Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Kinser, JJ., and Whiting, Senior Justice 

GEORGE ATKISSON, ET AL. 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 970069 October 31, 1997 

WEXFORD ASSOCIATES, ET AL. 

WEXFORD ASSOCIATES, ET AL. 

v. Record No. 970071 

GEORGE ATKISSON, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane M. Roush, Judge 

 In this appeal, we consider whether a court can enforce 

a judgment entered in a suit which did not include all the 

necessary parties. 

 This litigation, which has been active for over 11 

years, reaches us in a very unusual procedural posture. 

George B. Atkisson and his wife, Carlotta T. Atkisson, filed 

their amended bill of complaint against the Fairfax County 

Park Authority, Wexford Associates, Inc., and 56 owners of 

lots located in the Wendover Subdivision, Section III, in 

Fairfax County. The Atkissons alleged that they owned a 

property interest in an easement that provided ingress and 

egress to their family cemetery and that the defendants had 

constructed obstructions which interfered with the 

Atkissons' use of the easement. The chancellor granted the 

defendants' demurrer to the amended bill. We awarded the 

Atkissons an appeal from that judgment, reversed the 

judgment by an unpublished order, and remanded the case for 
further proceedings. Atkisson v. Wexford Associates, Inc., 

Record No. 890169 (April 26, 1989). 

 Upon remand, the Atkissons nonsuited 38 of the 56 

defendants who were lot owners, and the case proceeded 

against Wexford Associates (a developer), the Fairfax Park 

Authority, and certain owners of lots in the subdivision. 

At a 1993 trial, the Atkissons adduced evidence to support 

their claim that they had a property right in a 15-foot-wide 

express easement that extended from a county road to the 

cemetery. 

 The chancellor held, inter alia, that the Atkissons had 

an express easement that provided them ingress and egress to 

the cemetery. The chancellor established the location of 

the easement in his final decree which stated in part: 

"[t]he Court determined that this easement is located across 

the affected properties in accordance with the express grant 

contained in the Deed of 1892 located in Fairfax County Land 

Records. . . . A view of the easement was taken by the 

parties and the Court. . . ." The chancellor did not, 

however, grant the Atkissons injunctive relief because such 

relief would have required the property owners to remove 

improvements such as homes and swimming pools. 

 In 1993, the chancellor entered a judgment which 

required that each lot owner whose lot obstructed the 

easement pay $100 to the Atkissons and that Wexford 

Associates pay the Atkissons $10,000 in punitive damages. 

Neither the lot owners nor Wexford Associates appealed the 
chancellor's decree. The chancellor also ordered that the 

Park Authority provide a new easement for the Atkissons on 

its land. 

 We awarded the Park Authority an appeal from the 1993 

judgment. We held that the evidence adduced at trial 

supported the trial court's holding that the Atkissons have 

an express easement which granted them access to the 

cemetery. We also held, however, that the chancellor was 

without authority to require the Park Authority to provide a 

new easement on its land, and we remanded the case with 

certain directions. Fairfax County Park Authority v. 

Atkisson, 248 Va. 142, 148-49, 445 S.E.2d 101, 105, cert.

denied, 513 U.S. 1058 (1994). 

 While this proceeding was pending in the trial court 

upon the second remand, David D. O'Brien and Jane B. 

O'Brien, owners of a lot in the Wendover Subdivision, 

learned for the first time of this litigation and that the 

easement at issue may transverse their property. The 

O'Briens had purchased their lot from John and Katherine 

Kowalczyk, who had initially been named as defendants in 

this suit, but were nonsuited. The Atkissons did not file a 

lis pendens memorandum in the O'Briens' chain of title, and 

the O'Briens purchased their lot without any notice, actual 

or constructive, of this litigation. 

 Subsequently, the O'Briens filed a petition to 

intervene and requested that the chancellor vacate the 1993 

judgment and award a new trial. The chancellor conducted an 
ore tenus hearing and held that the O'Briens were necessary 

parties and that the dispositive rulings resulting in the 

1993 judgment were made after the O'Briens were title owners 

of the property. The chancellor granted the O'Briens a new 

trial on all issues and scheduled a trial date. 

 The Atkissons then filed a petition for writ of 

mandamus in this Court, asserting that the chancellor acted 

beyond this Court's mandate by ordering a new trial for 

necessary parties. We were of opinion that the writ should 

not issue, and we dismissed the petition. In re: George 

Atkisson, et al., Record No. 951726 (November 27, 1995). 

 In pretrial motions, Wexford Associates and certain 

other defendants asserted that they were not bound by the 

1993 judgment and argued that it was void because the 

O'Briens, who were necessary parties, were deprived of an 

opportunity to participate in the prior trial. The 

chancellor, who was not the same chancellor who presided at 

the first trial, denied this motion because she was of 

opinion that the O'Briens' interests were "separable" from 

the interests of these defendants. The chancellor did hold, 

however, that Wexford and certain other defendants were 

entitled to participate in subsequent proceedings to the 

extent these litigants challenged the specific location of 

the easement. 

 During the new trial, the chancellor heard evidence 

which was vastly different from the evidence adduced during 

the first trial. Consequently, the chancellor made factual 
findings which are, in many respects, contradictory to the 

factual findings made by the other chancellor at the first 

trial. 

 Specifically, the chancellor found that the easement at 

issue was created to provide ingress and egress from a 15-

acre parcel to a county road and that the easement was never 

intended to serve the Atkissons' family cemetery. Thus, the 

chancellor held that as to the O'Briens and Donald and Joan 

Hall (defendants in this trial who were not named defendants 

in the first trial), "there is no express easement on their 

property that provides access to the cemetery, and that any 

such attempt to do so would constitute an impermissible 

additional burden on the servient estate." 

 The chancellor also held that her ruling did not apply 

to the defendants who had participated in the first trial 

because they were bound by the 1993 judgment. Thus, the 

chancellor's final decree locates an easement which extends 

from a Fairfax County road, identified as Bird Road, ceases 

at Halls' property line and the O'Briens' property line, and 

then recommences on the opposite side of the O'Briens' 

property line and extends through several other lots until 

it concludes at the cemetery. Simply stated, the 

chancellor's decree locates a 15-foot-wide easement which 

does not permit the Atkissons to travel to and from the 

cemetery. 

 Even though the Atkissons made numerous assignments of 
error in their brief*

, they have chosen to limit their 

argument on brief to the following question presented: "The 

sole question in this case is whether . . . the refusal of 

the Circuit Court of Fairfax County to enter an Order 

pursuant to the Mandate of the Supreme Court of Virginia was 

proper." In essence, the Atkissons argue that the trial 

court erred by failing to comply with this Court's directive 

that, upon remand, the chancellor 

 "enter an order requiring that the lot owners and 

Wexford Associates provide an easement at their 

expense for the Atkissons, if the lot owners, 

Wexford Associates, and the Atkissons can agree 

upon a location and description of the new 

easement. In the event the litigants are unable 

to agree, then the chancellor is directed to order 

that Wexford Associates and the lot owners remove 

any obstructions that interfere with the 

Atkissons' use of the express easement." 

Fairfax County Park Authority, 248 Va. at 149, 445 S.E.2d at 

105. 

 The O'Briens respond that the 1993 judgment cannot be 

enforced against them because they were necessary parties, 

and the Atkissons failed to name them as defendants in the 

first trial. Wexford Associates and certain other 

defendants contend that the 1993 judgment is void because 

the O'Briens were necessary parties who should have been 

made defendants in the first trial. Continuing, the 

 

 *We do not consider assignments of error 2, 3, and 4 to 

the extent such assignments are not addressed in the 

Atkissons' brief because the failure to discuss these 

assignments constitutes a waiver. Rule 5:27, accord

Quesinberry v. Commonwealth, 241 Va. 364, 370, 402 S.E.2d 

218, 222, cert. denied, 502 U.S. 834 (1991). 
defendants assign cross-error to the chancellor's holding 

that they are bound by the 1993 judgment because, they say, 

their interests are not separable from the O'Briens' 

interests. We agree with the O'Briens and the defendants. 

 A court cannot render a valid judgment when necessary 

parties to the proceedings are not before the court. We 

have repeatedly articulated this fundamental principle of 

law. See Schultz v. Schultz, 250 Va. 121, 124, 458 S.E.2d 

458, 460 (1995); Allen v. Chapman, 242 Va. 94, 99, 406 

S.E.2d 186, 188 (1991); McDougle v. McDougle, 214 Va. 636, 

637, 203 S.E.2d 131, 133 (1974); Patterson v. Anderson, 194 

Va. 557, 570, 74 S.E.2d 195, 203-04 (1953); Harris v. Deal, 

189 Va. 675, 686, 54 S.E.2d 161, 166 (1949). Additionally, 

we have stated: 

 "Necessary parties include all persons, natural or 

artificial, however numerous, materially 

interested either legally or beneficially in the 

subject matter or event of the suit and who must 

be made parties to it, and without whose presence 

in court no proper decree can be rendered in the 

cause. This rule is inflexible, yielding only 

when the allegations of the bill state a case so 

extraordinary and exceptional in character that it 

is practically impossible to make all parties in 

interest parties to the bill, and, further, that 

others are made parties who have the same interest 

as have those not brought in, and are equally 

certain to bring forward the entire merits of the 

controversy as would the absent persons. 

 This cardinal principle governing as to 

parties to suits in equity is founded upon the 

broad and liberal doctrine that courts of equity 

delight to do complete justice by determining the 

rights of all persons interested in the subject 

matter of litigation, so that the performance of 

the decree rendered in the cause may be perfectly 

safe to all who are required to obey it and that 

further litigation touching the matter in dispute 

may be prevented." 
Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37, 49, 

124 S.E. 482, 486 (1924) (quoting Buchanan Co. v. Smith's 

Heirs, 115 Va. 704, 707-08, 80 S.E. 794, 795 (1914)). 

Additionally, this rule is designed to avoid depriving a 

person of his or her property without giving that person an 

opportunity to be heard. 

 Applying the aforementioned principles, we hold that 

the 1993 judgment is absolutely void and, therefore, no 

rights are divested or obtained from that judgment. The 

O'Briens were necessary parties to the first trial because 

their property rights were affected by the establishment of 

the express easement and, thus, the O'Briens had a material 

interest in the outcome of that trial. Hence, the 

chancellor correctly held that the O'Briens are not bound by 

the void judgment. 

 The chancellor erred, however, by enforcing the void 

judgment against Wexford Associates and certain other 

defendants. We have stated that a court may enter a decree 

without prejudice to the rights of an absent party if the 

absent party's interests are separable from those of the 

parties before the court. McDougle, 214 Va. at 637, 203 

S.E.2d at 133; accord Bonsal v. Camp, 111 Va. 595, 600-01, 

69 S.E. 978, 980 (1911). This exception, however, is not 

applicable here. 

 The interests of Wexford Associates and the property 

owners, who were affected by the 1993 judgment, are not 

separable from the interests of the O'Briens. The Atkissons 
admit that the sole purpose of the easement was to permit 

them to gain ingress and egress from an old county road to 

their family cemetery. Even though each property owner 

owned a different and discrete lot, if any lot owner could 

demonstrate that the express easement did not transverse his 

or her property, then, the Atkissons could not establish an 

easement of ingress or egress to the cemetery because the 

easement would stop short of that destination. Thus, the 

interests of all the affected lot owners are inseparable. 

 In view of our holdings, we need not consider the 

remaining issues raised by the litigants. Rather, we will 

declare that the 1993 judgment is void and may not be 

enforced against anyone. We will reverse the chancellor's 

decree to the extent it seeks to enforce the void judgment. 

 We will enter final judgment in favor of all the defendants 

and intervenors because the chancellor, in the decree 

appealed from, held that the evidence in the second trial 

established that the Atkissons do not have an express 

easement, and the Atkissons do not challenge the 

chancellor's findings or legal conclusions other than to 

state, in a conclusory fashion, that those findings are 

"directly contrary to the findings of [the] chancellor" who 

conducted the prior trial. 

 Affirmed in part, reversed in part, 

and final judgment.