Atkisson v. Wexford Associates

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice

GEORGE ATKISSON, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 970069 October 31, 1997

WEXFORD ASSOCIATES, ET AL.

WEXFORD ASSOCIATES, ET AL.

v. Record No. 970071

GEORGE ATKISSON, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane M. Roush, Judge

In this appeal, we consider whether a court can enforce

a judgment entered in a suit which did not include all the

necessary parties.

This litigation, which has been active for over 11

years, reaches us in a very unusual procedural posture.

George B. Atkisson and his wife, Carlotta T. Atkisson, filed

their amended bill of complaint against the Fairfax County

Park Authority, Wexford Associates, Inc., and 56 owners of

lots located in the Wendover Subdivision, Section III, in

Fairfax County. The Atkissons alleged that they owned a

property interest in an easement that provided ingress and

egress to their family cemetery and that the defendants had

constructed obstructions which interfered with the

Atkissons' use of the easement. The chancellor granted the

defendants' demurrer to the amended bill. We awarded the

Atkissons an appeal from that judgment, reversed the

judgment by an unpublished order, and remanded the case for
further proceedings. Atkisson v. Wexford Associates, Inc.,

Record No. 890169 (April 26, 1989).

Upon remand, the Atkissons nonsuited 38 of the 56

defendants who were lot owners, and the case proceeded

against Wexford Associates (a developer), the Fairfax Park

Authority, and certain owners of lots in the subdivision.

At a 1993 trial, the Atkissons adduced evidence to support

their claim that they had a property right in a 15-foot-wide

express easement that extended from a county road to the

cemetery.
The chancellor held, inter alia, that the Atkissons had

an express easement that provided them ingress and egress to

the cemetery. The chancellor established the location of

the easement in his final decree which stated in part:

"[t]he Court determined that this easement is located across

the affected properties in accordance with the express grant

contained in the Deed of 1892 located in Fairfax County Land

Records. . . . A view of the easement was taken by the

parties and the Court. . . ." The chancellor did not,

however, grant the Atkissons injunctive relief because such

relief would have required the property owners to remove

improvements such as homes and swimming pools.

In 1993, the chancellor entered a judgment which

required that each lot owner whose lot obstructed the

easement pay $100 to the Atkissons and that Wexford

Associates pay the Atkissons $10,000 in punitive damages.

Neither the lot owners nor Wexford Associates appealed the
chancellor's decree. The chancellor also ordered that the

Park Authority provide a new easement for the Atkissons on

its land.

We awarded the Park Authority an appeal from the 1993

judgment. We held that the evidence adduced at trial

supported the trial court's holding that the Atkissons have

an express easement which granted them access to the

cemetery. We also held, however, that the chancellor was

without authority to require the Park Authority to provide a

new easement on its land, and we remanded the case with

certain directions. Fairfax County Park Authority v.

Atkisson, 248 Va. 142, 148-49, 445 S.E.2d 101, 105, cert.

denied, 513 U.S. 1058 (1994).

While this proceeding was pending in the trial court

upon the second remand, David D. O'Brien and Jane B.

O'Brien, owners of a lot in the Wendover Subdivision,

learned for the first time of this litigation and that the

easement at issue may transverse their property. The

O'Briens had purchased their lot from John and Katherine

Kowalczyk, who had initially been named as defendants in

this suit, but were nonsuited. The Atkissons did not file a
lis pendens memorandum in the O'Briens' chain of title, and

the O'Briens purchased their lot without any notice, actual

or constructive, of this litigation.

Subsequently, the O'Briens filed a petition to

intervene and requested that the chancellor vacate the 1993

judgment and award a new trial. The chancellor conducted an
ore tenus hearing and held that the O'Briens were necessary

parties and that the dispositive rulings resulting in the

1993 judgment were made after the O'Briens were title owners

of the property. The chancellor granted the O'Briens a new

trial on all issues and scheduled a trial date.

The Atkissons then filed a petition for writ of

mandamus in this Court, asserting that the chancellor acted

beyond this Court's mandate by ordering a new trial for

necessary parties. We were of opinion that the writ should

not issue, and we dismissed the petition. In re: George

Atkisson, et al., Record No. 951726 (November 27, 1995).

In pretrial motions, Wexford Associates and certain

other defendants asserted that they were not bound by the

1993 judgment and argued that it was void because the

O'Briens, who were necessary parties, were deprived of an

opportunity to participate in the prior trial. The

chancellor, who was not the same chancellor who presided at

the first trial, denied this motion because she was of

opinion that the O'Briens' interests were "separable" from

the interests of these defendants. The chancellor did hold,

however, that Wexford and certain other defendants were

entitled to participate in subsequent proceedings to the

extent these litigants challenged the specific location of

the easement.

During the new trial, the chancellor heard evidence

which was vastly different from the evidence adduced during

the first trial. Consequently, the chancellor made factual
findings which are, in many respects, contradictory to the

factual findings made by the other chancellor at the first

trial.

Specifically, the chancellor found that the easement at

issue was created to provide ingress and egress from a 15-

acre parcel to a county road and that the easement was never

intended to serve the Atkissons' family cemetery. Thus, the

chancellor held that as to the O'Briens and Donald and Joan

Hall (defendants in this trial who were not named defendants

in the first trial), "there is no express easement on their

property that provides access to the cemetery, and that any

such attempt to do so would constitute an impermissible

additional burden on the servient estate."
The chancellor also held that her ruling did not apply

to the defendants who had participated in the first trial

because they were bound by the 1993 judgment. Thus, the

chancellor's final decree locates an easement which extends

from a Fairfax County road, identified as Bird Road, ceases

at Halls' property line and the O'Briens' property line, and

then recommences on the opposite side of the O'Briens'

property line and extends through several other lots until

it concludes at the cemetery. Simply stated, the

chancellor's decree locates a 15-foot-wide easement which

does not permit the Atkissons to travel to and from the

cemetery.

Even though the Atkissons made numerous assignments of
error in their brief * , they have chosen to limit their

argument on brief to the following question presented: "The

sole question in this case is whether . . . the refusal of

the Circuit Court of Fairfax County to enter an Order

pursuant to the Mandate of the Supreme Court of Virginia was

proper." In essence, the Atkissons argue that the trial

court erred by failing to comply with this Court's directive

that, upon remand, the chancellor
"enter an order requiring that the lot owners and
Wexford Associates provide an easement at their
expense for the Atkissons, if the lot owners,
Wexford Associates, and the Atkissons can agree
upon a location and description of the new
easement. In the event the litigants are unable
to agree, then the chancellor is directed to order
that Wexford Associates and the lot owners remove
any obstructions that interfere with the
Atkissons' use of the express easement."

Fairfax County Park Authority, 248 Va. at 149, 445 S.E.2d at

105.

The O'Briens respond that the 1993 judgment cannot be

enforced against them because they were necessary parties,

and the Atkissons failed to name them as defendants in the

first trial. Wexford Associates and certain other

defendants contend that the 1993 judgment is void because

the O'Briens were necessary parties who should have been

made defendants in the first trial. Continuing, the

*
We do not consider assignments of error 2, 3, and 4 to
the extent such assignments are not addressed in the
Atkissons' brief because the failure to discuss these
assignments constitutes a waiver. Rule 5:27, accord
Quesinberry v. Commonwealth, 241 Va. 364, 370, 402 S.E.2d
218, 222, cert. denied, 502 U.S. 834 (1991).
defendants assign cross-error to the chancellor's holding

that they are bound by the 1993 judgment because, they say,

their interests are not separable from the O'Briens'

interests. We agree with the O'Briens and the defendants.

A court cannot render a valid judgment when necessary

parties to the proceedings are not before the court. We

have repeatedly articulated this fundamental principle of

law. See Schultz v. Schultz, 250 Va. 121, 124, 458 S.E.2d

458, 460 (1995); Allen v. Chapman, 242 Va. 94, 99, 406
S.E.2d 186, 188 (1991); McDougle v. McDougle, 214 Va. 636,

637, 203 S.E.2d 131, 133 (1974); Patterson v. Anderson, 194

Va. 557, 570, 74 S.E.2d 195, 203-04 (1953); Harris v. Deal,

189 Va. 675, 686, 54 S.E.2d 161, 166 (1949). Additionally,

we have stated:
"Necessary parties include all persons, natural or
artificial, however numerous, materially
interested either legally or beneficially in the
subject matter or event of the suit and who must
be made parties to it, and without whose presence
in court no proper decree can be rendered in the
cause. This rule is inflexible, yielding only
when the allegations of the bill state a case so
extraordinary and exceptional in character that it
is practically impossible to make all parties in
interest parties to the bill, and, further, that
others are made parties who have the same interest
as have those not brought in, and are equally
certain to bring forward the entire merits of the
controversy as would the absent persons.
This cardinal principle governing as to
parties to suits in equity is founded upon the
broad and liberal doctrine that courts of equity
delight to do complete justice by determining the
rights of all persons interested in the subject
matter of litigation, so that the performance of
the decree rendered in the cause may be perfectly
safe to all who are required to obey it and that
further litigation touching the matter in dispute
may be prevented."
Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37, 49,

124 S.E. 482, 486 (1924) (quoting Buchanan Co. v. Smith's

Heirs, 115 Va. 704, 707-08, 80 S.E. 794, 795 (1914)).

Additionally, this rule is designed to avoid depriving a

person of his or her property without giving that person an

opportunity to be heard.

Applying the aforementioned principles, we hold that

the 1993 judgment is absolutely void and, therefore, no

rights are divested or obtained from that judgment. The

O'Briens were necessary parties to the first trial because

their property rights were affected by the establishment of

the express easement and, thus, the O'Briens had a material

interest in the outcome of that trial. Hence, the

chancellor correctly held that the O'Briens are not bound by

the void judgment.
The chancellor erred, however, by enforcing the void

judgment against Wexford Associates and certain other

defendants. We have stated that a court may enter a decree

without prejudice to the rights of an absent party if the

absent party's interests are separable from those of the

parties before the court. McDougle, 214 Va. at 637, 203

S.E.2d at 133; accord Bonsal v. Camp, 111 Va. 595, 600-01,

69 S.E. 978, 980 (1911). This exception, however, is not

applicable here.

The interests of Wexford Associates and the property

owners, who were affected by the 1993 judgment, are not

separable from the interests of the O'Briens. The Atkissons
admit that the sole purpose of the easement was to permit

them to gain ingress and egress from an old county road to

their family cemetery. Even though each property owner

owned a different and discrete lot, if any lot owner could

demonstrate that the express easement did not transverse his

or her property, then, the Atkissons could not establish an

easement of ingress or egress to the cemetery because the

easement would stop short of that destination. Thus, the

interests of all the affected lot owners are inseparable.
In view of our holdings, we need not consider the

remaining issues raised by the litigants. Rather, we will

declare that the 1993 judgment is void and may not be

enforced against anyone. We will reverse the chancellor's

decree to the extent it seeks to enforce the void judgment.

We will enter final judgment in favor of all the defendants

and intervenors because the chancellor, in the decree

appealed from, held that the evidence in the second trial

established that the Atkissons do not have an express

easement, and the Atkissons do not challenge the

chancellor's findings or legal conclusions other than to

state, in a conclusory fashion, that those findings are

"directly contrary to the findings of [the] chancellor" who

conducted the prior trial.

Affirmed in part,
reversed in part,
and final judgment.