Legal Doctrines

This site is only an information site on the law in Virginia. The following information is not intended as legal advice and should not be relied upon as accurate or current. Consult an Attorney.

The Doctrine of Res Judicata

" The doctrine of res judicata "precludes relitigation of a claim or issue once a final determination on the merits has been reached." Commonwealth ex rel. Gray v. Johnson, 7  Va. App. 614, 617-18, 376 S.E.2d 787, 788 (1989). "One who asserts the defense of res judicata  has the burden of proving by a preponderance of the evidence that an issue was previously raised and decided by a tribunal in a prior cause of action." Fodi's v. Rutherford, 26 Va. App. 446, 449, 495 S.E.2d 503, 505 (1998). Moreover, that party must prove the "identity of the remedies sought." Wright v. Castles, 232 Va. 218, 222, 349 S.E.2d 125, 128 (1986). Wainright v. Newport News and Shipbuilding, __ Va. App. ___ (2007).

The Doctrine of Sovereign Immunity


Dieu et Mon Droit - "God And my Right" - Motto of the English Crown

The King's Prerogative

"The American Colonies did not enjoy sovereign immunity, that being a privilege understood in English law to be reserved for the Crown alone; "antecedent to the Declaration of Independence, none of the colonies were, or pretended to be, sovereign states," 1 J. Story, Commentaries on the Constitution § 207, p. 149 (5th ed. 1891)... If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that the Colonies as such enjoyed any immunity from suit. "[T]he law ascribes to the king the attribute of sovereignty, or pre-eminence," said Blackstone, 1 W. Blackstone, Commentaries (hereinafter Blackstone), and for him, the sources for this notion were Bracton and Acts of Parliament that declared the Crown imperial. Id., at 241-242. It was simply the King against whom "no suit or action can be brought ... even in civil matters, because no court can have jurisdiction over him." Id., at 242. If a person should have "a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace though not upon compulsion." Alden et al v. Maine 527 U.S. 706 (1999).

The Revolution Transfers Sovereignty From the King to the People

"That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them." Virginia Declaration of Rights, June 12, 1776.

Virginia's Founding Father's Thoughts on the Issue

George Mason:

"[t]he Doctrine now industriously propagated "that the late Revolution has transferred the Sovereignty formerly possessed by Great Britain, to the United States, that is to the American Congress" A Doctrine which, if not immediately arrested in it's progress, will be productive of every Evil; and the Revolution, instead of securing, as was intended, our Rights & Libertys, will only change the Name & place of Residence of our Tyrants." George Mason to Thomas Jefferson, September 27, 1781.

Patrick Henry:

"We are told that all powers not given are reserved. I am sorry to bring forth hackneyed observations. But, sir, important truths lose nothing of their validity or weight, by frequency of repetition. The English history is frequently recurred to by gentlemen. Let us advert to the conduct of the people of that country. The people of England lived without a declaration of rights till the war in the time of Charles I. That king made usurpations upon the rights of the people. Those rights were, in a great measure, before that time undefined. Power and privilege then depended on implication and logical discussion. Though the declaration of rights was obtained from that king, his usurpations cost him his life. The limits between the liberty of the people, and the prerogative of the king, were still not clearly defined. The rights of the people continued to be violated till the Stuart family was banished, in the year 1688. The people of England magnanimously defended their rights, banished the tyrant, and prescribed to William, Prince of Orange, by the bill of rights, on what terms he should reign; and this bill of rights put an end to all construction and implication. Before this, sir, the situation of the public liberty of England was dreadful. For upwards of a century the nation was involved in every kind of calamity, till the Bill of Rights put an end to all, by defining the rights of the people, and limiting the King's prerogative. Give me leave to add (if I can add any thing to so splendid an example) the conduct of the American people. They Sir, thought a Bill of Rights necessary." Patrick Henry, June 12, 1788. 3 Elliot's Debates 316-317 (1836).

Sovereign Immunity is Wrongly codified under the Common Law From English Cases

"Tracing the rule to its ultimate progenitor we are led to the English case of Russel v. Men of Devon, 2 T.R 667, 100 Eng. Rep. R. 359 (1788). The Men of Devon decision merely relieved the inhabitants of an unincorporated county from liability for damages resulting from a defective bridge..." Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 132 (Fla. 1957)."

"In feudal England the monarchy was sovereign and could not be liable for damages to its subjects. This was based on the theory that the "king could do no wrong." Apparently, the present day doctrine of sovereign immunity from tort liability originated in the English case of Russel v. Men of Devon, 2 T.R. 667, 100 Eng. Rep. R. 359 (1788), which held that an unincorporated town could not be liable for damage caused by a defective bridge. The Doctrine was not part of the Common law of England which was adopted by the State of North Carolina in G.S. § 4-1. That statute adopted the common law of England as of the date of the signing of the Declaration of Independence, which took place thirteen years before the Russel case was decided. The early North Carolina decisions expressly rejected the doctrine." Steelman v. City of New Bern, 184 S.E.2d 239, 241 (N.C. 1971).

Virginia Acts to Allow Suits

Virginia also adopted the Common Law of England and in 1778, ten years before the English Case of Russel v. Men of Devon, the Virginia legislature passsed a law that allowed for suits against the Commonwealth.

"Any person who is entitled to demand against the commonwealth any right in law or equity, may petition the high court of chancery, or the district court holden in Richmond, according to the nature of his case, for redress, and such court shall proceed to do right therein. But if this right or demand happens to be of a pecuniary nature, it seems to be held that the treasurer cannot pay the party entitled thereto, unless an appropriation for that purpose shall have been first made by the legislature." St. George Tucker, Blackstone's Commentaries, Vol 1. Note C. Of The Constitution of Virginia, (1803). Citing: An Act for Establishing a Board of Auditors for Publick Accounts, 9 Henning's Statutes at Large, 540 (1823). See Also: "Judge Bouldin, writing for the court, observed that it has been, since 1778, the "cherished policy of Virginia" to allow to citizens "the largest liberty of suit against herself in contract cases." Wiecking v. Allied Medical Supply, 239 Va. 548, 391 S.E.2d 258 (1990).

The United States Supreme Court in Chisholm v. Georgia, 2 U.S. 2 Dall. 419 419 (1793) breaches the sovereign immunity of all the states declaring that the U.S. Constitution allows suits by individuals against a state. Stung by the above decision and loss of sovereignty, Edmund Pendleton wrote in his opinion, "When the federal Court decided, that a state was suable in any court, besides the absurdity of applying the ordinary process to such a suit, the States were justly alarmed at the attack upon their sovereignty...I, as a citizen of Virginia, participated in feeling the wound ...And I feel a pleasure, indeed a pride, in discovering, that the Legislature of my country had provided such a tribunal, by allowing an appeal from the Auditor of accounts, an Executive Officer, to the judiciary, independent in the tenure and emoluments of office, and bound to decide according to the laws, on which the contract was founded..." Commonwealth v. Beaumarchais, 7 Va. (3 Call) 122 (1801).

Reconstruction Era Virginia Supreme Court Restores the King to the Throne

"As was said by the the supreme court of the United States in "The Siren, 7 Wallace, 152", "The doctrine rests upon reasons of public policy; the inconvienience and danger which would follow from any different rule. It is obvious that the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government." Board of Public Works v. Gannt, 76 Va. 455 (1882). Reaffirmed by Messina v. Burden, 228 Va. 301 S.E.2d 657 (1984).

Sovereign Immunity is Rejected by other States

Virginia was the first colony to establish a Declaration of Rights, and the last to actually recognize those rights. It has refused to allow declaratory and injunctive suits in "its" courts even when constitutional rights are violated as well as suits against the public purse. Most other states have done away with the doctrine or severly curtailed it and re-established their rights and legal heritage. "[I]n determining the rights of citizens under the Declaration of Rights of our Constitution, it is the judiciary's responsibility to guard and protect those rights...It would indeed be a fanciful gesture to say on the one hand that citizens have constitutional individual civil rights that are protected from encroachment actions by the State, while on the other hand saying that individuals whose constitutional rights have been violated by the State cannot sue because of the doctrine of sovereign immunity." Corum v. University of North Carolina 413 S.E.2d 276 (N.C. 1992). See Also: Stone v. Arizona Hwy. Comm'n, 381 P.2d 107 (Ariz. 1963); Parish v. Pitts, 429 S.W.2d 45 (Ark. 1968); Muskopf v. Corning Hosp. Dist., 359 P.2d 457 (Cal 1961); Evans v. Board of County Comm'rs, 482 P.2d 968, 972 (Colo. 1971); Smith v. Idaho, 473 P.2d 937 (Idaho 1970); Molitor v. Kaneland Community Unit District, 163 N.E.2d 89 (Ill. 1959).,Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 132 (Fla. 1957).

Sovereign immunity at the Federal level still exists but with some exceptions to constitutional torts by government agents: See Poindexter v. Greenhow, 114 U.S. 270 (1885) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) and Groh v. Ramirez et al., 540 U.S. 551 (2004). The Court has ruled that violations of statutory provisions which involve constitutional violations abrogates a state's sovereign immunity. United States v. Georgia, 546 U.S. 151, 158 (2006), Tennessee v. Lane, 541 U.S. 509, 518 (2004). : See Ex Parte Young Doctrine Ex Parte Young, 209 U.S. 123 (1908), Idaho v. Coeur d'Alene Tribe of Idaho, 521 U. S. 261 (1997).

The King is Dead

The Virginia Supreme court finally recognizes the sovereignty of the people and thier constitution when their servants violate the Bill of Rights or other self-executing provisions of the constitution.

Gray v. Virginia Secretary of Transportation, __ Va. __ S.E.2d __ (2008).

"The Commonwealth Defendants and the MWAA responded by filing demurrers and pleas in bar asserting, among other things, that the plaintiffs' claims are barred by the doctrine of sovereign immunity and that the circuit court, therefore, lacked jurisdiction to hear the action. In their memorandum opposing the demurrers and pleas in bar, the Plaintiffs argued that their complaint alleged not only "violations of the separation of powers clauses of the Virginia Constitution (Article I, [Section] 5 and Article III, [Section] 1)" but also a violation of Article IV, Section 1 pertaining to the delegation of the General Assembly's taxing power. The Plaintiffs claimed that these provisions of the Virginia Constitution are self-executing and thus constitute a waiver of the Commonwealth's sovereign immunity. The circuit court sustained the demurrers and pleas in bar and dismissed the complaint....

Thus, "as a general rule, the sovereign is immune not only from actions at law for damages but also from suits in equity to restrain the government from acting or to compel it to act." Hinchey, 226 Va. at 239-40, 307 S.E.2d at 894 (citing Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1949)). "Sovereign immunity may also bar a declaratory judgment proceeding against the Commonwealth." Afzall, 273 Va. at 231, 639 S.E.2d at 282. And because the Commonwealth can act only through individuals, the doctrine applies not only to the state, but also to certain government officials. Messina, 228 Va. at 308, 321 S.E.2d at 661. "[H]igh level governmental officials have generally been accorded absolute immunity." Id. at 309, 321 S.E.2d at 661, accord Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 455, 621 S.E.2d 78, 96 (2005)...

If a constitutional provision is self-executing, no further legislation is required to make it operative. Gill v. Nickels, 197 Va. 123, 129, 87 S.E.2d 806, 810 (1955); City of Newport News v. Woodward, 104 Va. 58, 60, 51 S.E. 193, 193 (1905); see also Black's Law Dictionary 1391 (8th ed. 2004) (defining the term "self-executing" as "effective immediately without the need of any type of implementing action"). In Robb v. Shockoe Slip Foundation, 228 Va. 678, 324 S.E.2d 674 (1985), we explained how to determine whether a constitutional provision is self-executing:

"A constitutional provision is self-executing when it expressly so declares. See, e.g., Va. Const. art. I, § 8. Even without benefit of such a declaration, constitutional provisions in bills of rights and those merely declaratory of common law are usually considered self-executing. The same is true of provisions which specifically prohibit particular conduct. Provisions of a Constitution of a negative character are generally, if not universally, construed to be self-executing. . . ."

The fact that a self-executing constitutional provision is operative without the need for supplemental legislation means that the provision is enforceable in a common law action. Compare Kitchen, 275 Va. at 392, 657 S.E.2d at 140 (holding that a self-executing provision "permits a property owner to enforce his constitutional right to just compensation in a common law action"), with Robb, 228 Va. at 683, 324 S.E.2d at 677 (dismissing a bill of complaint because a constitutional provision was not self-executing). The constitutional provisions at issue in this case place duties and restrictions upon the Commonwealth itself and its departments. To give full force and effect to the provisions as self-executing, a person with standing must be able to enforce them through actions against the Commonwealth. Thus, we further hold that the self-executing constitutional provisions before us waive the Commonwealth's sovereign immunity...

We hold that Article I, Section 5; Article III, Section 1; and Article IV, Section 1 are self-executing constitutional provisions and thereby waive the Commonwealth's sovereign immunity. Because the Plaintiffs do not challenge the circuit court's finding that the doctrine of sovereign immunity applies to the MWAA, our conclusion applies only to the Commonwealth Defendants. Thus, we will reverse the judgment of the circuit court with regard to the Commonwealth Defendants and remand this case for further proceedings."

The Revolutionary Maxim

"[f]or it has been wisely observed by the deepest politician who ever put pen to paper, that no institution can be long preserved, but by frequent recurrence to those maxims on which it was formed...In all our associations; in all our agreements let us never lose sight of this fundamental maxim - that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour." Remarks on Annual Elections for the Fairfax Independent Company of Volunteers - George Mason, April 1775.

Interpanel Accord Doctrine


"Under our rule of interpanel accord, however, we lack the authority to revisit Jones. See Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990) (quoting Selected Risks Ins. Co. v. Dean,  233 Va. 260, 265, 355 S.E.2d 579, 581 (1987)). The decision of  one panel "becomes a predicate for application of the doctrine of stare decisis" and cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court. Johnson v. Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996).  This principle applies not merely to the literal holding of the case, but also to its ratio decidendi -- the essential rationale in the case that determines the judgment. For this reason, we reject Clinchfield's request that Jones be overruled. " Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73, 577 S.E.2d 538, 540 (2003).


Law of the Case Doctrine


"The [law of the case] doctrine, briefly stated, is this: Where there have been two appeals in the same case, between the same parties, and the facts are the same, nothing decided on the first appeal can be reexamined on a second appeal. Right or wrong, it is binding on both the trial court and the appellate court, and is not subject to reexamination by either. For the purpose of that case, though only for that case, the decision on the first appeal is law." American Filtrona Co. v. Hanford, 16 Va. App. 159, 164, 428 S.E.2d 511, 514 (1993) (emphasis added) (quoting Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620-21, 93 S.E. 684, 687 (1917)).

See Also: Miller-Jenkins v. Miller-Jenkins, __ Va. __ S.E.2d __ (2008).


The Doctrine of Primary Jurisdiction

"The doctrine of primary jurisdiction is a judicially created doctrine used by courts to allocate decision-making responsibility between courts and agencies when jurisdiction may overlap and potential for conflicts or inconsistent decision exists. The doctrine is recognized in the federal courts and in many states. E.g., Reiter v. Cooper, 507 U.S. 258, 268 (1993); Birmingham Hockey Club, Inc. v. Nat'l Council on Comp. Ins., Inc., 827 So. 2d 73, 82 (Ala. 2002); Capital Tel. Co. v. Pattersonville Tel. Co., 436 N.E.2d 461, 466 (N.Y. 1982); Foree v. Crown Cent. Petroleum Corp., 431 S.W.2d 312, 316 (Tex. 1968). The doctrine has been used to preclude court consideration of an entire claim and has also been used to separate for agency consideration issues within a claim:

If a court concludes that a dispute brought before the court is within the primary jurisdiction of an agency, it will dismiss the action on the basis that it should be brought before the agency instead. Similarly, if a court concludes that an issue raised in an action before the court is within the primary jurisdiction of an agency, the court will defer any decision in the action before it until the agency has addressed the issue that is within its primary jurisdiction. The court retains jurisdiction over the dispute itself and all other issues raised by the dispute, but it cannot resolve that dispute until the agency has resolved the issue that is in its primary jurisdiction.
2 Richard J. Pierce, Jr., Administrative Law Treatise 917 (4th ed. 2002) (emphasis added)....

...Having determined that TCV's conspiracy claims are not within the jurisdiction of the ABC Board and are not precluded by the Act, the question remains whether the doctrine of primary jurisdiction should be employed nonetheless. The doctrine is "specifically applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency." Reiter, 507 U.S. at 268. The doctrine "seeks to produce better informed and uniform legal rulings by allowing courts to take advantage of an agency's specialized knowledge, expertise, and central position within a regulatory regime." Pharmaceutical Res'ch & Mfrs. of Am. v. Walsh, 538 U.S. 644, 672 (2003) (Breyer, Scalia, Thomas, and O'Connor, JJ., concurring) When utilized to address issues within a claim, the doctrine of primary jurisdiction is meant to merely postpone, not preclude, judicial action in a particular case. "[I]t governs only the question whether a court or an agency will initially decide a particular issue, not the question whether a court or an agency will finally decide the issue." Sears, Roebuck & Co. v. San Diego Co. Dist. Council of Carpenters, 436 U.S. 180, 199 n.2 (1978). A trial court stays the proceedings before it "so as to give the parties reasonable opportunity to seek an administrative ruling" on the matter within the agency's expertise. Reiter, 507 U.S. at 268 (citations omitted). See also Mitchell Coal Co. v. Pennsylvania R. Co., 230 U.S. 247, 267 (1913) (further action by district court should be "stayed" until the Commission rules on the issue of reasonableness). Primary jurisdiction should not be confused with exhaustion of administrative remedies. As the Supreme Court of the United States explained:

"Exhaustion" applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. "Primary jurisdiction," on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. United States v. Western Pac. R.R. Co., 352 U.S. 59, 63-64 (1956). ..."No fixed formula exists for applying the doctrine of primary jurisdiction," but "[i]n every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation." Western Pac. R.R. Co., 352 U.S. at 64. The framework set forth in National Communications Ass'n v. American Tel. & Tel. Co., 46 F.3d 220, 222-23 (2d Cir. 1995), provides the appropriate considerations for deciding whether a trial court should apply the doctrine of primary jurisdiction to stay its proceedings:

(1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency's particular field of expertise;

(2) whether the question at issue is particularly within the agency's discretion;

(3) whether there exists a substantial danger of inconsistent rulings; and

(4) whether a prior application to the agency has been made. See also Environmental Tech. Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir. 1996).

....Finally, the timing of the civil action and the ABC Board proceedings presented a risk of inconsistent rulings regarding violations of the Act. Upon these considerations, we hold that the doctrine of primary jurisdiction should apply in this case for the purpose of determining whether the wrongful acts underlying the conspiracy claims occurred. When applying the doctrine of primary jurisdiction, a trial court may stay the proceedings or dismiss the action without prejudice." The Country Vintner, Inc. v. Louis Latour, Inc., 272 Va. 402, 634 S.E.2d 745 (2006).



Co-extenisve Protections

"Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution." Bennefield v. Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996); see also Lowe v. Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 275 n.1 (1985) (explaining that protections under Virginia's Constitution and statutes are "substantially the same as those contained in the Fourth Amendment"); Janis v. Commonwealth, 22 Va. App. 646, 650-51, 472 S.E.2d 649, 652 (1996) (holding same); Turner v. Commonwealth, 14 Va. App. 737, 743, 420 S.E.2d 235, 239 (1992) (explaining that search and seizure protections are coextensive with federal constitutional protections); Simmons v. Commonwealth, 6 Va. App. 445, 451 n.2, 371 S.E.2d 7, 10 n.2 (1988) (holding that, if traffic checkpoint survives Fourth Amendment scrutiny, it is constitutional under Article I, § 10 of Virginia's Constitution), rev'd on other grounds, 238 Va. 200, 380 S.E.2d 656 (1989). Henry v. Commonwealth, 32 Va. App. 547, 529 S.E.2d 796 (2000).


See: McCullough, A Vanishing Virginia Constitution? 46 U. Rich. L. Rev. 347, 353-54 (2011).


Fugitive  Disentitlement Doctrine


"Although Virginia's appellate courts have not yet had the occasion to address the fugitive disentitlement doctrine, the United States Supreme Court has noted that "it has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal." Ortega-Rodriguez v. United States, 507 U.S. 234, 239 (1993). Application of the doctrine "does not strip the case of its character as an adjudicable case or controversy, . . . [but] it disentitles the [appellant] to call upon the resources of the Court for determination of his claims." Molinaro v. New Jersey, 396 U.S. 365, 366 (1970); see also Ortega-Rodriguez, 507 U.S. at 234. In other words, "'a fugitive from justice may not seek relief from the judicial system whose authority he or she evades.'" Matsumoto v. Matsumoto, 792 A.2d 1222, 1227 (N.J. 2002) (quoting Martha B. Stolley, Sword or Shield: Due Process and the Fugitive Disentitlement Doctrine, 87 J. Crim. L. & Criminology 751, 752 (1997)).

The fugitive disentitlement doctrine, although traditionally applied to criminal cases, extends to civil cases as well. See, e.g., Degen v. United States, 517 U.S. 820 (1996) (considering the doctrine in a civil forfeiture case); Empire Blue Cross & Blue Shield v. Finkelstein, 111 F.3d 278, 281 (2d Cir. 1997) (applying the doctrine in a civil RICO Act appeal). Indeed, numerous jurisdictions recognize the doctrine in the context of Hague Convention and other domestic cases. See, e.g., Pesin v. Rodriguez, 244 F.3d 1250, 1253 (11th Cir. 2001) (dismissing an ICARA appeal where the appellant had continuously refused to comply with court orders, had been found guilty of contempt, and had a warrant for her arrest); Prevot v. Prevot, 59 F.3d 556, 562-67 (6th Cir. 1995) (dismissing the appellant's Hague Convention appeal where he fled the country with his wife and child to avoid criminal charges and lived in France); Guerin v. Guerin, 993 P.2d 1256, 1258 (Nev. 2000) (dismissing the appeal under the doctrine "in light of [appellant]'s fugitive status and continued refusal to comply with the district court's orders" in a divorce case); Matsumoto, 792 A.2d at 1222 (considering the fugitive disentitlement doctrine in a domestic case); Scelba v. Scelba, 535 S.E.2d 668, 670-73 (S.C. Ct. App. 2000) (applying the fugitive disentitlement doctrine where the appellant did not comply with acourt order and was held in contempt for her failure to appear at multiple hearings). Courts applying this doctrine uniformly have held that "a fugitive from justice need not be a fugitive in a criminal matter." Finkelstein, 111 F.3d at 281; United States v. Barnette, 129 F.3d 1179, 1183 (11th Cir. 1997).

The inquiry is not whether the order flouted is criminal or civil, or whether the case in which the doctrine is sought to be invoked is criminal or civil. [Rather,] it is the flight or refusal to return in the face of judicial action that is the critical predicate to fugitive disentitlement. Matsumoto, 792 A.2d at 1233. Indeed, "[u]nder certain circumstances the disentitlement doctrine may be even more applicable to civil than criminal cases: because a defendant-appellant's liberty is not at stake, less harm can come from the refusal to entertain the appeal." Barnette, 129 F.3d at 1183. Furthermore, although a litigant may qualify as a fugitive by fleeing the jurisdiction, a litigant may also, "while legally outside the jurisdiction, 'constructively flee by deciding not to return.'" Matsumoto, 792 A.2d at 1228 (quoting Barnette, 129 F.3d at 1184).

Several courts have explained the bases for disentitlement of access to an appellate court. The rationales for this doctrine include the difficulty of enforcement against one not willing to subject himself to the court's authority, the inequity of allowing that "fugitive" to use the resources of the courts only if the outcome is an aid to him, the need to avoid prejudice to the nonfugitive party, and the discouragement of flights from justice. Barnette, 129 F.3d at 1183 (citing Molinaro, 396 U.S. at 366). The United States Court of Appeals for the Second Circuit has noted that disentitlement is appropriate when an appellant's fugitive status "impacts the very case on appeal," the record contains no indication the appellant will respond to a judgment except one favorable to him, the appellant's conduct will render the judgment unenforceable against him, and the application of the doctrine is the only means of minimizing prejudice to the appellee. Finkelstein, 111 F.3d at 282. Similarly, the Supreme Court of New Jersey has noted that the following standards are generally applied:[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary's fugitive status; and invocation of the doctrine cannot be an excessive response.Matsumoto, 792 A.2d at 1233 (citing Degan, 517 U.S. at 824-28). "Enforceability concerns clearly animate [the] disentitlement doctrine . . . [and an appellant's absence] weighs heavily in favor of disentitlement." Finkelstein, 111 F.3d at 282. " Moscona v. Shenhar, ___Va. App.___,S.E.2d ___,___(2007).



Public Duty Doctrine

"The public duty doctrine has been described as follows:

"[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be addressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages." 2 Thomas M. Cooley, A Treatise on the Law of Torts or the  Wrongs Which Arise Independently of Contract § 300 (D. Avery Haggard ed., 4th ed. 1932)....This Court has only applied the public duty doctrine in cases when a public official owed a duty to control the behavior of a third party, and the third party committed acts of assaultive criminal behavior upon another...


..." '[T]here is no such thing as negligence in the abstract, or in general. . . . Negligence must be in relation to some person.' Kent v. Miller, 167 Va. 422, 425-26, 189 S.E. 332, 334 (1937); see generally Prosser and Keeton on The Law of Torts § 53 (5th ed. 1984). Thus, in negligence claims against a public official, a distinction must be drawn between a public duty owed by the official to the citizenry at large and a special duty owed to a specific identifiable person or class of persons. . . . Only a violation of the latter duty will give rise to civil liability of the official. . . . To hold a public official civilly liable for violating a duty owed to the public at large would subject the official to potential liability for every action he undertook and would not be in society's best interest." 239 Va. at 319, 389 S.E.2d at 905 (citations omitted).

We also discussed the public duty doctrine in Burdette. In that case, we considered whether a plaintiff alleged sufficient facts to establish that a deputy sheriff owed a duty to the plaintiff to protect him from the acts of a third party. James C. Burdette observed Gary D. Hungerford attack a woman and seriously injure her. When Burdette intervened to assist the woman, Hungerford attacked Burdette and began to beat him with a shovel. Eventually, Arty Marks, a deputy sheriff in Westmoreland County arrived upon the scene, and even though he witnessed the attacks, he failed to intervene to protect Burdette from Hungerford's attack. 244 Va. at 310-11, 421 S.E.2d at 419-20.

We held in Burdette that generally a person has no duty to control the conduct of third persons in order to prevent physical harm, but that the general rule does not apply when a special relationship exists "(1) between the defendant and the third person which imposes a duty upon the defendant to control the third person's conduct, or (2) between the defendant and the plaintiff which gives a right to protection  to the plaintiff." Id. at 311-12, 421 S.E.2d at 420. In Burdette, we held that the public duty doctrine did not bar the plaintiff's claim against deputy sheriff Marks because he was on duty as a deputy sheriff at the time of the attacks, and Marks knew or should have known that the plaintiff was in great danger of serious bodily harm. Id. at 312-13, 421 S.E.2d at 421." Commonwealth v. Burns, et al., __Va.___ S.E.2d. __ , __ (2007).

The Noerr-Pennington Doctrine

"The Noerr-Pennington doctrine was initially developed in the United States Supreme Court cases of Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965). In those cases, the Supreme Court held that actions taken to influence legislative or executive action cannot be the basis for a violation of the Sherman Antitrust Act unless such activities were "a mere sham" designed to disguise actions directed towards interfering with the business relationships of a competitor. Noerr, 365 U.S. at 144. This doctrine is based on the federal constitutional rights to free speech and to petition the government. In subsequent cases, the doctrine has been expanded to apply to actions taken in adjudicatory proceedings before administrative agencies and courts. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972). Titan argues that the Noerr-Pennington doctrine should not be extended to state law claims of the type raised in this case because the doctrine was developed in the context of the federal antitrust laws and because Virginia law affords a defendant sufficient defenses "without the need to inject an additional defense based on the Noerr-Pennington doctrine."

The Noerr-Pennington doctrine arises from rights afforded by the First Amendment to the United States Constitution and does not limit protection of those rights to causes of action involving antitrust matters. See, e.g., Pacific Gas & Elec. Co. v. Bear Stearns & Co., 791 P.2d 587, 594 (Cal. 1990); Protect Our Mountain Env't v. County of Jefferson, 677 P.2d 1361, 1365-66 (Colo. 1984); Harrah's Vicksburg Corp. v. Pennebaker, 812 So. 2d 163, 171 (Miss. 2001). We have previously acknowledged that the Noerr-Pennington doctrine is concerned with efforts to affect the decisions of legislative, judicial, and executive bodies in the field of public policy matters. Lockheed Info. Mgmt. Sys. Co., Inc. v. Maximus, Inc., 259 Va. 92, 104, 524 S.E.2d 420, 426-27 (2000) (citing F. Buddie Contracting, Inc. v. Seawright, 595 F. Supp. 422 (N.D. Ohio 1984)). While we have rejected the application of the doctrine when the government is acting in its proprietary capacity under the "commercial activity exception," the rationale underlying that exclusion does not exist in this case. Id., 524 S.E.2d at 427. This case involves actions seeking to enforce or challenge governmental decisions through the use of the courts and, thus, falls squarely within the constitutional protections recognized by the Noerr-Pennington doctrine. We conclude that the protection of First Amendment rights provided by application of the Noerr-Pennington doctrine should be available to a defendant in causes of action for tortious interference with business expectancy and conspiracy, and that the trial court did not err in applying the Noerr-Pennington doctrine in this case.

Titan asserts that, even if the Noerr-Pennington doctrine is applicable in this case, the trial court applied the wrong test in considering whether the litigation at issue was sham litigation. The trial court utilized the two-part test set out in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60 (1993) (PRE). Under that test, a court first determines whether the challenged litigation was objectively baseless. Id. A case is objectively baseless if the proponent of the litigation lacked probable cause to institute the unsuccessful lawsuit. Id. Probable cause in this context means a " 'reasonable belief that there is a chance that [a] claim may be held valid upon adjudication.' " Id. at 62-63 (quoting Hubbard v. Beatty & Hyde, Inc., 178 N.E.2d 485, 488 (Mass. 1961)). If such litigation is objectively baseless, the court then makes a subjective inquiry into whether the litigation was filed with an anti-competitive purpose. Id. at 60. If the litigation was not objectively baseless, the second inquiry is not necessary." Titan America, L.L.C., et. al. v. Riverton Investment Corporation, et. al., 264 Va. 292, 569 S.E.2d. 57 (2002).



Doctrine of Estoppel by Inconsistent Position

The terms "doctrine of estoppel by inconsistent position"and "judicial estoppel" are often used interchangeably. See The Pittston Co. v. O'Hara, 191 Va. 886, 902, 126 S.E. 34, 43 (1951) (referring to "the doctrine of estoppel by inconsistent position"); Scales v. Lewis, 261 Va. 379, 383-84, 541 S.E.2d 899, 901-02 (2001) (discussing judicial estoppel and the doctrine of preclusion of inconsistent position); Black's Law Dictionary 571 (7th ed. 1999) (providing that judicial estoppel is also referred to as the doctrine of preclusion of inconsistent position). See also Wagner v. Professional Eng'rs, 354 F.3d 1036, 1044 (9th Cir. 2004) (explaining that "[j]udicial estoppel [is] sometimes also known as the doctrine of preclusion of inconsistent positions"). Essentially, judicial estoppel forbids parties from "assum[ing] successive positions in the course of a suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory." Burch v. Grace Street Bldg. Corp., 168 Va. 329, 340, 191 S.E. 672, 677 (1937); Rohanna v. Vazzana, 196 Va. 549, 553, 84 S.E.2d 440, 442 (1954); accord Nagle v. Syer, 150 Va. 508, 513, 143 S.E. 690, 692 (1928). It derives from the prohibition in Scottish law against approbation and reprobation. Id. The doctrine is often confused with the concepts of res judicata and collateral estoppel. However, the doctrine of judicial estoppel differs from both by the elements required for its invocation and its effect.

Res judicata provides that:

When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings, or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties. See, e.g., Kemp v. Miller, 166 Va. 661, 674-75, 186 S.E. 99, 103-04 (1936).

Collateral estoppel, on the other hand, is the preclusive effect impacting in a subsequent action based upon a collateral and different cause of action. 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. Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974). Unlike res judicata and collateral estoppel, the doctrine of judicial estoppel does not require a prior final judgment to be invoked. The doctrine of judicial estoppel may bar a party from taking inconsistent positions within a single action. See Berry v. Klinger, 225 Va. 201, 207, 300 S.E.2d 792, 795 (1983) (A party, "having contended in their pleadings and in their initial arguments at trial that the language in question was unambiguous, will not be allowed to take a contrary position thereafter."); McLaughlin v. Gholson, 210 Va. 498, 501, 171 S.E.2d 816, 818 (1970) (A party may not "change his position to the prejudice of his adversaries in contravention of [a] stipulation freely entered into.").

Additionally, judicial estoppel may act as a bar to maintaining a new cause of action. C & O Ry. Co. v. Rison, 99 Va. 18, 31, 37 S.E. 320, 324 (1900) ("An unsuccessful plaintiff in a suit for the specific performance of a contract was not permitted to maintain a suit to reform the contract and enforce it as reformed.").

The doctrine of judicial estoppel applies where the position taken is inconsistent relative "to the same fact or state of facts." Burch, 168 Va. at 340, 191 S.E. at 677. However, "[a] person who has taken an erroneous position on a question of law is ordinarily not estopped from later taking the correct position, provided his adversary has suffered no harm or prejudice by reason of the change." The Pittston Co., 191 Va. at 904, 63 S.E.2d at 43. Thus, in Spandorfer v. Cooper, 141 Va. 792, 799, 126 S.E. 558, 560 (1925), the Court said, "We fail to see how one who has stumbled into the wrong forum, and whose attorney had contended in such forum that in a matter of law he was in the right forum, should be precluded from instituting a new proceeding in the proper forum."

In this appeal, Lofton Ridge asserts numerous reasons in support of its assignment of error that the trial court improperly applied the doctrine of judicial estoppel. Lofton Ridge maintains that: a) the doctrine of judicial estoppel does not apply where the parties to the proceedings are not the same; b) the allegations of the amended bill of complaint and the motion for judgment in these proceedings are not inconsistent; c) the doctrine of judicial estoppel does not apply when "the allegedly inconsistent position was not the position first adopted or previously assumed;" d) no evidence was presented by Norfolk Southern that it relied to its prejudice upon the allegedly inconsistent position taken by Lofton Ridge; and, e) policy reasons for applying the doctrine of judicial estoppel are absent from this case. We need only resolve Lofton Ridge's first assertion to decide this appeal.

In The Pittston Co., we held that "[t]he doctrine of estoppel by inconsistent position [i.e., judicial estoppel] does not apply to a prior proceeding in which the parties are not the same." 191 Va. at 902, 126 S.E. at 43. See also Ferebee v. Hungate, 192 Va. 32, 35-36, 63 S.E.2d 761, 764 (1951). An exception to this requirement may exist where the liability of one defendant is derivative of the liability of another; for example, "where the relation between defendants in the two suits has been that of principal and agent, master and servant, or indemnitor and indemnitee." Town of Waynesboro v. Wiseman, 163 Va. 778, 782-83, 177 S.E. 224, 226 (1934). Norfolk Southern relies on Canada v. Beasley & Bros., 132 Va. 166, 173-74, 111 S.E. 251, 254 (1922), in its argument that Lofton Ridge's claim should be barred. In Canada, the creditor of a husband sought to reach property of the husband protected by a homestead deed. The creditor argued that an earlier conveyance of the protected property from the wife to the husband was invalid because the wife was also in debt to the creditor. Id. at 173, 111 S.E. at 254. We held that the wife was not a debtor, which "destroy[ed] the foundation of the suit." Id. at 174, 111 S.E. at 254. Further, we explained that the creditor, during the earlier bankruptcy proceeding against the husband, "with full knowledge of the facts, elected to treat the entire property . . . as belonging to [the husband] and to assert its debt against him alone." Id. We stated that the "creditor cannot now assume a different attitude, and claim that the propertybelonged to Mrs. Canada, and the debt was now due from her." Id. This alternative justification for the ruling was unnecessary to the holding. As such, it is dicta. To the extent that Canada suggests that judicial estoppel applies in cases where the parties are not the same and do not have a derivative liability relationship such as those listed in Town of Waynesboro, it is overruled. While an assertion of fact in a judicial proceeding may be introduced, subject to certain conditions, as a party admission in a subsequent proceeding, the doctrine of judicial estoppel will not act as a preclusive bar to the subsequent proceeding unless the parties are the same.

In this case, Norfolk Southern and Lofton Ridge's attorneys are not related parties. Under the rule stated in The Pittston Co., Norfolk Southern may not invoke the doctrine of judicial estoppel against Lofton Ridge. Lofton Ridge, LLC v. Norfolk Southern Railway, 268 Va. 377, 601 S.E.2d 648 ( 2004).


See Also:

"Appellant cannot now complain that the trial court did as he requested. "'No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate - to invite error . . . and then to take advantage of the situation created by his own wrong.'" Manns v. Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988)).


Wharton's Rule

Wharton's Rule is a judicially created "doctrine of criminal law enunciating an exception to the general principle that a conspiracy and the substantive offense that is its immediate end are discrete crimes for which separate sanctions may be imposed." Iannelli, 420 U.S. at 771. See generally Boyd, 236 Va. at 351, 347 S.E.2d at 303 (articulating the current law in Virginia that convictions may be had in a single trial for "both the completed substantive offense and the underlying conspiracy"). Under the rule, "[w]hen to the idea of an offense plurality of agents is logically necessary, conspiracy [to commit that offense] . . . cannot be maintained." Stewart v. Commonwealth, 225 Va. 473, 478, 303 S.E.2d 877, 879 (1983) (holding that Wharton's Rule applies to the crime of pandering) (quoting 2 F. Wharton, Criminal Law § 1604, at 1862 (12th ed. 1932)). In other words, Wharton's Rule precludes conviction for both the substantive offense and the conspiracy to commit that offense when the substantive offense "is of such a nature as to necessarily require the participation of two persons for its commission." Iannelli, 420 U.S. at 774 n.5 (emphasis added) (quoting 1 R. Anderson, Wharton's Criminal Law and Procedure § 89, at 191 (1957)); see also Gebardi v. United States, 287 U.S. 112, 122 (1932) (holding, with respect to the application of Wharton's Rule, that, "where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy").

Thus, "[a]pplication of the rule is dependent upon a showing that the commission of the substantive offense[] requires the participation of two people; the fact that two or more people combine to commit an offense that could be committed by only one person does not invoke application of the rule." Ramsey, 2 Va. App. at 272, 343 S.E.2d at 470; see also Costello, supra, at 225 ("Simply put, if the substantive offense can be committed by one person acting alone, Wharton's Rule does not apply."); LaFave, supra, § 6.5(g)(4), at 610 ("The rule does not apply when the offense could be committed by one of the conspirators alone, nor even when cooperation was a practical but not logical necessity." (footnote omitted)).

It is clear that conspiracy to commit murder and the substantive offense of murder are discrete crimes to which Wharton's Rule does not ordinarily apply to bar the imposition of cumulative sentences. Unlike the crime of pandering and the "classic Wharton's Rule offenses-crimes such as adultery, incest, bigamy, dueling"-which, by their nature, necessarily require the participation of two persons for their commission, murder obviously can be committed by one person acting alone. Stewart, 225 Va. at 478, 303 S.E.2d at 879. Thus, "separate sanctions may be imposed" at a single trial for both murder and conspiracy to commit murder. Iannelli, 420 U.S. at 771; see Ramsey, 2 Va. App. at 272, 343 S.E.2d at 470 (holding that, under Wharton's Rule, the defendant's convictions of forgery and uttering as a principal in the second degree did not preclude her conviction of conspiracy to commit uttering); Boyd, 236 Va. at 351, 347 S.E.2d at 303 (permitting the "conviction of both the completed substantive offense and the underlying conspiracy" if the convictions occur at the same trial).

Appellant asserts, however, that Wharton's Rule precludes her conviction for conspiracy to commit murder because her murder conviction was based solely on her participation in the commission of the murder as an accessory before the fact or co-conspirator. By definition, she argues, a crime the conviction of which is based solely on a theory of accomplice liability necessarily requires the participation of at least two persons for its commission. Thus, she argues, she may not properly be convicted and punished for both the charged murder and the charged conspiracy to commit murder. Although seemingly meritorious at first blush, appellant's argument ultimately fails for two fundamental reasons. First, appellant's reliance on the fact that she was convicted of murder under a theory of accomplice liability is misplaced in this context. As we implicitly held in Ramsey, in determining whether Wharton's Rule applies to a substantive offense the conviction of which is based on accomplice liability, the focus must be on the underlying criminal act of the particular substantive offense rather than on the accomplice aspect of the offense. 2 Va. App. at 272, 343 S.E.2d at 470. The accompliceship itself is not the completed criminal act upon which the conviction is based but simply the means by which criminal responsibility for the completed criminal act is incurred under Code § 18.2-18. See Snyder v. Commonwealth, 202 Va. 1009, 1017, 121 S.E.2d 452, 458 (1961) (holding that "before the accessory to a crime can be convicted as such, it must be shown that the crime has been committed by the principal"). Thus, the accomplice aspect of the substantive crime reflects the accused's participation in the crime and serves as the basis of the accused's criminal liability for that crime but does not constitute the substantive crime itself. Here, the substantive offense is murder, a crime which, as noted, can logically be committed by one person.

Second, Wharton's Rule "has continued vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary." Iannelli, 420 U.S. at 782. As alluded to earlier, our Supreme Court held in Boyd, in 1988, that the legislature did not intend, in enacting Code § 18.2-23.1, to "prohibit . . . conviction of both the completed substantive offense and the underlying conspiracy, provided the convictions occurred, as here, in a single trial." 236 Va. at 351, 347 S.E.2d at 303. Thus, upon completion of the substantive crime, the crime's actual perpetrator may be convicted and punished at the same trial for both the substantive crime and the underlying conspiracy. Additionally, Code § 18.2-18 provides that "every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree." The statute's purpose is to ensure that any person who participates as an accomplice in a substantive crime is equally accountable and subject to the same punishment as the actual perpetrator of the crime. See Charlton v. Commonwealth, 32 Va. App. 47, 52, 526 S.E.2d 289, 292 (2000) (holding that Code § 18.2-18 "direct[s] that an accessory before the fact is accountable in all respects as the principal who carries out the intended crime, as well as any of its natural, probable, and incidental crimes"). It is clear, therefore, from the legislature's silent approval of the Supreme Court's decision in Boyd over the years and its enactment of Code § 18.2-18 that the legislature intends that an accomplice's participation in the completed substantive crime and the underlying conspiracy be treated-like the principal in the first degree's participation in those crimes as discrete offenses for which separate convictions and punishments may be imposed in a single-trial setting. Indeed, to provide that a principal in the first degree may be separately punished for the underlying conspiracy but an accomplice to the crime may not would be to disallow the imposition of the same punishment on accomplices and principals in the first degree and would be contrary to Code § 18.2-18's mandate that such defendants may be punished equally. Hence, application of Wharton's Rule in this instance, as appellant urges, would be in direct contravention of "legislative intent to the contrary." Iannelli, 420 U.S. at 782. Consequently, we hold that Wharton's Rule does not apply here to relieve appellant of the imposition of punishment for her conviction of the charged offense of conspiracy to commit murder." Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631 (2005).

Felony Murder Doctrine

"No matter how one interprets the jury's question, Kennemore argues, the trial court's instruction - taken directly from Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477 (1978) - was nonetheless an incomplete and confusing summary of the res gestae doctrine. We again disagree.The felony-murder doctrine "originated at common law," Commonwealth v. Montague, 260 Va. 697, 700, 536 S.E.2d 910, 912 (2000), with antecedents recognized as long ago as Blackstone, 4 Commentaries on the Laws of England 200-01 (1769), and Lord Coke, 3 Institutes of the Law of England 56 (1797). Under common law, a defendant's "commission of a felony of violence manifests a person-endangering frame of mind such that malice may be imputed to the act of killing." Cotton v. Commonwealth, 35 Va. App. 511, 515, 546 S.E.2d 241, 243 (2001) (quoting John L. Costello, Virginia Criminal Law and Procedure § 3.4-3, at 33 (2d ed. 1995) (footnote omitted)). When the killing takes place during the commission of arson, Code § 18.2-32 punishes the killing as first-degree murder. Code § 18.2-32 applies both to "unintentional" and intentional killings. Ball v. Commonwealth, 221 Va. 754, 757, 273 S.E.2d 790, 792 (1981).

Inherent in the felony-murder doctrine is the res gestae limitation. It focuses on whether the killing and the felony were "closely related in time, place, and causal connection" to permit the conclusion that there "was a continuity of evil action." Haskell, 218 Va. at 1043, 243 S.E.2d at 483 (finding res gestae satisfied where the defendant killed a victim of an attempted robbery in an effort to protect the defendant's way of escape); see also Pope v. Netherland, 113 F.3d 1364, 1369 (4th Cir. 1997) (applying Haskell's restatement of res gestae doctrine). "The rule which we adopt," the Virginia Supreme Court has declared, "is that the felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise." Haskell, 218 Va. at 1043-44, 243 S.E.2d at 483 (refusing to limit res gestae to the elements of the felony); see also Montague, 260 Va. at 701, 536 S.E.2d at 913; see generally Ronald J. Bacigal, Criminal Offenses and Defenses 338 (2007). If the felony and the killing are "inextricably interwoven" in this way, they conjoin for purposes of the res gestae doctrine. Haskell, 218 Va. at 1043, 243 S.E.2d at 483.

Within the res gestae "continuity of evil action," id., it does not matter whether the killing precedes the felony or follows it. See id. at 1041, 243 S.E.2d at 482 (discussing, with approval, the general rule that "a killing within the res gestae of the felony is felony-murder, whether the killing occurs before or after the felony"). If the events are sufficiently related, the killing can take place "before, during, or after" the felony. Hoke v. Netherland, 92 F.3d 1350, 1363 (4th Cir. 1996) (citation omitted); see Harward v. Commonwealth, 229 Va. 363, 366, 330 S.E.2d 89, 91 (1985) (noting that the statutory phrase "in the commission of" includes a killing "before, during, and after the underlying felony" (emphasis in original)). Thus, under the prevailing view, the res gestae doctrine embraces not only the actual facts of the transaction and the  circumstances surrounding it, but the matters immediately  antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence. Rollin M. Perkins, Criminal Law 42-43 (2d ed. 1969) (citation omitted).

Here, the trial court's instruction fairly restated the governing principles of the res gestae limitation on the felony-murder doctrine. The instruction explained that the killing could take place "before, during or after" the arson if the killing was "so closely related to the arson in time, place, and causal connection as to make it a part of the same criminal enterprise." It was unnecessary for the trial court to give a more elaborate restatement of the res gestae conceptual boundaries. We find nothing in the brevity or clarity of the instruction to suggest, as Kennemore does, that the jury could find him guilty without any showing of causal connection between the killing and the arson or attempted arson. Nor do we think the instruction somehow misled the jury by giving them an incomplete explanation of their factfinding task. Our task on appeal is to "ensure that the law has been 'clearly stated' and that the 'instructions cover all issues' fairly raised by the evidence." Mouberry v. Commonwealth, 39 Va. App. 576, 581-82, 575 S.E.2d 567, 569 (2003) (citation omitted). No instruction "should be given that 'incorrectly states the applicable law or which would be confusing or misleading to the jury.'" Id. (quoting Bruce v. Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d 279, 280 (1990)). "The purpose of any jury instruction is to inform the jury of the law guiding their deliberations and verdict." Morgan v. Commonwealth, 50 Va. App. 120, 132, 646 S.E.2d 899, 905 (2007) (citation omitted).

It is true brevity can sometimes mask incomplete thinking. But it is more often true that verbosity parades confused thinking. Instructions to juries, therefore, should be succinct and clear - leaving nothing unsaid which needs to be said, while saying no more than necessary. We rely heavily on the instincts of trial judges on where to draw that line. As the United States Supreme Court has explained:

Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion. The trial  judge, in the light of the whole trial and with the jury before him,  may feel that to repeat the same words would make them no more clear, and to indulge in variations of statement might well confuse.  How far any charge on technical questions of law is really understood by those of lay background would be difficult to ascertain, but it is certainly more evident in the living scene than in a cold record. United States v. Bayer, 331 U.S. 532, 536-37 (1947). The trial court's res gestae instruction in this case compromised none of these principles.

The instruction fairly addressed the causation nexus and did not understate the importance of this  limitation of the res gestae doctrine. The trial court "was within its area of discretion in his  brevity." See id. at 537. We thus reject Kennemore's challenge to the accuracy or completeness of the instruction. "  Kennemore v. Commonwealth, 50 Va. App. 703, 653 S.E.2d 606 (2007).



Clean Hands Doctrine


"The dispositive issue on appeal is whether the circuit court abused its discretion in granting injunctive relief to Berg because it failed to apply the "clean hands" doctrine. With regard to that issue, the Clines argue that Berg, as the party seeking an equitable remedy, must have "clean hands" in order to prevail. Continuing, the Clines point out that the circuit court found "Berg [was] primarily responsible for what is an intolerable situation" and that it could dismiss the bill of complaint on the "clean hands" doctrine. Given these findings, the Clines contend the circuit court then abused its discretion by ignoring Berg's "unclean hands" and granting him injunctive relief.

"The doctrine of 'unclean hands' is an ancient maxim of equity courts," Richards v. Musselman, 221 Va. 181, 185, 267 S.E.2d 164, 166 (1980), and is generally expressed in these terms:

"Pursuant to the equitable maxim that 'He who comes into equity must come with clean hands,' . . . the complainant seeking equitable relief must not himself have been guilty of any inequitable or wrongful conduct with respect to the transaction or subject matter sued on. Equity will not give relief to one seeking to restrain or enjoin a tortious act where he has himself been guilty of fraud, illegality, tortious conduct orthe like in respect of the same matter in litigation."

Id. at n.1 (quoting W. deFuniak, Handbook of Modern Equity § 24 (2d ed. 1956)); accord Butler v. Hayes, 254 Va. 38, 43, 487 S.E.2d 229, 232 (1997) ("a litigant who seeks to invoke an equitable remedy must have clean hands"); Firebaugh v. Hanback, 247 Va. 519, 526, 443 S.E.2d 134, 138 (1994) ("[h]e who asks equity must do equity, and he who comes into equity must come with clean hands"); McNeir v. McNeir, 178 Va. 285, 290, 16 S.E.2d 632, 633 (1941) ("a plaintiff must come in with clean hands, that is, he must be free from reproach in his conduct"); Walker v. Henderson, 151 Va. 913, 927-928, 145 S.E. 311, 315 (1928) (same). Application of the doctrine turns upon the facts of each particular case and is therefore left to the sound discretion of the fact finder. Wiglesworth v. Taylor, 239 Va. 603, 608, 391 S.E.2d 299, 303 (1990).

Applying these principles, we conclude the circuit court abused its discretion by failing to apply the "clean hands" doctrine. At the outset, we note that Berg did not assign cross-error to the circuit court's factual findings that he was the party primarily responsible for the "intolerable situation" at issue and that the Clines would never have constructed the fence if Berg had merely left them alone. Thus, those factual findings are binding on appeal. Chesapeake Hosp. Auth. v. Commonwealth, 262 Va. 551, 565, 554 S.E.2d 55, 62 (2001)....

It is true that the doctrine is not absolute and should not be applied when the result would be inequitable or violate public policy. Richards, 221 Va. at 185, 267 S.E.2d at 167; Harrell v. Allen, 183 Va. 722, 732, 33 S.E.2d 222, 226 (1945); Waller v. Eanes, 156 Va. 389, 398, 157 S.E. 721, 725 (1931). We do not, however, agree with Berg's position that such a result would ensue in this case. Berg ignores the circuit court's finding that the Clines would never have erected the fence if he had left them alone as requested in their attorney's letter to Berg. The circuit court further opined "the fence would disappear if the surveillance equipment, including the lights, disappeared." A court of equity "will not relieve against conditions brought about by the improper conduct of the party seeking relief." Wilson v. Wall, 99 Va. 353, 356, 38 S.E. 181, 182 (1901). Irrespective whether the fence is a private nuisance, Berg was not "free from reproach in his conduct," McNeir, 178 Va. at 290, 16 S.E.2d at 633, and that conduct was "in respect of the same matter in litigation." Musselmann, 221 Va. at 185 n.1, 267 S.E.2d at 166 n.1 (citation omitted)." Cline, et al., v. Roy C. Berg, Jr., __Va. __ S.E.2d ___,__ (2007).


Sudden Emergency Doctrine


"The sudden emergency doctrine provides that "[w]hen the driver of an automobile, without prior negligence on his part, is confronted with a sudden emergency and acts as an ordinarily prudent person would have done under the same or similar circumstances, he is not guilty of negligence." Pickett v. Cooper, 202 Va. 60, 63, 116 S.E.2d 48, 51 (1960) (citing Southern Passenger Motor Lines, Inc. v. Burks, 187 Va. 53, 60, 46 S.E.2d 26, 30 (1948)); accord Velocity Express Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 193, 585 S.E.2d 557, 560 (2003).

... This holding, like that in Daniels, requires a defendant only to produce evidence of a reasonable explanation.Thus, we conclude that, based on our prior cases, a defendant does not have the burden of proving the existence of a sudden emergency by a preponderance of the evidence. A defendant relying on that doctrine needs only to produce evidence explaining that the accident was due to something other than the defendant's negligence. Daniels, 196 Va. at 546, 84 S.E.2d at 533-34. The burden of producing such evidence (also referred to as the burden of going forward) shifts to a defendant when a plaintiff makes out a prima facie case of negligence. Garnot v. Johnson, 239 Va. 81, 84, 387 S.E.2d 473, 475 (1990); Watford v. Morse, 202 Va. 605, 607, 118 S.E.2d 681, 683 (1961). The burden of producing evidence may frequently shift from party to party during the course of a trial. Riggsby v. Tritton, 143 Va. 903, 918, 129 S.E. 493, 498 (1925). A plaintiff, however, always has the burden of persuasion (also referred to as the burden of proof) on the issue of primary negligence; it never shifts. Garnot, 239 Va. at 84, 387 S.E.2d at 475. Accordingly, we hold that the circuit court did not err in giving the sudden emergency instruction tendered by Holland. Since Holland did not have the burden of proving the existence of a sudden emergency by a preponderance of  the evidence, Vahdat's tendered instruction was not a correct statement of law. Furthermore, an instruction on the sudden emergency doctrine does not need to include any reference to a defendant's burden to produce evidence of a reasonable explanation because the question of sudden emergency would not be properly submitted to a jury if a defendant did not produce sufficient evidence to support an  instruction on the subject. See Pollins v. Jones, 263 Va. 25, 28, 557 S.E.2d 713, 714 (2002) ("A jury instruction may be given only if there is evidence to support the instruction.")."  Vahdat v. Holland, __Va. __ S.E.2d __,__ (2007).


The Doctrine of Res Ipsa Loquitur


"Almost 60 years ago, this Court, discussing res ipsa loquitur, said: "In Virginia the doctrine, if not entirely abolished, has been limited and restricted to a very material extent." City of Richmond v. Hood Rubber Prods. Co., 168 Va. 11,17, 190 S.E. 95, 98 (1937).The restricted nature of the doctrine is implicit in a statement of its elements. For the doctrine to apply, the instrumentality causing the damage must be in the exclusive possession of or under the exclusive management of the defendant, the accident must be of such nature and character as does not ordinarily occur if due care is used, and the evidence regarding the cause of the incident is accessible to the defendant and inaccessible to the injured party. Stein v. Powell, 203 Va. 423, 426, 124 S.E.2d 889, 891 (1962). In other words, the mere fact that an accident occurred does not warrant application of the doctrine. It may be utilized only when the circumstances of the incident, without further proof, are such that, in the ordinary course of events, the incident could not have happened except on the theory of negligence. Beer Distrib., Inc. v. Winfree, 190 Va. 521, 525, 57 S.E.2d 902, 904 (1950). In such case, the doctrine raises a presumption or permits an inference of negligence. It is not to be applied, however, when evidence is available. Cooper v. Horn, 248 Va. 417, 421, 448 S.E.2d 403, 405 (1994). Lewis v. Carpenter Co., 252 Va. 296, 477 S.E.2d 492 (1996).



Doctrine of Inherent Risk


"It is axiomatic that participation in certain sports or recreational activities necessarily involves the exposure of the participant to the risks of injury inherent in such activities. Snow skiing and snow tubing are but a few examples of such activities. Indeed, it can be reasonably asserted from common experience that the known and accepted inherent risks of a particular recreational activity provide, in part, the allure and thrill of participation in the activity. It is in this context that the duty of care owed by the operator of a recreational facility to its invitee and participant in a particular activity is tempered by the common law principle volenti non fit injuria - one who consents cannot be injured.

This notion of consent is embodied in the doctrine of assumption of risk that operates to bar recovery by an injured party where the nature and extent of the risk were fully appreciated and the risk was voluntarily incurred by that party. Landes v. Arehart, 212 Va. 200, 203, 183 S.E.2d 127, 129 (1971). Assumption of risk is an affirmative defense in Virginia. It requires the defendant under a primarily subjective test, rather than the objective reasonable person test applicable to contributory negligence, to show "what the particular plaintiff in fact sees, knows, understands and appreciates." Amusement Slides Corp. v. Lehmann, 217 Va. 815, 818-19, 232 S.E.2d 803, 805 (1977) (citation omitted). However, while the degree or scope of the injured participant's consent is frequently an issue, the operator of a recreational facility is not an insurer of the safety of its invitees. Whitfield, 189 Va. at 223, 52 S.E.2d at 73. Massanutten acknowledges on appeal that the doctrine of inherent risks, sometimes referred to as "primary" or "implied" assumption of risk, has not been adopted by this Court as part of the common law of Virginia...

Finally, we are not persuaded that the adoption by this Court of the doctrine of inherent risks would promote the public policy of free and active participation in sporting and recreational activities. Rather, we are of opinion that the well established common law in this Commonwealth adequately resolves claims that arise from injuries sustained in these activities and that our adherence to that law will avoid unnecessary confusion and is consistent with the public policy Massanutten favors. Accordingly, we reject Massanutten's request that we adopt the doctrine of inherent risks as a part of the common law of this Commonwealth.

We hold that the trial court erred in granting Massanutten's instruction on the doctrine of inherent risks. "If an issue is erroneously submitted to a jury, we presume that the jury decided the case upon that issue." Clohessy v. Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97 (1995). Accordingly, we cannot say that the trial court's error in instructing the jury on the doctrine of inherent risks was harmless, and we will reverse the judgment in favor of Massanutten." Nelson v. Great Eastern Resort Management, Inc., 265 VA 98, 574 S.E.2d (2003).

See Also:  §29.1-509. (Effective until January 1, 2008) Duty of care and liability for damages of landowners to hunters, fishermen, sightseers, etc.




"The relevant portions of the Canons at issue in this case are:

Canon 1

A Judge Shall Uphold the Integrity and Independence of the Judiciary.

A. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of these Canons are to be construed and applied to further that objective.

. . . .

Canon 2

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities.

A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

. . . .

Canon 3

A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently.

. . . .

B.(2) A judge shall be faithful to the law and maintain professional competence in it. . . .

B.(3) A judge shall require order, decorum, and civility in proceedings before the judge.

B.(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity. . . .

. . . .

B.(7) . . . A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding
. . . .

Addressing the issue of disposition, Judge Shull correctly observes that since the Commission was enacted in 1971, only one judge has been removed from office. In that case, Judicial Inquiry & Review Commission v. Maurice, Record No. 770472 (Sept. 1, 1977), this Court found that a judge misappropriated certain confiscated items, including firearms and alcohol, and consumed confiscated beer with others in the judge's office. Judge Shull argues that "[i]n light of this authority, it is abundantly clear that Judge Shull's conduct does not rise to the level of a removable offense."

We disagree that the matter can so easily be resolved. While the conduct of Judge Maurice was completely deplorable, and likely involved criminal activity, his conduct did not affect any litigants or the administration of justice in a courtroom of this Commonwealth. In contrast, the essence of Judge Shull's judicial misconduct has been his disregard for the dignity of litigants appearing before him and for the dignity of the judicial process. Judge Shull's actions involved two separate cases. In tossing a coin to resolve a matter before him, he denigrated both the litigants and our justice system. By directing Giza to lower her pants twice in the courtroom, Judge Shull ignored the dignity of a litigant who was not represented by counsel and who had a clear history of mental instability. Such actions on the part of a judge necessarily impair public confidence in the integrity of our justice system. Unless our citizens can trust that judges will fairly resolve the disputes brought before our courts, and treat all litigants with dignity, our courts will lose the public's respect and confidence upon which our legal system depends..."  Judicial Inquiry And Review Commission Of Virginia v. Shull,__ Va.___,____S.E.2d ___,___ (2007).

Doctrine of Inevitable Discovery


"One of the exceptions to the exclusionary rule is the doctrine of inevitable discovery. This Court recognized the exception in Warlick v. Commonwealth, 215 Va. 263, 266, 208 S.E.2d 746, 748 (1974), and Keeter v. Commonwealth, 222 Va. 134, 140 n.2, 278 S.E.2d 841, 845 n.2, cert. denied, 454 U.S. 1053 (1981). Later, the Supreme Court of the United States recognized the exception in Nix v. Williams, 467 U.S. 431 (1984), the Court holding that evidence obtained by unlawful means is nonetheless admissible "[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Id. at 444." Commonwealth v. Jones, 267 Va. 532, 593 S.E.2d 204, (2004).



"Stare decisis cannot be properly applied without "the need to distinguish an opinion's holding from its dicta." United States Nat'l Bank of Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 463 n.11 (1993). Dicta in a prior decision generally refers to that portion of an opinion "not essential" to the disposition in the case. "Cent. Green Co. v. United States, 531 U.S. 425, 431 (2001) (characterizing a portion of a prior opinion as "unquestionably dictum because it was not essential to our disposition").1 As the Virginia Supreme Court has explained:

It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which these expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in the subsequent suit when the very point is [involved] for decision.Va. Ry. & Power Co. v. Dressler, 132 Va. 342, 350-51, 111 S.E. 243, 245-46 (1922) (Burks, J.) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall, C.J.)). Dicta cannot "serve as a source of binding authority in American jurisprudence." United States v. Pasquantino, 336 F.3d 321, 329 (4th Cir. 2003) (en banc)2."

1 Stare decisis "applies not merely to the literal holding of the case, but also to its ratio decidendi - the essential rationale in the case that determines the judgment." Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73-74, 577 S.E.2d 538, 540 (2003). In other words, "it is not only the result but also those portions of the opinion necessary to that result by which we are bound." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996).

2 See also Alexander v. Sandoval, 532 U.S. 275, 282 (2001) (recognizing that under stare decisis, courts are "bound by holdings, not language"); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379 (1994) (noting that "[i]t is to the holdings of our cases, rather than their dicta, that we must attend"); United States v. Dixon, 509 U.S. 688, 706 (1993).

Newman v. Newman, 42 Va. App. 557,. 593 S.E.2d 553 (2004).

Stare Decisis


"The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit... [W]e recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16." Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 854 (1992). The doctrine of stare decisis carries such persuasive force that a departure from precedent requires support by some special justification. United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996). County of Henrico Police v. Medlin, 37 Va. App. 756, 561 S.E.2d 60 (2002).

Pullman Doctrine (Abstension)


Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941).

"The complaint of the Pullman porters undoubtedly tendered a substantial constitutional issue. It is more than substantial. It touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open. Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy. It is therefore our duty to turn to a consideration of questions under Texas law. It is common ground that, if the order is within the Commission's authority, its subject matter must be included in the Commission's power to prevent "unjust discrimination... and to prevent any and all other abuses" in the conduct of railroads. Whether arrangements pertaining to the staffs of Pullman cars are covered by the Texas concept of "discrimination" is far from clear. What practices of the railroads may be deemed to be "abuses" subject to the Commission's correction is equally doubtful. Reading the Texas statutes and the Texas decisions as outsiders without special competence in Texas law, we would have little confidence in our independent judgment regarding the application of that law to the present situation. The lower court did deny that the Texas statutes sustained the Commission's assertion of power. And this represents the view of an able and experienced circuit judge of the circuit which includes Texas and of two capable district judges trained in Texas law. Had we or they no choice in the matter but to decide what is the law of the state, we should hesitate long before rejecting their forecast of Texas law. But no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast, rather than a determination. The last word on the meaning of Article 6445 of the Texas Civil Statutes, and therefore the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court, but to the supreme court of Texas. In this situation, a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. Glenn v. Field Packing Co., 290 U. S. 177; Lee v. Bickell, 292 U. S. 415. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court. The resources of equity are equal to a adjustment that will avoid the waste of a tentative decision, as well as the friction of a premature constitutional adjudication.

An appeal to the chancellor, as we had occasion to recall only the other day, is an appeal to the "exercise of the sound discretion, which guides the determination of courts of equity." Beal v. Missouri Pacific R. Co., ante, p. 312 U. S. 45. The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction. There have been as many and as variegated applications of this supple principle as the situations that have brought it into play. See, for modern instances, Beasley v. Texas & Pacific Ry. Co., 191 U. S. 492; Harrisonville v. Dickey Clay Co., 289 U. S. 334; United States v. Dern, 289 U. S. 352. Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies, whether the policy relates to the enforcement of the criminal law, Fenner v. Boykin, 271 U. S. 240; Spielman Motor Co. v. Dodge, 295 U. S. 89; or the administration of a specialized scheme for liquidating embarrassed business enterprises, Pennsylvania v. Williams, 294 U. S. 176; or the final authority of a state court to interpret doubtful regulatory laws of the state, Gilchrist v. Interborough Co., 279 U. S. 159; cf. Hawks v. Hamill, 288 U. S. 52, 288 U. S. 61. These cases reflect a doctrine of abstention appropriate to our federal system whereby the federal courts, "exercising a wise discretion," restrain their authority because of "scrupulous regard for the rightful independence of the state governments" and for the smooth working of the federal judiciary. See Cavanaugh v. Looney, 248 U. S. 453, 248 U. S. 457; Di Giovanni v. Camden Ins. Assn., 296 U. S. 64, 296 U. S. 73. This use of equitable powers is a contribution of the courts in furthering the harmonious relation between state and federal authority without the need of rigorous congressional restriction of those powers. Compare 37 Stat. 1013; Judicial Code, § 24(1), as amended, 28 U.S.C. § 41(1); 47 Stat. 70, 29 U.S.C. §§ 101-15.

Regard for these important considerations of policy in the administration of federal equity jurisdiction is decisive here. If there was no warrant in state law for the Commission's assumption of authority, there is an end of the litigation; the constitutional issue does not arise. The law of Texas appears to furnish easy and ample means for determining the Commission's authority. Article 6453 of the Texas Civil Statutes gives a review of such an order in the state courts. Or, if there are difficulties in the way of this procedure of which we have not been apprised, the issue of state law may be settled by appropriate action on the part of the State to enforce obedience to the order. Beal v. Missouri Pacific R.;Co., supra; Article 6476, Texas Civil Statutes. In the absence of any showing that these obvious methods for securing a definitive ruling in the state courts cannot be pursued with full protection of the constitutional claim, the district court should exercise its wise discretion by staying its hands. Compare Thompson v. Magnolia Co., 309 U. S. 478. We therefore remand the cause to the district court, with directions to retain the bill pending a determination."

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