Litigation Procedure and Law - § 8-18 - § 8-19
2009---Kapur v. Kapur, Va. Ct. of Appeals, Unpublished, Record No. 0363-08-4 (May 19, 2009)
Trial court erred in imposing sanctions precluding Husband from introducing evidence at the hearing on support and equitable distribution based on his failure to attend a scheduled deposition, because no order compelling Husband’s attendance at a deposition was ever entered. (see Brown v. Black, 260 Va. 305 (2000), which held that the entry of and failure to obey an order compelling discovery is a prerequisite for an order imposing sanctions under Rule 4:12(d).)
(2) Interrogatories, Requests for Production, Requests for Admission
2004---Cirrito v. Cirrito, 44 Va. App. 287
Trial court failed to follow proper procedure regarding the identification of experts and erred in imposing sanctions on wife for failing to make an expert disclosure in the absence of a specific Rule 4:1 request that she do so. Wife responded to some of husband’s requests for admissions with statements that she was unable to admit or deny, as she had not yet identified experts needed to do so. Husband contended that his simultaneously-served interrogatories, which requested only that wife identify the basis for any refusal to admit the requests for admissions, constituted a request that she disclose such experts and provide their reports. Despite the fact that husband never expressly requested that wife identify experts pursuant to Rule 4:1, the trial court found that the requests for admissions and the corresponding interrogatories sought the same information as a Rule 4:1 request for identification of experts, and ordered wife to identify her experts and provide their reports. The Court of Appeals held that because husband had not specifically requested expert disclosure pursuant to Rule 4:1, the trial court lacked the authority to order wife to so disclose.
1970---Rakes v. Fulcher, 210 Va. 542
One purpose of discovery procedures is to obtain evidence in the sole possession of one party and unobtainable by opposing counsel through independent means. However, discovery procedures were not intended to open an attorney’s files to opposing counsel, nor were they intended to afford an attorney the luxury of having opposing counsel investigate his case for him. When both parties have an equal opportunity to investigate, as is the case where all witnesses are made known and are available to both sides, additional discovery regarding those witnesses should not be granted.
2010---Spreadbury v. Spreadbury, Va. Ct. of Appeals, Unpublished, No. 1053-09-4
On appeal, a trial court’s decision regarding discovery disputes will be set aside only if the court abused its discretion. Rule 4:12 governs the imposition of sanctions for failure to make discovery, and when a party fails to respond to discovery requests, Rule 4:12(b)(2)(B) permits the court to enter an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters into evidence.
Where wife on two occasions refused to comply with court orders to respond to husband’s discovery requests, the trial court did not err in prohibiting wife from opposing the claims or defenses of husband, from introducing any evidence to support claims she made or intended to make against husband which were the subject of husband’s discovery requests, or from introducing any matters into evidence which were the subject of the discovery requests. Furthermore, the trial court did not err in refusing to permit wife to introduce evidence related to any property she claimed was separate other than the separate property she listed on bankruptcy schedules that she provided to the bankruptcy court.
2009---Kapur v. Kapur, Va. Ct. of Appeals, Unpublished, Record No. 0363-08-4 (May 19, 2009)
Trial court erred in imposing sanctions precluding Husband from introducing evidence at the hearing on support and equitable distribution based on his failure to attend a scheduled deposition, because no order compelling Husband’s attendance at a deposition was ever entered. (see Brown v. Black, 260 Va. 305 (2000), which held that the entry of and failure to obey an order compelling discovery is a prerequisite for an order imposing sanctions under Rule 4:12(d).)
2004---Estate of Hackler v. Hackler, 44 Va. App. 51
Where husband refused to answer discovery regarding financial and asset information in divorce proceeding, and refused to abide by pendente lite orders to provide support and maintenance, the trial court had the authority under Rule 4:12 to appoint a conservator to take over and manage husband’s assets, to pay support from husband’s accounts, and to acquire the information requested by wife in discovery.
(5) Expert Disclosures
2007---John Crane, Inc. v. Jones, 274 Va. 581
A party is not relived from its disclosure obligation under Rule 4:1(b)(4)(A)(i) simply because the other party has some familiarity with the witness or has deposed the witness regarding the substance of his opinions. Such a rule would impermissibly alter a party’s burden to disclose, and instead impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert’s testimony.
Trial court did not err in refusing to allow an expert to testify regarding levels of asbestos in ambient air, where nothing in the Defendant’s expert witness disclosure referenced that particular subject matter. That the Plaintiff questioned the expert at his deposition regarding his opinions on the subject did not matter, as the Defendant still had the duty to disclose those opinions pursuant to Rule 4:1(b)(4)(A)(i).
Trial court did not err in refusing to allow Defendant’s expert to testify where Defendant, despite disclosing the topic on which the expert intended to testify, failed to disclose the substance of the expert’s opinion in the pre-trial disclosures and failed to include in the pre-trial disclosures the report prepared by the expert.
2004---Cirrito v. Cirrito, 44 Va. App. 287
Trial court failed to follow proper procedure regarding the identification of experts and erred in imposing sanctions on wife for failing to make an expert disclosure in the absence of a specific Rule 4:1 request that she do so. Wife responded to some of husband’s requests for admissions with statements that she was unable to admit or deny, as she had not yet identified experts needed to do so. Husband contended that his simultaneously-served interrogatories, which requested only that wife identify the basis for any refusal to admit the requests for admissions, constituted a request that she disclose such experts and provide their reports. Despite the fact that husband never expressly requested that wife identify experts pursuant to Rule 4:1, the trial court found that the requests for admissions and the corresponding interrogatories sought the same information as a Rule 4:1 request for identification of experts, and ordered wife to identify her experts and provide their reports. The Court of Appeals held that because husband had not specifically requested expert disclosure pursuant to Rule 4:1, the trial court lacked the authority to order wife to so disclose.
2006---Rahnema v. Rahnema, 47 Va. App. 645
To be effective, pretrial deadlines in Rule 1:18 scheduling orders must be enforced by Virginia trial courts.
2011--- Morgan v. Kifus and Chowaniec, Va. Ct. of Appeals, Unpublished, No. 0399-10-4
A mother’s petition for a judgment declaring that she was the sole parent of a child and that no other parties had any rights or interest in either the legal or physical custody of the child was barred by res judicata, where the court had previously entered a consent order regarding custody and visitation from which no party appealed. Though the mother filed her petition for declaratory relief under the Declaratory Judgment Act provisions of Va. Code §8.01-184, her petition nonetheless sought to effectively re-litigate the issues of custody and visitation that had been previously decided. Absent allegations of a material change in circumstances since entry of the previous order, her petition was barred, notwithstanding her choice to pursue litigation through the alternative avenue of declaratory relief.
2010--- Sharp v. Sharp, Va. Ct. of Appeals, Unpublished, No. 2712-09-2
Where the Court of Appeals previously dismissed wife's appeal for failure to timely note the appeal, the doctrine of res judicata barred her subsequent appeal of the same order of the trial court.
2010--- Gianaris v. Gianaris, Va. Ct. of Appeals, Unpublished, No. 2379-09-4
Res judicata provides that a valid personal judgment on the merits bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies. Collateral estoppel is the preclusive effect, based upon a collateral and different cause of action, in which the parties to the first action and their privies are precluded from litigating any issue of fact or law actually litigated and essential to a valid and final personal judgment in the first action. Where the issue in the prior proceeding was actually litigated and the parties are the same, the preclusive effect of the doctrines of res judicata and collateral estoppel operates in the same basic fashion. (Citing Bates v. Devers, 214 Va. 667 (1974)).
Wife’s action in contract seeking past due spousal support was barred by res judicata. The parties previously litigated a motion by husband to terminate the obligation under the agreement, as incorporated into the decree, pursuant to Va. Code §20-109. The court terminated husband’s obligation at that time, and wife never appealed. Thus, even assuming, as Wife argued, that the agreement remained enforceable as a contract independent of the decree of divorce, the underlying issue of husband’s obligation under the agreement was a matter previously adjudged, and thus, barred by res judicata.
2010--- Sharp v. Sharp, Va. Ct. of Appeals, Unpublished, No. 2712-09-2
A judgment of dismissal which is intended to be and is a disposition on the merits of a claim is a final judgment on the merits, and thus, subject to the doctrine of res judicata. Where the Court of Appeals previously dismissed wife’s appeal of the same issues for wife’s failure to timely note the appeal, the doctrine of res judicata barred her subsequent appeal.
2010---Jackson v. Jackson, Va. Ct. of Appeals, Unpublished, No. 2481-09-4
The doctrine of res judicata provides as follows: “When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings, or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties.” (Citing Lofton Ridge, LLC v. Norfolk Southern Rwy. Co., 268 Va. 377 (2004)).
2010---Leake v. Taylor, Va. Ct. of Appeals, Unpublished, No. 0737-09-4
Res judicata literally means a “matter adjudged,” and precludes relitigation of a claim or issue once a final determination on the merits has been reached. Highsmith v. Commonwealth, 25 Va. App. 434 (1997). A final determination on the merits is “a decision as to the respective rights and liabilities of the parties, based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right to recovery depends, irrespective of formal, technical, or dilatory objections or contentions. Storm v. Nationwide Mut. Ins. Co., 199 Va. 130 (1957). A dismissal of a cause of action may constitute a judgment on the merits depending upon the grounds upon which such dismissal is based. Highsmith, 25 Va. App. At 440.
Trial court did not err in failing to dismiss wife’s appeal of a juvenile and domestic relations district court order of spousal support where wife initially noted an appeal of the ruling before the written order was entered, said appeal was dismissed because it was not accompanied by an appeal bond, and wife then properly noted an appeal of the written order after its entry and paid the requisite appeal bond. The trial court’s dismissal of the initial, premature appeal was not a decision as to the respective rights and liabilities of the parties, nor was it based on the ultimate fact or state of facts disclosed by the pleadings or evidence. Thus, the dismissal of the prematurely filed appeal was not res judicata and did not preclude the trial court from hearing the appeal that wife timely filed after entry by the juvenile court of the written order.
2009---Harding v. Harding, Va. Ct. of Appeals, Unpublished, Record No. 1157-08-4 (June 23, 2009)
Unless there is a final judgment, res judicata is not applied. A judgment or decree is only final when it disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court in the cause except its ministerial execution.
2009---Harding v. Harding, Va. Ct. of Appeals, Unpublished, Record No. 1157-08-4 (June 23, 2009)
Res judicata was not applicable where trial court found, with regard to a provision in father’s Rule to Show Cause, that mother was “willfully remiss in her compliance” with a prior court order, but did not expressly dismiss that portion of the rule to show cause nor impose any sanction regarding that portion of the show cause. No “final order,” disposing of the whole subject of that provision, was entered until later, when the court dismissed the entire rule to show cause with prejudice.
2006---Robbins v. Robbins, 48 Va. App. 466
Under the law-of-the-case doctrine, a party is not entitled to re-litigate unappealed issues on remand. But a trial court may modify or rescind interlocutory orders at any time before final judgment.
2004---Sullivan v. Sullivan, 42 Va. App. 794
Allowing reconsideration of a child’s best interests in custody proceedings upon an allegation of a substantial change in circumstances is meant to avoid the bar that would be otherwise imposed by res judicata. Trial court did not err in overruling father’s demurrer to mother’s petition for modification ofcustody, despite the fact that since the court of appeals reversed the trial court’s prior ruling allowing mother to relocate with the child and remanded the case to the trial court, the child had not yet been returned to Virginia.
1994---Gottlieb v. Gottlieb, 19 Va. App. 77
A person seeking to assert res judicata as a defense must establish the following: (1) identity of the remedies sought; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality of the persons for or against whom the claim is made.
Res judicata did not bar wife from defending divorce action filed by husband, which alleged desertion by wife, simply because the court had previously sustained husband’s demurrer to a divorce action filed by wife, which alleged constructive desertion by husband. The mere fact that wife could not maintain a suit against husband on grounds of constructive desertion did not automatically render her conduct in leaving the marital home an adequate ground of divorce such that she was barred from defending against husband’s allegations of desertion.