Stephen Buzzell v. JP Morgan Chase Bank
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999429988-2], [999450424-2] Originating case number: 3:13-cv-00668-JRS. Copies to all parties and the district court/agency. [999542818]. [14-1785]
Appeal: 14-1785
Doc: 20
Filed: 03/10/2015
Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1785
STEPHEN F. BUZZELL; KIMBERLY B. BUZZELL,
Plaintiffs - Appellants,
v.
JP MORGAN CHASE
CORPORATION,
BANK,
as
Trustee;
RESIDENTIAL
FUNDING
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:13-cv-00668-JRS)
Submitted:
January 29, 2015
Decided:
March 10, 2015
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Stephen F. Buzzell and Kimberly B. Buzzell, Appellants Pro Se.
Daniel Tennyson Berger, Andrew Brian Pittman, TROUTMAN SANDERS,
LLP,
Virginia
Beach,
Virginia;
Nicholas
Richard
Klaiber,
TROUTMAN SANDERS, LLP, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 14-1785
Doc: 20
Filed: 03/10/2015
Pg: 2 of 5
PER CURIAM:
Stephen F. and Kimberly B. Buzzell filed a complaint
in the Circuit Court of Lancaster County, Virginia, against JP
Morgan Chase Bank, N.A., and Residential Funding Corporation,
alleging breach of contract and constructive fraud arising out
of
the
foreclosure
Morgan
and
district
on
the
Residential
court.
Buzzells’
Funding
Residential
residence
removed
Funding
the
in
2008.
action
filed
a
to
JP
the
notice
of
bankruptcy and the action was stayed as to Residential Funding.
The district court dismissed the action against JP Morgan as
barred
by
res
judicata,
determining
that
a
prior
decision
entered by the state court addressed the same claims against the
same parties or their privies.
Having determined that the state
court
order,
order
was
not
a
final
we
vacate
the
district
court’s dismissal order and remand for further proceedings.
In a previous action filed in the Circuit Court of
Lancaster County, the Buzzells alleged that GMAC Mortgage, LLC,
Homecomings Financial, Mortgage Electronic Registration Systems,
Inc.,
and
Samuel
I.
White,
P.C.,
engaged
misrepresentation and breach of fiduciary duty.
in
fraud,
The state court
dismissed with prejudice the claims against all parties except
for one claim against Samuel I. White, which is still pending.
“Under Virginia law, to establish res judicata, the
defendants must show:
(1) that the prior judgment is a final
2
Appeal: 14-1785
Doc: 20
Filed: 03/10/2015
Pg: 3 of 5
and valid judgment; (2) that the parties are identical or are in
privity with each other; and (3) that the claim made in the
subsequent
lawsuit
arises
out
of
or
relates
to
the
same
occurrence, conduct, or transaction upon which the prior lawsuit
was based.”
Columbia Gas Transmission, LLC v. David N. Martin
Revocable Trust, 833 F. Supp. 2d 552, 558 (E.D. Va. 2011).
The
district
court
explained
that
Virginia’s
“severable interest rule” allows for the immediate appeal of an
interlocutory
order
that
addresses
a
collateral
issue,
and
appeal of which would not affect the outcome of the remaining
issues in the case.
Thompson ex rel. Thompson v. Skate Am.,
Inc., 540 S.E.2d 123, 126 (Va. 2001).
Under this rule, an
appeal may be taken from the interlocutory order “either at the
time of its entry or when the trial court enters a final order
disposing of the remainder of the case.”
court
reasoned
that,
because
the
state
Id.
court’s
The district
interlocutory
order dismissing the claims against all parties except Samuel I.
White, could have been appealed and was not, it should be deemed
final.
The court concluded, “where an interlocutory order is
appealable
under
the
severable
interest
rule,
the
order
is
not
final
for
the
final.”
We
disagree.
“[A]
judgment
is
purposes of res judicata or collateral estoppel when it is being
appealed or when the time limits fixed for perfecting the appeal
3
Appeal: 14-1785
Doc: 20
Filed: 03/10/2015
have not expired.”
1992).
Pg: 4 of 5
Faison v. Hudson, 417 S.E.2d 302, 305 (Va.
Additionally, the Supreme Court of Virginia has stated
that “in the absence of a statutory provision to the contrary, a
judgment is not final for purposes of appeal if it is rendered
with regard to some but not all of the parties involved in the
case.”
Wells v. Whitaker, 151 S.E.2d 422, 432 (Va. 1966).
Here, the state court order determined by the district
court to be a final order dismissed some claims against some of
the parties.
The action is still proceeding on the Buzzells’
claim against Samuel I. White.
Thus, the order is not a final
order for res judicata purposes.
See Faison, 417 S.E.2d at 305.
Upon entry of judgment on the Buzzells’ claim against Samuel I.
White,
they
may
appeal
from
the
state
court’s
dismissing the other parties from the action.
earlier
order
Thus, the state
court’s prior order is not a final order for purposes of res
judicata
and
does
not
preclude
the
Buzzells’
present
action
against JP Morgan.
Because the district court mistakenly found that the
state
court’s
order
was
a
final
order
for
purposes
of
res
judicata, we grant leave to proceed in forma pauperis, vacate
the
district
proceedings.
court’s
order,
and
remand
the
case
for
future
We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
4
Appeal: 14-1785
before
Doc: 20
this
court
Filed: 03/10/2015
and
Pg: 5 of 5
argument
would
not
aid
the
decisional
process.
VACATED AND REMANDED
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?