Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Stephenson, S.J. 

EDITH S. SCALES 

 OPINION BY 

v. Record No. 000959 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 March 2, 2001 

ALLEN N. LEWIS, JR., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 In this appeal, we determine whether the trial court erred 

in granting (1) a plea of res judicata and collateral estoppel 

in favor of one defendant and (2) a plea of judicial estoppel in 

favor of two other defendants. 

I 

 On August 13, 1998, Edith S. Scales filed an action against 

Allen N. Lewis, Jr., and also against Dwayne E. Spann and CalArk International, Inc., Spann's employer (collectively, Spann). 

Scales sought recovery for damages for personal injuries 

sustained in a motor vehicle collision that occurred on April 

10, 1997. Lewis filed a plea of res judicata and/or collateral 

estoppel, and Spann filed a plea of judicial estoppel. The 

trial judge granted both pleas and entered final judgments in 

favor of all defendants. We awarded Scales this appeal. 

II 

 Prior to the present case, Government Employees Insurance 

Company (GEICO), Scales' insurer, filed a subrogation action 

against Lewis on September 11, 1997, in the Henrico County 
General District Court. Pursuant to Code § 38.2-207, the action 

was filed in Scales' name. GEICO sought to recover from Lewis 

monies it had paid to Scales under the uninsured motorist 

provisions of its insurance policy issued to Scales. 

 GEICO alleged that it had paid Scales $494.65 for property 

damages Scales had sustained in the April 10, 1997 collision. 

GEICO further alleged that Lewis, an uninsured motorist, had 

negligently operated his motor vehicle and that his negligence 

was a proximate cause of Scales' damages. Lewis denied that he 

had been negligent and alleged that Scales was guilty of 

negligence which barred GEICO's recovery. 

 In the trial of the present case, the defendants presented 

the following record from the general district court: (1) the 

warrant in debt, (2) the bill of particulars filed by GEICO, and 

(3) the grounds of defense filed by Lewis. The defendants did 

not present a transcript of the proceedings. 

 The warrant in debt form offered in the present case, in 

the section entitled "Case Disposition," provided spaces for 

four possible decisions by the general district court. The 

court could have, by marking the appropriate box, entered 

judgment for the plaintiff, entered judgment for the defendant, 

declared a non-suit, or dismissed the case. The general 

district court did not enter judgment for either the plaintiff 

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or the defendant; instead, the court marked the case 

"DISMISSED." 

III 

 We first consider whether the trial court erred in granting 

Lewis' pleas of res judicata and collateral estoppel. The 

doctrine of res judicata precludes parties from relitigating the 

same cause of action when a valid, final judgment was previously 

entered. Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 

920-21 (1974). The doctrine of collateral estoppel precludes 

parties to a prior action from litigating in a subsequent action 

any factual issue that was actually litigated and essential to a 

valid, final judgment in the prior action. For the doctrine of 

collateral estoppel to apply, the following requirements must be 

established: 

(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. In addition to these elements, there 

also must be "mutuality," i.e., a litigant cannot 

invoke collateral estoppel unless he would have been 

bound had the litigation of the issue in the prior 

action reached the opposite result. 

Angstadt v. Atlantic Mutual Ins. Co., 249 Va. 444, 446-47, 457 

S.E.2d 86, 87 (1995) (citations omitted). 

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 It is firmly established that the party who asserts the 

defenses of res judicata or collateral estoppel has the burden 

of proving by a preponderance of the evidence that the claim or 

issue is precluded by a prior judgment. Bates, 214 Va. at 671, 

202 S.E.2d at 921. In order to prove that a claim or issue is 

precluded by a former adjudication, "'the record of the prior 

action must be offered in evidence.'" Bernau v. Nealon, 219 Va. 

1039, 1041, 254 S.E.2d 82, 84 (1979) (quoting Burk's Pleading 

and Practice § 357 at 675 (4thed. 1952)). Thus, "consideration 

of facts outside of and not made a part of the record is 

improper." Id. at 1041-42, 254 S.E.2d at 84. 

 In the present case, Lewis asserted the defenses of res 

judicata and collateral estoppel, and, therefore, he had the 

burden of proving that the claim or question had been in issue 

and determined in the prior subrogation action. See Feldman v. 

Rucker, 201 Va. 11, 18, 109 S.E.2d 379, 384 (1959). Scales 

contends that Bernau required Lewis to offer into evidence a 

transcript of the proceedings in the general district court. We 

do not agree. While a transcript might be useful, it is not 

essential in every case. For example, a general district court 

could enter an order that contains a detailed summary of the 

proceedings or, if requested by a party, sign a statement of 

facts. 

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Nevertheless, although Lewis offered into evidence the 

record of the general district court, we conclude that the 

record is insufficient to establish res judicata or collateral 

estoppel. To the contrary, the record in the prior matter shows 

that the general district court did not enter a valid, final 

judgment against Scales, the party against whom the doctrines 

were sought to be applied in the present case. Consequently, we 

hold that the trial court erred in ruling that Scales' action 

against Lewis is barred by res judicata and collateral estoppel. 

IV 

 We next consider whether the trial court erred in granting 

Spann's plea of judicial estoppel. Spann contends that, because 

GEICO elected to proceed only against Lewis in the general 

district court, Scales is "judicially estopped from alleging, 

inconsistently, that Spann . . . [was] a direct and proximate 

cause of the accident." Spann further contends that, pursuant 

to Burch v. Grace Street Bldg. Corp., 168 Va. 329, 340, 191 S.E. 

672, 677 (1937), Scales is prohibited from "asserting 

inconsistent or mutually contradictory positions in the course 

of successive lawsuits with respect to the same fact or set of 

facts." We do not agree that the doctrine of judicial estoppel 

applies in the present case. 

 In the general district court, GEICO alleged in its bill of 

particulars that the damage to Scales' automobile was "a direct 

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and proximate result" of Lewis' negligence. (Emphasis added.) 

GEICO did not claim, as Spann incorrectly asserts, that Lewis' 

negligence was the proximate cause of Scales' damages. Thus, 

Scales has not taken inconsistent positions and is not precluded 

from proceeding against Spann in the present case. See Code 

§ 8.01-443 ("A judgment against one of several joint wrongdoers 

shall not bar the prosecution of an action against any or all 

others, but the injured party may bring separate actions against 

the wrongdoers and proceed to judgment in each.") Consequently, 

we hold that the trial court erred in ruling that Scales' action 

against Spann is barred by judicial estoppel. 

V 

 For the foregoing reasons, we will reverse the trial 

court's judgment and remand the case for further proceedings 

consistent with this opinion. 

Reversed and remanded. 

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