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Prior suit not res judicata for easement counterclaim

Because defendants in the current suit concerning a lake access easement were not in privity with the plaintiff in a prior suit concerning the same easement, res judicata does not bar defendants’ counterclaim against plaintiffs in the current suit.

Alleged facts

Plaintiffs, the Webbs, bought Lot 612 in Barcroft Lake Shores Subdivision in June 2017. Defendants, the Horns, bought Lot 615 in March 2007. Until recently Rustgi owned Lot 613, which he bought in March 2011.

In September 1966, the then-owners of the three lots executed an easement agreement. The Lot 612 owners granted Lot 613 and 615’s owners a lake access easement along the rear of Lot 612. The owners of Lot 613 granted an easement over their lot to the easement on Lot 612.

In 1976, the owners of Lot 613 and 615 anchored an electric pontoon boat along the pier wall of Lot 612. The batteries were charged by an outlet powered by wires installed along the easements on Lots 613 and 615. “[T]he easement’s express terms did not permit the permanent docking and powering of a pontoon boat along the pier wall of Lot 612.”

Prior suit

In July 2019, Rustgi, the Lot 613 owner, sued the Webbs, the Lot 612 owners, seeking a declaration that he had the right to dock the co-owned pontoon boat along the pier wall on Lot 612. The Webbs filed a counterclaim, seeking a ruling that the boat was a trespass and a nuisance.

The Horns, the current owners of Lot 613 and the defendants in the current suit, assert they “were not parties to the Rustgi suit and, according to the Horns, Rustgi’s Complaint was filed without their knowledge or participation and they did not know of, or participate in, the trial.”

In the Rustgi action, the court found for the Webbs. Rustgi did not appeal.

Current suit

The Webbs have sued the Horns for nuisance and trespass.

“The Horns have filed a counterclaim against the Webbs, seeking recognition of a prescriptive easement for the owners of Lot 615:

“ i) to dock and power the pontoon boat at the boat dock located on Lot 612 at the bottom of the path described in the 1966 Easement Agreement and

“ii) to store up to four smaller boats (as well as reasonable accessories and attachments thereto) upon the portion of the upper flat area of Lot 612 that is adjacent to the boat dock located at the bottom of the path described in the 1966 Easement Agreement.

“Unlike Rustgi’s previous action, the Horns’ Counterclaim does not include a claim pursuant to the 1966 Easement Agreement.”

The Webbs responded with a plea in bar, asserting that res judicata bars the counterclaim.

No privity

“If the Horns are not in privity with Rustgi, there is no res judicata bar, the plea in bar fails[.]” After reviewing the authorities, “this court believes … that the Virginia Supreme Court would adopt” the privity analysis in Taylor v. Sturgell, 553 U.S. 880 (2008).

Under Taylor, “the Horns plainly would not be bound by Rustgi in that there is no dispute that they were not parties. Taylor, however, went to hold that ‘the rule against nonparty preclusion is subject to exceptions’ and that, for ‘present purposes, the recognized exceptions can be grouped into six categories.’ … Of those six exceptions, only the following two could arguably apply here; their application will be addressed below:

“‘[N]onparty preclusion may be justified based on a variety of pre-existing “substantive legal relationship[s]” between the person to be bound and a party to the judgment. …

“‘[A] nonparty is bound by a judgment if she “assume[d] control” over the litigation in which that judgment was rendered.’ …

“[A]ccording to the Webbs, the material facts showing a relationship between the Horns and Rustgi are that Kevin Horn actively assisted Rustgi in collecting facts and interviewing witnesses, that the Horns contributed $7,323.75 to Rustgi to assist with his legal fees (which was returned), that both Lots 613 and 615 had easements on Lot 612 which were granted in the jointly-executed 1966 Easement Agreement, and that Horn was both a sender and a recipient of the majority of emails to which Rustgi was party regarding Rustgi’s case.

“These facts do not establish a ‘substantive legal relationship’ … nor do they show that Kevin Horn ‘assume[d] control’ … of Rustgi’s case. They also do not show a contractual relationship … nor do they indicate that the Horns and Rustgi owe some kind of legal duty to each other. …

“Moreover, because ‘[e]asements are not ownership interests in the servient tract but the privilege to use the land of another in a particular manner and for a particular purpose,’ … the fact that Lots 613 and 615 were each granted an easement on Lot 612 by a joint Easement Agreement, does not make Lots 613 and 615 ‘co-owners’ of the easement. Thus, the Horns and Rustgi do not have a ‘legal relationship such as co-ownership.’ …

“Finally, the Webbs’ contention that Rustgi’s and the Horns’ interests are identical is not supported by any of the three bases set forth by the Webbs: i) Rustgi’s email of April 6, 2020 … referring to their interests as being ‘perfectly aligned’ is not acknowledged by the Horns and, even if it was, being ‘aligned’ does not equate to being ‘identical’; ii) the contract … which refers to Rustgi and the Horns as having ‘identical interests’ is merely a proposal as it was not executed by either party; and iii) Kevin Horn’s email of October 3, 2019 … merely refers to ‘our full rights under the easement’ and says nothing about their interests being identical.

“In sum, the Horns and Rustgi are not in privity, so the instant matter is not barred by res judicata. … [T]he Webbs’ plea in bar is overruled.”

Webb v. Horn, Case No. CL 2020-10220, March 3, 2021, Fairfax County Cir. Ct. (Gardiner). J. Chapman Peterson, Aristotelis A. Chronis for the parties. VLW 021-8-036, 8 pp.

VLW 021-8-036

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