The Thing Decided: Rule 1:6’s Rediscovery of Res Judicata ...

1 The Thing decided : rule 1 :6's Rediscovery of Res Judicata in Virginia BY THE HONORABLE D. ARTHUR KELSEY. Some jurists and lawyers find res ciples of res Judicata and applied them 217, 218 (1980) (quoting in turn Bates Judicata confusing, others outright im- to the procedural context of modern v. Devers, 214 Va. 667, 671, 202 penetrable an unnerving observa- litigation. How it does so, and why 917, 921 (1974))). tion given that the entire point of the Davis made it necessary to do so, are In contrast, claim preclusion bars doctrine is to provide predictability the two questions I take up in this es- the assertion of legal or equitable and finality to litigation. If courts ap- say. rights of action even if they were not ply the doctrine in an unpredictably specifically resolved in earlier litiga- final manner or, worse still, a predict- I. HISTORY OF RES Judicata tion. Called merger when the claim- ably non-final manner, we undermine Res Judicata traces its origin to no ant won the first suit and bar when the very reason for having it.

2 Statute or rule of the common law. the claimant lost it, claim preclusion The unsettled nature of this ostensi- Burks Pleading & Practice 357, at 672 treats unasserted claims as being sub- bly settled doctrine became apparent (4th ed. 1952). It is the judicial reflec- sumed in the disposition of the related, in Davis v. Marshall Homes, Inc., 265 tions of a public policy. Id. Some schol- previously adjudicated, claims. See Va. 159, 576 504 (2003), a case ars claim the whole doctrine bears a Restatement (Second) of Judgments sharply dividing the Virginia Su- close resemblance to the exceptio rei 18, 19 (1982). For all of the legal ar- preme Court not only on the core ques- judicatae of the Roman law. Robert von got making the doctrine sound tire- tion of Virginia's formulation of the Moschzisker, Res Judicata , 38 Yale L. J. somely erudite, the thought is really doctrine, but also on how our case law 299, 299 (1929). The Roman principle, no more complicated than saying you has historically applied it.

3 In Davis, based on the solemnity of the judicial cannot have two bites at the apple. As the same real estate financing trans- pronouncement, was early adopted in Henry Black (of Black's Law Dictionary action spawned two theories of recov- English law, developing into the prin- fame) put it, res Judicata simply re- ery by a lender against a debtor: one ciple now known as merger and bar. quires litigants to make the most of in tort, the other in contract. Because Note, Developments in the Law Res their day in court. 2 Black, supra, 731, the tort claim involved different ele- Judicata , 65 Harv. L. Rev. 818, 820 (1952) at 1096. The law will afford one full, ments of proof than the contract claim, (footnote omitted).2 fair trial but not two. Davis held that res Judicata did not Whatever its precise origins, the apply. Thus, the lender could file the doctrine is a fundamental concept in A. The Role of Pleading & Joinder rules tort suit, lose on the merits, and then the organization of every jural soci- Claim preclusion has always been file a second suit on the contract claim.

4 Ety. 2 Henry Campbell Black, A Trea- the stepchild of pleading and joinder Res Judicata traditionally focused, tise on the Law of Judgments Includ- rules . Determining which claims however, on whether the plaintiff in ing the Doctrine of Res Judicata 500, should have been brought in earlier the second case had a fair opportunity at 760 (2d ).3 It protects not only litigation largely depended on which to present his claim in the first. In the the individual litigant from the weari- claims could have been brought. See earliest formulations of the doctrine, ness of trying the same case twice, but id., 618, at 944 ( A judgment is not res Judicata served as a kind of com- also society from having to pay for it. conclusive of any matter which, from pulsory joinder rule insisting that The incremental cost of sustaining re- the nature of the case, the form of ac- what could have been litigated should dundant litigation is itself a reason for tion, or the character of the pleading have been litigated.)

5 As the former cat- insisting upon finality. So strong are could not have been adjudicated in the egory expanded, due to procedural re- these policies that it has been said that former suit. ). As pleading and join- forms in pleading and joinder rules , so res Judicata renders white that which der rules changed, so too did the appli- too did the latter. The underlying con- is black, and straight that which is cation of res Judicata . cept of claim preclusion remained fixed, crooked. Jeter v. Hewitt, 63 352, In early common law, a plaintiff, in but its application necessarily varied 364 (1860).4 order to have an effective remedy in to accommodate the evolution in pro- Res Judicata involves both issue and the common-law courts, must have cedure. claim preclusion. Issue preclusion bars been able to fit his problem into or In 2006, the Virginia Supreme Court relitigation of common factual issues within one of the fixed, established exercised its rule-making authority to involving the same or related parties.

6 Original writs or forms of actions. W. supersede Davis with the promulga- Under the concept of collateral estop- Hamilton Bryson, Virginia Civil Pro- tion of rule 1 :6. Bringing Virginia law pel, the parties to the first action and cedure 201 (3d ed. 1997). These forms in harmony with the consensus view their privies are precluded from liti- of action dictated the type of process, adopted by the federal judiciary and gating [in a subsequent suit] any issue the content of the declaration (the first forty-seven states,1 rule 1 :6 makes of fact actually litigated and essential pleading), the method of proof, and the clear that, subject to recognized excep- to a valid and final personal judgment type of remedy. Id.; see also Henry tions, all claims arising out of the same in the first action.' Rawlings v. Lopez, John Stephen, A Treatise on the Prin- conduct, transaction, or occurrence 267 Va. 4, 4-5, 591 691, 692 (2004) ciples of Pleading 5, 7 (8th Amer.)

7 Ed. that could be asserted in litigation should (quoting Norfolk & W. Ry. v. Bailey 1859). The common law permitted be. rule 1 :6 rediscovered the first prin- Lumber Co., 221 Va. 638, 640, 272 joinder of claims in a single suit so long 18/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL JUNE/JULY 2008. as all were proper to the form of ac- tion adopted. Stephen, supra, Second ABOUT THE AUTHOR. Appendix by the American Editor, at The Honorable D. Arthur Kelsey was appointed to the Virginia Court of Appeals cxvii What was proper or im- by Governor Mark Warner in 2002. He previously served as a trial court judge proper could sometimes be debated, with the Virginia Fifth Judicial Circuit and, before that, as a litigation partner but this much was certain: At com- mon law, joinder of tort and contract with Hunton & Williams. claims was forbidden. Kent Sinclair & Leigh B. Middleditch, Jr., Virginia could-have-litigated-should-have-liti- vada, 463 at 130, res Judicata nec- Civil Procedure (b), at 483 (4th ed.)

8 Gated principle of res Judicata . Al- essarily had to adapt. This adapta- 2003). though the same evidence' standard tion evolved alongside pleading and The segregation of law and equity was [one] of the tests' used at the time, joinder In perfect symme- also played a role in the development The Haytian Republic, 154 118, 125 try, as the could-have-litigated cat- of claim preclusion Prior (1894), it was not the only one. Ne- egory broadened, so too did the reach to the merger of law and equity in the vada v. United States, 463 110, 130 of the should-have-litigated principle. federal courts, legal and equitable (1983). To describe this conceptual relation- claims could not be united in the same More important, the same evidence ship, repeatedly acknowledged by suit in a court of the United States. test served best as a test for inclusion both federal and state courts, the Sec- Cherokee Nation v. S. Kan. Ry. Co., 135 rather than as a test for exclusion.

9 Ond Restatement of Judgments 641, 651 (1890).6 Other jurisdic- Robert C. Casad & Kevin M. Clermont, adopted a transactional view of claim tions, like Virginia, permitted legal Res Judicata : A Handbook on its preclusion. Under it, a valid prior claims to be asserted in a chancery suit Theory, Doctrine & Practice 66 (2001). claim extinguishes all rights of the under the clean up doctrine, but only It made clear when the res Judicata plaintiff to remedies against the defen- at the price of forfeiting the historic merger-bar doubtlessly applied, but dant with respect to all or any part of right to a jury. See 1 Dan B. Dobbs, said nothing about when it did not the transaction, or series of connected Law of Remedies (4), at 169-70 (2d apply. As the first Restatement ex- transactions, out of which the action ed. 1993); see, , Packett v. Herbert, plained: arose. Restatement (Second) of Judg- 237 Va. 422, 424 , 377 438, 441 ments 24(1) (1982).

10 Whether claims (1989). While equity could clean Although it is true that the judgment are products of the same transaction . up for law, the favor could not be re- in the prior action precludes the plain- is to be determined by giving weight ciprocated. A court sitting at law could tiff from subsequently maintaining the to such considerations as whether the not order coercive equitable remedies. second action based upon the same facts are related in time, space, origin, See, , Simmons v. Miller, 261 Va. 561, transaction if the evidence needed to or motivation, whether they form a 570 , 544 666, 672 (2001). sustain the second action would have convenient trial unit, and whether Early claim preclusion principles sustained the first action, the negative is their treatment as a unit conforms to tracked these illiberal pleading and not true. Although the evidence needed to the parties' expectations or business joinder rules .