Flora, Flora & Montague, Inc. v. Saunders

• Decision Date: 22 April 1988
• Docket Number: No. 850471,850471
• Citation: 235 Va. 306,367 S.E.2d 493
• Court: Virginia Supreme Court
• Parties: FLORA, FLORA & MONTAGUE, INC. v. Mary Board SAUNDERS, et al. Record

Page 493

367 S.E.2d 493

235 Va. 306

FLORA, FLORA & MONTAGUE, INC. v. Mary Board SAUNDERS, et al.

Record No. 850471.

Supreme Court of Virginia.

April 22, 1988.

Evans B. Jessee, Roanoke, for appellant.

B.K. Cruey, Roanoke, for appellees.

Present: All the Justices.

STEPHENSON, Justice.

The sole issue in this appeal is whether the trial court erred in sustaining a plea of res judicata.

In 1984, Flora, Flora & Montague, Inc. (Flora) filed a chancery suit against Mary Board Saunders and others ¹ (collectively, Saunders) praying that the court decree conveyance to Flora of certain land and easements at or near Smith Mountain Lake in Franklin County. After an ore tenus hearing, the trial court sustained Saunders' plea of res judicata and dismissed the cause. Flora appeals.

The facts are undisputed. In 1961, Willis E. Board owned a tract of land containing approximately 200 acres located in Franklin County adjacent to the waters of the Roanoke River. On October 30, 1961, Willis E. Board and Annie L. Board, his wife (collectively, the Boards), Saunders' predecessors in title, entered into an option agreement with John Hatcher Ferguson and John Hatcher Ferguson, Jr. (collectively, the Fergusons), Flora's predecessors in title. Pursuant to the terms of the agreement, the Boards granted the Fergusons a ten-year option to purchase a portion of the Boards' land, containing approximately 100 acres. Shortly before the parties executed the option agreement, Appalachian Power Company had begun construction of Smith Mountain Dam on the Roanoke River, which created the body of water known as Smith Mountain Lake. The option agreement described the 100-acre tract as "being the acreage running along the high water line of the dam and extending inland through the woods and running down to the river."

The option agreement further provided as follows:

[The Boards] grant to [the Fergusons] the right and privilege of use of all the farm roads on this farm in their development.

....

[The Boards] are to receive in compensation $200.00 per acre for every acre that is sold, with the exception of roadways which are necessary to be run to the various tracts outside of the wooded lands, if it becomes necessary to run a roadway to land that is being sold by [the Fergusons], in order to get to it, then the acreage included in such roadways is not to be paid for by [the Fergusons].

[The Boards] are to receive $200.00 per acre as set out herein above, exclusive of any survey charges, or any charges for roadway, or any attorney fees whatsoever. It is understood that [the Boards] will join in with [the Fergusons] for granting such easements for the construction of necessary roads and public utilities, as might be necessary for the development and sale of this property.

[The Fergusons] shall at all times be responsible for complying with the subdivision ordinances of Franklin County, Virginia, and [the Fergusons] shall save [the Boards] harmless because of any infraction or violation of such ordinances.

Both Willis and Annie Board died shortly after executing the option agreement, and title to the land descended to and vested in Saunders. Before the ten-year option period had expired, the Fergusons notified Saunders that they were exercising the option. Saunders, however, refused to convey the real estate as provided for in the option agreement. Consequently, on July 15, 1971, the Fergusons filed a suit against Saunders for specific performance of the agreement (the first suit). While the first suit was pending, the Fergusons assigned the option agreement to C. Cecil Flora and others, ² who were added as complainants.

The amended bill of complaint in the first suit contained, inter alia, a general recitation about the option agreement and stated that "[a] copy of [the] Option is attached hereto and made a part hereof." The complainants further averred that they were "entitled to a Deed to the aforementioned property for a consideration of $200.00 per acre as set forth in the Option Contract attached hereto, and made a part hereof," and requested that the court appoint a special commissioner "for the purpose of conveying the ... real estate, as described in the Option Contract and attached hereto, and made a part hereof." Finally, in the prayer of the bill, the complainants asked the court to "grant specific performance of [their] Contract ... by appointing ... a Special Commissioner ... for the purpose of conveying unto [the Fergusons] the interest of all of the heirs and next of kin of [the Boards]."

In the first suit, the trial court's opinion recited that the suit was for specific performance of the "option contract for sale of 100 acres of land owned by Willis E. Board, and said rights therewith to the Fergusons or their assigns." (Emphasis added.) The opinion further stated that the complainants "should be given a deed ... in accordance with the option contract." (Emphasis added.) The court decreed that "the complainants ... are entitled to Specific Performance of the contract and option dated October 30, 1961." ³ Thereupon, the court appointed a surveyor to locate and describe the 100-acre tract in accordance with the option agreement and ordered the surveyor to report the results of his survey to the court.

By a subsequent decree in the first suit, the court affirmed the survey as reported and directed a special commissioner to convey Lots 1 and 2 as shown on the plat prepared by the surveyor. The court also directed that Lot 3 on the plat "shall be retained and owned by the heirs of Willis E. Board and Annie L. Board." Pursuant to this decree, the special commissioner conveyed Lots 1 and 2, each being described by metes and bounds, aggregating 100 acres, more or less, to C. Cecil Flora, Carl B. Flora, and J. Kyle Montague. ⁴

In the present suit, Flora prays for the following relief:

A. That the court determine the location[,] width and length of all necessary roadway and public utility easements which should be granted by [Saunders] to [Flora] in connection with the development and sale of the property of [Flora], and Order that a Special Commissioner of the court grant such necessary roadway and public utility easements to [Flora], across the residual lands now owned by [Saunders].

B. That the court determine that [Flora] is entitled, pursuant to the option agreement ... to the use of all the farm roads on the residual land owned by [Saunders].

C. That the court determine that [Flora] is entitled, pursuant to the option agreement ... to the conveyance from [Saunders] of all land located adjacent to the land of [Flora], below the 800 foot contour of Smith Mountain Lake and out to the original boundary lines of the lands of Willis E. Board, and that a Special...