dissenting:
I regret that I am unable to agree with the majority’s affirmance of the judgment. In my opinion, the effect of the trial court’s decision is to treat the earlier lawsuit between the parties as dispositive of events that had not yet occurred at the time of the disposition of that suit. I must therefore respectfully dissent.
I agree with the court that insofar as Dr. Avery’s second complaint can be construed as dealing only with the period prior to July 1997 (when Dr. Avery paid for the equipment), his action is barred by the doctrine of issue preclusion (collateral estoppel). I also agree that the second complaint is inartfully drawn and does not reveal that there has been a change of circumstances, namely, that the previous debt has been satisfied.
In his opposition to HPCS’ motion for summary judgment, however, Dr. Avery alleged that
[fjurther, after the judgment had been entered against Plaintiff in July 1997 and the disputed monies were paid, Defendant HPCS continued to report adverse credit information and to improperly report such information and thereby continued to prejudice Plaintiff and his ability to obtain credit until November 1999 when Defendant HPCS had such derogatory and defamatory information removed from Plaintiffs credit report.
(Emphasis in original.) This allegation about events that occurred in the second half of 1997, in 1998, and in 1999, could not have been precluded by the prior action, because the first case was decided in July 1997. At that time, the alleged continuation of the defamatory reporting of Dr. Avery’s credit from July 1997 to November 1999 had not yet happened. The court could not foresee in July 1997 that HPCS would fail for 2íé years to record on its books Dr. Avery’s satisfaction of his debt. A fortiori, the court could not determine in advance the legal consequences of HPCS’ alleged failure to reflect Dr. Avery’s payment of what he had previously owed.
The majority’s response to these realities is as follows:
With regard to subsequent alleged injuries attributable to failure to remove the questioned credit report, appellant has not pled such a theory of liability in his complaint, nor join[ed] issue on a factual basis as to subsequent injury in opposing summary judgment.
It is true that the complaint does not include the central allegation contained in his opposition, and that Dr. Avery has filed no affidavit or other admissible document showing that he suffered injury, after July 1997, as a result of the ensuing 2/& years of erroneous reflection of the status of Dr. Avery’s former debt. As to the July 1997 — -November 1999 period, however, the defendant has not filed any contrary affidavit either, so the record is limited to the pleadings and Dr. Avery’s opposition *179to the motion for summary judgment. In my opinion, we should treat that opposition as an elaboration on Dr. Avery’s complaint. Although Dr. Avery’s counsel would have been well advised to include in his complaint the factual allegations contained in his opposition, our Rules of Civil Procedure, like the Federal Rules, “reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome.... ” Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). It therefore seems to me that under these circumstances, we should not dispose, on the pleadings alone, of a factual allegation that Dr. Avery’s credit was defamed for 2J/¿ years after he satisfied his debt. If his credit was so defamed for so long a period, there is a substantial possibility that he suffered injury.
In the present context, and in the absence of affidavits or similar materials that go beyond the pleadings (at least as to the period in dispute), HPCS’ motion for summary judgment is, for all practical purposes, equivalent to a motion for judgment on the pleadings, or to a motion to dismiss for failure to state a claim upon which relief may be granted. For purposes of such a motion, the plaintiffs allegations must be treated as true, Vincent v. Anderson, 621 A.2d 367, 372 (D.C.1993), and Dr. Avery is therefore entitled to present his case to a trier of fact. Accordingly, I would reverse the award of summary judgment in HPCS’ favor and remand the case for trial.
Even if Dr. Avery’s opposition to HPCS’ motion of summary judgment is not treated as a de facto amendment of the complaint, it is evident from that opposition that Dr. Avery is now making an allegation regarding post-July 1997 events which is not subject to issue preclusion on the basis of the earlier lawsuit. Under these circumstances, if the complaint is deemed inadequate because it lacks that allegation, the appropriate disposition is dismissal of the complaint without prejudice, or with leave to amend, rather than summary judgment on the merits. Such a disposition would enable Dr. Avery to submit relevant allegations to a fact-finder, so long as these allegations were timely made, and will avoid deciding the case on the basis of counsel’s misstep in pleading.1
. In that regard, I express no opinion as to whether a new or amended complaint would relate back, or as to whether Dr. Avery’s new claim would be time-barred.