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SCV: Record not sufficient to prove res judicata

Notwithstanding a “Final Order” denying nonsuit and ordering removal of the case from the court’s docket, a defendant failed to provide hearing transcripts or any other basis to conclude that the circuit court previously made a final ruling on the merits.


In 2008, Appellee Kyus filed a complaint against Appellant D&MRE, alleging that they improperly evicted Kyus from a gas station it operated pursuant to a sublease with a third company. According to an order dated December 11, 2008, the parties appeared for a hearing on Kyus’s motion for an “emergency injunction.” The circuit court stated therein that evidence was presented and argued to the court, after which it determined that Kyus failed to present sufficient evidence that it was likely to succeed on the merits. The court then denied Kyus’s motion for an injunction and directed the case to be “removed from the docket.” Kyus moved for reconsideration and, in the alternative, requested a nonsuit.

In a “Final Order” dated December 23, 2008, the circuit court denied both reconsideration and nonsuit, stating that “the motion does not state any new material evidence to justify a modification of the previous decision,” and “a nonsuit may not be taken after the case has been submitted to the court for decision.” The circuit court then concluded: “This is a final order, and the case is removed from the docket.” Kyus did not appeal the December 23 order, and the circuit court took no further action in this first case until February 2012, while presiding over a second case.

In January 2009, Kyus instituted the second case by filing a complaint against D&MRE, again alleging wrongful eviction of Kyus from the gas station. D&MRE moved to dismiss Kyus’s second complaint on the grounds it was barred by res judicata. The second case was consolidated with the first case for trial. On February 9, 2012, the circuit court held a hearing on, among other things, D&MRE’s plea of res judicata and entered a “Corrected Final Order” in the first case nunc pro tunc to December 23, 2008. The nunc pro tunc order purportedly augmented the December 23 order to clarify that it had denied Kyus’s “motion to nonsuit as to the emergency injunction” and that it was only “a final order as to the emergency injunction.”

Although no order was entered expressly ruling on D&MRE’s plea of res judicata, the nunc pro tunc order was an implicit rejection of the plea. D&MRE subsequently filed a motion to reconsider, which the circuit court denied by order entered on December 1, 2016. On the same day, the court granting Kyus’s motions for nonsuit in both the first case and the second case. D&MRE appealed.

Right of appeal

D&MRE’s first assignment of error – that the circuit court lacked jurisdiction to enter the nunc pro tunc order – was improvidently granted, as the record is insufficient to allow this court to determine whether the circuit court abused its discretion. D&MRE has not provided a hearing transcript to either relevant proceeding precipitating the challenged order. Thus, it is impossible to reliably discern whether the circuit court finally resolved any issues related to Kyus’s claims, whether the December 23 order was final, or whether the circuit court identified sufficient record support for the nunc pro tunc order.


The circuit court did not err in overruling D&MRE’s plea of res judicata filed in the second case. As the record stands, nothing in the first case persuasively indicates that the circuit court had any valid opportunity to make a final determination on the merits of Kyus’s claim of wrongful eviction. Rather, the record indicates just the opposite: According to the December 11 order (entered the day after Kyus filed its complaint in the first case), the parties appeared only for an ore tenus hearing on Kyus’s motion for an emergency injunction; the circuit court denied the motion upon finding that Kyus failed to present sufficient evidence to establish that it was likely to “succeed at a full trial on the merits of the case.”

On December 23, the circuit court further denied Kyus’s motion for reconsideration, explaining that the motion stated no new material evidence – obviously referring to its December 11 order denying the emergency injunction. Furthermore, no order in the record indicates that the circuit court received a full presentation of evidence on the merits of the first complaint or otherwise considered a dispositive pre-trial motion before entering the December 23 order.

Even though the circuit court proceeded in that order to deny Kyus’s motion for a nonsuit, referred to the order as a “Final Order,” and directed that the case be removed from the docket, that alone does not provide a sufficient basis to conclude that the circuit court made a final ruling on the merits of Kyus’s first complaint. The record indicates instead that the circuit court merely rendered an interlocutory ruling on a motion for an emergency injunction, given the limited evidence before it.

First appeal dismissed; second judgment affirmed.

D&MRE LLC v. Kyus Enters. Inc., Record No. 170248, Apr. 5, 2018. SCV (per curiam), from King William Cir. Ct. VLW No. 018-6-027, 6 pp.