar’s “excessive noise,” which she claims caused tenants of her

condominium to break their lease and left her unable to find new tenants. The trial

2

court dismissed her suit for failure to state a claim. It reasoned her claims were

resolved in prior litigation so that res judicata (claim preclusion) and/or collateral

estoppel (issue preclusion) principles barred their relitigation. We disagree and

reverse the trial court’s dismissal order and remand the case.

I.

Guangsha Wang’s residential condominium unit sits directly above Chi Cha

Lounge, a bar located in the District. In October 2016, Chi Cha filed an application

seeking to renew its alcohol license and Wang filed a protest with the District of

Columbia Alcoholic Beverage Control Board. 1 In her protest, Wang argued that

renewal was not appropriate under D.C. Code § 25-313(b)(2) (2012 Repl.) because

of Chi Cha’s negative effect on “peace, order, and quiet,” owing to its non-

compliance with various noise regulations. 2

1

The Board has the authority to “[i]ssue, transfer, and renew licenses to

qualified applicants.” D.C. Code § 25-201(c)(3) (2012 Repl.). An abutting property

owner has standing to “protest the issuance or renewal of a license.” Id. § 25-

601(a)(1)(A); see also 23 D.C.M.R. § 1602.1 (2021).

2

“To qualify for . . . renewal of a license, . . . an applicant [must] demonstrate

to the satisfaction of the Board that the establishment is appropriate for the locality,

section, or portion of the District where it is . . . located.” D.C. Code § 25-313(a).

An establishment’s effect on “peace, order, and quiet, including the noise . . .

provisions set forth in []§ 22-725” is factored into this calculation. Id. § 25-

3

Wang and Chi Cha appeared to resolve their differences over renewal of the

alcohol license when they entered into a settlement agreement. Under the terms of

that agreement, Wang agreed to withdraw her protest if Chi Cha soundproofed

certain areas of its bar (per paragraph two of the settlement), 3 and if Chi Cha agreed

to “maintain an open line of communication with [Wang]” and “take reasonable

measures . . . to address . . . music emanation issue[s]” that Wang brought to its

attention (per paragraph six of the settlement). 4 Chi Cha later demonstrated to the

313(b)(2). In addition to its own noise rules, § 22-725(c) incorporates the noise level

requirements set forth in 20 D.C.M.R. §§ 2700 et seq. (2021).

3

Paragraph two of the settlement agreement states:

Chi Cha shall engage Lee Design & Interiors and Mr. John

Fiorito to fully perform all items specified in the attached

proposal from Lee Design & Interiors, specifically

proposal number 100351, taking all reasonable measure[s]

for . . . soundproofing the front area of Chi Cha Lounge.

4

Paragraph six of the settlement agreement states:

Chi Cha agrees to maintain an open line of communication

with [Wang] and will provide [her] with the contact

information of the Chi Cha management. Upon notice

from [Wang] to Chi Cha management of music emanating

from Chi Cha that may be heard in 1624 U Street, NW,

Unit 101, Washington, DC, Chi Cha management will be

permitted to verify that the noise emanation is from Chi

Cha lounge and may be heard in the aforementioned unit.

Upon such verification, Chi Cha management will take

reasonable measures, as determined by Chi Cha

4

Board’s satisfaction that it performed the required sound proofing work under

paragraph two of the settlement agreement, so the Board withdrew Wang’s protest

and renewed Chi Cha’s alcohol license. 5 Wang disagreed that Chi Cha had fulfilled

its end of the bargain and wanted her protest reinstated. She filed a motion for

reconsideration alleging Chi Cha did not perform its obligations under paragraph

two because it failed to provide her with proof that it had properly completed the

required sound mitigation work. The Board disagreed, reasoning that Chi Cha was

not required to provide her with evidence of its sound mitigation work; it was

required only to provide such proof to the Board, which it had done. Wang appealed,

but we affirmed the Board’s decision. Wang v. District of Columbia Alcoholic

Beverage Control Bd., No. 18-AA-117, Mem. Op. & J. at 3–4 (D.C. Oct. 18, 2019).

Wang then filed a complaint in D.C. Superior Court, raising the following

claims against Chi Cha: (1) breach of paragraph two of the settlement agreement for

failure to provide proof of sound mitigation work; (2) breach of paragraph six of the

settlement agreement for failure to adequately respond to noise complaints raised by

management, on a case by case basis to address the music

emanation issue.

5

“If [the Board] determines that [a] settlement agreement complies with all

applicable laws and regulations and the applicant otherwise qualifies for licensure,

the Board shall approve the license application.” D.C. Code § 25-446(c).

5

Wang; (3) private nuisance; and (4) negligence. Chi Cha moved to dismiss under

Superior Court Civil Procedure Rule 12(b)(6), contending that Wang had released

all claims against Chi Cha via their settlement agreement and, in the alternative, the

action was barred by both res judicata and collateral estoppel. Opposing the motion,

Wang argued the settlement agreement and past litigation pertained “ONLY to the

protest against the liquor license,” and therefore did not restrict her “ability to pursue

further action against Chi-Cha Lounge . . . outside of the context of protesting the

liquor license.” The trial court disagreed and granted Chi Cha’s motion to dismiss.

It concluded the claims were barred by res judicata because the settlement agreement

“dealt with the same sound mitigation issue that [Wang] complains about in the

instant case.”

Wang then filed a combined motion to reconsider and motion to amend her

complaint. In her motion to reconsider, Wang conceded that she could not re-raise

the question whether Chi Cha breached paragraph two of the settlement agreement

by failing to provide her with proof of its sound mitigation efforts. But she reiterated

that she was not barred from raising breach of paragraph six of the settlement

agreement, negligence, and private nuisance, because those claims had never been

litigated. As for the motion to amend, Wang sought to add a claim for emotional

harm as well as additional damages for sound mitigation efforts she personally

6

undertook, and to remove her breach of contract claims. The trial court denied both

motions. It found Wang had not identified any mistake of law in its prior order

dismissing the matter and that any additional claims added via amendment would be

barred by res judicata, and thus futile, because Wang “had sufficient opportunity

before the . . . Board to litigate claims relating to noise from [Chi Cha].”

Wang now appeals, challenging the trial court’s decision to dismiss her

complaint. Her appeal raises the same argument she made to the trial court: that her

claims (breach of paragraph six of the settlement agreement, negligence, and private

nuisance) have never been litigated and are thus not barred by res judicata. She

concedes, however, that she is barred from relitigating her claim that Chi Cha

breached paragraph two of the settlement agreement by failing to provide evidence

of its sound mitigation work.

II.

We review dismissals for failure to state a claim de novo. Kovach v. District

of Columbia, 805 A.2d 957, 960 (D.C. 2002). We likewise review the “application

of the doctrines of collateral estoppel and res judicata” de novo. Whiting v. Wells

Fargo Bank, 230 A.3d 916, 926 (D.C. 2020). Applying each doctrine to the case at

7

hand, we reverse the trial court’s judgment and conclude that neither res judicata nor

collateral estoppel precludes Wang from litigating her claims.

A.

The doctrine of res judicata, sometimes referred to as claim preclusion,

prohibits “relitigation of the same claim between the same parties.” Calomiris v.

Calomiris, 3 A.3d 1186, 1190 (D.C. 2010) (quoting Elwell v. Elwell, 947 A.2d 1136,

1139–40 (D.C. 2008)). “In considering the applicability of the doctrine, our inquiry

focuses on the following questions: (1) whether the claim was adjudicated finally in

the first action; (2) whether the present claim is the same as the claim which was

raised or which might have been raised in the prior proceeding; and (3) whether the

party against whom the plea is asserted was a party or in privity with a party in the

prior case.” Patton v. Klein, 746 A.2d 866, 870 (D.C. 1999). Because we answer

the second question in the negative, we conclude that Wang’s claims are not barred

by res judicata.

The trial court incorrectly found that “there [was] no dispute whether” the

claims raised in Wang’s complaint were “the same as the claim[s]” brought before

the Board. That was very much in dispute. Wang explicitly argued that the

proceeding before the Board involved claims that were entirely different from the

8

ones she raised in her civil complaint. She is right. An administrative protest to the

issuance of a license—even if grounded in a noise complaint—is not the same claim

as a civil action for private nuisance or negligence for many reasons, not the least of

which is that monetary damages are available in the civil suit alone. 6 And a

determination that Chi Cha did not breach paragraph two of the settlement agreement

says nothing about whether there was a breach of paragraph six. Contrary to the trial

court’s reasoning, Wang is not relitigating her protest of Chi Cha’s license renewal

application or the Board’s determination that Chi Cha performed sound mitigation

in accordance with paragraph two of the settlement agreement. Rather, she is raising

6

It is questionable whether private nuisance is an independent tort in the

District, as opposed to simply a theory of damages. Compare Ortberg v. Goldman

Sachs Grp., 64 A.3d 158, 165–68 (D.C. 2013) (expressing doubt over private

nuisance’s viability as a standalone tort, but nevertheless “assuming, without

deciding” that our court treats “a private nuisance claim as an independent tort rather

than as a type of damage”), with id. at 170–75 (McLeese, J., concurring in part and

dissenting in part) (“Although I share the court’s view that our decisions addressing

the tort of private nuisance are far from clear, I would conclude that the better

reading of those decisions is that private nuisance exists as an independent tort.”).

As for Wang’s negligence claim, she seems to tie the claim to Chi Cha’s breach of

paragraph six of the settlement agreement. It is well established in the District that

a “tort must exist in its own right independent of the contract, and any duty upon

which the tort is based must flow from considerations other than the contractual

relationship.” Choharis v. State Farm Fire and Cas. Co., 961 A.2d 1080, 1089 (D.C.

2008). As far as we can tell, Wang’s negligence and contract claims are inextricably

intertwined and would thus run afoul of the rule espoused in Choharis. But the

viability of Wang’s private nuisance and negligence actions is not before us and was

not argued in Chi Cha’s motion to dismiss, so we say no more on the matter.

9

claims that arose out of Chi Cha’s alleged noise disturbances, including a breach of

contract claim that is based on Chi Cha’s failure to respond to noise complaints made

long after the Board proceedings had concluded. 7

Dismissal of those claims may nonetheless have been warranted—be it under

res judicata or as a contractual matter—had the settlement agreement precluded

Wang from pursuing civil actions against Chi Cha in exchange for its sound

mitigation work. But it did not. The release provision is singularly focused on

Wang’s ability to “protest” Chi Cha’s liquor license application. The release

provision states:

Dismissal of Protest in Perpetuity. Upon the full

completion of all work specified in the aforementioned

proposal, [Wang] agrees to the dismissal of her protest

against Chi Cha, agrees never to file another protest

against Chi Cha and waives all rights for any future

protests against Chi Cha. [Wang] agrees that the ABC

7

It may be that Wang should raise this claim with the Board in the first

instance, as it has its own process for handling licensees who fail to adhere to their

settlement agreements. See D.C. Code § 25-823(a)(6); D.C. Code § 25-446(e)

(“Upon a determination that a licensee has violated a settlement agreement, the

Board shall penalize the licensee according to the provisions set forth for violations

of a license in Chapter 8 of this title.”); D.C. Code § 25-446(c) (“[T]he settlement

agreement shall be enforceable by the Board.”). Typically, “[w]here a statute

provides an administrative forum to resolve disputes, the prescribed administrative

remedy must be exhausted before judicial relief may be sought.” Kovach, 805 A.2d

at 961. This argument, however, was neither the basis advanced for dismissal nor

the one adopted by the trial court.

10

Board is given full authority to dismiss this and any future

protests [Wang] or her successors and assigns may file

against Chi Cha Lounge upon the full completion of all

work specified in the aforementioned and attached

proposal. Full completion to be solely certified by Lee

Design and Interior. [Emphases added]

The provision, as its caption indicates, precludes only further protests with the

Board. Nowhere does it purport to preclude Wang from pursuing a civil action

against Chi Cha for damages caused by its alleged noise violations. Nor does it bar

Wang from bringing a breach of contract claim for failure to comply with paragraph

six of the settlement agreement, which requires Chi Cha to “take reasonable

measures” to respond to Wang’s noise complaints.

It is possible the trial court meant to say not that the claims were the same but

that the underlying “factual nucleus” was the same, so the actions Wang now raises

should have been brought together in one proceeding. Patton, 746 A.2d at 870.

After all, the doctrine of res judicata “operates to bar in the second action not only

claims which were actually raised in the first, but also those arising out of the same

transaction which could have been raised.” Id. But that nuance is of no help to Chi

Cha here.

For starters, Wang’s surviving breach of contract claim was not “ripe for

adjudication” until after the Board proceedings concluded in January 2018, Elwell,

11

947 A.2d at 1140, so it could not have been raised at the proceeding before the Board.

The factual basis for her claim that Chi Cha breached its obligations under paragraph

six of the settlement agreement stems from a letter she wrote to Chi Cha in March

2019—complaining of forty-six noise violations between March and May of 2018—

to which she contends Chi Cha was not responsive. That claim could not have been

brought during the Board proceedings—it post-dated them—and it therefore cannot

be barred by res judicata. See id. (“[T]he condition precedent to exercising [a

contractual right] had not been satisfied” so the claim was not “ripe for adjudication

at the time” and thus could not be barred by res judicata); Kovach, 805 A.2d at 961

(claim not barred by res judicata because “the challenged decision occurred five

months after [the first] adjudication and [thus] could not possibly have been raised”

in the prior adjudication).8

8

Wang suggests in her reply brief that she has a cause of action against Chi

Cha for its failure to comply with its sound mitigation obligations under paragraph

two of the settlement agreement because Chi Cha’s contractor was not properly

licensed in the District to perform the sound mitigation work. We do not consider

this argument for several reasons: (1) it was not alleged in Wang’s complaint; (2) it

was not raised before the trial court; and (3) it was not raised in Wang’s opening

brief. Even if it were properly raised, it would be barred by res judicata since Wang

could have raised the argument in the proceedings before the Board but did not do

so in a timely manner. See Shin v. Portals Confederation Corp., 728 A.2d 615, 618

(D.C. 1999) (“The doctrine bars relitigation ‘not only as to every ground of recovery

or defense actually presented in the action, but also as to every ground which might

have been presented.’”) (quoting Cromwell v. Cty of Sac, 94 U.S. 351, 353 (1877))

(emphases omitted).

12

As for Wang’s negligence and private nuisance claims, while both seemingly

relate to Wang’s initial noise complaint submitted to the Board—and thus stem from

the same “factual nucleus” as the protest—Wang could not have brought them before

the Board either. Both claims are civil actions for monetary damages that a private

party is not permitted to raise before the Board. At most, Title 25 permits the Board

to impose civil penalties upon a licensee, see D.C. Code § 25-830, which are remitted

not to the protesting party, but to the General Fund of the District of Columbia, id. §

25-830(h). It is thus wrong to say Wang was afforded the opportunity to litigate

these claims before the Board and simply chose not to.

Nor could she have brought all of her claims in D.C. Superior Court in the

first instance. The existence of an administrative remedy—via challenging the

renewal application before the Board, D.C. Code § 25-601(a)(1)(A)—would have

prevented her from seeking an injunction to prohibit the Board from renewing Chi

Cha’s liquor license. See District of Columbia v. Grp. Ins. Admin., 633 A.2d 2, 20

(D.C. 1993) (“It is a well-established doctrine that where a statute provides an

administrative forum to resolve disputes, no one is entitled to judicial relief for a

supposed or threatened injury until the prescribed administrative remedy has been

exhausted.”) (internal quotations omitted) (quoting Dano Res. Recovery, Inc. v.

District of Columbia, 566 A.2d 483, 485 (D.C. 1989)). In other words, there was

13

not a single forum that could have heard all of Wang’s claims. See Hurd v. District

of Columbia, 864 F.3d 671, 679 (D.C. Cir. 2017) (“Preclusion is designed to limit a

plaintiff to one bite at the apple, not to prevent even that single bite.”); see also

Restatement (Second) of Judgments § 26(1)(c) (1982) (claim splitting is generally

permitted where “[t]he plaintiff was unable to rely on a certain theory of the case or

to seek a certain remedy or form of relief in the first action because of the limitations

on the subject matter jurisdiction of the courts”).

Chi Cha counters that its res judicata argument is supported by Molovinsky v.

Monterey Coop., Inc., 689 A.2d 531 (D.C. 1996), and in the trial court it additionally

stressed Osei-Kuffnor v. Argana, 618 A.2d 712 (D.C. 1993). Neither case is on

point. In both cases, the appellant first chose to litigate an action in small claims

court and then tried to bring a second action in D.C. Superior Court; we determined

each second action was barred by res judicata. Molovinsky, 689 A.2d at 533; Osei-

Kuffnor, 618 A.2d at 715. Unlike those cases, Wang did not choose to bring the

initial action at all and so she did not choose the forum. She merely responded to a

process (the liquor license protest process) in a forum (the Board) that Chi Cha

initiated. See Shin v. Portals Confederation Corp., 728 A.2d 615, 620 (D.C. 1999)

(noting appellant would not be claim precluded from recovering civil damages for

claims he could not pursue in an action brought by another party in landlord-tenant

14

court). And as previously noted, her surviving claims could not have been brought

in the Board proceedings in any event; the factual nucleus of one (breach of

paragraph six) had not yet arisen and the Board was not a forum where Wang could

have litigated her tort claims. See Hurd, 864 F.3d at 679 (noting inapplicability of

Osei-Kuffner and Molovinsky “where no damages whatsoever were available in the

first action”).

Because Wang’s surviving breach of contract claim, as well as her private

nuisance and negligence claims, were not raised—nor could they have been raised—

in the proceeding before the Board, res judicata does not bar Wang from raising them

now.

B.

“Even where res judicata is inapplicable, collateral estoppel”—otherwise

known as issue preclusion—“may bar relitigation of the issues determined in a prior

action.” Patton, 746 A.2d at 870. At the outset, we note that it is unclear whether

the trial court dismissed Wang’s suit purely on res judicata grounds or whether it

also found collateral estoppel barred her from relitigating issues necessary to

maintaining her claims. The court seemed to conflate the two doctrines—referring

to collateral estoppel as just another term for res judicata—without distinguishing

15

between the two. Because it is unclear whether the trial court thought collateral

estoppel also barred Wang’s claims, we think it prudent to explain why it does not.

Collateral estoppel “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.”

Davis v. Davis, 663 A.2d 499, 501 (D.C. 1995) (quoting Wash. Med. Ctr. v. Holle,

573 A.2d 1269, 1283 (D.C. 1990)). Wang is not collaterally estopped from

relitigating any issues necessary to maintaining her claims. Any argument to the

contrary falters at the first two steps of the test set forth above: none of the issues

underlying her current claims was previously resolved via litigation between the

parties.

We begin with Wang’s surviving breach of contract claim under paragraph

six. As part of its obligations under the settlement agreement, Chi Cha agreed to

“take reasonable measures . . . on a case by case basis to address . . . music emanation

issues[s]” brought to its attention by Wang. Wang alleged in her complaint, as well

as in her opposition to Chi Cha’s motion to dismiss, that Chi Cha failed to comply

16

with this provision of the settlement. This claim was not part of the proceeding

before the Board, and understandably so given that this particular breach had yet to

occur. Since it was never addressed by the Board, the essential issue of whether Chi

Cha failed to perform its obligations under paragraph six of the settlement agreement

has never been litigated. Accordingly, it cannot be barred under the doctrine of

collateral estoppel. 9

As for Wang’s private nuisance and negligence claims, the Board did not

decide any disputed issues relating to those claims that might be given preclusive

effect against Wang. Perhaps it would have had the matter proceeded to a full

hearing and the Board had to confront the dispute between the parties about whether

Chi Cha’s noise levels adversely impacted Wang. See D.C. Code § 25-313(b)(2).

But it did not confront that issue because the parties settled their dispute before the

Board had any opportunity to adjudicate it.

The decision to settle is crucial to our analysis. As we emphasized recently,

“settlement agreements ordinarily occasion no issue preclusion” unless the parties

9

While we conclude that Wang’s surviving breach of contract claim is not

barred by res judicata or collateral estoppel principles, we do not opine on whether

any of Wang’s claims are otherwise viable under the Rule 12(b)(6) standard.

17

so intended. Whiting, 230 A.3d at 926 (quoting Arizona v. California, 530 U.S. 392,

414 (2000)) (brackets and emphasis omitted). In other words, where a settlement

agreement is involved, the question is “whether by their agreement the parties not

only intended to terminate the litigation of claims but also intended to determine

finally the issues . . . presented.” Whiting, 230 A.3d at 926 n.16 (quoting United

States v. Spicer, 155 B.R. 795, 804 (Bankr. D.D.C. 1993)). The parties expressed

no such intention in the settlement agreement. Nowhere in the four corners of the

settlement does it state the parties agreed that Chi Cha’s noise levels were

permissible. If anything, the settlement agreement evidences Chi Cha’s

acknowledgement that its noise levels were too high given its agreement to perform

sound mitigation work. Chi Cha presents no argument to the contrary. In fact, it

appears to have abandoned its argument on appeal that Wang’s claims were barred

by collateral estoppel, opting instead to rely solely on the doctrine of res judicata.

We thus conclude that Wang’s private nuisance and negligence actions are not

barred by collateral estoppel.10

10

Wang does not argue the trial court should have granted her motion to

amend, so we do not address that question. Her attempt to amend came in the wake

of the trial court’s dismissal order and—in light of our vacatur of that order—she

may no longer wish to drop her claim that Chi Cha breached paragraph six of their

settlement agreement. Finally, because we conclude the trial court erred in

dismissing Wang’s complaint, we do not address the trial court’s denial of her

motion for reconsideration.

18

III.

The Superior Court’s dismissal order is vacated and the matter is remanded

for further proceedings consistent with this opinion.

So ordered.