Virginia Concrete Co. v. Board of Sup'rs of Fairfax County

• Decision Date: 05 March 1956
• Docket Number: No. 4473,4473
• Citation: 91 S.E.2d 415,56 A.L.R.2d 1283,197 Va. 821
• Parties: , 56 A.L.R.2d 1283 VIRGINIA CONCRETE COMPANY, A CORPORATION v. THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA. Record
• Court: Virginia Supreme Court

Page 415

91 S.E.2d 415

197 Va. 821, 56 A.L.R.2d 1283

VIRGINIA CONCRETE COMPANY, A CORPORATION v. THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA.

Record No. 4473.

Supreme Court of Appeals of Virginia

March 5, 1956.

Andrew W. Clarke, Frank L. Ball, Sr. and Gardner L. Boothe, for the appellant.

Alex Moncure Bloxton and John G. Epaminonda, for the appellee.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

The Board of Supervisors of Fairfax county on August 7, 1953, filed what it termed an original bill in the nature of a bill of review in which it alleged as follows:

That on May 7, 1952, the Board determined that the defendant, Virginia Concrete Company, Incorporated, was operating its plant in violation of the zoning ordinances of the county; that the Board employed Robert J. McCandlish as its attorney to bring a suit to enjoin the defendant's operations; that McCandlish, assisted by the Commonwealth's attorney of the county, Hugh Marsh, brought an injunction suit in the circuit court of the county, identified as Chancery No. 8857; that at the beginning of the trial of that cause the said McCandlish, in violation of the terms of his employment and without the consent of the Board, moved the court for a voluntary dismissal of said injunction suit and thereafter, without authority to do so, assisted in preparing and endorsed for entry a decree which was entered on April 3, 1953, dismissing said injunction suit 'with prejudice to your complainant's right to bring another suit on the same cause.'

The bill further alleged that the dismissal with prejudice by counsel without specific authority from the Board was a nullity and should be set aside so that the Board would not be precluded thereby from prosecuting another injunction suit against the defendant in order to enforce the zoning ordinances of the county. The prayer of the bill was that said decree entered in Chancery No. 8857 be set aside and held void, or be amended so as to be without prejudice to the right of the Board to prosecute another suit for the same cause.

The defendant filed a demurrer to the bill which the court sustained insofar as the bill purported to charge fraud, but overruled insofar as the bill sought to set aside the dismissal decree in No. 8857 on the ground that it was entered without authority from or ratification by the Board.

The defendant then filed its answer alleging that prior to the dismissal order in No. 8857 the Board had entered an order with respect to repealing that part of the zoning ordinances under which that suit had been instituted; that the defendant did not know of this action of the Board until the trial of the injunction suit was practically completed, whereupon it introduced in evidence a copy of the Board's order. The answer denied that counsel for the Board acted without authority in the dismissal of the cause with prejudice. and asserted that there was no mistake or misunderstanding on the part of anybody concerning the effect of the decree or the propriety of its entry, and that under the circumstances a dismissal order with or without prejudice would have had the same effect of finality.

The answer asserted that the decree of dismissal was a complete adjudication of the matters and things involved in Chancery No. 8857 and was res judicata as to all matters and things alleged in that suit and in the present suit.

The court later heard certain oral and documentary evidence and entered the decree now complained of, holding that the evidence failed to show either prior approval or subsequent ratification by the Board of the decree dismissing No. 8857 with prejudice, and consequently such dismissal constituted a mistake of law which should be corrected. Accordingly so much of the dismissal decree as stated it was done 'with prejudice' was set aside and declared null and void, and said dismissal declared to be without prejudice to the right of the Board to bring such other suit as it might be advised.

Under the assignments of error the appellant contends that the Board attempted to repeal the part of the zoning ordinance upon which its suit No. 8857 was based; that it thereby eliminated all equity from its bill; that a dismissal with prejudice was the only decree that could then properly be entered, and that the Board's counsel were acting within their authority when they endorsed that decree and offered it for entry.

The original injunction suit No. 8857 was brought for the alleged violation of subparagraph 31 of § 9-A of the zoning ordinances of the county. Section 9-A related to uses permitted in an industrial area and provided that when any of the 'following uses' were not controlled by existing county ordinances, they required the approval of the Board, but no such use should be established within 2,000 feet of any residence district or within 500 feet of a business district. Then were listed thirty specific uses, followed by the thirty-first in these words:

'Any other similar use which in the opinion of the Board of Supervisors might be injurious or noxious by reason of odor, fumes, dust, smoke, vibration, noise or other cause.'

This original suit was instituted August 22, 1952, and on February 4, 1953, while it was pending, the Board passed the following resolution:

'On motion of Supervisor Fox, seconded by Supervisor Shaffer and unanimously carried, the Board voted to amend the Zoning Ordinance, as requested by the Planning Commission, by deleting therefrom Division 31, under Subsection A, of Section IX, provided the same met with the approval of the Commonwealth Attorney.'

At an ore tenus hearing of the injunction suit No. 8857 on April 3, 1953, before the same judge who heard and decided the present suit, certain documentary evidence was admitted by stipulation. This included minutes of the Board of Zoning Appeals and of the Board of Supervisors, showing proceedings prior to the institution of the injunction suit, and a plat showing the distance of certain dwellings from the defendant's plant. One of the witnesses for the Board (its tie-breaker, who had cast the deciding vote on whether the defendant was violating subsection 31 of the ordinance) was examined. Thereupon, and before the Board had closed its case, counsel for defendant offered some pictures of the premises, and introduced a copy of the resolution of February 4, 1953, quoted above, over objection by counsel for the Board that it was not material. Mr. Marsh, Commonwealth's attorney and one of the Board's attorneys, then testified that this was the first time he had seen the resolution and he had not approved it. After a recess Mr. McCandlish stated to the Court that in view of the order of the Board, of which he had had no knowledge, 'we move that the case be dismissed.' The court said, 'I don't hear any objection.' The defendant's counsel interposed: 'Insert in the order 'with prejudice."' The court said, 'The motion will be granted.' The following decree was thereupon entered:

'This cause came on to be heard this 3rd day of April, 1953, upon stipulations by counsel, view of the premises of Virginia Concrete Company, and argument of counsel; whereupon the Complainant, by counsel, moved that this cause be dismissed, upon consideration whereof, it is adjudged, ordered and decreed that this cause be, and the same hereby is dismissed, with prejudice, at the cost of the Complainant.'

It was endorsed 'Seen' by both of the Board's attorneys and also by the defendant's attorneys.

On April 15, 1953, following the entry of this decree, the Board passed another resolution rescinding and revoking its resolution of February 4, 1953.

It is conceded that the resolution of February 4, 1953, did not repeal subsection 31 of the zoning law. It was a nullity in that respect. In addition to lack of approval by the Commonwealth's attorney, there was no attempt to comply with the requirements of the zoning ordinance and of the statute as to amendments (Acts 1938, ch. 415, p. 777). The Board's attorneys concluded that it represented a change of attitude by the Board with respect to subsection 31 and that they could not prevail in the suit or in good conscience enforce that sub-section as long, they said, 'as that resolution was on the Board's minutes.'

It is clear that there was a voluntary dismissal of the injunction suit by the Board's attorneys, accompanied by their consent that it be done with prejudice. It is in order to inquire first what is the effect of the decree, and second whether the Board's attorneys possessed authority to agree to make that disposition of the case.

In Mongeon v. Burkebile, 79 N.D. 234, 55 N.W. (2d) 445, the court dealt with a decree which adjudged that the petition for probate of a will, on motion of the petitioner's attorneys, 'be and the same hereby is in all things dismissed with prejudice,' and said:

'* * * The dismissal of an action or proceeding 'with prejudice' commonly implies not only the termination of the particular action or proceeding then before the court but also the right of action upon which it is based. [Citing numerous cases and texts]. From these authorities we conclude that when an order is entered at the request of the plaintiff, understandably made, dismissing his action 'with prejudice,' the dismissal goes to the cause of action and becomes res adjudicata with respect to the issues brought before the court by the action. The words 'with prejudice' appearing in a motion or order for dismissal are not always conclusive against the plaintiff. Their effect is determined by the conditions under which they are used. * * *.'

In a comprehensive note in 149 A.L.R. at 553 on the effect of the words 'without prejudice' and 'with prejudice' in a judgment with respect to its operation as res judicata, it is said at page 625 that as a general proposition a judgment of dismissal which expressly provides that it is 'with prejudice' operates as res judicata and is as...