On October 11, 2012, Mr. Waterman filed and noticed Plaintiff’s Plea of Law of the Case, Res Judicata, and Estoppel in thebrain injury case of Gregory J. Gagnon v. Travis Burns, No. CL08-572 in the Circuit Court for Gloucester County, Virginia. His Reply Memorandum filed contemporaneously distinguished all cases cited by the opposition.

Burns’ core case in the Gagnon brain injury lawsuit is Nassif v. Board of Supervisors, 231 Va. 472 (1986), which along with its cited progeny, Baumann v. Capozio, 269 Va. 356 (2005); Ford Motor Co. v. Jones, 266 Va. 404 (2003); andVirginia Elec. and Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319 (2000) [“VEPCO”]; is distinguishable on multiple independent grounds. Lockheed Info. Mgmt. Sys. v. Maximus, Inc., 259 Va. 92, 106-108 (2000), which Burns minimizes, instead is more on point and controlling.

Contrary to the Gagnon brain injury suit, however, in Nassif: (1) the Defendant was victor at trial and Appellee on appeal not [liability] loser at trial and Appellant on appeal; (2) Judgment was not also entered against Co-Defendants on common issues of liability, which nobody appealed; (3) the remand was not expressly “limited”; and (4) the “law of the case” was not raised.

The Nassif case, at most, stands for the proposition that an appellee does not have to assign cross-error to the failure of the trial court to address additional arguments in order to reassert those arguments on remand. It does not, and cannot, stand for the proposition asserted by [the loser at trial], that an appellant [like Burns] does not have to assign error to a ruling disposing of a cause of action, and if the case is remanded, can then relitigate a dispositive ruling which was not appealed. Such a proposition contradicts the doctrine of the law of the case which provides that where no assignment of error or cross-error is taken to a part of a final judgment, the judgment becomes the law of the case and is not subject to relitigationSearles’ Adm’r v. Gordon’s Adm’r, 156 Va. 289, 294-99, 157 S.E. 759, 761-62 (1931).”

Lockheed, 259 Va. at 108 (italics in original)(underlining added)(“trial court erred in denying Lockheeds’ motion for summary judgment on its [‘law of the case’] claim”).

VEPCOFord and Baumann all follow Nassif and likewise are distinguishable. Like Nassif and unlike BurnsVEPCOinvolved only a single defendant, not Co-Defendants against whom Judgment was entered on common issues that were unappealed and are final as in the Gagnon brain injury proceedings. Also like Nassif and unlike BurnsVEPCO’s remand was not “limited”.

Indeed, quoting NassifVEPCO emphasized that “when we limit issues on remand we do so with words of limitation or restriction,” 259 Va. at 323 (emphasis added); and accordingly that “consideration…on remand” in VEPCO was not limited because of the “absence of such limitations” in the Virginia Supreme Court’s opinion and order. Conversely, the Gagnon brain injury action is expressly “limited” remand to new trial on “Gagnon’s gross negligence claim against Burns” – thereby leaving intact and final as the “law of the case” Gagnon’s battery claim against James, Gagnon’s simple negligence claim against Christine, and Gagnon’s simple negligence claim against Burns, including all defenses against Gagnon necessarily and actually decided, unappealed, and final.

Like NassifFord involved a single defendant, not Co-Defendants against whom Judgments on common issues was entered, went unappealed and are final as in the Gagnon brain injury matter. Also like NassifFord remand was not expressly “limited” as in Gagnon. [BUT SEE 263 Va. 237, 263-264]. More particularly, Ford focused on and upheld plaintiff taking a nonsuit after remand, so it specifically is in the context of that unique situation the Virginia Supreme Court observed: “After a reversal of a circuit court’s judgment and remand for a new trial, the litigants are restored to their original rights as though no previous trial had occurred, including the right to dismiss or nonsuit a case.” 266 Va. at 407.

Moreover, citing LockheedFord materially qualified the foregoing principle by noting exceptions which control the Gagnonbrain injury remand: “Of course, this principle does not apply to issues which, under the ‘law of the case’ doctrine, are not subject to relitigation, see, Lockheed Info. Mgmt. Systems v. Maximus, Inc., 259 Va. 92, 108, 524 S.E. 2d 420, 429 (2000), or to parties and claims already dismissed with prejudice, or otherwise eliminated from a case, prior to a nonsuit, see Dalloul, 255 Va. at 514, 499 S.E.2d at 281.” Id. (emphasis added). At 2 of his Brief, Burns cites Dalloul v. Agbey, 255 Va. 511, 514 (1998) gratuitously, out of context.

Like Nassif and unlike the Gagnon brain injury case, Baumann involved one defendant, not Co-Defendants against whom Judgment were taken and not appealed on common issues. Also like Nassif and unlike GagnonBaumann involved the liability victor at trial and Appellee on appeal, not a liability loser at trial and Appellant on appeal like Burns.

Hence under materially distinguishable facts, Baumann (unlike Burns) correctly cites Nassif for the proposition that its particular defendant on “remand…may assert those defenses”. 269 Va. at 361. As Lockheed delineates, however, Nassif “at most” covers a liability “appellee” not liability “appellant” like Burns, 259 Va. at 108. See, supra; plus Nassif (and Baumann) does not apply where as in the Gagnon brain injury action Judgments were entered on common issues, were not appealed, and are final.

Burns’ citation of Evans v. Evans, 280 Va. 76, 84 (2010) is strictly for a general discussion of the “doctrine of negligence per se”. Substantively, Evans does not support negligence per se going to the jury on “limited” remand under the controlling “law of the case” in the Gagnon brain injury retrial.

Gagnon emphasizes, “The ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’.” Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26 (2008)(emphasis added). See also, The Partnership Umbrella, Inc. v. Federal Ins. Co., 260 Va. 123, 132 n. 5 (holding that failure to assign error on appeal “prevents relitigation of these issues on remand as they are now ‘law of the case’.Lockheed”). The assault and battery of James, the simple negligence of Christine, the simple negligence of Burns, and the contributory negligence, provocation and other supposed fault of crime victim Gagnon were in fact raised, decided, unappealed, and final by the first trial and appeal in Gagnon – hence Burns’ current ostensible fault variants vis-à-vis were “necessarily involved,” even if arguendo not “actually adjudicated” – by the “law of the case” doctrine, so cannot be relitigated, on limited remand no less.

In summary:

1. The Virginia Supreme Court in VEPCO citing Nassif pronounced “when we limit issues on remand we do so with words of limitation or restriction,” 259 Va. at 323; and the Gagnon brain injury lawsuit violates the same if it ignores the mandate that “new trial [is] limited to Gagnon’s gross negligence claim against Burns,” Burns v. Gagnon, 283 Va. 657 (2012)(emphasis added), by relitigating Gagnon’s simple negligence claim against Christine, Gagnon’s simple negligence claim against Burns and/or Gagnon’s intentional tort claim against James, or any issues thereof;

2. The Virginia Supreme Court in Ford citing Lockheed pronounced the “principle [that ‘after a reversal of a circuit court’s judgment and remand for a new trial, the litigants are restored to their original rights as though no previous trial had occurred,’] does not apply to issues which, under the ‘law of the case’ doctrine, are not subject to relitigation,” 266 Va. at 407 (emphasis added); so the Gagnon brain injury suit violates the same if it ignores that the “law of the case” doctrine controls; and

3. The Virginia Supreme Court has pronounced in Miller-Jenkins that “the ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and also to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’,” 276 Va. at 26 (emphasis added); so the Gagnon brain injury remand violates the same if it ignores that James’ assault and battery, Christine’s simple negligence, Burns’ simple negligence, and all fault and defenses vis-à-vis Gagnon already have been involved and decided and cannot be relitigated on remand – remand being limited to deciding “gross negligence”.