Read on Twitter
I’m a former law review editor, law clerk, and a current appellate attorney. I’ve given AH’s new plea in bar the law clerk treatment, meaning I have reviewed her citations and arguments to evaluate its legal merit. https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/high-profile/depp%20v%20heard/cl-2019-2911-def-supp-plea-in-bar-4-13-2021.pdf
As a reminder, a plea in bar is a type of legal request to dismiss a civil complaint for a purely legal reason. Because it has nothing to do with the merits of the complaint, it is based on technical legal grounds.
The supplemental plea in bar, at paragraphs 8-9, argues that JD’s complaint should be barred under the doctrines of comity, res judicata, and collateral estoppel. Let’s start by defining these concepts.
She cites the case of Hilton v. Guyot, an 1885 case, for comity, so we’ll go there. Comity is a common law doctrine concerning “the force and effect of foreign judgments.” https://caselaw.findlaw.com/us-supreme-court/159/113.html
The starting point is, all legal power ends at a nation’s borders. The extent to which one sovereign’s legal acts will be enforceable by another can be either a matter of the second country’s law, or if there is no law, a matter of “comity.”
Guyot involved a New York company (NY) that had a store in Paris. A Parisian business (P) sued NY in France and won. NY then closed its Paris shop and P tried to collect against its assets in New York.
Guyot held that while foreign judgments obtained under some conditions should be given effect to preclude retrying the case, “a foreign judgment may be impeached for fraud.”
And it noted English common law that “foreign judgments may be impeached, if procured by false and fraudulent representations and testimony of the plaintiff, even if the same question of fraud was … decided by the foreign court.”
As an aside, Guyot’s discussion is what lawyers call “dicta.” It did not relate to the ultimate decision in the case, which is that the French judgment was not entitled to comity because France did not recognize US judgments.
So, the general gist of the common law doctrine as discussed in Guyot is that while foreign judgments can be recognized in state courts, those judgments can be impeached for fraud. This will certainly feature in JD’s response.
Further, it’s important to note that Guyot was an action between the same parties as in France. It concerned a party attempting to enforce its own judgment, not a third-party trying to use someone else’s judgment to its advantage.
Her next citation is to Clark v. Clark, a VA Court of Appeals decision. This case isn’t publicly available as far as I could find, so I can’t link it. However, she cites it for the proposition that comity applies to matters that are res judicata.
Clark was a divorce case where wife tried to assert against husband a default judgment against husband from Switzerland. The court concluded that the foreign judgment was not conclusive because it was not res judicata.
So, let’s turn to res judicata. It translates as “the thing is decided” and concerns the ability to relitigate claims already adjudged. She cites Bates v. Devers, a 1974 case, and Lane v. Bayview Loan Servicing, LLC, a 2019 case, so let’s look at those in turn.
Bates involved a lawsuit that was settled and a subsequent claim between the same parties. They disputed whether the subsequent claim was separate from the prior lawsuit. Concluding it was, Bates discusses res judicata at length. https://law.justia.com/cases/virginia/supreme-court/1974/730380-1.html
Specifically, “A valid, personal judgment on the merits in favor of defendant bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies.” (We’ll get back to “privies” in a moment.)
Collateral estoppel is similar: “In the subsequent action, the parties to the first action and their privies are precluded from litigating any issue of fact actually litigated and essential to a valid and final personal judgment in the first action.”
In my previous thread on this topic, I noted that VA case law clearly requires “mutuality” or identity of parties. AH, as we know, was not a party in the case of JD v. NGN in the UK. Bates is consistent with this point. https://twitter.com/aburkhartlaw/status/1382895490782531584
Now, Lane. Lane is interesting because it talks about who “privies” are. A lender initiated a foreclosure sale by sending notices of default, a firm was appointed to conduct the sale, and a law firm sent notice as the lender’s and attorney. https://law.justia.com/cases/virginia/supreme-court/2019/180979.html
The borrower filed a suit against the law firm to stop the sale, arguing various procedural defects in the foreclosure. The suit was denied and the sale occurred. The borrower then sued again, this time against the lender, the substitute, and the new owner.
In the second suit, the lender argued that res judicata barred the case. Because the lender was not named in the prior suit, it would only be able to assert res judicata “if it was in privity with the defendant” in the prior case – who was, remember, the lender’s lawyer.
Privity exists when people have a shared or successive interest in the same matter such that their legal rights are the same: “privity exists where ‘a party’s interest is so identical with another that representation by one party is representation of the other’s legal right.’”
For a more detailed definition/description of privity: https://thelawdictionary.org/privity/
Privity is narrowly construed. In Lane, the lender argued privity existed because of the attorney-client relationship and because the attorney’s position in the prior case represented its same interests, i.e., proceeding with the sale. Lane disagreed.
An attorney does not acquire a client’s rights by representing the client, even though the attorney’s representation concerns the client’s rights. Consequently, an attorney-client relationship does not establish privity.
Further, the lawyer’s interest in “obtaining a favorable outcome” was an insufficient relationship to the interest in the underlying property, which was held only by the lender, not the lawyer. Because the interests were not identical, there was no privity.
AH does not argue, in her plea in bar, why she has a relationship of “privity” with NGN. Because privity is narrowly construed to actual shared interests – meaning, in this context, shared gain or liability dependent on the outcome – it’s hard to imagine how she could.
The last thing AH cites is VA’s Uniform Foreign Country Money Judgments Recognition Act. In pertinent part, the Act states that a qualifying foreign judgment is enforceable and conclusive to the same extent as a domestic one. https://law.lis.virginia.gov/vacode/title8.01/chapter17.2/section8.01-465.13:6/
Remember back to Guyot: a State’s own law is the first place to look for its decision whether or how to enforce a foreign judgment. So the first thing this Act accomplishes is to render “comity” inapplicable because common law only applies in the absence of a specific rule.
The Act establishes standards for recognizing foreign judgments. They are not recognized if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” https://law.lis.virginia.gov/vacode/title8.01/chapter17.2/section8.01-465.13:3/
This is where the lack of a jury trial right is likely to be an issue. Virginia’s constitution provides that “trial by jury is preferable to any other, and ought to be held sacred.” https://law.lis.virginia.gov/constitution/article1/section11/
Also, the court can disregard the judgment if it “was obtained by fraud that deprived the losing party of an adequate opportunity to present its case,” or if circumstances “raise substantial doubt about the integrity of the rendering court with respect to the judgment.”
In any event, even if the UK judgment qualifies as a recognizable foreign judgment, it is only conclusive “to the same extent” as a domestic judgment … meaning the limitations of res judicata and collateral estoppel still apply and AH still has to show privity with NGN.
So in summary, privity remains the weakest link in her argument, although there are other arguments JD will be able to bring to bear against her effort to apply the UK findings in VA. Not arguing it in her plea is a good indicator that the law does not favor her position.
@threadreaderapp Unroll
