Gary Kruger filed a Second Amended Complaint in King County Cause NO. 02-2-
28184-2 SEA on April 8, 2003. Exhibit 1. The Second Amended Complaint alleges claims
under various theories against George Rudiger and Windermere Real Estate/Northeast, Inc. for
nondisclosure of an alleged rat infestation in a house purchased by Kruger. Exhibit 1. On
February 6, 2004, the claims against Rudiger and Windermere were dismissed on summary
judgment. Exhibit 2. No appeal was filed.
On October 18, 2005, plaintiffs filed this action, alleging that Kruger had knowingly
disseminated false statements about them and about his prior lawsuit in an attempt to extort a
settlement. Exhibit 3. In his pro se answer, Kruger asserted counterclaims for infliction of
emotional distress, strict liability, negligent exposure to a toxic substance, negligent
misrepresentation, breach of contract, and violation of the Consumer Protection Act. Exhibit 4.
Without exception, the allegations by Kruger in his counterclaims merely repeat or elaborate on
the allegations in his prior lawsuit. Compare Exhibit 4 with Exhibit 1.
VI. LEGAL AUTHORITY
Having lost his claims against Windermere once, Kruger cannot reallege them as a
counterclaim in a defamation lawsuit. His claims are barred by res judicata and collateral
estoppel.
Res judicata, or claim preclusion, applies where a prior final judgment is identical
to the challenged action in '"(1) subject matter, (2) cause of action, (3) personsP
and parties, and (4) the quality of the persons for or against whom the claim is
made.'" The doctrine applies to final L & I orders. However, "fundamental
fairness requires that a claimant must be clearly advised of the issue" before the
MOTION FOR PARTIAL SUMMARY JUDGMENT - 2
DEMCO LAW FIRM, P.S.
5224 Wilson Ave. S., Suite 200
Seattle, Washington 98118
(206) 203-6000
Fax: (206)203-6001
issue is barred by res judicata. Whether res judicata bars a party pursuing an
action is a matter of law reviewed de novo.
Lynn v. Washington State Dept. of Labor and Industries, 130 Wn.App. 829, 836-37, 125 P.3d
202,205 (2005) (footnotes omitted).
"[T]he doctrine of collateral estoppel, or issue preclusion, prevents relitigation of
an issue after the party against whom the doctrine is applied has had a full and fair
opportunity to litigate his or her case." Nielson By and Through Nielson v.
Spanaway Gen. Med. Clinic, Inc., 135 Wash.2d 255, 262, 956 P.2d 312 (1998).
Collateral estoppel applies when (1) the issue decided in the prior adjudication is
identical with the one presented in the second action; (2) the prior adjudication
must have ended in a final judgment on the merits; (3) the party against whom the
plea is asserted was a party or in privity with the party to the prior adjudication;
and (4) application of the doctrine does not work an injustice. Id. at 262-63, 956
P.2d312.
Bundrick v. Stewart, 128 Wn.App. 11,20,114 P.3d 1204,1210 (2005).
Kruger's counterclaims introduce no new factual allegations or legal theories to those that
have already been dismissed. To the extent that any arguable differences exist, they are minor
and peripheral. It is true that Windermere Services Company was not itself a party to the first
lawsuit, but as the owner of the Windermere tradename, it is in privity with Windermere Real
Estate/Northeast. Indeed, that privity is exactly why Krager targeted Windermere Services with
his disparagement.
Kruger's counterclaims are consistent with his conduct at issue in this case. He brought
an action against Windermere for fraudulent concealment and lost. Instead of appealing or
accepting the court's decision, he has escalated his rhetoric and publicized false statements about
Windermere. The Court should dismiss Kruger's counterclaims.
VII. PROPOSED ORDER
A proposed order is attached hereto.
DATED this 7th day of September , 2006.
DEMCO LAW FIRM
MFD
Matthew F. Davis, WSBA No. 20939
Attorneys for plaintiffs
Z:\w.Core\Kruger\b082606 mfd MSJ.doc
MOTION FOR PARTIAL SUMMARY JUDGMENT - 3
DEMCO LAW FIRM, P.S.
5224 Wilson Ave. S., Suite 200
Seattle, Washington 98118
(206) 203-6000
FAX; (206) 203-6001
Judge Theresa Doyle
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
WINDERMERE REAL ESTATE/
NORTHEAST, INC, a Washington
Corporation; GEORGE RUDIGER; JOAN
WHITTAKER; and WINDERMERE REAL
ESTATE SERVICES COMPANY,
Plaintiffs,
GARY KRUGER,
Defendant.
NO. 05-2-34433-4 SEA
ORDER GRANTING PARTIAL
SUMMARY JUDGMENT
THIS MATTER came before the Court on plaintiffs' Motion for partial Summary
Judgment. The Court considered plaintiffs' motion; the Declaration of Matthew F. Davis and
attachments thereto; and Oral Argument
The Court being fully advised, it is hereby ordered that defendant's counterlcaims are
dismissed with prejudice.
DATED this 13th day of Oct. , 2006.
Theresa Doyle
Judge Theresa Doyle
DEMCO LAW FIRM, P.S.
5224 Wilson Ave. S., suite 200
Seattle, Washington 98118
(206) 203-6000
FAX: (206)203-6001
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Presented By:
DEMCO LAW FIRM, P.S.
By Matthew F. Davis, WSBA No. 20939
F:\Word\Pleading - Superior.doc
DEMCO LAW FIRM, P.S.
5224 Wilson Ave. S., Suite 200
Seattle, Washington 981 IS
(206) 203-6000
Fax: {206)203-6001