Nero v. Ferris

• Decision Date: 04 December 1981
• Docket Number: No. 790982,790982
• Citation: 222 Va. 807,284 S.E.2d 828
• Parties: Annie NERO v. William FERRIS. Record
• Court: Virginia Supreme Court

Page 828

284 S.E.2d 828

222 Va. 807

Annie NERO v. William FERRIS.

Record No. 790982.

Supreme Court of Virginia.

Dec. 4, 1981.

Burton L. Albert, Roanoke (Lutins & Shapiro, Roanoke, on brief), for appellant.

Harry F. Hambrick, Jr., Roanoke (S. D. Roberts Moore, Gentry, Locke, Rakes & Moore, Roanoke, on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

COMPTON, Justice.

In this civil action, the plaintiff seeks to domesticate a foreign judgment. The proceeding has generated issues involving collateral estoppel and full faith and credit.

On April 26, 1974, plaintiff-appellant Annie Nero, a California resident, was hit by a truck while walking in a crosswalk at a street intersection in San Francisco. She sustained an injury to her lower back and left side. After striking the plaintiff, the truck driver stopped his vehicle momentarily, backed up, and drove from the scene.

In 1975, the plaintiff filed a damage suit in the Superior Court of the State of California, In and For the City and County of San Francisco, against Gleason Refrigerated Services, Inc., a Massachusetts corporation, U-Haul Company, a Virginia corporation, and "Does One Through Ten, inclusive." The "Does" were designated as fictitious parties who were then unknown to the plaintiff and as to whom the plaintiff reserved the right to substitute their true names when known to her. The complaint alleged the corporate defendants owned and operated a large silver-colored truck bearing Virginia license "TR H 403." The pleading further alleged that defendants negligently caused injuries and damages to the plaintiff for which she sought recovery in general damages of $25,000 plus additional amounts to cover medical expenses, lost wages and suit costs.

Subsequently, Gleason filed an answer and U-Haul Company filed a motion for summary judgment. Gleason also filed a cross-claim against U-Haul, Noah Ferris, and appellee William Ferris. Gleason, denying it owned or operated the vehicle in question, alleged that the cross-defendants, all residents of Virginia, owned and operated the vehicle described in Nero's complaint. Gleason further alleged that the cross-defendants' negligence caused plaintiff's damages and it sought judgment against the cross-defendants in the event Gleason was found liable to the plaintiff. The Ferrises were served with process under California's non-resident motorist statutes providing for Notice to the California Director of the Department of Motor Vehicles ¹ and subsequent registered mailing to the defendants. ² The registered mail receipts showed the Ferrises, residents of Roanoke County, received the registered mail in November of 1975. The Ferrises made no appearance in the California proceeding.

Later, the plaintiff, identifying the Ferrises as "Does One and Two," moved for a judgment by default against them. Notices of the plaintiff's Request To Enter Default were sent to the Ferrises by registered mail under the California Code of Civil Procedure ³ and received by them in May of 1976. They still made no appearance in the California proceeding.

A brief hearing was held on the default motion on January 19, 1977, by one of the judges of the Superior Court. The evidence consisted of representations made by plaintiff's counsel. No testimonial evidence was offered to establish personal jurisdiction over either of the Ferrises. Thereafter, default judgments were entered against both Ferrises in the amount of $10,000 plus costs.

Subsequently, the plaintiff filed separate suits in Virginia against each Ferris in the court below in August of 1977 to domesticate the California judgments. Service of process was obtained almost immediately on Noah but William was not served until July 19, 1978, the date of the trial of the action against Noah, William's father.

In the suit against Noah, he took the position that the California judgment was null and void because the California court did not have in personam jurisdiction over him. He asserted that in order for the California court to acquire jurisdiction under the applicable statute, Section 17451, n. 1 supra, it was necessary for him either to have been the owner of a motor vehicle which caused injury to the plaintiff in California; or to have been the employer of an employee who was operating his motor vehicle which caused injuries to the plaintiff; or to have himself been operating a motor vehicle which caused injuries to the plaintiff. Noah presented evidence at the trial which negated the foregoing jurisdictional facts.

During his trial, at which the plaintiff did not appear, Noah testified that in April of 1974 he owned a tractor-trailer unit and that William drove the vehicle for him throughout the United States hauling produce. Although the evidence indicated there was a "good chance" William was operating a truck for his father in California in April of 1974, the trial judge specifically found "that neither Noah Ferris nor his son and employee, William Ferris, were in San Francisco, California on April 26, 1974, nor was Noah Ferris or his son and employee, William Ferris, involved in the accident which caused personal injury to the plaintiff." Consequently, the trial court ruled the California court did not have personal jurisdiction over Noah Ferris, decided the default judgment was null and void, and refused to domesticate the judgment in Virginia. That order, entered July 26, 1978, became final and was not appealed.

Thereafter, in the present action against William, the defendant filed a "plea of res judicata or estoppel by judgment." He contended the decision and findings in the suit against Noah that William was not in San Francisco on April 26, 1974 and was not involved in the accident causing injury to the plaintiff were binding on the plaintiff in the present action. Following argument of counsel and filing of memoranda of law, the trial court, in a letter opinion, sustained defendant's plea, and dismissed the suit in a final order entered in April of 1979, from which we awarded plaintiff this appeal.

On appeal, plaintiff contends that the trial court erred in sustaining defendant's effort in the present case, based on the decision in Noah's case, to employ collateral estoppel defensively. Under the doctrine of collateral estoppel, " 'the parties to the first action and their privies are precluded from litigating [in a subsequent suit] any issue of fact actually litigated and essential to a valid and final personal judgment in the first action.' " Norfolk and Western Ry. Co. v. Bailey, 221 Va. 638, 640, 272 S.E.2d 217, 218 (1980), quoting Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974). But, to be effective the estoppel of the judgment ordinarily must be mutual. Thus, "a litigant is generally prevented from invoking the preclusive force of a judgment unless he would have been bound had the prior litigation of the issue reached the opposite result." 221 Va. at 640, 272 S.E.2d at 218.

Pointing to excerpts from the trial judge's written opinion, plaintiff contends the court erroneously applied the mutuality doctrine to the facts of this case. Plaintiff notes that the trial court said that if the decision in the Noah Ferris case had been in favor of the plaintiff, then the present defendant, William, "would have been precluded from claiming nonliability." Plaintiff argues the trial court was wrong because "application of the mutuality doctrine presupposes subsequent litigation between the same parties or their privies." And, plaintiff contends, "[i]t is clear that while Noah Ferris was in privity with William Ferris (i. e. Noah's liability was initially derivative from William), it is not true that William was ever in privity with Noah." Therefore, plaintiff continues, since the parties in the present case are different from those in the former case, the trial court "was required to abandon the mutuality doctrine in this case."

The plaintiff has misconstrued the concept of privity in the context of these facts. Under these circumstances, we hold that William Ferris was in privity with Noah Ferris, his employer.

There is no fixed definition of privity that automatically can be applied to all cases involving res judicata issues. While privity generally involves a party so identical in interest with another that he represents the same legal right, a determination of just who are privies requires a careful examination into the circumstances of each case. Storm v. Nationwide Ins. Co., 199 Va. 130, 134-35, 97 S.E.2d 759, 762 (1957). Here, as defendant contends, the focus is on the relationship of the Ferrises as it affects the question of jurisdiction of the California court. Just as the tort liability of Noah would have been derivative of the tort liability of William, his agent, the alleged jurisdiction of the California court over Noah, as nonresident, could only have been derived from the jurisdictional fact of William's operation of...