Today I read an opinion from the Court of Appeals in Henderson v. McCain, decided on the issue of res judicata. One of the issues was whether the defendant could meet its burden of proof without any more evidence than a memorandum opinion from the prior case, decided in federal court, and specifically without a copy of the separate final judgment.
Part of the opinion went like this:
"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 ...."
The old rule in Virginia was that "(w)hether the former adjudication is affirmatively or defensively asserted, the record of the prior action must be offered in evidence." Bernau v. Nealon, 219 Va. 1039, 1041 (1979), which I thought was a real nuisance, but sounds to me like support for Henderson's position. I have tried to get around Bernau in various ways, including requests for admission and motions for judicial notice.
The Court of Appeals did not mention Bernau, so perhaps I am off track.
