Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Stephenson, S.J.
EDITH S. SCALES
OPINION BY
v. Record No. 000959 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
March 2, 2001
ALLEN N. LEWIS, JR., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
In this appeal, we determine whether the trial court erred
in granting (1) a plea of res judicata and collateral estoppel
in favor of one defendant and (2) a plea of judicial estoppel in
favor of two other defendants.
I
On August 13, 1998, Edith S. Scales filed an action against
Allen N. Lewis, Jr., and also against Dwayne E. Spann and Cal-
Ark International, Inc., Spann's employer (collectively, Spann).
Scales sought recovery for damages for personal injuries
sustained in a motor vehicle collision that occurred on April
10, 1997. Lewis filed a plea of res judicata and/or collateral
estoppel, and Spann filed a plea of judicial estoppel. The
trial judge granted both pleas and entered final judgments in
favor of all defendants. We awarded Scales this appeal.
II
Prior to the present case, Government Employees Insurance
Company (GEICO), Scales' insurer, filed a subrogation action
against Lewis on September 11, 1997, in the Henrico County
General District Court. Pursuant to Code § 38.2-207, the action
was filed in Scales' name. GEICO sought to recover from Lewis
monies it had paid to Scales under the uninsured motorist
provisions of its insurance policy issued to Scales.
GEICO alleged that it had paid Scales $494.65 for property
damages Scales had sustained in the April 10, 1997 collision.
GEICO further alleged that Lewis, an uninsured motorist, had
negligently operated his motor vehicle and that his negligence
was a proximate cause of Scales' damages. Lewis denied that he
had been negligent and alleged that Scales was guilty of
negligence which barred GEICO's recovery.
In the trial of the present case, the defendants presented
the following record from the general district court: (1) the
warrant in debt, (2) the bill of particulars filed by GEICO, and
(3) the grounds of defense filed by Lewis. The defendants did
not present a transcript of the proceedings.
The warrant in debt form offered in the present case, in
the section entitled "Case Disposition," provided spaces for
four possible decisions by the general district court. The
court could have, by marking the appropriate box, entered
judgment for the plaintiff, entered judgment for the defendant,
declared a non-suit, or dismissed the case. The general
district court did not enter judgment for either the plaintiff
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or the defendant; instead, the court marked the case
"DISMISSED."
III
We first consider whether the trial court erred in granting
Lewis' pleas of res judicata and collateral estoppel. The
doctrine of res judicata precludes parties from relitigating the
same cause of action when a valid, final judgment was previously
entered. Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917,
920-21 (1974). The doctrine of collateral estoppel precludes
parties to a prior action from litigating in a subsequent action
any factual issue that was actually litigated and essential to a
valid, final judgment in the prior action. For the doctrine of
collateral estoppel to apply, the following requirements must be
established:
(1) the parties to the prior and subsequent
proceedings, or their privies, must be the same, (2)
the factual issue sought to be litigated actually must
have been litigated in the prior action, (3) the
factual issue must have been essential to the judgment
in the prior proceeding, and (4) the prior action must
have resulted in a judgment that is valid, final, and
against the party against whom the doctrine is sought
to be applied. In addition to these elements, there
also must be "mutuality," i.e., a litigant cannot
invoke collateral estoppel unless he would have been
bound had the litigation of the issue in the prior
action reached the opposite result.
Angstadt v. Atlantic Mutual Ins. Co., 249 Va. 444, 446-47, 457
S.E.2d 86, 87 (1995) (citations omitted).
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It is firmly established that the party who asserts the
defenses of res judicata or collateral estoppel has the burden
of proving by a preponderance of the evidence that the claim or
issue is precluded by a prior judgment. Bates, 214 Va. at 671,
202 S.E.2d at 921. In order to prove that a claim or issue is
precluded by a former adjudication, "'the record of the prior
action must be offered in evidence.'" Bernau v. Nealon, 219 Va.
1039, 1041, 254 S.E.2d 82, 84 (1979) (quoting Burk's Pleading
and Practice § 357 at 675 (4thed. 1952)). Thus, "consideration
of facts outside of and not made a part of the record is
improper." Id. at 1041-42, 254 S.E.2d at 84.
In the present case, Lewis asserted the defenses of res
judicata and collateral estoppel, and, therefore, he had the
burden of proving that the claim or question had been in issue
and determined in the prior subrogation action. See Feldman v.
Rucker, 201 Va. 11, 18, 109 S.E.2d 379, 384 (1959). Scales
contends that Bernau required Lewis to offer into evidence a
transcript of the proceedings in the general district court. We
do not agree. While a transcript might be useful, it is not
essential in every case. For example, a general district court
could enter an order that contains a detailed summary of the
proceedings or, if requested by a party, sign a statement of
facts.
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Nevertheless, although Lewis offered into evidence the
record of the general district court, we conclude that the
record is insufficient to establish res judicata or collateral
estoppel. To the contrary, the record in the prior matter shows
that the general district court did not enter a valid, final
judgment against Scales, the party against whom the doctrines
were sought to be applied in the present case. Consequently, we
hold that the trial court erred in ruling that Scales' action
against Lewis is barred by res judicata and collateral estoppel.
IV
We next consider whether the trial court erred in granting
Spann's plea of judicial estoppel. Spann contends that, because
GEICO elected to proceed only against Lewis in the general
district court, Scales is "judicially estopped from alleging,
inconsistently, that Spann . . . [was] a direct and proximate
cause of the accident." Spann further contends that, pursuant
to Burch v. Grace Street Bldg. Corp., 168 Va. 329, 340, 191 S.E.
672, 677 (1937), Scales is prohibited from "asserting
inconsistent or mutually contradictory positions in the course
of successive lawsuits with respect to the same fact or set of
facts." We do not agree that the doctrine of judicial estoppel
applies in the present case.
In the general district court, GEICO alleged in its bill of
particulars that the damage to Scales' automobile was "a direct
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and proximate result" of Lewis' negligence. (Emphasis added.)
GEICO did not claim, as Spann incorrectly asserts, that Lewis'
negligence was the proximate cause of Scales' damages. Thus,
Scales has not taken inconsistent positions and is not precluded
from proceeding against Spann in the present case. See Code
§ 8.01-443 ("A judgment against one of several joint wrongdoers
shall not bar the prosecution of an action against any or all
others, but the injured party may bring separate actions against
the wrongdoers and proceed to judgment in each.") Consequently,
we hold that the trial court erred in ruling that Scales' action
against Spann is barred by judicial estoppel.
V
For the foregoing reasons, we will reverse the trial
court's judgment and remand the case for further proceedings
consistent with this opinion.
Reversed and remanded.
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