PRESENT: Lemons, Goodwyn, Millette, Mims, and Powell, JJ.,
and Russell and Koontz, S.JJ.

HUGH M. CAPERTON, ET AL.
                                        OPINION BY
v.   Record No. 121046           JUSTICE DONALD W. LEMONS
                                       April 18, 2013
A.T. MASSEY COAL COMPANY, INC.

            FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                     Henry A. Vanover, Judge

      In yet another chapter in the contentious story of

litigation and controversy between Hugh M. Caperton

("Caperton") and Donald Blankenship ("Blankenship") and the

companies they control, we consider whether the trial court

erred in its application of the doctrine of res judicata.

      Over the last fifteen years, litigation between Caperton

and his companies and Blankenship and his companies has

involved trips to many courts.   These include suits in circuit

courts in both Virginia and West Virginia, proceedings in the

United States District Court for the Southern District of West

Virginia, and appeals to this Court, the Supreme Court of

Appeals of West Virginia, and the Supreme Court of the United

States.

      The lineage of this dispute is as follows.   Two of

Caperton's companies, Harman Mining Corporation ("Harman

Mining") and Sovereign Coal Sales ("Sovereign"), Incorporated,

first sued one of Blankenship's companies, Wellmore Coal

Corporation ("Wellmore"), in May 1998 for breach of contract.
This case was litigated in the Circuit Court of Buchanan

County, Virginia ("First Virginia Action").     Harman Mining

Corp. v. Wellmore Coal Corp., No. 226-98 (Cir. Ct. of Buchanan

County, Va. 1998).   Caperton's companies prevailed.   We later

dismissed Wellmore's appeal.    Wellmore Coal Corp. v. Harman

Mining Corp., 264 Va. 279, 284, 568 S.E.2d 671, 673 (2002)

(per curiam).

     In October 1998, Caperton, Harman Mining, Sovereign, and

Harman Development Corporation sued A.T. Massey Coal,

Incorporated ("Massey"), for certain tort claims in the

Circuit Court of Boone County, West Virginia.     Caperton v.

A.T. Massey Coal Co., No. 98-C-192 (Cir. Ct. Boone County, W.

Va. 1998).   Blankenship was president, chief executive

officer, and chairman of the board of Massey.    Massey removed

the case to federal court.     Caperton v. A.T. Massey Coal Co.,

251 B.R. 322, 324 (S.D. W. Va. 2000).    The federal court later

remanded the case to the Boone County Circuit Court.      Caperton

v. A.T. Massey Coal Co., 270 B.R. 654, 656 (S.D. W. Va. 2001);

see also A.T. Massey Coal Co. v. Harman Dev. Corp. (In re

Harman Dev. Corp.), No. 98-01990-WSB-11, Adv. No. 7-00-0057,

Jt. Mem. Op. and Order at 1 (Bankr. W.D. Va. Nov. 28, 2000).

     Back in the West Virginia circuit court, Caperton and his

companies won a substantial jury verdict, which Massey

appealed to the Supreme Court of Appeals of West Virginia.      On


                                 2
its first consideration, the Supreme Court of Appeals of West

Virginia reversed, but the opinion was later vacated because

two justices who decided the case voluntarily disqualified

themselves after the decision.        Caperton v. A.T. Massey Coal

Co. (Caperton I), No. 33350, 2007 W. Va. LEXIS 119, at *5-6

(W. Va. Nov. 21, 2007), vacated as noted in Caperton v. A.T.

Massey Coal Co. (Caperton II), 679 S.E.2d 223, 229 n.1 (2008).

       On its second consideration, the Supreme Court of Appeals

of West Virginia again reversed and remanded the decision of

the West Virginia trial court.    Caperton II, 679 S.E.2d at

229.   Caperton and his companies appealed this decision to the

Supreme Court of the United States, arguing that another

justice should have recused himself, because Blankenship and

Massey contributed millions of dollars to the justice's

election campaign.   The Supreme Court of the United States

agreed with Caperton and his companies and reversed and

remanded the case.    Caperton v. A.T. Massey Coal Co. (Caperton

III), 556 U.S. 868, 890 (2009).

       On its third consideration, the Supreme Court of Appeals

of West Virginia again reversed and remanded the decision of

the West Virginia trial court.    The court determined that a

forum selection clause in an agreement between the parties

required that suit be brought in Virginia.        Caperton v. A.T.

Massey Coal Co. (Caperton IV), 690 S.E.2d 322, 328 (2009).


                                  3
     Caperton and his companies subsequently filed suit in

Virginia in November 2010, bringing many of the same tort

claims as they did just over twelve years earlier.     Caperton

v. A.T. Massey Coal Co., No. 771-10 (Cir. Ct. Buchanan County,

Va. 2011) ("Second Virginia Action").    The Circuit Court of

Buchanan County held that res judicata barred the Plaintiffs'

claims.   Whether this decision was correct is the issue we

decide in this appeal.

                 I.   Facts and Proceedings Below

 A.   Caperton's acquisition of the Harman mining operations,
 the Coal Supply Agreement with Wellmore, Wellmore's changing
              corporate structure, and bankruptcy

     On January 1, 1993, Appellant Caperton acquired Harman

Mining and Sovereign.    He also formed Harman Development

Corporation ("Harman Development") that same year.     Caperton

I, 2007 W. Va. LEXIS 119, at *7.     Caperton, Harman Mining,

Sovereign, and Harman Development were all plaintiffs to this

action below, and are Appellants herein (hereinafter

collectively referred to as "Plaintiffs").    The chart below

details Caperton's organization of his companies:




                                 4
     Harman Mining and Sovereign were engaged in the mining

and sale of metallurgical coal from a mine in Buchanan County,

Virginia (the "Harman Mine").   In 1992, Harman Mining and

Sovereign entered into a Coal Supply Agreement with Wellmore,

whereby Harman Mining and Sovereign would supply a fixed

output of coal from the Harman Mine to Wellmore each year,

from 1993 through 2001.   Harman Mining, Sovereign, and

Wellmore continued to fulfill their obligations under the

agreement through 1996.

     Effective January 1, 1997, Harman Mining and Sovereign

entered into a new Coal Supply Agreement ("CSA") with

Wellmore.   Because Caperton invested significant capital to

improve the long-term prospects of the Harman Mine, the CSA

reflected a substantial increase in price paid for coal by


                                5
Wellmore.   Wellmore was willing to pay a higher fee because it

supplied LTV Steel Corporation ("LTV") with coal blended with

the Harman Mine product, and the metallurgical qualities of

that coal made it desirable to steel producers.   Harman

Mining, Sovereign, and Wellmore all performed under the CSA

through 1997.

     Prior to July 31, 1997, Wellmore's corporate parent was

United Coal Company ("UCC").   On that date, Massey, of which

Blankenship was president, chief executive officer, and

chairman of the board, acquired UCC.   On December 1, 1997,

Wellmore informed Harman Mining and Sovereign that it would

only accept a significantly reduced quantity of coal in 1998,

205,707 tons, instead of the negotiated amount, 573,000 tons.

Wellmore cited the force majeure clause of the CSA to excuse

its performance.   In January 1998, Harman Mining and Sovereign

tendered performance under the CSA.    Wellmore rejected the

previously agreed-upon tender.

     The effect of the tonnage reduction was the financial

collapse of Harman Mining.   Caperton's ventures were unable to

survive with Wellmore purchasing less than half of the amount

agreed upon in the CSA.   Although Harman Mining and Sovereign

attempted to compensate for the severely reduced demand, they

were unable to do so.   Subsequently, Harman Mining and

Sovereign filed for bankruptcy protection.


                                 6
              B.   Breach of Contract Suit in Virginia

        On January 6, 2000, Harman Mining and Sovereign filed

their first amended motion for judgment against Wellmore, the

First Virginia Action, in the Circuit Court of Buchanan County

("circuit court").    The suit alleged that Wellmore breached

the CSA as of January 1998 and that Wellmore's stated reason

for its refusal to accept the 573,000 ton shipment of coal –

force majeure – was without foundation.

        To justify its declaration, Wellmore claimed that LTV

determined it no longer was interested in purchasing the

Harman Mine/Wellmore coal blend because LTV was shutting down

its Pittsburgh processing plant.      Harman Mining and Sovereign

alleged that Wellmore knew that LTV was not considering the

shutdown of its Pittsburgh plant.      They also alleged that the

actual reason LTV declined to continue business with UCC,

Wellmore's parent company, was because Massey, upon purchasing

UCC, attempted to sell LTV a different, inferior blend of

coal.

        The issues in the First Virginia Action were whether

Wellmore refused to purchase the agreed-upon amount of coal,

whether there was a force majeure event, and, if so, whether

that event prevented Wellmore from supplying coal to LTV.         At

the conclusion of the liability phase of trial, the jury found

that Wellmore breached the CSA.       The circuit court limited


                                  7
Harman Mining and Sovereign to lost profits for 1998.       The

jury returned a $6,000,000 verdict in favor of Harman Mining

and Sovereign and the circuit court entered judgment on May 7,

2001.

                        C.   Events of 1997-1998

        Prior to its July 31, 1997 acquisition of UCC, Massey had

tried unsuccessfully to sell its West Virginia-mined coal

directly to LTV.       Caperton IV, 690 S.E.2d at 330.   An internal

Massey memo, drafted prior to the acquisition of UCC,

recognized the risks of attempting this strategy.        The Massey

memo stated that if Massey ultimately purchased UCC and

Wellmore, the relationship between LTV and Wellmore might not

continue.    This was because LTV had little interest in

changing from Harman-sourced coal blends to Massey-sourced

coal blends.     Id.

        After Massey's acquisition of UCC and Wellmore but before

August 5, 1997, Massey, fully appreciating the potential

consequences, "provided LTV with firm price quotes for coal

mainly from Massey Mines, not Harman coal, and insisted that

LTV make Massey its sole-source provider via a long-term coal

contract."    Id. (internal quotation marks omitted).      LTV

refused, and ceased buying coal from Wellmore.       Id.   On August

5, 1997 at Massey's direction, Wellmore for the first time

informed Plaintiffs that they should "be aware that LTV Steel


                                    8
has announced plans to close one of its coking operations.

Should this occur, Wellmore anticipates reducing the tonnage

amount pro rata, in accordance with the force majeure

provisions of the Agreement."

     On December 1, 1997, at Massey's direction, Wellmore

declared force majeure.   Massey was aware that this would put

the Harman companies out of business.   Id. at 330-31.   As the

Supreme Court of Appeals of West Virginia noted, prior to the

force majeure declaration,

          Massey acknowledged Wellmore was readily
          able to purchase and sell the Harman coal,
          but instead chose to have Wellmore declare
          force majeure based upon a cost benefit
          analysis Massey performed which indicated
          that it would increase its profits by doing
          so. Furthermore, before Massey directed the
          declaration of force majeure, Massey
          concealed the fact that the LTV business
          was lost and Massey delayed Wellmore's
          termination of Harman's contract until late
          in the year, knowing it would be virtually
          impossible for Harman to find alternate
          buyers for its coal at that point in time.
          Once Wellmore suddenly stopped purchasing
          Harman's output, Harman had no ability to
          stay in business. In the meantime, Massey
          sold Wellmore.

Id. at 331 (internal quotation marks omitted).

     Between August 5, 1997 and December 1, 1997, Massey

engaged in negotiations with Plaintiffs for the purchase of

the Harman Mine.   Id. at 330.   During this period, Plaintiffs

shared confidential information with Massey to accurately



                                 9
reveal the Harman companies' worth.   Id.   Specifically, Massey

learned about Harman Development, Harman Mining, and

Sovereign's mining operations, including their desire to

acquire and mine the adjacent Pittston reserves, and about

Plaintiffs' finances, including Caperton's own personal

finances.     Id.

     After the force majeure declaration,

            Massey continued in negotiations with the
            Harman Companies and Mr. Caperton for
            Massey's purchase of the Harman Mine, and
            the parties agreed to close the transaction
            on January 31, 1998. However, Massey
            delayed and, as the circuit court found,
            "ultimately collapsed the transaction in
            such a manner so as to increase [the Harman
            Companies'] financial distress." In
            addition, Massey utilized the confidential
            information it had obtained from the Harman
            Companies to take further actions, such as
            purchasing a narrow band of the Pittston
            coal reserves surrounding the Harman Mine
            in order to make the Harman Mine
            unattractive to others and thereby decrease
            its value. During the negotiations for the
            sale of the Harman Mine to Massey, Massey
            had also learned that Mr. Caperton had
            personally guaranteed a number of the
            Harman Companies' obligations.
            Subsequently, the Harman Companies filed
            for bankruptcy.

Id. at 331.

     Massey's continuing effort to delay acquiring Harman

Development, Harman Mining, and Sovereign continued throughout

early 1998.    In February 1998, Massey produced a new agreement

that was allegedly designed to resolve issues that led to the


                                10
January 1998 failure to close.    However, Massey never followed

through on this offer.   The next month, Massey agreed to

another closing date, March 13, 1998, which it also did not

honor.

     The Supreme Court of Appeals of West Virginia also noted

the lower court's finding that "many of the steps Massey took

were directed at Mr. Caperton personally."   Id. at 331 n.16.

Caperton "relied to his detriment on numerous false

representations made by Massey," including the closing

scheduled to take place on January 31, 1998.     Id.    Aware of

Caperton's personal obligations to entities such as

Inspiration Coal, Senstar Financial, Grundy National Bank, and

Vision Financial, Massey's continued delay in closing the sale

of the Harman companies not only detrimentally affected those

companies, but also Caperton individually.     Id.     In the spring

of 1998, Grundy National Bank obtained judgments against

Caperton, and Senstar Financial filed suit to enforce

Caperton's default on payment obligations for leased mining

equipment.

               D.   Tort Claims and Proceedings

     On December 10, 1998, Plaintiffs filed their first

amended complaint against Massey in the Circuit Court of Boone

County, West Virginia (the "West Virginia Action"), detailing

Massey's actions as recounted in Section C, supra, and


                                 11
alleging tortious interference with existing and prospective

contractual relations, fraudulent misrepresentation, civil

conspiracy, and negligent misrepresentation. 1   A jury awarded

the Plaintiffs approximately $50,000,000 in August 2002, which

the trial court confirmed.

     A lengthy appellate process ensued.   See Caperton III,

556 U.S. at 874-76; see also Caperton IV, 690 S.E.2d at 332-

33; Caperton II, 679 S.E.2d at 223, rev'd and remanded, 556

U.S. at 868; Caperton I, 2007 W. Va. LEXIS 119, at *1.     On

review of Plaintiffs' appeal concerning due process violations

which resulted from the failure of a justice of the Supreme

Court of Appeals of West Virginia to recuse himself, the

Supreme Court of the United States characterized the evidence

of judicial impropriety before it as "extreme by any measure."

Caperton III, 556 U.S. at 887.    This conduct took several

different forms.

     For example, before Massey filed its first appeal with

the Supreme Court of Appeals of West Virginia, Blankenship

contributed $3 million to the election campaign fund of an

attorney, Brent Benjamin, who sought to replace a sitting

justice on the West Virginia high court.   Id. at 873.   "To

provide some perspective, Blankenship's $3 million in


     1
       Plaintiffs also included in their first amended
complaint a count for punitive damages.

                                 12
contributions were more than the total amount spent by all

other Benjamin supporters and three times the amount spent by

Benjamin's own committee."     Id.     Benjamin won election.     Id.

      After the Supreme Court of Appeals of West Virginia's

first reversal of the jury verdict, Plaintiffs sought a

rehearing before that court, arguing that three of the five

justices who decided the appeal should have recused

themselves.    Id. at 874.    In addition to the campaign

contributions detailed above, "[p]hotos had surfaced of

Justice Maynard vacationing with Blankenship in the French

Riviera while the case was pending."        Id.   Although two of the

three justices disqualified themselves, the third, Justice

Benjamin, denied Caperton's recusal motion.         Id. at 875.

However, the Supreme Court of Appeals of West Virginia granted

a rehearing, Caperton II, 679 S.E.2d at 229, and Caperton

again moved to disqualify then-acting Chief Justice Benjamin.

Caperton III, 556 U.S. at 875.       Acting Chief Justice Benjamin

declined, and the Supreme Court of Appeals of West Virginia

reversed the trial court for a second time in a 3-2 decision.

Id.   Acting Chief Justice Benjamin joined the majority, and

filed his own concurring opinion four months after the

decision.     Id. at 876.   The Supreme Court of the United States

granted Caperton's petition for a writ of certiorari.           Id.

      The Supreme Court of the United States concluded that


                                  13
            Blankenship's campaign contributions—in
            comparison to the total amount contributed
            to the campaign, as well as the total
            amount spent in the election—had a
            significant and disproportionate influence
            on the electoral outcome. And the risk that
            Blankenship's influence engendered actual
            bias is sufficiently substantial that it
            "must be forbidden if the guarantee of due
            process is to be adequately implemented."

Id. at 885 (quoting Withrow v. Larkin, 421 U.S. 35,

47 (1975)).

     After all of the litigation and "bouncing" back and forth

from the West Virginia trial court to the Supreme Court of

Appeals of West Virginia and even the Supreme Court of the

United States, the Supreme Court of Appeals of West Virginia

ultimately dismissed the case, because it held that a forum-

selection clause in the CSA required that Plaintiffs bring

their tort claims in Virginia.    Caperton IV, 690 S.E.2d at

354, 357.

     On November 9, 2010, Plaintiffs filed a complaint in the

Circuit Court of Buchanan County against Massey, the Second

Virginia Action, alleging tortious interference with existing

and prospective contractual and business relations, fraudulent

misrepresentation/deceit/concealment, and seeking punitive

damages.    In response, Massey filed a plea of res judicata and




                                 14
the statute of limitations. 2   Massey alleged that because all

of Plaintiffs' claims arose out of Wellmore's declaration of

force majeure, Plaintiffs "could have brought their tort and

contract claims together in the First Virginia Action but

chose not to do so."    The circuit court agreed with Massey and

sustained its plea.

     Plaintiffs timely filed their notice and petition for

appeal.    We awarded them an appeal on the following

assignments of error:

     1. The Circuit Court erred in ruling that if a claim

          "could have been litigated" in a proceeding, it is

          barred by res judicata – irrespective of whether it was

          based on the "same evidence" used to prove, or arose

          from the "same transaction" as, the previously

          litigated claims.

     2. The Circuit Court erred in ruling that the "same

          transaction" test rather than the "same evidence" test

          governs whether Plaintiffs' tort claims are identical

          to the contract claim in the First Virginia Action, in

          disregard of due process and fundamental fairness.

     3. The Circuit Court erred in ruling that, under either

          the "same transaction" test or the "same evidence"


     2
       The plea of the statute of limitations remains
unresolved. It is not before this Court on appeal.

                                 15
       test, Plaintiffs' tort claims against Massey are

       identical to the contract claim against Wellmore in the

       First Virginia Action.

     4. The Circuit Court erred in ruling that Caperton and

       Harman Development are in privity with the plaintiffs

       in the First Virginia Action because of their

       controlling ownership of those plaintiffs.

     5. The Circuit Court violated the due process clauses of

       the Virginia and U.S. Constitutions by interpreting

       Virginia res judicata law, as it existed between 1998

       and 2001, in a way inconsistent with and not supported

       by this Court's precedents at that time, and applying

       that interpretation retroactively so as to deprive

       Plaintiffs of their constitutionally protected tort

       claims and any remedies for those claims.

                         II.    Analysis

                    A.   Standard of Review

     Whether Plaintiffs' Second Virginia Action is precluded

by res judicata is a question of law that we review de novo.

Westgate at Williamsburg Condo. Ass’n v. Philip Richardson

Co., 270 Va. 566, 574, 621 S.E.2d 114, 118 (2005).   "[T]he one

asserting the defense of res judicata-bar . . . must show by a

preponderance of the evidence that the claim or issue should




                                16
be precluded by the prior judgment."     Bates v. Devers, 214 Va.

667, 671, 202 S.E.2d 917, 921 (1974).

              B.     Proceedings in the Circuit Court

     On December 14, 2011, the circuit court concluded that

"[h]aving found that all four elements of res judicata exist,

the Court sustains the Defendant's Plea of Res Judicata based

upon the First Virginia Action."      The circuit court, relying

on Weinberger v. Tucker, 510 F.3d 486, 492 (4th Cir. 2007),

held that privity existed between the plaintiffs in the First

and Second Virginia Actions, because "[i]n Virginia, a

controlling shareholder and a parent corporation have an

identity of interest with the corporation the shareholder

controls such that the two are in privity for the purposes of

res judicata."     The court also held that the identity of the

persons for and against the claim and the identity of remedies

sought was the same between both actions.

     The circuit court also considered whether the identity of

the cause of action between the First and Second Virginia

Actions was the same.    At the time of the First Virginia

Action, the circuit court concluded, "Virginia applied the

transactional approach followed by Bates and its progeny for

the purpose of determining identity between two causes of

action.   Under the transactional approach, it is patent that

there is identity between the cause of action in the instant


                                 17
matter and the First Virginia Action."   The circuit court

further stated that

            [t]he facts giving rise to the breach of
            contract in the First Virginia Action and
            the facts giving rise to the tort claims in
            the instant action are related in time,
            space, origin, and motivation . . . . it is
            clear to this Court that Wellmore's
            declaration of force majeure was the
            paramount event leading to the breach of
            contract in the First Virginia Action. It
            is equally clear that Wellmore's
            declaration of force majeure is the
            paramount event for the tort claims
            asserted in the instant action.

Because the court found that all four elements of res judicata

existed, Massey's plea was sustained.    On March 21, 2012, the

court entered its final order.

   C.   The Law of Res Judicata in Virginia before Rule 1:6

     Both parties agree that the law of res judicata as it

existed in 1998, the time of the First Virginia Action,

governs this Court's analysis.    Prior to the adoption of Rule

1:6, the law of res judicata in Virginia consisted of four

elements.   Smith v. Ware, 244 Va. 374, 376, 421 S.E.2d 444,

445 (1992).   For res judicata to bar subsequent proceedings, a

defendant must show "'(1) identity of the remedies sought; (2)

identity of the cause of action; (3) identity of the parties;

and (4) identity of the quality of the persons for or against

whom the claim is made.'"    Id. (quoting Wright v. Castles, 232

Va. 218, 222, 349 S.E.2d 125, 128 (1986)).


                                 18
     In Davis v. Marshall Homes, Inc., 265 Va. 159, 165, 576

S.E.2d 504, 506 (2003), a majority of the Court held that a

circuit court erred in concluding that res judicata barred the

plaintiff from bringing a cause of action for breach of

contract.   The majority explained that identity of the causes

of action was lacking between the plaintiff's two suits

because

            [i]n her fraud action, plaintiff would have
            had to present evidence of the deed of
            trust notes and defendants' failure to
            satisfy those notes to show that she was
            damaged as a result of the
            misrepresentations. However, this evidence
            does not satisfy the remaining elements
            that plaintiff would have had to prove to
            establish a prima facie case of actual
            fraud by clear and convincing evidence. The
            mere fact that some evidence relevant in
            plaintiff's action for fraud may be
            relevant to prove her distinct and separate
            contract claim for nonpayment of the deed
            of trust notes does not, for purposes of
            res judicata, mean that plaintiff only has
            one cause of action.

Id. at 166, 576 S.E.2d at 507.

     In Davis, a majority of this Court stated that our

jurisprudence had previously settled any tension between the

"same evidence" test and the "same transaction" test when it

stated that

            just one year after this Court decided
            Allstar [Towing, Inc. v. City of
            Alexandria, 231 Va. 421, 344 S.E.2d 903
            (1986)], we implicitly rejected the
            transactional analysis test in Brown v.


                                 19
          Haley, [233 Va. 210, 355 S.E.2d 563
          (1987)], when we stated that "[t]he test to
          determine whether claims are part of a
          single cause of action is whether the same
          evidence is necessary to prove each claim."
          233 Va. at 216, 355 S.E.2d at 567.
          Therefore, in accordance with our
          precedent, we explicitly reject the
          application of the transactional analysis
          test when deciding whether a claim is
          barred by res judicata.

Id. at 171, 576 S.E.2d at 510 (emphasis added) (citing State

Water Control Bd. v. Smithfield Foods, Inc., 261 Va. 209, 214,

542 S.E.2d 766, 769 (2001); Ware, 244 Va. at 376, 421 S.E.2d

at 445; Flora, Flora & Montague, Inc. v. Saunders, 235 Va.

306, 310-11, 367 S.E.2d 493, 495 (1988); Haley, 233 Va. at

216, 355 S.E.2d at 567).   Three Justices dissented.    Davis,

265 Va. at 172, 576 S.E.2d at 511 (Kinser, J., dissenting);

Id. at 185, 576 S.E.2d at 518 (Lemons, J., dissenting).

     The majority in Davis also stated that

          [i]n the present case, just as in Haley,
          the doctrine of res judicata is simply not
          applicable. The facts necessary to prove
          plaintiff's action for actual fraud are
          different from the facts she must prove for
          her action based upon nonpayment of the
          deed of trust notes. In the present appeal,
          as in Haley, there is "no identity of facts
          necessary to prove each claim."

Id. at 168, 576 S.E.2d at 508 (quoting Haley, 233 Va. at 217,

355 S.E.2d at 568).   The Davis opinion remained the law of the




                               20
Commonwealth until our adoption of Rule 1:6. 3   It is apparent

that at the time of Plaintiffs' suit, the same evidence test

applied to determine whether identity of cause of action

existed.    See Jones v. Morris Plan Bank, 168 Va. 284, 291, 191

S.E. 608, 610 (1937) ("If the same evidence will support both

actions there is but one cause of action.").

    D.     Does the Same Evidence Test Bar Plaintiffs' Second
                          Virginia Action?

     The evidence from the Second Virginia Action was

different from the proof necessary to support the claims in

the First Virginia Action.    Specifically, the First Virginia

Action was based on breach of the CSA, where Harman Mining and

Sovereign were required to show that: (1) The CSA legally

     3
         Rule 1:6 states in relevant part:

            (a) Definition of Cause of Action. – A
            party whose claim for relief arising from
            identified conduct, a transaction, or an
            occurrence, is decided on the merits by a
            final judgment, shall be forever barred
            from prosecuting any second or subsequent
            civil action against the same opposing
            party or parties on any claim or cause of
            action that arises from that same conduct,
            transaction or occurrence, whether or not
            the legal theory or rights asserted in the
            second or subsequent action were raised in
            the prior lawsuit, and regardless of the
            legal elements or the evidence upon which
            any claims in the prior proceeding
            depended, or the particular remedies
            sought. A claim for relief pursuant to this
            rule includes those set forth in a
            complaint, counterclaim, cross-claim or
            third-party pleading.

                                21
obligated Wellmore to purchase a defined amount of coal; (2)

Wellmore violated that obligation; and (3) Wellmore's breach

caused damage to Harman Mining and Sovereign.   See Sunrise

Continuing Care, LLC v. Wright, 277 Va. 148, 154, 671 S.E.2d

132, 135 (2009) (stating the elements of a breach of contract

action).

     Harman Mining and Sovereign were limited in their

introduction of evidence to establishing these elements, and

their proof primarily focused on whether Wellmore suffered a

force majeure event.   Additionally, the circuit court in the

First Virginia Action limited evidence on damages to Harman

Mining and Sovereign's lost profits for 1998.   During the

damages phase of trial, Wellmore itself characterized the

First Virginia Action as concerning

           only the issue of any damages Wellmore
           caused [Harman Mining and Sovereign] as a
           result of the jury's determination that
           Wellmore wrongfully refused to accept
           573,000 tons of coal from Harman [Mining
           and Sovereign] in 1998. Evidence on any
           other subject has no relevance to the issue
           to be decided by the jury.

     In contrast, Plaintiffs are required to introduce

different evidence to support their claims of tortious

interference with existing and prospective business and

contractual relations, fraudulent misrepresentation, deceit,




                               22
and concealment.    A review of the elements of their claims

makes this abundantly clear.

     For example,

             [t]o establish a claim for tortious
             interference with a business or contract
             expectancy, [the plaintiff is] required to
             show that (1) it had a contract expectancy;
             (2) [the defendant] knew of the expectancy;
             (3) [the defendant] intentionally
             interfered with the expectancy; (4) [the
             defendant] used improper means or methods
             to interfere with the expectancy; and (5)
             [the plaintiff] suffered a loss as a result
             of [the defendant's] disruption of the
             contract expectancy.

Preferred Sys. Solutions, Inc. v. GP Consulting, LLC, 284 Va.

382, 403-04, 732 S.E.2d 676, 688 (2012) (citing Maximus, Inc.

v. Lockheed Info. Mgmt. Sys. Co., 254 Va. 408, 413, 493 S.E.2d

375, 378 (1997)).    Harman Mining and Sovereign's breach of

contract action shares no elements with Plaintiffs' claim of

tortious interference with a business or contract expectancy.

The evidence required to sustain each action is therefore

different.     See Worrie v. Boze, 198 Va. 533, 539-40, 95 S.E.2d

192, 197-98 (1958) (holding that separate causes of action

existed because "[a]n essential element in the [current] case"

was "absent in the first").

     Additionally, fraudulent misrepresentation requires that

a plaintiff show a "false representation of a material fact;

made intentionally, in the case of actual fraud, or



                                 23
negligently, in the case of constructive fraud; reliance on

that false representation to their detriment; and resulting

damage."    Klaiber v. Freemason Assocs., Inc., 266 Va. 478,

485, 587 S.E.2d 555, 558 (2003) (citing Evaluation Research

Corp. v. Alequin, 247 Va. 143, 148, 439 S.E.2d 387, 390

(1994)).    Fraudulent misrepresentation shares none of the

elements of a breach of contract action, and the evidence

required to support each claim is, therefore, manifestly

different.

     Plaintiffs' allegations further demonstrate that the

First and Second Virginia Actions involve different causes of

action.    Even before Massey acquired Wellmore, Massey

attempted to destabilize Harman Mining, Sovereign, and

Wellmore's relationship with LTV.

             An internal Massey memorandum admitted
             during trial revealed that Massey
             understood there were risks to its plan,
             most notably the possibility that the
             relationship between LTV and Wellmore might
             not continue under Massey ownership of
             Wellmore. The circuit court found that, in
             spite of this risk, and despite the
             knowledge that LTV was extremely reluctant
             to change a long-established, successful
             coal blend that included coal from the
             Harman Mine, Massey nevertheless provided
             LTV with firm price quotes for coal mainly
             from Massey Mines, not Harman coal, and
             insisted that LTV make Massey its sole-
             source provider via a long-term coal
             contract.




                                 24
Caperton IV, 690 S.E.2d at 330 (internal quotation marks

omitted).    Massey knew "that LTV had historically demonstrated

a preference for multiple suppliers and had not entered multi-

year coal supply contracts," and Massey similarly increased

the price at which it offered to sell coal to LTV.      Id. at 330

n.13.    Not surprisingly, "LTV ceased buying coal from

Wellmore."     Id. at 330.

        Massey also knowingly concealed the loss of LTV's

business from Plaintiffs.     Massey took this action in late

1997, according to the Supreme Court of Appeals of West

Virginia, because it knew that "it would be virtually

impossible for Harman to find alternate buyers for its coal at

that point in time."     Id. at 331.   Massey's discussions to

purchase the Harman companies were not pursued in good faith,

because Plaintiffs had to shut down business operations in

anticipation of a sale that never occurred.     The Supreme Court

of Appeals of West Virginia noted that the delay "ultimately

collapsed the transaction in such a manner so as to increase

the Harman Companies' financial distress."      Id. (internal

punctuation omitted).

        Additionally, during negotiations for the sale of the

Harman companies, Massey allegedly acquired confidential

information about Caperton and his companies.     "Massey

utilized the confidential information it had obtained from the


                                 25
Harman Companies to take further actions, such as purchasing a

narrow band of the Pittston coal reserves surrounding the

Harman Mine."   Id.   Explaining why Massey acquired the land, a

Massey executive stated that

          [t]he property we have acquired provides a
          fairly effective block against anyone else
          cutting a deal with Pittston on the balance
          of their Splashdam coal. It also greatly
          diminishes the attractiveness of the Harman
          property to parties other than Massey, so
          we will more than likely get Harman in the
          long run.

     Massey's actions were not simply limited to Harman

Development, Harman Mining, and Sovereign, however.   Having

learned that Caperton personally guaranteed a number of the

Harman companies' obligations, Massey made false

representations to Caperton about the closing date for the

sale of Harman Development, Harman Mining, and Sovereign,

causing Caperton to default on those obligations.

Consequently, in the spring of 1998, both Grundy National Bank

and Senstar Financial took actions that severely impacted

Caperton's credit rating and creditworthiness.

     Additionally, Massey's actions caused Caperton to be

listed on the "Applicant Violator System," a database

maintained by the Department of the Interior's Office of

Surface Mining, which listing effectively prevents Caperton

from conducting business in the mining industry in the future.



                                26
Finally, "[t]he [West Virginia] circuit court noted in its

Final Order denying Massey's post-trial motions that Mr.

Caperton suffered additional mental anguish due to Massey's

trespassing on his personal property and photographing his

personal residence."   Id. at 361 n.8 (Workman, J.,

dissenting).

     It is clear that proof of these acts is not necessary to

prove the breach of contract claims arising out of the CSA.

Accordingly, since "[t]he test to determine whether claims are

part of a single cause of action is whether the same evidence

is necessary to prove each claim," Haley, 233 Va. at 216, 355

S.E.2d at 567, and because the same evidence from the First

Virginia Action is not necessary to prove Plaintiffs' claims

in the Second Virginia Action, res judicata will not bar the

Second Virginia Action. 4

                        III.   Conclusion

     We hold that the circuit court erred in determining that

res judicata operates to bar Plaintiffs' action.    Accordingly,

we will reverse the judgment of the circuit court, and remand

for proceedings consistent with this opinion.

                                            Reversed and remanded.




     4
       Our holding makes it unnecessary to address the privity
issue and the due process claim.

                                27
