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Law of the case doctrine bars relitigating dismissed action

Virginia Lawyers Weekly//December 24, 2019

Law of the case doctrine bars relitigating dismissed action

Virginia Lawyers Weekly//December 24, 2019

Where the trial court dismissed appellant’s original contract suit after giving the parties the opportunity to sue in Maryland under a forum selection clause and one party did so, the trial court correctly ruled that appellant could not refile the suit after the Maryland litigation was dismissed.

Law of the case

“Appellant claims it was error for the trial court to sustain appellees’ demurrer and enforce the forum selection clause where appellant sufficiently alleged that appellees’ actions had waived their reliance on the clause.

“Upon review of the record, we agree with the trial court’s ultimate decision as an evident application of the ‘law of the case’ doctrine. Under the ‘law of the case’ doctrine, ‘when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived [its] right to challenge that decision during later stages of the same litigation. …

“This Court has held that the ‘law of the case’ doctrine extends to ‘future stages of the same litigation. … Thus, when two cases involve identical parties and issues, and one case has been resolved finally … , we will not re-examine the merits of issues necessarily involved in the first [stage of litigation], because those issues have been resolved as part of the same litigation and have become the law of the case.’ …

“Finally, this doctrine extends not only to adjudicated issues, but also to issues ‘necessarily involved in the first [litigation], whether actually adjudicated or not.’”


“The instant litigation involves the same parties as in the original Virginia proceedings that were dismissed. In those proceedings, appellees moved for dismissal of appellant’s contract claims based on the contract’s forum selection clause. Appellant objected to the motion, arguing that appellees had waived any basis to assert the forum selection clause by taking actions inconsistent with its enforcement.

“The trial court, in those original proceedings, found that the forum selection clause was valid and enforceable, and it dismissed the case for the parties to proceed in Maryland as required by the contract. Appellant did not appeal the dismissal.

“When appellant brought the instant litigation after the litigation was dismissed in Maryland, appellees again asserted the forum selection clause as controlling of the contract claims, and appellant again argued that appellees had waived its enforcement by their actions.

“Thus, not only does the instant litigation involve the same parties, it also involves the same issues as previously decided by the trial court. Because appellant did not appeal the trial court’s dismissal based on the forum selection clause in the original litigation, the trial court’s decision became the law of the case.

“This decision also extended to the contract claims, despite their not being adjudicated on the merits, since such claims were necessarily involved in adjudicating the forum selection clause. Appellant based its present claims on those same issues that were presented to and adjudicated by the trial court in the December 2016 hearing.

“Because appellant’s complaint thoroughly addressed the parts of the hearing that led to the trial court’s original decision, the trial court was permitted to take judicial notice of the matters appearing in that proceeding. …

“Thus, the trial court was aware it had already resolved the issues before it in the refiled action as part of its prior rulings in the same litigation, It was then also aware that appellant could not plead any allegations that would allow the litigation to proceed for a second time in Virginia. The trial court was therefore justified in noting that the demurrer must be sustained because the contract claims were necessarily involved in its original decision that the claims were controlled by the contract’s forum selection clause.”


McClung-Logan Equipment Co. v. Harbour Constructors, et al. Record No. 181633 (Order) Dec. 12, 2019 (COA). Thomas Collier Mugavero, Marla Jordan Diaz for Appellant, Jack Louis Wuerker, Amy Epstein Gluck for Appellees. VLW 019-6-098, 7 pp.

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