Doummar v. Doummar

• Decision Date: 05 September 1969
• Citation: 169 S.E.2d 454,210 Va. 189
• Parties: Toufic DOUMMAR, an incompetent, etc. v. Maurice DOUMMAR, individually, etc., et al.
• Court: Virginia Supreme Court

Page 454

169 S.E.2d 454

210 Va. 189

Toufic DOUMMAR, an incompetent, etc. v. Maurice DOUMMAR, individually, etc., et al.

Supreme Court of Appeals of Virginia.

Sept. 5, 1969.

Rehearing Denied Oct. 16, 1969.

Jeffrey G. Haverson, H. Lee Kanter, Norfolk (Kanter & Kanter, Norfolk, on brief), for appellant.

Herman A. Sacks, Norfolk (Sacks, Sacks & Tavss, Norfolk, on brief), for appellees.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

CARRICO, Justice.

This appeal presents the question whether the trial court erred in sustaining a plea of res judicata in the second of two proceedings involving the estate of Toufic Doummar, an incompetent. The controversy pits the incompetent who sues by a son as his next friend against a daughter and another son who are his committees.

In the first proceeding, brought in the Circuit Court of the City of Virginia Beach, Claire Doummar Berny and Maurice Doummar, committees of Toufic Doummar, filed a bill of complaint seeking the sale of certain unimproved property owned by the incompetent. Named as parties defendant were the incompetent and his children, namely, Habib E. Doummar, Henry Doummar, Claire Berny, and Maurice Doummar. The cause was referred to a commissioner in chancery who held a hearing and recommended sale of the property because the income of the incompetent was insufficient for his maintenance and support. The report of the commissioner was confirmed, and the sale was ordered by the court.

In the second proceeding, brought in the Circuit Court of the City of Norfolk, the complainant Toufic Doummar, an incompetent, by Habib Doummar, his court-appointed next friend, filed a bill of complaint against the defendants Maurice Doummar and Claire Berny, individually and as committees of Toufic Doummar. In the bill, the complainant sought to have declared void a lease of improved property between Toufic Doummar as owner and lessor and Maurice Doummar as lessee.

The defendants filed a 'Special Plea of Res Adjudicata' in the second proceeding. The plea asserted that 'the lease referred to in the Bill of Complaint in the instant suit was adjudicated to be a valid lease' in the first proceeding.

The trial court, after a hearing, sustained the plea of res judicata and dismissed the bill of complaint. The complainant was granted an appeal.

The bill of complaint filed in the present suit alleged that the lease between Toufic Doummar and his son Maurice was a forgery because although it was dated in 1959 and purportedly executed by Toufic Doummar before he was declared incompetent in 1960, it was not in fact executed until long thereafter. At the hearing on the plea of res judicata, the complainant asserted that the lease could be proved a forgery because the paper on which it was written bore a secret watermark showing that the paper was not manufactured until 1963, or four years after the lease was purportedly executed.

The defendants contend that the issue of the validity of the lease was litigated and determined in the first proceeding, or could have been so litigated and determined, and that the second proceeding is, therefore, barred. They point to the record of the first proceeding where Habib Doummar, one of the parties defendant in that litigation, introduced the lease into evidence in the hearing before the commissioner in chancery. The defendants also point out that Habib Doummar filed exceptions to the commissioner's report stating that 'the Commissioner erred in failing to find that the lease * * * is a nullity.'

The complainant contends that the issue of the validity of the lease was not litigated and determined in the first proceeding and that since the second proceeding is upon a different cause of action, it is not barred. The complainant says that the lease was introduced in evidence before the commissioner in chancery because it was an asset of the estate and its inspection was necessary in determining whether the income of the incompetent was sufficient for his support.

The complainant further says that the defendants admitted in the first proceeding that the question of the validity of the lease was not there involved. In this regard, the complainant points to the fact that the de fendants filed a motion to strike Habib Doummar's exceptions to the commissioner's report, which motion stated that 'the validity of the lease referred to in the said exceptions was not in question.'

The principles applicable to the resolution of a dispute such as this are well settled. In Kemp v. Miller, 166 Va. 661, 674--675, 186 S.E. 99, 103--104 (1936), it is stated:

"When the second suit is between the same parties as the first, and on the same cause of action,...