THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR JUDGE FULLER
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
November 13, 2023
In the Court of Appeals of Georgia A23A1236. BRADLEY v. WESTROCK CP, LLC et al.
FULLER, Senior Judge.
In this action for negligence, design defects, and several related claims,
plaintiff Philip Bradley appeals from the grant of summary judgment to defendants
WestRock CP, LLC, Nina Butler, Carole Hamner, and Chris Broome.1 Bradley raises
several challenges to the trial court’s ruling that his current claims are barred by res
judicata based on a prior federal lawsuit. For the reasons that follow, the trial court
erred when it ruled that Bradley’s claims for negligence and design defects are barred
but properly found that his remaining claims are precluded. We therefore affirm in
part, reverse in part, and remand this case to the trial court for further proceedings.
1 A fifth defendant, Pulp & Paper Safety Association, Inc., was dismissed from the action in an earlier order and therefore is not a party to this appeal. “We review de novo a grant or denial of summary judgment, viewing the
evidence and all reasonable conclusions and inferences drawn from it in the light
most favorable to the nonmovant.” Henry v. Griffin Chrysler Dodge Jeep Ram, 362
Ga. App. 459, 460 (868 SE2d 827) (2022). So viewed, the record shows that, in
December 2017, a class action complaint was filed in the United States District Court
for the Eastern District of Virginia against WestRock and West Point Chips, Inc.
Jurisdiction was premised on the parties’ diversity, under 28 USC § 1332 (d) (2). The
plaintiffs asserted claims for nuisance and trespass, seeking damages for fugitive
wood dust allegedly discharged from the defendants’ paper mill and wood chipper
onto the class members’ properties, as well as an injunction prohibiting the future
migration of dust onto their properties. Bradley was a member of the plaintiff class
in that action. In September 2019, the federal district court granted the defendants’
motion for summary judgment as to the nuisance and trespass claims on the ground
that they were barred by the applicable statute of limitation, but denied summary
judgment as to the claims for injunctive relief. The court subsequently dismissed the
claims for injunctive relief, entered a final judgment approving a settlement
agreement, and dismissed the non-injunctive claims for the reasons stated in its order
granting partial summary judgment.
2 The current action began in November 2021, when Bradley sued WestRock and
three of its employees (Butler, Hamner, and Broome) (collectively, the “appellees”)
in a state court in Georgia.2 Bradley asserted claims for breach of contract, design
defects, negligence, fraudulent misrepresentations, American Bar Association rule
violations, unauthorized practice of law, and conspiracy. These claims are all
premised on the allegation that the appellees’ paper mill and wood chipper discharged
wood dust onto Bradley’s property, causing him to develop cancer.
The appellees moved to dismiss the complaint as barred by res judicata based
on the prior federal action. The trial court converted the motion to dismiss into a
motion for summary judgment and allowed Bradley to submit evidence in opposition.
See OCGA § 9-11-12 (b). Following a hearing, the court granted the appellees’
motion. Applying Georgia law, the court concluded that the current action is barred
by res judicata. Bradley appeals from that ruling.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving
2 WestRock maintains a corporate office in Georgia.
3 party’s case. If the movant meets this burden, the nonmovant cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.
Henry, 362 Ga. App. at 460-461 (citations and punctuation omitted); see OCGA
§ 9-11-56 (c), (e).
1. In several related enumerations of error, Bradley contends that the trial court
erred when it applied Georgia law to find that the current action is barred by res
judicata. Bradley maintains that, under Virginia law, the prior federal action, which
asserted property damage claims, is not a bar to the current action, which is premised
on personal injury claims. While we agree that the trial court should have applied
Virginia law, as explained below, the result is the same for all but two of Bradley’s
causes of action.
[T]he preclusive effect in state court of a federal court judgment is determined by federal common law. If, as here, the federal decision was rendered under diversity jurisdiction, . . . federal common law looks to the law of the state where the district court sits to determine the preclusive effect of the case, unless such state law is incompatible with federal interests in the case.
Falcone Global Solutions v. Forbo Flooring, 363 Ga. App. 815, 817 (872 SE2d 792)
(2022) (citation and punctuation omitted); accord Ames v. JP Morgan Chase Bank,
4 298 Ga. 732, 736 (2) (783 SE2d 614) (2016). Accordingly, because the federal court
in the prior action sat in Virginia, we look to Virginia law to determine whether res
judicata applies.3 Our review is de novo. See Kellogg v. Green, 295 Va. 39, 44 (809
SE2d 631) (2018).
Res judicata, also known as claim preclusion, bars the relitigation of certain
claims that have been — or could have been — adjudicated in a prior action.4 See
Levy v. Wegmans Food Markets, 68 Va. App. 575, 580 (II) (B) (811 SE2d 849)
(2018). The elements of claim preclusion under Virginia law are: “(1) a final
judgment on the merits, (2) the same parties (or their privies) in both proceedings,
also expressed as identity of the parties, and (3) both causes of action arising out of
the same conduct, transaction, or occurrence.” Lane v. Bayview Loan Servicing, 297
Va. 645, 654 (831 SE2d 709) (2019). The doctrine is codified in Virginia Supreme
3 Neither party asserts that Virginia law on res judicata is incompatible with federal interests. See Falcone Global Solutions, 363 Ga. App. at 817. 4 The terms “res judicata” and “claim preclusion” are interchangeable under Georgia law. See Hinely v. Alliance Metals, 285 Ga. App. 230, 235 (2) (645 SE2d 584) (2007). While the term “res judicata” encompasses both claim preclusion and issue preclusion (or collateral estoppel) under Virginia law, see Funny Guy, LLC v. Lecego, LLC, 293 Va. 135, 142 (II) (A) (795 SE2d 887) (2017), only claim preclusion is at issue in this appeal.
5 Court Rule 1:6. See Funny Guy, LLC v. Lecego, LLC, 293 Va. 135, 150-152 (II) (B)-
(C) (1) (795 SE2d 887) (2017). The rule provides, in relevant part:
(a) Definition of Cause of Action. — A party whose claim for relief arising from identified conduct, a transaction, 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 or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. . . .
...
(c) Exceptions. — The provisions of this Rule do not bar a party or a party’s insurer from prosecuting separate personal injury and property damage suits arising out of the same conduct, transaction or occurrence . . . .
(d) Privity. — The law of privity as heretofore articulated in case law in the Commonwealth of Virginia is unaffected by this Rule and remains intact. For purposes of this Rule, party or parties include all named parties and those in privity.
Va. Sup. Ct. R. 1:6.
6 “Under this rule, a final judgment forecloses successive litigation of the very
same claim, whether or not relitigation of the claim raises the same issues as the
earlier suit. Thus, parties may not relitigate the same cause of action, or any part
thereof which could have been litigated in the previous action.” D’Ambrosio v. Wolf,
295 Va. 48, 54 (II) (A) (809 SE2d 625) (2018) (citations and punctuation omitted);
accord Levy, 68 Va. App. at 580 (II) (B) (“Claim preclusion extends beyond the
presented claim itself to include those claims 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.”) (citation and punctuation omitted). Put another way, “if the
underlying dispute produces different legal claims that can be joined in a single suit[,]
they should be joined unless a judicially-recognized exception to res judicata exists.”
D’Ambrosio, 295 Va. at 54 (II) (A) (citation and punctuation omitted). With these
principles in mind, we consider whether the elements of res judicata have been met
and whether any exception applies.
(a) Elements of Res Judicata.
(i) Final judgment. Bradley does not dispute the trial court’s conclusion that
the federal action resulted in a valid, final judgment. See Va. Sup. Ct. R. 1:6; Lane,
297 Va. at 654.
7 (ii) Same conduct, transaction, or occurrence. Before examining identity of
parties, we address whether the two actions concern the same conduct, transaction,
or occurrence, which informs, in part, our ruling on identity of parties. See Va. Sup.
Ct. R. 1:6; Lane, 297 Va. at 654. As explained by the Supreme Court of Virginia,
[f]or purposes of res judicata, deciding what constitutes a single transaction or occurrence under Rule 1:6 should be a practical analysis. The proper approach asks whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. No single factor is indispensable or determinative. The factors should instead be considered pragmatically with a view toward uncovering the true underlying dispute between the parties. Under this approach, it does not matter that the claimant is prepared in the second action (1) to present evidence or grounds or theories of the case not presented in the first action, or (2) to seek remedies or forms of relief not demanded in the first action.
Funny Guy, LLC, 293 Va. at 154-155 (II) (C) (2) (citations and punctuation omitted).
Under that rubric, each of Bradley’s claims in the current action arises out of
the same conduct, transaction, or occurrence as those in the federal action. As
discussed above, the plaintiffs in the federal action sought, in relevant part, damages
for fugitive wood dust allegedly discharged from the defendants’ paper mill and wood
8 chipper onto the class members’ properties. Bradley’s claims in the current action are
premised — either directly or indirectly — on the very same alleged misconduct by
the appellees. Thus, as was the case in Funny Guy, LLC, “[t]he origin and motivation
for the claims are perfectly obvious”: Bradley seeks redress for various harms he
claims to have suffered due to the fugitive wood dust discharged by the appellees
onto his property. 293 Va. at 155 (II) (C) (2) (citation and punctuation omitted).
Similarly, “[e]valuating the time and space factors” shows the same connection
between the two actions — fugitive wood dust allegedly discharged from the same
facilities over the last two-to-three decades “that was ongoing and uninterrupted.” Id.
(citation and punctuation omitted). Moreover, the theories of recovery asserted in the
prior and current actions “all fit within a single factual narrative” — the appellees’
failure to adequately abate the dust problem — “that easily forms a convenient trial
unit” and “aris[es] out of a natural grouping or common nucleus of operative facts.”
Id. at 155-156 (II) (C) (2) (citations and punctuation omitted).
(iii) Identity of parties. We next address whether the two actions involve the
same opposing party or parties. See Va. Sup. Ct. R. 1:6; Lane, 297 Va. at 654. As
used in Rule 1:6 (a), the term “party or parties” includes “all named parties and those
in privity.” Va. Sup. Ct. R. 1:6 (d); see Lee v. Spoden, 290 Va. 235, 248 (II) (A) (1)
9 (b) (776 SE2d 798) (2015). Under Virginia law, “[p]rivity is a mutual or successive
relationship to the same rights of property, or such an identification in interest of one
person with another as to represent the same legal rights, and when applied to a
judgment or decree refers to one whose interest has been legally represented at the
trial.” Lane, 297 Va. at 655 (citation, punctuation, and emphasis omitted). “The
touchstone of privity for purposes of res judicata is that a party’s interest is so
identical with another that representation by one party is representation of the other’s
legal right.” Lee, 290 Va. at 248 (II) (A) (1) (b) (citation and punctuation omitted).
“Privity centers on the closeness of the relationship in question” and, “as used
in the context of res judicata . . . , does not embrace relationships between persons or
entities, but rather it deals with a person’s relationship to the subject matter of the
litigation.” Lane, 297 Va. at 656 (citations, punctuation, and emphasis omitted).
“Whether privity exists is determined on a case by case examination of the
relationship and interests of the parties.” Id. (citation, punctuation, and emphasis
omitted).
Here, while Butler, Hamner, and Broome were not named as defendants in the
federal action, they are in privity with WestRock, which was a defendant in that
action. That is because Bradley’s current claims against them concern actions they
10 allegedly took together with WestRock — in their capacities as WestRock personnel
— all of which arise out of the same “nucleus of operative facts” as the federal action.
Funny Guy, LLC, 293 Va. at 155 (II) (C) (2). Those actions therefore are inextricably
intertwined with both Bradley’s and the prior class members’ claims against
WestRock. See id. Thus, each party’s interest is “identical” with respect to the subject
matter of both lawsuits. Lee, 290 Va. at 248 (II) (A) (1) (b) (citation and punctuation
omitted); see State Water Control Bd. v. Smithfield Foods, 261 Va. 209, 212, 215-216
(II) (542 SE2d 766) (2001) (concluding that a state water board and the
Environmental Protection Agency were in privity for purposes of res judicata because
they “share[d] an identity of interest” in a water discharge permit issued to the
defendant that was the subject of separate proceedings by each government entity);
superseded in part on other grounds by Rule 1:6 as recognized in Ghayyada v. Rector
& Visitors of the Univ. of Va., No. 3:11-cv-00037, 2011 U.S. Dist. LEXIS 102279,
at *11 (III) (A), n. 5 (W.D. Va. Sept. 12, 2011). And as further evidence of their
privity with WestRock, the three individual defendants are represented by the same
counsel as WestRock.
11 (b) Exceptions to Res Judicata.
(i) Bradley appears to argue that the trial court erred by failing to apply an
exception to the doctrine of res judicata that operates when the defendants have
engaged in fraud. But none of the authority he cites addresses any such exception, and
we therefore deem this argument abandoned. See Court of Appeals Rule 25 (d) (1)
(“Any enumeration of error that is not supported in the brief by citation of authority
or argument may be deemed abandoned.”); Brittain v. State, 329 Ga. App. 689, 704
(4) (a) (766 SE2d 106) (2014) (“[A]n appellant must support enumerations of error
with argument and citation of authority, and mere conclusory statements are not the
type of meaningful argument contemplated by our rules.”) (citation and punctuation
omitted); Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (legal
analysis, at a minimum, requires “a discussion of the appropriate law as applied to the
relevant facts”) (citation and punctuation omitted).
(ii) Bradley also claims that res judicata does not bar a claim for fraud that he
seeks to assert arising out of the appellees’ alleged refusal to provide a scientific
report in October 2022 because the claim did not accrue until then. But he fails to
explain how the refusal to provide information may support a claim for fraud, which
instead requires a false representation. See DaimlerChrysler Motors Co. v. Clemente,
12 294 Ga. App. 38, 50 (3) (668 SE2d 737) (2008) (the elements of fraud include “a
false representation by a defendant”) (citation and punctuation omitted). This claim
therefore also does not entitle him to relief.
(iii) As noted above, Rule 1:6 permits parties to “prosecut[e] separate personal
injury and property damage suits arising out of the same conduct, transaction or
occurrence.” Va. Sup. Ct. R. 1:6 (c). Under this exception to the application of res
judicata in Virginia, claim preclusion does not apply “to the unique contexts of”
related “property and personal injury damage suits.” Funny Guy, LLC, 293 Va. at 150
(II) (B), n. 15. The exception is implicated in this case because the federal action was
limited to trespass and nuisance claims that sought damages only for property damage
and not for personal injuries.
Here, it is axiomatic that Bradley’s breach-of-contract claims sound in contract,
not tort, and therefore do not benefit from this exception. The same is true for
Bradley’s claims for fraud, ABA violations, and unauthorized practice of law, which
target wrongs that are distinct from his claims for personal injury. Cf. Isle v. Martin,
91 Va. Cir. 149, 152-153 (A) (1) (2015) (an action seeking damages for injuries
caused by ingesting contaminated well water was not barred by a prior action that
sought non-personal-injury damages arising from the use of the same well). His
13 claims for design defects and negligence, however — which allege that the design
and operation of the mill and its associated “wood yard” exposed him to
“carcinogenic dust” and caused his cancer — appear to fall squarely within the
category of “personal injury” claims that qualify for the Rule 1:6 (c) exception to the
application of res judicata.5 See id.
While the appellees cite various decisions from jurisdictions other than
Virginia in support of their claim that Bradley may not avail himself of the Rule 1:6
(c) exception, those decisions have no bearing here, given the plain meaning of the
Virginia rule. And the appellees’ claim that the Rule 1:6 (c) exception does not apply
here because Bradley’s personal injury claims accrued before the federal action also
is misplaced, as the plain language of the rule contains no such limitation. We
therefore conclude that Bradley’s design defect and negligence claims are not barred
by res judicata.
2. The appellees alternatively contend that we may affirm the trial court’s
ruling under the “right for any reason” rule because Bradley’s personal injury claims
5 Bradley’s claims for “Damages” and “Punitive Damages” do not assert independent causes of action, but rather seek different forms of relief premised on his other substantive claims.
14 are barred by the applicable statute of limitation. On the procedural posture of this
case, that issue should be addressed by the trial court in the first instance.
This is a court for the review and correction of errors committed in the trial court, and an argument that was not made below will not be considered on appeal. Although, as a matter of judicial economy, we will affirm a grant of summary judgment under the “right for any reason” rule, we will generally only do so when the judgment may be sustained upon a legal basis apparent from the record and which was fairly presented in the court below.
Bullington v. Blakely Crop Hail, 294 Ga. App. 147, 152 (3) (668 SE2d 732) (2008)
(emphasis supplied; citations and punctuation omitted); accord Ga.-Pacific v. Fields,
293 Ga. 499, 503-504 (2) (748 SE2d 407) (2013) (explaining that, on summary
judgment, non-movants are “not required to produce any counter evidence or
materials in affirmative support of their side of the issue until the [movants] carried
the burden placed upon them” as the parties seeking summary judgment and that a
grant of summary judgment will be affirmed if it is right for any reason, “so long as
the movant raised the issue in the trial court and the nonmovant had a fair
opportunity to respond”) (citations and punctuation omitted).
The appellees did not raise a statute of limitation defense in their motion to
dismiss (which the trial court converted into a motion for summary judgment), and
15 Bradley therefore did not address the issue in his opposition brief. The appellees
raised the issue for the first time in their summary judgment reply brief. Moreover,
the trial court expressly declined to address the matter during the summary judgment
hearing. Under these circumstances, the issue was not “fairly presented . . . below,”
and the trial court should address it in the first instance on remand after all parties
have had an adequate opportunity to be heard. Bullington, 294 Ga. App. at 152 (3)
(citation and punctuation omitted); accord Ga.-Pacific, 293 Ga. at 503-504.
3. In sum, we reverse the trial court’s rulings that Bradley’s design defect and
negligence claims are barred by res judicata, affirm the rulings that his remaining
substantive claims are precluded, and remand the case to the trial court for further
proceedings.
Judgment affirmed in part and reversed in part, and case remanded with
direction. Doyle, P. J., and Gobeil, J., concur.