Akak, Corp., s/k/a, etc. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
AKAK, CORP., S/K/A
AKAK, INC.
OPINION BY
v. 	Record No. 1918-01-4 	JUDGE ROSEMARIE ANNUNZIATA
AUGUST 13, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Robert L. Tomlinson II (Tomlinson &
Associates, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
On June 5, 2001, the circuit court convicted AKAK, Corp.
(AKAK) of charging an excessive towing fee, in violation of Code
§ 46.2-1233.1, and fined it $75. 	AKAK appeals on the ground
that the trial court erroneously applied the doctrine of res
judicata to bar it from arguing that the fee limit set by the
state code did not apply. 	For the reasons that follow, we
reverse AKAK's conviction.
Background
The facts surrounding the offense are undisputed. 	On March
26, 2000, Aura Dunn illegally parked her automobile on South
Fern Street in Arlington. 	While she was shopping, AKAK's

subsidiary towed her vehicle and charged her $120 for the
towing.
Trial Court Decision
The circuit court convicted AKAK for charging a towing fee
in excess of the state fee limit for hook up and towing set by
Code § 46.2-1233.1. 	Code § 46.2-1233.1 sets a statewide towing
limit of $85 that applies "unless different limits are
established by ordinance of the local governing body pursuant to
§ 46.2-1233." 	Code § 46.2-1233 permits localities to set limits
on towing charges and provides that, if reasonable, those
established limits will control within the localities.
At trial, AKAK raised a plea in bar, arguing that the
Commonwealth could not prosecute it under the state fee limit
because Arlington County had adopted a local ordinance that
established a different limit. 	See Code § 46.2-1233.1. 	The
circuit court disagreed on the ground that the issue had been
decided by the general district court on April 21, 2000 in a
case where AKAK was charged with charging a towing fee to
another citizen in excess of the state fee limit for hook up and
towing. 	The circuit court, thus, found AKAK's plea in bar was
foreclosed under principles of res judicata.1
1 At the April 2000 proceeding, AKAK contended, in its plea
in bar, that the county ordinance precluded the Commonwealth
from prosecuting the charge based on the state code. 	The
district court determined that the county ordinance had been
declared invalid in an earlier proceeding against AKAK for the
same offense before another general district court judge and
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Analysis
AKAK claims on appeal that the circuit court misapplied the
doctrine of res judicata because it "had no opportunity to
challenge the ruling in the former case." 	We agree.
The doctrine of res judicata
rests upon the principle that a person
should not be required to relitigate the
same matter a second time "with the same
person or another so identified in interest
with such person that he represents the same
legal right, precisely the same question,
particular controversy, or issue, which has
been necessarily tried and fully determined,
upon the merits, by a court of competent
jurisdiction . . . ."
Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 618, 376
S.E.2d 787, 788 (1999) (citations omitted). 	"In short, once a
matter or issue has been adjudicated, it may be relied upon as
conclusive between the parties, or their privies in any
subsequent suit." 	Id.
"Res judicata encompasses four preclusive effects, each
conceptually distinct, which a final personal judgment may have
upon subsequent litigation. 	These are merger, direct estoppel,
bar, and collateral estoppel." 	Bates v. Devers, 214 Va. 667,
670, 202 S.E.2d 917, 920 (1974) (citing Lawlor v. National
Screen Service Corp., 349 U.S. 322, 326 n.6 (1955). 	Collateral
estoppel, the species of res judicata applicable in this case,
denied AKAK's plea in bar. 	However, the district court
dismissed the charges against AKAK on other grounds. 	Therefore,
AKAK could not appeal the decision.
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precludes relitigation of issues actually litigated and
determined in [a] prior suit, regardless of whether it was based
on the same cause of action as the second suit." 	Lawlor, 349
U.S. at 326; accord Bates, 214 Va. at 672, 202 S.E.2d at 922
("[C]ollateral estoppel is solely a doctrine of issue
preclusion.").2 To establish the defense of collateral
estoppel, a party must establish the following:
(1) the parties to the prior and subsequent
proceedings, or their privies, must be the
same, (2) the factual issue sought to be
litigated actually must have been litigated
in the prior action, (3) the factual issue
must have been essential to the judgment in
the prior proceeding, and (4) the prior
action must have resulted in a judgment that
is valid, final, and against the party
against whom the doctrine is sought to be
applied.
Scales v. Lewis, 261 Va. 379, 382, 541 S.E.2d 899, 901 (2001)
(citing Angstadt v. Atlantic Mutual Ins., 249 Va. 444, 446-47,
457 S.E.2d 86, 87 (1995)). 	However, collateral estoppel does
not apply where "[t]he party against whom preclusion is sought
2 In contrast, the doctrine of res judicata-bar, the
"preclusive effect commonly meant by use of the term 'res
judicata,'. . . bars relitigation of the same cause of action,
or any part thereof which could have been litigated, between the
same parties and their privies." 	Bates, 214 Va. at 670-71, 202
S.E.2d at 920-21. 	This preclusive effect does not apply to the
instant case because the prosecution's claim is based on a
different cause of action. 	See Allstar Towing, Inc. v. City of
Alexandria, 231 Va. 421, 425, 344 S.E.2d 903, 906 (1986)
(holding that res judicatata-bar did not apply because the
plaintiff asserted legal rights arising from "a factual
transaction that was different from the factual transaction
giving rise to the assertion of legal rights in the first
action," and, thus, presented a different cause of action).
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could not, as a matter of law, have obtained review of the
judgment in the initial action." 	Restatement (Second) of
Judgments § 28(1); accord Winters v. Diamond Shamrock Chemical
Co., 149 F.3d 387, 393-94 (5th Cir. 1998); Lombardi v. City of
El Cajon, 117 F.3d 1117, 1122 (9th Cir. 1997); Johnson v.
Watkins, 101 F.3d 792, 795-96 (2d Cir. 1996); Nutter v.
Monongahela Power Co., 4 F.3d 319, 322 (4th Cir. 1993); Edwards
v. Boeing Vertol Co., 750 F.2d 13, 15 (3rd Cir. 1984); Gelpi v.
Tugwell, 123 F.2d 377, 378 (1st Cir. 1941); see also Standefer
v. United States, 447 U.S. 10, 23 (1980) ("Under contemporary
principles of collateral estoppel, [the fact that a party could
not appeal the prior judgment] strongly militates against giving
an acquittal preclusive effect." (citing Restatement (Second) of
Judgments § 68.1 (Tent. Draft No. 3, 1976 (denying preclusive
effect to an unreviewable judgment))).
We hold that the trial court erroneously prevented AKAK
from arguing that the county ordinance was valid and precluded
the Commonwealth from prosecuting it under the state fee limit
because AKAK could not obtain appellate review of the district
court's April 2000 decision on that issue. 	Although the
district court determined the precise issue in question in the
instant case against AKAK, it dismissed the Commonwealth's case
against AKAK on other grounds. 	Therefore, AKAK did not have the
opportunity to appeal the district court's determination of the
issue in the present case. 	Accordingly, the correctness of the
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district court's ruling is uncertain and cannot preclude AKAK
from pursuing the issue in this subsequent action. 	See
Standefer, 447 U.S. at 23 ("The estoppel doctrine . . . is
premised upon an underlying confidence that the result achieved
in the initial litigation was substantially correct. 	In the
absence of appellate review, or the opportunity for similar
procedures, such confidence is often unwarranted.").
In short, the trial court erroneously determined that res
judicata, specifically collateral estoppel, barred relitigation
of whether the Commonwealth could prosecute AKAK under the fee
limit set by the state code. 	Therefore, we reverse AKAK's
conviction and remand for further proceedings if the
Commonwealth be so advised.
Reversed and remanded.
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