Eyong, Simon v. 72 Barrow St. Realty

*This is a per curiam opinion. Under Rule 1-104, the opinion is not precedent within the
rule of stare decisis, nor may it be cited as persuasive authority.
Circuit Court for Montgomery County
Case No.: C-15-CV-24-006220
UNREPORTED*
IN THE APPELLATE COURT
OF MARYLAND
No. 2268
September Term, 2025
______________________________________
SIMON EYONG
v.
72 BARROW ST. REALTY CORP. SE
______________________________________
Graeff,
Ripken,
Eyler, Deborah S.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
PER CURIAM
______________________________________
Filed: October 16, 2026

‒Unreported Opinion‒
In September 2024, appellant Simon Eyong sued his landlord, appellee 72 Barrow
St. Realty Corp. SE, in the Circuit Court for Montgomery County, alleging negligence and
negligent misrepresentation related to damage caused by a leak in his apartment. Two
months later, Eyong filed another suit against 72 Barrow in the same court alleging the
same claims related to the same incident. The circuit court eventually entered summary
judgment in favor of 72 Barrow in the first case, and Eyong appealed. Soon after, 72
Barrow moved for summary judgment in the second case, arguing, in part, that Eyong’s
claims were now barred by res judicata. After a hearing, the circuit court granted the
motion and awarded summary judgment to 72 Barrow. This appeal followed.
On appeal, Eyong first contends that the circuit court abused its discretion by
granting 72 Barrow leave to file its summary-judgment motion after the deadline set by the
scheduling order. But “a party can file a motion for summary judgment at any time[,]”
regardless of any scheduling order. Benway v. Md. Port Admin., 191 Md. App. 22, 42
(2010). In any event, Eyong was not prejudiced by the court allowing 72 Barrow to file its
motion; he filed an opposition and argued the merits at the hearing. Thus, any error would
not be reversable. See Flores v. Bell, 398 Md. 27, 33 (2007) (“The burden is on the
complaining party to show prejudice as well as error.”).
Eyong next contends that the circuit court erred in awarding summary judgment to
72 Barrow. We review this decision de novo. See Webb v. Giant of Md., LLC, 477 Md. 121,
136 (2021).
Res judicata prevents a party from relitigating a claim that has already been fully
and fairly decided. Facey v. Facey, 249 Md. App. 584, 608 (2021). Its elements are: (1) the

‒Unreported Opinion‒
2
parties in both cases are the same; (2) the claim presented in both cases is the same; and
(3) there was a final judgment on the merits. Id. “When these three elements are present,
the first claim is merged into the judgment and bars the second claim.” Id. (cleaned up).
This preclusive effect extends not only to what was litigated in the prior case, but
also to what could have been litigated. See Smalls v. Md. State Dep’t of Educ., Off. of Child
Care, 226 Md. App. 224, 232 (2015). “Once a set of facts has been litigated, res judicata
generally prevents the application of a different legal theory to that same set of facts,
assuming that the second theory of liability existed when the first action was litigated.”
Anne Arundel Cnty. Bd. of Educ. v. Norville, 390 Md. 93, 111 (2005) (cleaned up).
The parties in this case are the same as in Eyong’s first case, which ended in
summary judgment in favor of 72 Barrow. It makes no difference that Eyong’s appeal from
that judgment was pending when the court here granted 72 Barrow’s motion—“the
pendency of an appeal does not affect the finality of a judgment for res judicata purposes.”
Campbell v. Lake Hollowell Homeowners Ass’n, 157 Md. App. 504, 525 (2004). The
claims in the two cases are also substantively identical. Contrary to Eyong’s argument, his
addition of allegations about a subsequent maintenance email does not change this. At
bottom, the claims in both cases arise from the same incident, the same alleged dangerous
condition, the same lease, and the same alleged injuries. Even with his additional factual
allegation, Eyong’s claims in the second case arise out of the same transaction as the first

‒Unreported Opinion‒
3
case and could have been litigated there. Accordingly, the elements of res judicata were
met, and the circuit court did not err in awarding summary judgment to 72 Barrow.
JUDGMENT 	OF 	THE 	CIRCUIT
COURT 	FOR 	MONTGOMERY
COUNTY 	AFFIRMED. 	COSTS 	TO
BE PAID BY APPELLANT.