ATKISSON, ET AL. v.
WEXFORD ASSOCIATES, ET AL.
WEXFORD ASSOCIATES, ET
AL. v. ATKISSON, ET AL.
October 31, 1997
Record No. 970069
Record No. 970071
GEORGE ATKISSON, ET AL.
WEXFORD ASSOCIATES, ET AL.
WEXFORD ASSOCIATES, ET AL.
GEORGE ATKISSON, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane M. Roush, Judge
Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice
In this appeal, we consider whether a court can enforce a
judgment entered in a suit which did not include all the
This litigation, which has been active for over 11 years,
reaches us in a very unusual procedural posture. George B.
Atkisson and his wife, Carlotta T. Atkisson, filed their amended
bill of complaint against the Fairfax County Park Authority,
Wexford Associates, Inc., and 56 owners of lots located in the
Wendover Subdivision, Section III, in Fairfax County. The
Atkissons alleged that they owned a property interest in an
easement that provided ingress and egress to their family
cemetery and that the defendants had constructed obstructions
which interfered with the Atkissons’ use of the easement. The
chancellor granted the defendants’ demurrer to the amended bill.
We awarded the Atkissons an appeal from that judgment, reversed
the judgment by an unpublished order, and remanded the case for
further proceedings. Atkisson v. Wexford Associates,
Inc., Record No. 890169 (April 26, 1989).
Upon remand, the Atkissons nonsuited 38 of the 56 defendants
who were lot owners, and the case proceeded against Wexford
Associates (a developer), the Fairfax Park Authority, and certain
owners of lots in the subdivision. At a 1993 trial, the Atkissons
adduced evidence to support their claim that they had a property
right in a 15-foot-wide express easement that extended from a
county road to the cemetery.
The chancellor held, inter alia, that the
Atkissons had an express easement that provided them ingress and
egress to the cemetery. The chancellor established the location
of the easement in his final decree which stated in part:
"[t]he Court determined that this easement is located across
the affected properties in accordance with the express grant
contained in the Deed of 1892 located in Fairfax County Land
Records. . . . A view of the easement was taken by
the parties and the Court. . . ." The
chancellor did not, however, grant the Atkissons injunctive
relief because such relief would have required the property
owners to remove improvements such as homes and swimming pools.
In 1993, the chancellor entered a judgment which required that
each lot owner whose lot obstructed the easement pay $100 to the
Atkissons and that Wexford Associates pay the Atkissons $10,000
in punitive damages. Neither the lot owners nor Wexford
Associates appealed the chancellor’s decree. The chancellor also
ordered that the Park Authority provide a new easement for the
Atkissons on its land.
We awarded the Park Authority an appeal from the 1993
judgment. We held that the evidence adduced at trial supported
the trial court’s holding that the Atkissons have an express
easement which granted them access to the cemetery. We also held,
however, that the chancellor was without authority to require the
Park Authority to provide a new easement on its land, and we
remanded the case with certain directions. Fairfax County Park
Authority v. Atkisson, 248 Va. 142, 148-49, 445 S.E.2d
101, 105, cert. denied, 513 U.S. 1058 (1994).
While this proceeding was pending in the trial court upon the
second remand, David D. O’Brien and Jane B. O’Brien, owners of a
lot in the Wendover Subdivision, learned for the first time of
this litigation and that the easement at issue may transverse
their property. The O’Briens had purchased their lot from John
and Katherine Kowalczyk, who had initially been named as
defendants in this suit, but were nonsuited. The Atkissons did
not file a lis pendens memorandum in the O’Briens’
chain of title, and the O’Briens purchased their lot without any
notice, actual or constructive, of this litigation.
Subsequently, the O’Briens filed a petition to intervene and
requested that the chancellor vacate the 1993 judgment and award
a new trial. The chancellor conducted an ore tenus
hearing and held that the O’Briens were necessary parties and
that the dispositive rulings resulting in the 1993 judgment were
made after the O’Briens were title owners of the property. The
chancellor granted the O’Briens a new trial on all issues and
scheduled a trial date.
The Atkissons then filed a petition for writ of mandamus in
this Court, asserting that the chancellor acted beyond this
Court’s mandate by ordering a new trial for necessary parties. We
were of opinion that the writ should not issue, and we dismissed
the petition. In re: George Atkisson, et al., Record No.
951726 (November 27, 1995).
In pretrial motions, Wexford Associates and certain other
defendants asserted that they were not bound by the 1993 judgment
and argued that it was void because the O’Briens, who were
necessary parties, were deprived of an opportunity to participate
in the prior trial. The chancellor, who was not the same
chancellor who presided at the first trial, denied this motion
because she was of opinion that the O’Briens’ interests were
"separable" from the interests of these defendants. The
chancellor did hold, however, that Wexford and certain other
defendants were entitled to participate in subsequent proceedings
to the extent these litigants challenged the specific location of
During the new trial, the chancellor heard evidence which was
vastly different from the evidence adduced during the first
trial. Consequently, the chancellor made factual findings which
are, in many respects, contradictory to the factual findings made
by the other chancellor at the first trial.
Specifically, the chancellor found that the easement at issue
was created to provide ingress and egress from a 15-acre parcel
to a county road and that the easement was never intended to
serve the Atkissons’ family cemetery. Thus, the chancellor held
that as to the O’Briens and Donald and Joan Hall (defendants in
this trial who were not named defendants in the first trial),
"there is no express easement on their property that
provides access to the cemetery, and that any such attempt to do
so would constitute an impermissible additional burden on the
The chancellor also held that her ruling did not apply to the
defendants who had participated in the first trial because they
were bound by the 1993 judgment. Thus, the chancellor’s final
decree locates an easement which extends from a Fairfax County
road, identified as Bird Road, ceases at Halls’ property line and
the O’Briens’ property line, and then recommences on the opposite
side of the O’Briens’ property line and extends through several
other lots until it concludes at the cemetery. Simply stated, the
chancellor’s decree locates a 15-foot-wide easement which does
not permit the Atkissons to travel to and from the cemetery.
Even though the Atkissons made numerous assignments of error
in their brief  , they have chosen to limit
their argument on brief to the following question presented:
"The sole question in this case is whether . . .
the refusal of the Circuit Court of Fairfax County to enter an
Order pursuant to the Mandate of the Supreme Court of Virginia
was proper." In essence, the Atkissons argue that the trial
court erred by failing to comply with this Court’s directive
that, upon remand, the chancellor
"enter an order requiring that the lot owners and
Wexford Associates provide an easement at their expense
for the Atkissons, if the lot owners, Wexford Associates,
and the Atkissons can agree upon a location and
description of the new easement. In the event the
litigants are unable to agree, then the chancellor is
directed to order that Wexford Associates and the lot
owners remove any obstructions that interfere with the
Atkissons’ use of the express easement."
Fairfax County Park Authority, 248 Va. at 149, 445
S.E.2d at 105.
The O’Briens respond that the 1993 judgment cannot be enforced
against them because they were necessary parties, and the
Atkissons failed to name them as defendants in the first trial.
Wexford Associates and certain other defendants contend that the
1993 judgment is void because the O’Briens were necessary parties
who should have been made defendants in the first trial.
Continuing, the defendants assign cross-error to the chancellor’s
holding that they are bound by the 1993 judgment because, they
say, their interests are not separable from the O’Briens’
interests. We agree with the O’Briens and the defendants.
A court cannot render a valid judgment when necessary parties
to the proceedings are not before the court. We have repeatedly
articulated this fundamental principle of law. See Schultz
v. Schultz, 250 Va. 121, 124, 458 S.E.2d 458, 460 (1995); Allen
v. Chapman, 242 Va. 94, 99, 406 S.E.2d 186, 188 (1991); McDougle
v. McDougle, 214 Va. 636, 637, 203 S.E.2d 131, 133 (1974);
Patterson v. Anderson, 194 Va. 557, 570, 74 S.E.2d
195, 203-04 (1953); Harris v. Deal, 189 Va. 675,
686, 54 S.E.2d 161, 166 (1949). Additionally, we have stated:
"Necessary parties include all persons, natural
or artificial, however numerous, materially interested
either legally or beneficially in the subject matter or
event of the suit and who must be made parties to it, and
without whose presence in court no proper decree can be
rendered in the cause. This rule is inflexible, yielding
only when the allegations of the bill state a case so
extraordinary and exceptional in character that it is
practically impossible to make all parties in interest
parties to the bill, and, further, that others are made
parties who have the same interest as have those not
brought in, and are equally certain to bring forward the
entire merits of the controversy as would the absent
This cardinal principle governing as to parties to
suits in equity is founded upon the broad and liberal
doctrine that courts of equity delight to do complete
justice by determining the rights of all persons
interested in the subject matter of litigation, so that
the performance of the decree rendered in the cause may
be perfectly safe to all who are required to obey it and
that further litigation touching the matter in dispute
may be prevented."
Kennedy Coal Corp. v. Buckhorn Coal Corp., 140
Va. 37, 49, 124 S.E. 482, 486 (1924) (quoting Buchanan Co.
v. Smith’s Heirs, 115 Va. 704, 707-08, 80 S.E. 794, 795
(1914)). Additionally, this rule is designed to avoid depriving a
person of his or her property without giving that person an
opportunity to be heard.
Applying the aforementioned principles, we hold that the 1993
judgment is absolutely void and, therefore, no rights are
divested or obtained from that judgment. The O’Briens were
necessary parties to the first trial because their property
rights were affected by the establishment of the express easement
and, thus, the O’Briens had a material interest in the outcome of
that trial. Hence, the chancellor correctly held that the
O’Briens are not bound by the void judgment.
The chancellor erred, however, by enforcing the void judgment
against Wexford Associates and certain other defendants. We have
stated that a court may enter a decree without prejudice to the
rights of an absent party if the absent party’s interests are
separable from those of the parties before the court. McDougle,
214 Va. at 637, 203 S.E.2d at 133; accord Bonsal v.
Camp, 111 Va. 595, 600-01, 69 S.E. 978, 980 (1911). This
exception, however, is not applicable here.
The interests of Wexford Associates and the property owners,
who were affected by the 1993 judgment, are not separable from
the interests of the O’Briens. The Atkissons admit that the sole
purpose of the easement was to permit them to gain ingress and
egress from an old county road to their family cemetery. Even
though each property owner owned a different and discrete lot, if
any lot owner could demonstrate that the express easement did not
transverse his or her property, then, the Atkissons could not
establish an easement of ingress or egress to the cemetery
because the easement would stop short of that destination. Thus,
the interests of all the affected lot owners are inseparable.
In view of our holdings, we need not consider the remaining
issues raised by the litigants. Rather, we will declare that the
1993 judgment is void and may not be enforced against anyone. We
will reverse the chancellor’s decree to the extent it seeks to
enforce the void judgment. We will enter final judgment in favor
of all the defendants and intervenors because the chancellor, in
the decree appealed from, held that the evidence in the second
trial established that the Atkissons do not have an express
easement, and the Atkissons do not challenge the chancellor’s
findings or legal conclusions other than to state, in a
conclusory fashion, that those findings are "directly
contrary to the findings of [the] chancellor" who conducted
the prior trial.
Affirmed in part,
reversed in part,
and final judgment.
 We do not consider assignments
of error 2, 3, and 4 to the extent such assignments are not
addressed in the Atkissons’ brief because the failure to discuss
these assignments constitutes a waiver. Rule 5:27, accord Quesinberry
v. Commonwealth, 241 Va. 364, 370, 402 S.E.2d 218, 222, cert.
denied, 502 U.S. 834 (1991).