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             DISTRICT OF COLUMBIA COURT OF APPEALS

                          Nos. 12-CV-1692 & 13-CV-686

                 DERRICK PRICE and IHIP HOP, LLC, APPELLANTS,

                                          V.

               INDEPENDENCE FEDERAL SAVINGS BANK, APPELLEE.

                         Appeals from the Superior Court
                           of the District of Columbia
                                 (CAR-8890-11)

                     (Hon. John Ramsey Johnson, Trial Judge)

(Argued March 6, 2014                                 Decided February 19, 2015)

      Craig A. Butler filed a brief for appellants.

      Dale A. Cooter, with whom Nelson Deckelbaum was on the brief, for
appellee. After their withdrawal, Stephen Nichols entered an appearance for
appellee.

      Before WASHINGTON, Chief Judge, MCLEESE, Associate Judge, and KING,
Senior Judge.

      KING, Senior Judge: Appellants, Derrick Price and IHip Hop Music, LLC

(―the LLC‖), appeal from the trial court‘s order granting a motion to dismiss four

counts of their complaint on the basis of res judicata in favor of appellee,

Independence Federal Savings Bank (―Independence‖). They also challenge the
                                         2

trial court‘s order granting Independence‘s motion to dismiss—treating it as a

motion for summary judgment—the remaining counts in their second amended

complaint because Price and the LLC were not ―consumers‖ within the meaning of

the D.C. Consumer Protection Procedures Act. We affirm.



                                        I.



      Price owned a mixed-use property (consisting of two residential units and

one commercial storefront) at 3223 Georgia Avenue, Northwest. The LLC, of

which Price is a member, was the commercial tenant of the property. On August

13, 2007, Price executed a promissory note and deed of trust, refinancing the

property by way of a $545,000 loan from Independence. In early 2008, Price

sought to negotiate with Independence regarding past due payments.



      Independence sent a notice of default to Price on June 9, 2008, for failure to

make payments. The notice indicated that Price would have to pay $27,613.31

and, if not cured, Independence would accelerate the loan on June 16. Price did

not pay the past-due amounts and Independence accelerated the loan on August 5,

2008, demanding the loan‘s balance. On September 26, 2008, Independence filed
                                            3

a notice of intent to foreclose on the property, setting a sale date in November

2008. Price, expressing his desire to avoid foreclosure, tendered two checks to

Independence totaling $10,000. Independence conducted a foreclosure sale on the

property on November 10, 2008, selling the property to itself for $100,000.



       Independence then initiated a landlord-tenant action (LT1) against the LLC

for nonpayment of rent on February 18, 2009, obtaining a judgment for possession

on July 8, 2009.1 The LLC redeemed the property on October 19, 2009, by paying

Independence $7,900,2 at which point Independence cancelled the scheduled

eviction. Independence sent the LLC a letter on October 20, expressing its desire

to gain possession of the property because, pursuant to D.C. Code § 42-522,3 the

LLC was now considered to be a tenant at will following the foreclosure.

       1
         Independence also filed a complaint for debt against Price on September
22, 2009, seeking $492,516.80—the deficiency amount that remained after the
November 10 foreclosure sale. The trial court dismissed this complaint, however,
because the original notice of foreclosure was not served on Price by certified mail
as required.
       2
           These payments were signed by Price on behalf of the LLC.
       3
            ―[I]n case of a sale of real estate under mortgage or deed of trust . . . , and
a conveyance thereof to the purchaser, the grantor in such mortgage or deed of
trust . . . , or those in possession claiming under him, shall be held and construed to
be tenants at will . . . .‖ D.C. Code § 42-522 (2010 Repl.).
                                         4

      Independence initiated a second landlord-tenant action (LT2) against the

LLC on April 9, 2010, seeking possession. At a May 3, 2010, hearing, Price

appeared as a member of the LLC. The trial court indicated that Price did not have

standing to represent the LLC and an attorney needed to be present in order for the

case to proceed.4 The trial court then granted Independence a non-redeemable

judgment for possession. At a May 14 hearing to stay the writ of restitution, Price

again appeared as a member of the LLC, and the trial court again informed him

that he could not appear on the LLC‘s behalf because he was not an attorney. A

similar series of events occurred on May 17.



      On November 9, 2011, Price and the LLC filed the present action against

Independence. The complaint alleged wrongful foreclosure, breach of contract,

breach of good faith and fair dealing, wrongful eviction, predatory lending, and

deceptive trade practices.   The trial court granted Independence‘s motion to


      4
         ―No corporation shall appear as a plaintiff in this Branch except through a
member in good standing of the Bar of this Court.‖ Super. Ct. L&T R. 9 (b). This
court has not addressed whether Rule 9 (b) applies to LLCs. One Superior Court
judge has concluded that Rule 9 (b) does not apply to LLCs, but that other
provisions preclude a non-lawyer from appearing on behalf of an LLC. See HB
Mgmt., LLC v. Brooks, No. 04-LT-37313, 2005 WL 225993, at *1–5 (D.C. Super.
Ct. Feb. 1, 2005). The parties have not addressed this issue and we need not
resolve it in order to decide this case.
                                        5

dismiss the first four counts of the complaint (wrongful foreclosure, breach of

contract, breach of good faith and fair dealing, and wrongful eviction) on

September 11, 2012, on the basis of res judicata, reasoning that the LT2 case had

resolved those issues and Price and the LLC were privies. The court granted Price

and the LLC leave, however, to amend their predatory lending and deceptive trade

practices counts, which they did on January 25, 2013, alleging violations of the

Consumer Protection Procedures Act (―CPPA‖).5 Later, however, the trial court


      5
            It shall be a violation of this chapter, whether or not any
            consumer is in fact misled, deceived or damaged thereby,
            for any person to:

            ...

            (r) make or enforce unconscionable terms or provision of
            sales or leases; in applying this subsection, consideration
            shall be given to the following, and other factors:

            ...

                  (3) gross disparity between the price of the
                  property or services sold or leased and the
                  value of the property or services measured
                  by the price at which similar property or
                  services are readily obtainable in
                  transactions by like buyers or lessees;

                  (4) that the person contracted for or received
                  separate charges for insurance with respect
                  to credit sales with the effect of making the
                                                                     (continued…)
                                         6

granted Independence‘s motion to dismiss the remaining counts, treating the

motion as one for summary judgment and finding that Price and the LLC were not

―consumers‖ within the meaning of the CPPA. This appeal followed.



                                         II.



      Price and the LLC argue the trial court erred when it dismissed the first four

counts of the complaint on the basis of res judicata, acknowledging that the only

issue with the doctrine‘s application in this case is whether privity exists between

Price and the LLC. Although the trial court relied on Patton v. Klein, 746 A.2d

866 (D.C. 1999), Price and the LLC argue that Patton requires that the trial court

rule in their favor because they represent ―different interests‖ and do not share

(…continued)
                   sales,   considered         as   a    whole,
                   unconscionable; and

                   (5) that the person has knowingly taken
                   advantage of the inability of the consumer
                   reasonably to protect his interest by reasons
                   of age, physical or mental infirmities,
                   ignorance, illiteracy, or inability to
                   understand the language of the agreement,
                   or similar factors[.]

D.C. Code § 28-3904 (r)(3)–(5) (2012 Repl.).
                                         7

―precisely the same legal right,‖ just like the parties in Patton. Further, Price and

the LLC argue that Price‘s appearance on behalf of the LLC in the landlord-tenant

proceedings did not establish privity because Price was technically prohibited from

doing so under court rules.6 Because Price did not have the ability to control or

substantially participate in the LLC‘s cases, Price and the LLC argue there can be

no finding against them as to privity here. They also argue that they were denied

due process because Price was not named as a party in the LT2 case and because

neither he nor the LLC ―had an opportunity to represent their interest before the

Landlord Tenant Branch.‖



      Independence responds that the trial court properly applied res judicata to

the first four counts of the complaint. Specifically, Independence claims that other

jurisdictions follow the rule that ―LLCs are in privity with their individual

members, especially where the members exercise control over the prior litigation‖

and urges us to adopt that principle here. With respect to Price and the LLC‘s due

process argument, Independence notes that this issue is raised for the first time on

appeal and that, even if the court considers the argument, there was no violation

because both Price and the LLC received notice and an opportunity to appear and

      6
          See supra note 4.
                                             8

contest Independence‘s claims.



          Additionally, Price and the LLC argue that the trial court erred when it

determined that they were not ―consumers‖ within the meaning of the CPPA.

Citing the purpose of the Act, to protect consumers from a broad spectrum of

practices, they argue they can still be consumers with personal motives even if

those motives are pecuniary. Price and the LLC also argue that the determinative

factor is the nature of the purchaser, not the use of the goods or services purchased.

They further contend that Price was a retail borrower and the LLC was a tenant;

neither party was engaged in the regular business of owning, managing, or

financing commercial properties. The LLC is also a consumer, say Price and the

LLC, because the income generated from its business activities as a tenant of the

property was used to provide a personal economic benefit to the LLC‘s members.



          Independence maintains that the trial court correctly ruled that Price and the

LLC are not consumers within the meaning of the CPPA. Independence notes that

there is no established consumer-merchant relationship and Price and the LLC did

not establish any legally viable claim under D.C. Code § 28-3904 (r)(3), (r)(4), or

(r)(5).
                                         9



                                        III.



                                         A.



      We review the trial court‘s application of res judicata de novo. U.S. Bank,

N.A. v. 1905 2nd Street NE, LLC, 85 A.3d 1284, 1287 (D.C. 2014).


             In determining whether res judicata applies, ―[w]e
             consider (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.‖


Calomiris v. Calomiris, 3 A.3d 1186, 1190 (D.C. 2010) (alteration in original)

(quoting Elwell v. Elwell, 947 A.2d 1136, 1140 (D.C. 2008)).7 We previously

stated that ―[a] privy is one so identified in interest with a party to the former

litigation that he or she represents precisely the same legal right in respect to the

subject matter of the case.‖ Smith v. Jenkins, 562 A.2d 610, 615 (D.C. 1989)


      7
        Because there is no dispute that the first two prongs of the res judicata
determination have been met, we do not address them in this case.
                                            10

(citing Jefferson Sch. of Soc. Sci. v. Subversive Activities Control Bd., 118 U.S.

App. D.C. 2, 9, 331 F.2d 76, 84 (1963)). ―Traditional categories of privies include

‗those who control an action although not parties to it . . . ; those whose interests

are represented by a party to the action . . . ; [and] successors in interest.‘‖ Patton

v. Klein, 746 A.2d 866, 870 (D.C. 1999) (alterations in original) (quoting Smith,

562 A.2d at 615).



      In Taylor v. Sturgell, the Supreme Court recognized, ―the rule against

nonparty preclusion is subject to [six categories of] exceptions.‖ 553 U.S. 880,

893 (2008).      In discussing Taylor, this court previously summarized those

exceptions as follows:


              These exceptions may apply when: (1) there is an
              agreement to be bound by the issues determined in the
              prior action; (2) certain legal relationships exist between
              the non-party and the party to the prior judgment (e.g.,
              assignor and assignees, successive property owners,
              bailor and bailee); (3) there was representation in the
              prior suit by a party with the same interest (e.g., class
              action and suits by trustees, guardians and other
              fiduciaries); (4) the non-party assumed control over the
              prior litigation; (5) a non-participant in the prior litigation
              brings an action as the designated representative of a
              party to the prior action; and (6) there are statutory
              schemes foreclosing successive litigation when otherwise
              consistent with due process (e.g., bankruptcy
              proceedings).
                                         11



Franco v. District of Columbia, 3 A.3d 300, 305-06 (D.C. 2010) (citing Taylor,

553 U.S. at 893-95). In EDCare Management, Inc. v. DeLisi, citing both Taylor

and Franco, we recognized both parties were privies of parties in a previous case

because there was a ―pre-existing legal relationship between the person to be

bound and a party to the judgment‖—EDCare was assignee of another party and

DeLisi was the agent of another party. 50 A.3d 448, 451-52 (D.C. 2012). We also

noted that, ―[a]lthough agents and principals are not ordinarily in privity with each

other for purposes of res judicata,‖ privity can exist where the first action

―concerned a matter within the agency.‖ Id. at 452. It is undisputed that there is a

pre-existing legal relationship between Price and the LLC—Price is a member of

the LLC. Price and the LLC argue that they were not in privity, however, because

they do not share precisely the same legal right—Price is the former owner of the

property and the LLC was merely a tenant.



      Even if Price and the LLC were correct on that point—which we do not

decide—privity can also exist when a non-party has assumed control over the prior

litigation. Taylor, 553 U.S. at 895. For example, the courts in a significant

number of other jurisdictions have held in various circumstances that various
                                        12

commercial entities were in privity with an affiliated individual. See, e.g., Fox v.

Maulding, 112 F.3d 453, 459 (10th Cir. 1997) (―A director‘s close relationship

with the corporation will generally establish privity.‖ (internal quotation marks

omitted) (quoting Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d

1271, 1277 (10th Cir. 1989)); Higgins v. NMI Enters., Inc., Civil Action No. 09-

6594, 2012 WL 5997951, at *10 (E.D. La. Nov. 30, 2012), reconsideration

granted on other grounds, 2014 WL 28858 (E.D. La. Jan. 2, 2014); Arlin-Golf,

LLC v. Village of Arlington Heights, No. 09 C 1907, 2010 WL 918071, at *6 (N.D.

Ill. Mar. 9, 2010), aff’d, 631 F.3d 818 (7th Cir. 2011); Napala v. Valley Isle Loan

LLC, Civ. No. 10-00410 ACK-KSC, 2010 WL 464 2025, at *7 (D. Haw. Nov. 1,

2010); Western Md. Wireless Connection v. Zini, 601 F. Supp. 2d 634, 643 (D. Md.

2009); In re Linc Capital, Inc., 310 B.R. 847, 862 (Bankr. N.D. Ill. 2004). Many

of those jurisdictions reasoned that privity exists between a commercial entity and

an affiliated individual because the affiliated individual controlled the prior

litigation. See Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1293 (11th Cir.

2010); Kreager v. General Elec. Co., 497 F.2d 468, 472 (2d Cir. 1974); Radovich

v. YA Global Invs., L.P., Civil Action No. 12-cv-6723 (DMC) (JAD), 2013 WL

4012042, at *5 (D.N.J. Aug. 5, 2013); Goodman Ball, Inc. v. Mach II Aviation,

Inc., No. C 10-01249 WHA, 2010 WL 4807090, at *5 (N.D. Cal. Nov. 19, 2010)
                                          13

(quoting In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983)); Apollo Real

Estate Inv. Fund, IV, L.P. v. Gelber, 935 N.E.2d 963, 973-74 (Ill. App. Ct. 2010);

Balasuriya v. Bemel, 617 N.W.2d 596, 600 (Minn. Ct. App. 2000); Keeley &

Assocs., Inc. v. Integrity Supply, Inc., 696 N.E.2d 618, 621 (Ohio Ct. App. 1997);

Tamily v. General Contracting Corp., 620 N.Y.S.2d 506, 509 (App. Div. 1994).

We agree with this line of authority and we hold, for the purposes of res judicata in

the District of Columbia, that an owner or member who holds himself out as an

LLC‘s representative in connection with litigation is in privity with the LLC with

respect to that litigation.8



       Further, Price appeared as a member of the LLC on multiple occasions

during the LT2 case and held himself out as the LLC‘s representative, although the

       8
          We observe, however, that other jurisdictions have declined to find privity
between LLCs and their members. See, e.g., McNeil Interests, Inc. v. Quisenberry,
407 S.W.3d 381, 387–90 (Tex. App. 2013) (refusing to find privity between an
LLC and a member); Collier v. Greenbrier Developers, LLC, 358 S.W.3d 195,
200–01 (Tenn. Ct. App. 2009) (holding that the sole member of an LLC is not
―ipso facto‖ in privity with the LLC). Whether a commercial entity is found to be
in privity with an affiliated individual will depend a number of factors, perhaps
including the nature of the commercial entity, the relationship between the person
and the entity, and the particular legal and factual context in which the issue arises.
In this case, we decide only the narrow issue presently before us—in this context,
with these facts, whether a member and owner of an LLC is in privity with that
LLC when he holds himself out as a representative of the LLC during litigation.
                                          14

trial court repeatedly took the position that an LLC must be represented by counsel

in the District of Columbia.9 Further, during the course of the foreclosure dispute

with Independence, Price wrote checks on the LLC‘s behalf. See supra note 2.

For these reasons, we conclude the trial court did not err in finding that res judicata

barred the first four counts of Price and the LLC‘s complaint; therefore, we affirm

the grant of Independence‘s motion to dismiss those counts.



                                          B.



      We also conclude that the trial court correctly held that the CPPA does not


      9
         As such, Price and the LLC‘s due process argument lacks merit. The basic
requirement of due process is ―the opportunity to be heard at a meaningful time
and in a meaningful manner.‖ City of Los Angeles v. David, 538 U.S. 715, 717
(2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)) (internal
quotation marks omitted). To the extent this issue is reviewable, we find no error.
See In re J.W., 837 A.2d 40, 47 (D.C. 2003) (―We have said that constitutional
claims not made in the trial court are ordinarily unreviewable on appeal. We
deviate from this general rule only in exceptional situations and when necessary to
prevent a clear miscarriage of justice apparent from the record. To invoke this
plain error exception, the appellant must show that the alleged error is obvious and
so clearly prejudicial to substantial rights as to jeopardize the very fairness and
integrity of the proceeding.‖) (internal quotation marks and citations omitted).
The LLC received notice of the complaint for possession, as did Price based on his
appearance before the court as a member of the LLC. Further, the trial court
informed Price on multiple occasions that he needed to have an attorney to
represent the LLC.
                                       15

apply in these circumstances. As we indicated above, ―[o]ur review of the trial

court‘s summary judgment decision is de novo, and hence, we conduct an

independent review of the record, construing it in the light most favorable to the

non-moving party.‖ Saucier v. Countrywide Home Loans, 64 A.3d 428, 437 (D.C.

2013) (citing Boyrie v. E & G Prop. Servs., 58 A.3d 475, 477 (D.C. 2013)). The

purposes of the CPPA are to: ―(1) assure that a just mechanism exists to remedy

all improper trade practices and deter the continuing use of such practices; (2)

promote, through effective enforcement, fair business practices throughout the

community; and (3) educate consumers to demand high standards and seek proper

redress of grievances.‖ D.C. Code § 28-3901 (b) (2012 Repl.). The Act ―‗was

designed to police trade practices arising only out of consumer-merchant

relationships,‘ and does not apply to commercial dealings outside the consumer

sphere.‖ Ford v. Chartone, Inc., 908 A.2d 72, 81 (D.C. 2006) (citation omitted)

(quoting Howard v. Riggs Nat’l Bank, 432 A.2d 701, 709 (D.C. 1981)). Thus, in

order to obtain redress under the CPPA, Price and the LLC must be ―consumers,‖

defined as ―a person who, other than for purposes of resale, does or would

purchase, lease (as lessee), or receive consumer goods or services, including as a

co-obligor or surety, or does or would otherwise provide the economic demand for

a trade practice.‖ D.C. Code § 28-3901 (a)(2)(A). ―Consumer goods or services‖
                                        16

are those that ―[a] person does or would purchase, lease (as lessee), or receive and

normally use for personal, household, or family purposes.‖          Id. § 28-3901

(a)(2)(B)(i). In rejecting the claim under the CPPA, the trial court determined that

Price and the LLC were not ―consumers‖ within the means of the statute. Instead,

the court found that the property was commercial because: (1) Price leased part of

the property to the LLC, a commercial business; (2) Price lived in Atlanta when he

transacted with Independence and did not occupy the property; and (3) tax records

listed the property as commercial.




      Price and the LLC, however, rely on Ford v. Chartone in support of their

claim that they were ―consumers.‖ In that case, we indicated that the appellant

there was still a consumer when he purchased his medical records as part of his

efforts to pursue a personal injury action. 908 A.2d 72, 83 (D.C. 2006). It is in

that context that we stated, ―[a] motive may be pecuniary and still be personal.‖

Id. Ford, however, actually supports Independence‘s position, as it goes on to

acknowledge that




            the CPPA does not protect merchants in their commercial
            dealings with suppliers or other merchants . . . . The term
                                         17

             ―merchant means a person who does or would sell, lease
             (to), or transfer, either directly or indirectly, consumer
             goods or services, or a person who does or would supply
             the goods or services which are or would be the subject
             matter of a trade practice.‖




Id. (emphasis added) (internal quotation marks omitted) (citing D.C. Code § 28-

3901 (a)(3)). If anything, Price falls within the definition of a ―merchant‖ with

respect to the property. Price and the LLC have not shown that Price owned the

property for personal, family, or household purposes; instead, the record indicates

that Price was living in Atlanta, leasing the property to two residential tenants and

the LLC to run a business, and maintaining tax records that listed the property as

commercial. See Edwards v. Ocwen Loan Servicing, LLC, Case No. 13-cv-709

(RJL), 2014 WL 861996, at *3 (D.D.C. Mar. 5, 2014) (noting that the CPPA did

not apply to a borrower‘s claims when, beyond bare allegations that the property

was for personal, family, or household use, she did not live at the property or

intend to do so when she refinanced the property).



      As we stated in Adam A. Weschler & Son, Inc. v. Klank, ―[i]f the purchaser

is regularly engaged in the business of buying the goods or service in question for

later resale to another in the distribution chain, or at retail to the general public,
                                           18

then a transaction in the course of that business is not within the Act.‖ 561 A.2d

1003, 1005 (D.C. 1989). This is precisely what Price did as owner and landlord of

the subject property when he leased it to other individuals and businesses for their

use, instead of using the property himself.           Utilizing the proceeds of

Independence‘s 2007 loan for the ―personal economic benefit to himself and his

family‖ does not make Price a consumer in this context, nor is the LLC a consumer

because its members received a personal economic benefit from the company‘s

business activity. Were we to accept Price and the LLC‘s position, it is unclear

what individual or business entity, if any, would be considered anything other than

a ―consumer,‖ because ―income generated from . . . business activities‖ will always

lead to a ―personal economic benefit‖ for someone.        We agree with the trial

court—Price and the LLC are not ―consumers‖ within the meaning of the CPPA

and, as such, there was no genuine issue of material fact and Independence was

entitled to judgment as a matter of law.



                                           IV.



      For the foregoing reasons, the trial court‘s September 11, 2012, order

granting Independence‘s motion to dismiss counts I through IV of the original
                                      19

complaint and the May 21, 2013, order granting Independence‘s motion to dismiss

the second amended complaint are hereby affirmed.



                                           So ordered.
