Litigation Procedure and Law - § 8-19

§ 8-19. Res Judicata

2018---Kellogg v. Green, Va. Sp. Ct., No. 170643
The trial court erred in barring Wife’s breach of contract action, in which she sought to enforce the parties’ premarital agreement and amendment thereto (“agreements”), on grounds that its prior dismissal of Wife’s petition for rule to show cause involving the same issues was res judicata as to the breach of contract claim. Pursuant to Rule of the Supreme Court of Virginia 1:6, a final judgment is essential to the imposition of res judicata to bar a claim. A decree that enters judgment for a party is not final if it expressly provides that the court retains jurisdiction to reconsider the judgment or to address other matters still pending in the action before it. A decree is final only 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. Where further action of the court in the cause is necessary to give completely the relief contemplated by the court, the decree is not final but interlocutory.

Here, the final decree of divorce stated that the cause would remain on the docket for purposes of enforcing the terms of the parties’ agreements. In the subsequent show cause order, the trial court dismissed Wife’s petition because it concluded that a show cause petition was improper. The show cause order contained no language indicating that it was a final order regarding the enforceability of the agreements; there was no language indicating that there was nothing further to be done in the action; and there was no language in the order which would bar the filing of a subsequent show cause petition or the attempted enforcement of the agreements in some other manner. Thus, the show cause order did not render a final judgment concerning the enforceability of the parties’ agreements. Further, a trial court is empowered to change a legal determination as long as it retains jurisdiction over the proceeding before it. Because there was no language in the show cause order indicating that the ruling was a final judgment, the court retained jurisdiction and the ability to not only reverse its dismissal of Wife’s show cause petition, but also to grant a subsequent show cause petition.

2018--- Sims-Bernard v. Bernard, Va. Ct. of Appeals, Unpublished, 0918-17-2
Even if the trial court erred by allowing the Department of Social Services to dictate the parameters of Mother’s visitation in a prior custody and visitation order, such error would merely have been reversible error, rather than rendering the order void ab initio. Because the prior order was not void ab initio, and because Mother previously appealed the prior order to the Court of Appeals, which declined to consider her assignment of error, the doctrine of res judicata applies and prevents Mother from collaterally attacking the prior order.

2015--- Lee v. Spoden , 290 Va. App. 235
The preclusive effects of res judicata can be divided into two categories: claim preclusion and issue preclusion. Under the doctrine of claim preclusion, a final judgment forecloses successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. Claim preclusion contains two preclusive effects: bar and merger. Bar arises when a valid and final personal judgment is entered for the defendant; such judgment bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies. Merger occurs when a valid and final personal judgment for money is entered for plaintiff; once judgment has been entered, the original cause of action is merged into the judgment and is extinguished and the plaintiff cannot maintain a subsequent action on the original cause of action. (See Rule 1:6 of the Rules of the Supreme Court of Virginia)

Issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim. Issue preclusion contains two preclusive effects: direct estoppel and collateral estoppel. Direct estoppel arises when the defendant has won a judgment not on the merits. Although the plaintiff’s cause of action may survive the judgment, the parties are precluded in any subsequent action based upon that cause of action from relitigating any issue actually litigated and determined by the judgment. Collateral estoppel arises when the subsequent cause of action differs from the first, but the parties and their privies are the same. Collateral estoppel precludes the parties from relitigating any issue of fact actually litigated and essential to a valid and final personal judgment in the first action.

In Wife’s breach of contract action against Husband and his company, the trial court erred in failing to dismiss Wife’s claims under the doctrine of claim preclusion. During a prior contempt proceeding, the trial court found that Husband had not violated certain terms of the parties’ divorce settlement agreement. The underlying claims in Wife’s contempt action, which the trial court decided on the merits by a final judgment, were identical to the claims she asserted in her subsequent breach of contract action. Thus, Wife’s decision to pursue a final contempt judgment against Husband precluded her from pursuing any further claims against Husband based on the same occurrence or transaction. And because Husband and his company were in privity, this preclusive effect extended to Husband’s company.

2014---Carrithers v. Harrah, 63 Va. App. 641
In a prior appeal, the Virginia Court of Appeals held that Father failed to timely file his notice of appeal from the circuit court’s order in which the circuit court, finding that the JDR court had properly exercised jurisdiction over Father, refused to set aside the JDR court’s child support arrearage order. Despite the Court of Appeals’ ruling, Father filed a motion in the JDR court seeking again to set aside the arrearage order on grounds that the order was void ab initio. The JDR court, and the circuit court on de novo review, both held that the circuit court’s order refusing to set aside the JDR court’s arrearage order was final and undisturbed on appeal. Therefore Father’s motion was barred by res judicata. Father appealed a second time to the Virginia Court of Appeals. The court held that although a “void” order is void ab initio from the moment it comes into existence and can be attacked at any time directly or collaterally, that does not mean a party can litigate the voidness issue ad infinitum. Once a court of competent jurisdiction declares a prior order to be either void or valid, that declaration, if it becomes final and subject to no further appeals, is itself entitled to res judicata protection.

2013-- Bullock v. Bullock, Va. Ct. of Appeals, Unpublished, No. 1426-13-2.
The doctrine of res judicata prevents a new suit on the same cause of action (including any issue that might have been litigated) to be maintained between the same parties. A father’s show cause proceeding in which he alleged that he had not received proper credits for support payments was properly dismissed where both the juvenile and domestic relations district court and the circuit court had previously set arrearages and determined the appropriate amount of credits for the same period.

2012---Lewis v. Bailey, Va. Ct. of Appeals, Unpublished, No. 1139-12-1
The trial court did not err in dismissing on res judicata grounds mother’s petition to force payment by father of private school expenses. Mother had filed a previous petition requesting payment for those expenses by father, had been denied by the trial court, and had appealed the ruling to the Court of Appeals. Prior to the ruling by the Court of Appeals on her original petition, she filed another motion to amend, again arguing for the payment of private school expenses, but basing her new motion on increases to those expenses and additional letters from the school indicating the child’s need to attend. The trial court found that the issues and her arguments were exactly the same as they were in the initial petition, and therefore that no material change in circumstances had occurred since the last order.

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---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.

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, No. 1157-08-4
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. 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.

1974 --- Bates v. Devers, 214 Va. 667
Res judicata is a judicially-created doctrine that rests upon considerations of public policy which favor certainty in the establishment of legal relations, demand an end to litigation, and seek to prevent the harassment of parties. Res judicata encompasses four preclusive effects, each conceptually distinct, which a final personal judgment may have upon subsequent litigation. These are: (1) merger; (2) direct estoppel; (3) bar; and (4) collateral estoppel. Of these four, bar and collateral estoppel are the most frequently raised in litigation. Bar is the particular preclusive effect commonly meant by the use of the term “res judicata.” A valid, personal judgment on the merits in favor of defendant bars re-litigation 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 impacting a subsequent action based upon a collateral and different cause of action. In the subsequent action, the parties to the first action and their privies are precluded from litigating any issue of fact that was actually litigated in and essential to a valid and final personal judgment in the first action. Though distinguishable, both bar and collateral estoppel impose the same procedural burden: the one asserting the defense must show by a preponderance of the evidence that the claim or issue should be precluded by prior judgment.

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