COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Malveaux and Chaney UNPUBLISHED
Argued at Lexington, Virginia
JEREMIAH HENDERSON MEMORANDUM OPINION* BY v. Record No. 0222-23-3 JUDGE MARY BENNETT MALVEAUX MARCH 5, 2024 AUSTIN K. MCCLAIN
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Onzlee Ware, Judge
Gary M. Bowman for appellant.
Timothy R. Spencer, City Attorney (Douglas P. Barber, Jr., Assistant City Attorney, on brief), for appellee.
Jeremiah Henderson appeals from an order of the Circuit Court for the City of Roanoke
(“the circuit court”) sustaining the plea in bar of Austin K. McClain on grounds of res judicata.
On appeal, Henderson argues that the circuit court erred by granting the plea in bar because:
(1) no federal court judgment order was entered into evidence, and no federal court judgment is
part of the record; (2) McClain did not prove that the federal court exercised, or would have
exercised but had no opportunity to exercise, supplemental jurisdiction over Henderson’s state
law claims; and (3) the circuit court did not permit Henderson to present evidence to a jury that
the federal court had an opportunity, but declined, to exercise supplemental jurisdiction over
Henderson’s state law claims. For the following reasons, we affirm the circuit court.
* This opinion is not designated for publication. See Code § 17.1-413(A). I. BACKGROUND
This appeal ultimately arises from events that occurred at a retail store in Roanoke on
October 15, 2018. McClain, a City of Roanoke police officer, encountered Henderson at the store
during a confrontation between Henderson and store employees. Following their encounter,
Henderson filed a complaint against McClain in the circuit court on September 20, 2019.
Henderson’s claims were brought pursuant to 42 U.S.C. § 1983 and alleged violations of his federal
civil rights, premised on theories of false arrest and malicious criminal prosecution.
On October 15, 2019, McClain removed Henderson’s action to the United States District
Court for the Western District of Virginia (“the federal court”). He then filed a motion for summary
judgment on February 25, 2020, arguing in part that he was entitled to qualified immunity.
On March 9, 2020, Henderson moved the federal court for leave to file an amended
complaint. In the amended complaint appended to his motion, Henderson reiterated his two counts
alleging federal rights violations pursuant to 42 U.S.C. § 1983 and added a third count alleging use
of excessive force in violation of the same statute. He also added four new counts alleging state law
claims of gross negligence, false arrest, malicious prosecution, and intentional infliction of
emotional distress. Additionally, Henderson filed a supporting memorandum in which he stated
that he sought leave to amend partly “to obtain clarification from this Court . . . as to whether it will
exercise supplemental jurisdiction over his state law claims.” He further stated that if the federal
court “exercises supplemental jurisdiction over the state law claims, those claims can be tried in [the
federal court] in one trial with the federal claims. Even if [the federal court] declines to exercise
supplemental jurisdiction, [he] will have taken necessary action to prevent the preclusion of his state
law claims.”
On July 24, 2020, while his motion for leave to amend was pending before the federal court,
Henderson filed a new complaint in the circuit court. Henderson’s complaint contained four counts
-2- alleging the same state law claims contained in the proposed amended complaint submitted to the
federal court: gross negligence, false arrest, malicious prosecution, and intentional infliction of
emotional distress.
On September 18, 2020, McClain filed in the federal court a motion asking that court to
enjoin Henderson’s state court proceedings. In a memorandum in support of his motion, McClain
argued that the new proceeding in the circuit court “involve[d] the same incidents that occurred on
October 15, 2018” and “similar causes of action which had previously been removed from [the
circuit] court, and are currently pending before this [c]ourt.” He noted that Henderson’s motion for
leave to amend his complaint was pending before the federal court, and contended that “the new
[s]tate court action is an attempt to go around this [c]ourt’s likely ruling” on Henderson’s motion for
leave to amend “which . . . is also an attempt to go around this [c]ourt’s likely ruling” on McClain’s
motion for summary judgment.
Five days later, on September 23, 2020, Henderson filed a notice of withdrawal of his
motion for leave to amend in the federal court. In his notice, Henderson acknowledged that at that
time, “[n]o hearing on the motion ha[d] been held or scheduled.”
On October 1, 2020, Henderson filed in the federal court a memorandum in opposition to
McClain’s motion requesting enjoinment of Henderson’s state court action. In his memorandum,
Henderson argued that his “motion for leave to amend his [c]omplaint to add his state-law
claims . . . was to avoid preclusion of those claims in later state-court litigation.” He stated that “he
believed it was necessary to give the federal court the opportunity to exercise supplemental
jurisdiction over [his] state-law claims to avoid possible preclusion of those claims in a later state-
court case.”
The federal court granted McClain’s motion for summary judgment on October 19, 2020.
In a memorandum opinion, the federal court first explained that McClain was entitled to qualified
-3- immunity against Henderson’s claims alleging violations of 42 U.S.C. § 1983. It then addressed
McClain’s motion to enjoin the circuit court proceedings, noting that the motion was based on
Henderson’s “putative amendment to [his] complaint that attempted to add a raft of state-law claims
under this court’s supplemental jurisdiction.” But “Henderson withdrew his motion to add these
state-law claims . . . before the court could rule on the motion.” Although Henderson had then filed
those claims in the circuit court, the federal court concluded that the “state-court suit is composed
entirely of state-law claims not present in this case and over which this court has never exercised
jurisdiction.” Accordingly, the federal court “discern[ed] no threat to its jurisdiction from the
ongoing state-court litigation,” and declined to grant McClain’s motion to enjoin the circuit court
proceedings.
Two days later, on October 21, 2020, McClain filed in the circuit court a plea in bar
asserting res judicata.1 He noted that the federal court had granted his motion for summary
judgment and “dismissed all of [Henderson’s] 42 U.S.C. § 1983 [c]laims” and that “[a]ll of those
dismissed claims arose out of the same conduct, transaction, or occurrence” as the claims in the
complaint pending before the circuit court. The latter claims, McClain argued, should be dismissed
because they “constitute a second or subsequent civil action against . . . [McClain] arising from the
same conduct, transaction or occurrence which could have been added to [Henderson’s] § 1983
action pursuant to . . . supplemental jurisdiction.” Since the federal action “has been previously
decided on the merits by a final judgment,” McClain contended, “this second action is forever
barred.” McClain attached, as an exhibit to his motion, a copy of the federal court’s memorandum
1 Although the motion was originally styled as a motion to dismiss, McClain later moved the circuit court to “convert and/or retitle” his motion as a plea in bar asserting res judicata. Henderson acknowledged to the circuit court that the motion was more properly a plea in bar, and the circuit court regarded the motion as such in its subsequent orders. -4- opinion. Although the opinion made reference to its “accompanying [o]rder,” McClain did not
attach a copy of the federal court’s order to his motion.
Following a March 17, 2021 hearing, during which Henderson requested that the matter be
heard by a jury, the circuit court sustained McClain’s plea in bar. In a March 23, 2021 order, the
circuit court first denied Henderson’s demand for a jury trial because there were no material facts
contested by the parties that were relevant to McClain’s plea in bar. The circuit court then sustained
McClain’s plea in bar on grounds of claim preclusion and dismissed Henderson’s suit.2
In explaining its reasoning with respect to res judicata, the circuit court noted that under
federal principles of claim preclusion, the party asserting claim preclusion must establish: (1) a final
judgment on the merits in a prior suit; (2) an identity of the cause of action in both the prior and the
later suit; and (3) identity of the parties in the two suits, or of their privies. Noting that the third
element was not at issue, the circuit court then concluded, with respect to the first element, that there
had been “a final judgment on the merits in the prior federal suit.” With respect to the second
element—identity of the cause of action—the court noted that it would first have to determine
whether Henderson “could have brought these [state law] claims with the prior case at all.” It
concluded that “[t]he claims alleged in the current case flow directly from the same facts as the
claims raised in federal court,” and thus “[i]t appears that the[] requirements [for federal
supplemental jurisdiction] would be met in this case.” The circuit court further stated that, “[a]s
there is no indication that the federal court would have declined to exercise jurisdiction in this case
and the facts indicate that the federal court likely would have exercised such jurisdiction, this [c]ourt
2 In a footnote, the circuit court stated that because its “ruling based on claim preclusion is dispositive,” it would “make[] no ruling on the topic of issue preclusion also raised by [McClain].” Because the circuit court never ruled on issue preclusion, we do not address the issue preclusion argument McClain presents on brief. See Williams v. Commonwealth, 57 Va. App. 341, 347 (2010) (noting that when there is no ruling on a matter presented to a trial court, “‘there is no ruling for [this Court] to review’ on appeal” (alteration in original) (quoting Fisher v. Commonwealth, 16 Va. App. 447, 454 (1993))). -5- finds that [Henderson] could have brought these claims in the case before the federal court.” The
circuit court then addressed “the substance of the second element,” applying the “transactional
approach” to determine whether Henderson’s claims in his state court suit arose out of the same
transaction as the claims resolved by the federal court judgment. The circuit court concluded that
they did and that “the two cases constitute the same cause of action.”
Three days later, on March 26, 2021, Henderson filed a motion for reconsideration and
requested that the circuit court defer entering an order dismissing the case until the resolution of
Henderson’s appeal of the federal court case. As an exhibit to his motion, Henderson attached a
copy of his November 4, 2020 notice of appeal filed with the federal court. The notice specified
that Henderson was appealing “the [o]rder . . . of this [c]ourt, dated October 19, 2020, granting
summary judgment to [McClain].”
The circuit court, by order dated March 30, 2021, granted Henderson’s motion and vacated
and suspended its March 23, 2021 order pending resolution of Henderson’s federal appeal.
On June 8, 2022, McClain filed a motion to reinstate the circuit court’s March 23, 2021
order. In his motion, McClain noted that on March 9, 2022, the United States Court of Appeals for
the Fourth Circuit had affirmed the federal court’s ruling granting him summary judgment.
McClain also noted that the time for Henderson to file a petition for a writ of certiorari with the
United States Supreme Court had expired. McClain attached, as an exhibit to his motion, a copy of
the Fourth Circuit’s opinion affirming the federal court’s summary judgment ruling.
Following a January 11, 2023 hearing on McClain’s motion to reinstate the circuit court’s
March 23, 2021 order,3 the circuit court found that “the appeal of the federal district court decision
3 The record does not contain a transcript of this hearing. -6- has now been completed, and all appeals are final.” Accordingly, it reinstated its order sustaining
McClain’s plea in bar and dismissing Henderson’s complaint.
This appeal followed.
II. ANALYSIS
Henderson assigns three errors to the circuit court for sustaining McClain’s plea in bar on
grounds of res judicata.
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v.
VanMarter, 279 Va. 566, 577 (2010)). “In one sense, [a plea in bar] . . . is wholly unlike a
demurrer, which merely ‘“tests the legal sufficiency of” the allegations in a complaint.’”
California Condo. Ass’n v. Peterson, 301 Va. 14, 20 (2022) (quoting Our Lady of Peace, Inc. v.
Morgan, 297 Va. 832, 847 n.4 (2019)). “Under modern practice, a plea in bar does not point out
the legal insufficiency of allegations but rather demonstrates their irrelevance because of some
other dispositive point — usually some affirmative defense.” Id. (quoting Our Lady of Peace,
LLC, 297 Va. at 847 n.4). However, “in another sense, a plea in bar is partly like a demurrer”
because it “can raise an affirmative defense targeting solely the allegations of the complaint
(assumed arguendo to be true), thus obviating any need for an evidentiary hearing.” Id. at 20-21.
While “[s]ome plea-in-bar arguments turn heavily on facts, . . . [o]ther plea-in-bar arguments
turn primarily on law, such as a plea asserting the protections of sovereign immunity based
solely on the allegations of the complaint.” Id. at 21.
If evidence is presented ore tenus on a plea in bar, “the circuit court’s factual findings
‘are accorded the weight of a jury finding and will not be disturbed on appeal unless they are
plainly wrong or without evidentiary support.’” Cornell v. Benedict, 301 Va. 342, 349 (2022)
(quoting Massenburg, 298 Va. at 216). “When the plea in bar depends on pure legal questions
-7- . . . , we review the circuit court’s holding de novo.” Id. “The party asserting the plea in bar
bears the burden of proof.” Massenburg, 298 Va. at 216.
A. The Federal Court Judgment
Henderson argues that the circuit court erred in sustaining McClain’s plea in bar on
grounds of res judicata because McClain “did not offer a federal court judgment [o]rder into
evidence and no federal court judgment is part of the record” to support the circuit court’s ruling.
Henderson notes that in its March 23, 2021 order sustaining McClain’s plea in bar, the circuit
court stated that McClain “admitted certified copies of the filings and record of the federal court
that form the basis of the plea of res judicata.” He also correctly notes that “a federal court
[o]rder granting judgment against Henderson was never submitted to the [c]ircuit [c]ourt or
admitted into the record of this case.” Citing the advisory committee notes to Rule 58(a) of the
Federal Rules of Civil Procedure, Henderson asserts that “the judgment Order is the judgment in
a federal court case,” and contends that the absence of such an order “was ‘fatal’ to McClain’s
plea in bar” because without such an order, “[t]here was insufficient evidence in the record to
support the . . . conclusion that a prior federal judgment precludes Henderson’s present case.”
Rule 1:6, which addresses res judicata claim preclusion, provides, in pertinent part, that a
party whose claim “arising from identified conduct . . . or an occurrence, is decided on the merits
by a final judgment, is forever barred from prosecuting any second or subsequent civil action
against the same opposing party . . . on any claim or cause of action that arises from that same
conduct . . . or occurrence.” Rule 1:6(a); see also Funny Guy, LLC v. Lecego, LLC, 293 Va. 135,
141-50 (2017) (discussing common-law principles of res judicata and their codification in Rule
1:6 and related statutes). “Thus, a prerequisite for claim preclusion is a final judgment on the
-8- merits of a claim.”4 Kellogg v. Green, 295 Va. 39, 45 (2018). “Whether a claim or issue is
precluded by a prior judgment is a question of law this Court reviews de novo.” Lane v. Bayview
Loan Servicing, LLC, 297 Va. 645, 653 (2019). With respect to questions of evidentiary
sufficiency, however, “the trial court’s judgment will not be disturbed unless it is plainly wrong
or without evidence to support it.” Sidya v. World Telecom Exch. Comms., LLC, 301 Va. 31, 37
(2022) (quoting Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 90 (2012)).
We are not persuaded by Henderson’s argument. The gravamen of Henderson’s
argument is that for a circuit court to find sufficient evidence of a final judgment to sustain a plea
in bar on grounds of res judicata, the record before the court must contain a copy of a final
judgment order. Henderson proffers no federal or Virginia caselaw to support that proposition,
and relies entirely upon Federal Rule of Civil Procedure 58(a) and its advisory committee notes.
That Rule states, in pertinent part, only that “[e]very judgment and amended judgment must be
set out in a separate document.” Fed. R. Civ. P. 58(a). Thus, the plain language of the Rule
neither addresses the question relevant here, which concerns evidentiary proof in the res judicata
context, nor requires that a judgment be styled an “order” to have legal effect as a final
judgment.
Henderson maintains that the text of the advisory committee’s note on a 1963 amendment
to the Rule imposes that requirement. That note opines that “[t]he amended rule . . . requir[es]
that there be a judgment set out on a separate document—distinct from any opinion or
4 Henderson only challenges whether there was sufficient evidence of a prior federal final judgment to support the circuit court’s res judicata ruling. Accordingly, we do not consider whether the judgment at issue was a decision “on the merits.” See Kellogg, 295 Va. at 45 (declining to consider whether the relevant order was rendered on the merits where appellant argued only that it was not a final judgment). -9- memorandum—which provides the basis for the entry of judgment.”5 Fed. R. Civ. P. 58
advisory committee’s note to 1963 amendment. However, the plain language of this note does
not require, as Henderson asserts, that such a “judgment set out on a separate document” be “the
judgment [o]rder” to constitute a final judgment for purposes of res judicata. Further, the notes
of an advisory committee are just what their name implies: advisory. They are evidence of the
Rule drafters’ intent, but do not comprise the binding Rules themselves. See, e.g., 28 U.S.C.
§ 2702(a) (authorizing the Supreme Court of the United States to “prescribe general rules of
practice and procedure . . . for cases in the United States . . . courts” (emphasis added)); cf.
Libretti v. United States, 516 U.S. 29, 41 (1995) (considering whether advisory committee notes
on an amendment to the Federal Rules of Criminal Procedure “shed any particular light on the
meaning of the language of [the] Rule”); Tome v. United States, 513 U.S. 150, 160 (1995)
(referring to the advisory committee notes on the Federal Rules of Evidence as merely a “useful
guide” to parsing the Rules and a “source of scholarly commentary”); Hohn v. United States, 524
U.S. 236, 245 (1998) (“reject[ing]” a “suggestion contained in the Advisory Committee’s Notes”
concerning the interpretation of Fed. R. App. P. 22(b)); Krupski v. Costa Crociere S.p.A., 560
U.S. 538, 557 (2010) (Scalia, J., concurring) (“The Advisory Committee’s insights into the
proper interpretation of a Rule’s text are useful to the same extent as any scholarly commentary.
But . . . it is the text of the Rule that controls.”).
5 On brief, Henderson misquotes the note in a way that is not immaterial, presenting it as stating “that the Rule requires that a judgment be set out on a separate document, ‘distinct from any opinion or memorandum’ ‘which forms the basis for the entry of judgment.’” (Emphasis added). In fact, as quoted above, the note states, “which provides the basis for the entry of judgment.” (Emphasis added). We also note that the commentary relied upon by Henderson, read in full and in context, makes clear that the language in the Rule was not intended to establish the principle, as Henderson contends, that “the judgment Order is the judgment in a federal court case.” Rather, the full comment reveals that the language at issue was crafted in response to an entirely different set of concerns respecting “uncertainties” over calculating the running of limitation periods. Fed. R. Civ. P. 58 advisory committee’s note to 1963 amendment. - 10 - We are likewise unpersuaded by Henderson’s argument that without the federal court’s
order granting summary judgment to McClain, “[t]here was insufficient evidence in the record to
support the . . . conclusion that a prior federal judgment preclude[d] Henderson’s present case.”
The circuit court had before it, as an exhibit to McClain’s plea in bar, a copy of the federal
court’s memorandum opinion granting McClain summary judgment. That opinion contained the
judgment of the federal court. Henderson appealed that judgment to the Fourth Circuit, and as an
exhibit to his motion for reconsideration and deferred entry of the circuit court’s March 23, 2021
order, Henderson appended a copy of his notice of appeal. The notice of appeal specified that
Henderson was appealing the federal court’s October 19, 2020 order “granting summary
judgment to [McClain].” When McClain moved the circuit court to reinstate its previously
vacated and suspended March 23, 2021 order, he appended, as an exhibit to his motion, a copy of
the decision rendered by the Fourth Circuit affirming the federal court’s judgment. And
McClain also noted that the time for Henderson to file a petition for a writ of certiorari to the
United States Supreme Court had since expired. Thus, at the time the circuit court reinstated its
March 23, 2021 order on January 11, 2023, the court had before it ample evidence to support its
ruling that a prior federal judgment existed that precluded Henderson’s present case.
Accordingly, we affirm that ruling.
B. The Federal Court’s Supplemental Jurisdiction
Henderson contends that the circuit court erred by granting the plea in bar “because
McClain did not carry his burden of proving that the federal court exercised, or would have
exercised but had no opportunity to exercise, supplemental jurisdiction over Henderson’s state
law claims.” On brief, Henderson acknowledges that “[t]he party asserting a plea in bar of res
judicata has the burden of proving that the adverse party could have litigated his state law
[claims] in federal court.” Regardless, the gravamen of Henderson’s argument on brief, and at
- 11 - oral argument before this Court, is that the circuit court erred in its res judicata analysis because
it considered whether his claims could have been brought in the federal court, rather than
whether the federal court “would have exercised jurisdiction over [his] state law claims.”
(Emphasis added).
Here, the circuit court considered the requirements for a federal court to exercise
supplemental jurisdiction over state law claims and found that based on Henderson’s claims
before it, “[Henderson] could have brought these claims in the case before the federal court.” In
so finding, the circuit court applied the correct legal standard for the requisite analysis. See, e.g.,
Funny Guy, 293 Va. at 143 (noting that in a res judicata analysis, “[d]etermining which claims
should have been brought in earlier litigation largely depends on which claims could have been
been brought” (quoting Kent Sinclair, Guide to Virginia Law & Equity Reform and Other
Landmark Changes § 11.2, at 247 (2006))); id. at 148 (discussing the “could-have-litigated
aspect” of res judicata); D’Ambrosio v. Wolf, 295 Va. 48, 54 (2018) (discussing Rule 1:6(a) and
noting that “parties may not ‘relitigat[e] . . . the same cause of action, or any part thereof which
could have been litigated’ in the previous action” (alterations in original) (quoting Bates v.
Devers, 214 Va. 667, 670-71 (1974))); Vital Link, Inc. v. Hope, 69 Va. App. 43, 59 (2018)
(noting that the effect of a final judgment “is not only to conclude the parties as to every question
actually raised and decided, but as to every claim which properly belonged to the subject of
litigation and which the parties, by the exercise of reasonable diligence, might have raised at the
time”6 (emphasis added) (quoting Smith v. Holland, 124 Va. 663, 666 (1919))); see also Sinclair,
supra, § 11.2, at 248-49 (noting that “[b]ecause what could have been brought in the former suit
should have been brought, the merger-bar principle of claim preclusion depend[s] on the
6 See also Might, Webster’s Third New International Dictionary (1993) (expressing “possibility in the past”). - 12 - procedural constraints on the first suit”; thus, a second suit is permitted only if the later-asserted
claim could not have been “raised in the earlier trial or, if it could have been raised, but at an
unacceptably high juristic cost” such as loss of right to a jury). Because the circuit court applied
the correct legal standard in its res judicata analysis, we reject Henderson’s argument.7
C. Denial of a Jury Trial
Henderson argues that the circuit court erred in denying his demand for a jury trial on the
plea in bar. He contends that he should have been allowed to “present evidence that would have
disproved [the circuit court’s] erroneous inference” that there was no indication the federal court
“‘would have declined to exercise jurisdiction in this case and . . . [it] likely would have
exercised such jurisdiction.’” Henderson maintains that based on certain facts proffered in his
brief, which he would have presented to a jury, the “jury could [have] reasonably infer[red] . . .
that the federal court had the opportunity to exercise jurisdiction over [his] claim . . . but declined
to do so.”
“If the facts underlying [a] plea in bar are contested, a party may demand that a jury
decide the factual issues raised by the plea.” Hawthorne, 279 Va. at 577. Henderson’s argument
is that the circuit court erred in sustaining the plea in bar without giving him an opportunity to
present his own evidence on a particular issue, and thus the question is whether the circuit court
erred in not allowing Henderson to present certain evidence. And it is well established that a
“trial court’s exercise of its discretion in determining whether to admit or exclude evidence will
not be overturned on appeal absent evidence that the trial court abused that discretion.” Townes
7 In making his argument, both on brief and at oral argument before this Court, Henderson relies in particular on comment e to the Restatement (Second) of Judgments § 25 (Am. L. Inst. 1982). He maintains that “the words of the Restatement [comment]” provide that the proper analysis is whether the federal court “‘clearly’ would have exercised jurisdiction over [his] state law claims.” But such commentary on a common-law treatise, while informative to this Court, is not binding authority. - 13 - v. Va. St. Bd. of Elections, 299 Va. 34, 48 (2020) (quoting May v. Caruso, 264 Va. 358, 362
(2002)).
Here, the circuit court found that there were no “material facts contested by the parties
relevant to this plea in bar” and denied Henderson’s jury trial demand. We need not consider the
correctness of the court’s finding, however, because Henderson’s demand for a jury was
fundamentally improper. This is so because Henderson sought to present evidence to a jury so
that the jury might resolve a question concerning the exercise of federal supplemental
jurisdiction. But “[j]urisdictional issues are questions of law,” McClary v. Jenkins, 299 Va. 216,
222 (2020), and “[q]uestions of law lie within the sole province of the court,” Fitzgerald v.
Commonwealth, 249 Va. 299, 305 (1995). “[I]indeed, [it is] a maxim of the law, almost coeval
with the institution of juries, that it is the office of the judge to respond as to the law, and the jury
as to the facts.” Fitzgerald, 249 Va. at 305 (quoting Brown v. Commonwealth, 86 Va. 466, 471
(1890)); see also Picket v. Morris, 2 Va. (2 Wash.) 255, 267 (1796) (Wickham, J.) (holding that
the trial court acted improperly when it effectively “submitt[ed] to the decision of the jury, a
legal question which it was the duty of the court to have determined”); Monday v. Oliver, 215
Va. 748, 751 (1975) (noting the distinction between “questions of fact for the jury and . . .
questions of law for the trial court”); cf. Vay v. Commonwealth, 67 Va. App. 236, 255 (2017)
(recognizing “that there are certain issues for which a jury instruction can never be appropriate
because they represent questions of law that the trial court, and not the jury, must resolve”).
Accordingly, because Henderson demanded a jury to hear evidence to resolve a legal rather than
a factual question, and thus to usurp the circuit court’s role, there was no abuse of discretion by
the circuit court in denying Henderson’s jury demand.
- 14 - III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court granting McClain’s
plea in bar on grounds of res judicata.
Affirmed.
- 15 -