TransDulles Center, Inc. v. Sharma

Present:   All the Justices


TRANSDULLES CENTER, INC.
                                OPINION BY JUSTICE A. CHRISTIAN COMPTON
v.   Record No. 951624                      June 7, 1996

DR. YASH SHARMA, T/A
PANBAXY LABORATORIES, INC.

                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                        J. Howe Brown, Jr., Judge


      In this dispute arising from a commercial lease, the sole

question on appeal is whether the trial court correctly refused to

apply the doctrine of collateral estoppel in favor of a party

obtaining a default judgment in a prior action.
      In March 1993, appellant TransDulles Center, Inc., the landlord,

obtained a default judgment in the Loudoun County General District

Court in an unlawful detainer action against appellee, Dr. Yash

Sharma, t/a Panbaxy Laboratories, Inc., the tenant.   Based on the

terms of a five-year commercial lease, the landlord sought possession

of the demised premises located in Sterling, Virginia, and sought

recovery of rent delinquent for a three-month period before the tenant

vacated the premises, attorney's fees, and costs.

      The tenant was served personally with the summons for unlawful

detainer and failed to appear in the proceeding either in person or by

counsel.   On the return date, the landlord presented testimonial

evidence and exhibits in the tenant's absence.

      At the conclusion of the hearing, the district court entered

judgment in favor of the landlord against the tenant for possession of

the premises, and for rent due of $7,257.60 with interest, attorney's

fees of $856.60, and costs of $18.00.   The judgment was not appealed
and became final.   The tenant satisfied the judgment eight months

later.

     In July 1994, the landlord filed the present action by motion for

judgment against the tenant in the circuit court below for breach of

the lease, seeking recovery of rent that had accrued after the default

judgment, attorney's fees, and costs.    The tenant appeared and denied

the landlord was entitled to any further recovery under the lease.

     Following a bench trial, the circuit court applied the doctrine

of collateral estoppel and ruled that the issue of the tenant's

liability under the lease previously had been determined in the

related district court proceeding.   Consequently, the circuit court

entered judgment in April 1995 in favor of the landlord against the

tenant for rent plus interest, attorney's fees, and costs.
     Subsequently, the circuit court granted the tenant's motion for

reconsideration, vacated the April order, reversed its prior decision,

and entered a June 1995 order in favor of the tenant dismissing the

motion for judgment.   The court refused to apply collateral estoppel,

ruling that "a default judgment does not actually litigate issues for

the purposes of collateral estoppel."    The landlord appeals.

     Virginia law on collateral estoppel is clear.    The doctrine

"precludes parties to a prior action and their privies from litigating

in a subsequent action any factual issue that actually was litigated

and was essential to a valid, final judgment in the prior action."

Angstadt v. Atlantic Mut. Ins. Co., 249 Va. 444, 446, 457 S.E.2d 86,

87 (1995); Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921



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(1974).

     For the doctrine to apply, the parties to the two proceedings, or

their privies, must be the same; the factual issue sought to be

litigated actually must have been litigated in the prior action and

must have been essential to the prior judgment; and the prior action

must have resulted in a valid, final judgment against the party sought

to be precluded in the present action.    Glasco v. Ballard, 249 Va. 61,

64, 452 S.E.2d 854, 855 (1995).   Additionally, collateral estoppel in

Virginia requires mutuality, that is, a party is generally prevented

from invoking the preclusive force of a judgment unless that party

would have been bound had the prior litigation of the issue reached

the opposite result.   Norfolk & Western Ry. v. Bailey Lumber Co., 221

Va. 638, 640, 272 S.E.2d 217, 218 (1980).

     In the present case, the tenant contends that a default judgment

cannot be the basis for application of collateral estoppel in

Virginia.   Relying on the Restatement (Second) of Judgments § 27 cmt.

e. (1982), and federal decisions, including United States v. Ringley,

750 F. Supp. 750 (W.D. Va. 1990), aff'd, 985 F.2d 185 (4th Cir. 1993),
the tenant argues that "an issue must have been the subject of actual

litigation for collateral estoppel to apply."   According to the

tenant, nothing is actually litigated in a default judgment.

     The Ringley court, in a suit by the government to recover federal

reclamation fees under a mining control and reclamation statute,

refused to apply collateral estoppel when a default judgment had been

rendered in a prior action.   Citing the foregoing Restatement comment,




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the court said:    "A default judgment cannot be used for collateral

estoppel purposes, because no issues are `actually litigated.'"    750

F. Supp. at 759.

     We do not agree with the tenant's contention, nor do we agree

with the view typified by the Restatement comment (in "the case of a

judgment entered by . . . default, none of the issues is actually

litigated").    Virginia law does not support a blanket exemption from

the application of collateral estoppel in the case of a default

judgment.
     Here, there is no dispute that most of the requirements for

application of the doctrine have been established.   The parties in the

two actions are the same.   The district court action resulted in a

valid, final judgment against the tenant.    See Petrus v. Robbins, 196

Va. 322, 329, 83 S.E.2d 408, 412 (1954) (estoppel may be successfully

invoked upon final judgment of court not of record).    And, mutuality

exists.

     The disputed questions are whether the tenant's personal

liability was actually litigated in the district court proceeding and

whether that factual issue was essential to the judgment in the prior

proceeding.    We answer both queries in the affirmative.

     First, the tenant's personal liability for rent and other

charges, including attorney's fees, under the lease actually was

litigated in the prior action.   Testimonial and documentary evidence

was presented ex parte in the district court hearing.   The circuit

court record established that proof was presented in the district



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court through a bookkeeper for the landlord and through the landlord's

attorney, who presented the lease and other documents including an

affidavit supporting the attorney's fees claimed.   We disagree with

the tenant's argument that before an issue may be "actually litigated"

in a court proceeding, the defendant must personally appear at the

hearing and contest the matter.     Indeed, this Court has said that a

final default judgment "imports absolute verity, and is as effectual

and binding as if pronounced upon a trial upon the merits."     Neale v.
Utz, 75 Va. 480, 488 (1881).

     Second, the tenant's personal liability was essential to the

district court judgment.   That court could have merely awarded the

landlord possession of the premises without imposing personal

liability for rent and fees, but it did not.   Thus, the factual issue

existing in the present proceeding, the tenant's liability for rent

and fees, was a necessary part of the judgment in the prior

proceeding.

     Finally, we reject the tenant's contention that Horton v.
Morrison, 248 Va. 304, 448 S.E.2d 629 (1994), established a blanket

exemption in Virginia from application of collateral estoppel in the

case of a default judgment.    There, vehicles operated by Morrison and

Horton collided.   Horton's minor son, Travis Lee Shaver, was a

passenger in his mother's vehicle.   Both Horton and Shaver were

injured, and each sued Morrison for damages, alleging Morrison

negligently operated her vehicle.

     In response to Shaver's action, Morrison filed a third-party




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motion for judgment against Horton, alleging that Horton negligently

operated her vehicle and that she was liable to Morrison for all or

part of any sum recovered by Shaver.       Horton failed to respond to the

third-party complaint.

     Subsequently, the trial court sustained Morrison's motion for a

default judgment against Horton.    On the same day, the court entered

an order dismissing Shaver's action with prejudice because, according

to the appellate record on file in the clerk's office of this Court,

Shaver failed to comply with discovery orders.      Later, the trial court

sustained Morrison's motion to dismiss Horton's action, concluding

that Horton's action had been adjudicated when judgment was granted

Morrison against Horton in the third-party action.
     Reversing the trial court, we held that Horton's action was not

barred by the doctrine of collateral estoppel.      We noted the

requirement that an issue must be the subject of actual litigation for

collateral estoppel to apply.   Id. at 306, 448 S.E.2d at 631.        We did

not create a blanket exemption, but merely said that no issues

relating to Horton's negligence were actually litigated when the court

entered a default judgment in the third-party action against Horton.

Because Shaver's action against Morrison was dismissed with prejudice,

Morrison could no longer be liable to Shaver.      Thus, Morrison's

inchoate claim for contribution based upon Horton's alleged negligence

became moot.   See Snead v. Bendigo, 240 Va. 399, 401, 397 S.E.2d 849,

850 (1990).

     Consequently, we hold that the circuit court erred in refusing to



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apply collateral estoppel in favor of the landlord under these

circumstances, and the judgment below will be reversed.   We will

reinstate the April 1995 judgment, and will enter final judgment here

in favor of the landlord against the tenant for rent of $29,306, plus

interest at the rate of nine per cent per annum from April 25, 1995,

attorney's fees of $11,000, and costs of $2,500.

                                          Reversed and final judgment.




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