(dissenting).
I would affirm the trial court’s decision that appellant is collaterally estopped from maintaining the present action against defendants and that the same principle entitles defendants to summary judgment against appellant on their counterclaim.
The doctrine of mutuality should no longer be applied to bar one not a party, or in privity with a party, in the earlier litigation from applying the principles of res judicata and collateral estoppel. Blonder-Tongue Lab., Inc. v. University of Illinois Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Bernhard v. Bank of America Nat. Trust & Savings Ass’n., 19 Cal.2d 807, 122 P.2d 892 (1942); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). Callen and Kadue, “To Bury Mutuality, Not to Praise It: An Analysis of Collateral Estoppel After Parklane Hosiery Co. v. Shore,” 31 Hastings L.J. 755 (1980).
As outlined by the Supreme Court of Colorado in the Waitkus case, supra, several tests must be met before the doctrine of collateral estoppel may be applied.
First, was the issue decided in the prior adjudication identical with the one presented in the action in question? Second, was there a final judgment on the merits? Third, was the party against whom the plea is asserted a party to the prior adjudication? And, fourth, did the party against whom the plea is asserted have a full and fair opportunity to litigate the issue in the prior adjudication?
517 P.2d at 399 (footnote omitted).
Notwithstanding appellant’s ingenious attempt to cloak her action against defendants in terms of an alleged breach by defendants of their contractual obligation arising from the listing agreement and the •fiduciary responsibility flowing from their position as real estate brokers, her claim can rise no higher against defendants than did her defense to the action brought against her by the Blasegs and Wests in the original action. The allegations set forth in appellant’s complaint against defendants and her reply to defendants’ counterclaim are nothing more than a reassertion, albeit it far more artfully drafted and specifically enumerated than were the allegations in her answer and counterclaim in the original action, of her claim that she was somehow mistaken or misled with respect to the valuation that was to be placed upon the inventory in her floral business. The jury in the Blaseg and West action rejected appellant’s defense based upon fraud, mistake, undue influence, or lack of understanding. Appellant’s present allegation that defendants breached their fiduciary and agency obligations to her would have constituted a matter of defense in the original suit with *340respect to appellant’s assertion that she signed the sales contract on the basis of fraud, mistake, undue influence, or lack of understanding. The same analysis applies with respect to the other allegations set forth in appellant’s complaint and reply to defendants’ counterclaim.
In my view of the case, then, the issue decided in the prior adjudication, i. e., the validity of the sales contract, was identical with the issue in the present action. Although appellant may allege breach by defendants of the listing agreement and of their fiduciary responsibilities to appellant, the ultimate issue is whether plaintiff entered into a valid, enforceable sales contract with the Blasegs and Wests, an issue that she herself now concedes she is estopped from relitigating. That the other three tests set forth in the Waitkus case, supra, are met is not subject to serious question.*
Likewise, I would affirrh the trial court’s holding that defendants are entitled to the offensive use of collateral estoppel to prevail upon their counterclaim. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). See Callen and Kadue, supra. Based upon" the principles enunciated in that case, I see nothing basically unfair about permitting the offensive use of the doctrine in the circumstances of the present case.
Accordingly, I would affirm the judgment appealed from.
Whether appellant’s counsel in the Blaseg and West action (present counsel did not represent her in that action) adequately litigated the factual matters that appellant raises in her pleadings in the present action is irrelevant; appellant had a full and fair opportunity to litigate the issue of the validity of the sales contract in the prior action.