PRESENT:   All the Justices

JEFFREY RHOTEN,
a/k/a JEFFREY RHOTON
                                                OPINION BY
v.     Record No. 130456                JUSTICE S. BERNARD GOODWYN
                                             October 31, 2013
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   Harold W. Burgess, Jr., Judge

     In this appeal, we consider whether res judicata prohibits

an individual, determined in a prior proceeding not to be a

sexually violent predator pursuant to the Civil Commitment of

Sexually Violent Predators Act, Code §§ 37.2-900 et seq. (SVPA

or the Act), from being subjected to reevaluation and

redetermination of his status as a sexually violent predator at

the conclusion of a subsequent period of reincarceration for

the same sex offenses.

                              Background

     On June 15, 1989, Jeffrey Paul Rhoten (Rhoten) was

convicted in the Circuit Court of Chesterfield County of

aggravated sexual battery and attempting to commit forcible

sodomy.    The circuit court sentenced him to twenty years’

imprisonment with five years suspended for the sexual battery

charge and ten years’ imprisonment with ten years suspended for

the attempted forcible sodomy charge.      He was released from

custody in 1997 but was reincarcerated almost two years later
due to parole violations.   Before Rhoten’s next scheduled

release, the Commonwealth filed a petition to civilly commit

Rhoten pursuant to the Act.   On April 14, 2005, the circuit

court found that the Commonwealth had failed to meet its burden

of proof that Rhoten was a sexually violent predator and

ordered that Rhoten be released from custody (2005 proceeding).

The Commonwealth appealed, and this Court dismissed its appeal

on March 24, 2006.

     In 2008, Rhoten was found guilty of violating his parole

and was reincarcerated for his 1989 sexual offenses.   Prior to

his scheduled release from incarceration, pursuant to the Act,

the Commonwealth filed a second petition on March 25, 2011 to

civilly commit Rhoten as a sexually violent predator (2011

petition).   In response, Rhoten filed a motion to dismiss the

2011 petition, arguing that it was barred by res judicata

because the circuit court had found that Rhoten was not a

sexually violent predator in 2005.

     After hearing oral arguments on Rhoten’s motion to dismiss

on September 30, 2011, the court denied the motion.    Rhoten

noted his objection on the court order.

     Rhoten “waive[d] the formal presentation of the evidence”

at trial and agreed “[t]hat the [Commonwealth’s] evidence would

be sufficient to prove, by clear and convincing evidence, that

[he] is a sexually violent predator, as defined in the Act.”


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Rhoten also stipulated “that the case [was] in a procedural

posture that [was] ripe and appropriate for adjudication” and

“[t]hat the [Commonwealth’s] Petition was properly and timely

filed.”

     The circuit court found that Rhoten was a sexually violent

predator and ordered that he be committed to the custody of the

Department of Behavioral Health and Developmental Services

after determining that Rhoten did not qualify for conditional

release.   Rhoten objected to the final order of the circuit

court because of the court’s failure to grant his res judicata-

based motion to dismiss.   Rhoten appeals, claiming that the

circuit court erred in failing to find that the Commonwealth’s

action was barred by res judicata.

                             Analysis

     Rhoten argues that the circuit court erred in denying his

motion to dismiss the Commonwealth’s 2011 petition.   Because

the circuit court found he was not a sexually violent predator

in the 2005 proceeding and because he has not committed any new

sexually violent offenses since 1989, Rhoten maintains that the

2011 petition was barred by res judicata.   Rhoten asserts that

although he believes Rule 1:6 governs the res judicata issue in

this case, the Commonwealth’s 2011 petition would be barred

under former res judicata law as well.




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     Initially, the Commonwealth argues that Rhoten waived his

res judicata argument by stipulating that he is a sexually

violent predator, that the 2011 petition was “properly and

timely filed” and that the 2011 petition was “appropriate for

adjudication.”   On the merits of Rhoten’s appeal, the

Commonwealth argues that when it filed the 2011 petition,

Rhoten was serving time in prison for his 1989 sexual offenses,

and the resulting civil commitment proceeding was to determine

his status at that time.   It argues Rhoten’s status in 2011 as

a sexually violent predator could not have been determined in

the 2005 proceeding.   Additionally, the Commonwealth disagrees

with Rhoten as to the application of Rule 1:6 to this case

because the 2005 proceeding was commenced before July 1, 2006.

     The question whether res judicata applies so as to bar

relitigation of a claim is an issue of law this Court reviews

de novo.    Caperton v. A.T. Massey Coal Co., 285 Va. 537, 548,

740 S.E.2d 1, 7 (2013).    Before considering the merits, we must

address the Commonwealth’s contention that Rhoten waived his

objection to the circuit court’s ruling on his res judicata

argument.   Rule 5:25 demands that a party object at the time of

the lower court’s ruling in order to preserve an issue for

appeal.    This Court has stated that “[t]he purpose of requiring

timely specific objections is to afford a trial court the

opportunity to rule intelligently on the issues presented,


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thereby avoiding unnecessary appeals and reversals.”     Chawla v.

BurgerBusters, Inc., 255 Va. 616, 622, 499 S.E.2d 829, 832

(1998).

        Code § 8.01-384(A) controls the interpretation of Rule

5:25.    Helms v. Manspile, 277 Va. 1, 7, 671 S.E.2d 127, 130

(2009).    According to subsection (A), once a party has made the

court aware of an argument, repeated objections or motions to

preserve the argument for appeal are unnecessary.    Code § 8.01-

384(A) further provides that “[a]rguments made at trial via

written pleading, . . . recital of objections in a final order

[or] oral argument reduced to transcript . . . shall, unless

expressly withdrawn or waived, be deemed preserved therein for

assertion on appeal.”

        Once a party has preserved an argument for appeal, to

waive the argument under Code § 8.01-384(A), the party must

abandon it or show intent to abandon by the party’s conduct.

Helms, 277 Va. at 6, 671 S.E.2d at 129.    There must be “clear

and unmistakable proof” of the intent to waive the argument

before we will find implied waiver.     Chawla, 255 Va. at 623,

499 S.E.2d at 833.

        We have held that a party’s affirmative statement can

serve as an abandonment of that party’s objection at trial.

See Graham v. Cook, 278 Va. 233, 248, 682 S.E.2d 535, 543

(2009) (party’s statement, “I don’t have a problem with that,”


                                  5
indicated party no longer objected to admission of testimony).

However, endorsing a pretrial order as “seen and agreed” after

having previously filed a memorandum of law and orally argued

the contrary position does not evince intent to abandon.

Chawla, 255 Va. at 622, 499 S.E.2d at 832; see also Cashion v.

Smith, ___ Va. ___, ___ S.E.2d ___ (2013) (this day decided).

     This Court determined in Shelton v. Commonwealth, 274 Va.

121, 128, 645 S.E.2d 914, 917 (2007), that a stipulation did

not constitute abandonment.   There, the defendant filed a

motion to dismiss and orally argued that the Commonwealth’s

petition to civilly commit him under the SVPA should be

dismissed because his initial score on the applicable risk

assessment test was incorrect.   Id. at 125, 645 S.E.2d at 915.

After the circuit court denied his motion, the defendant noted

his objection on the court’s final order.   Id. at 125, 645

S.E.2d at 916.   Although he stipulated to receiving a

qualifying score, he did not stipulate to the score’s accuracy,

which was the precise issue on appeal.   Id. at 128, 645 S.E.2d

at 917 (“[T]he evidence at [the defendant’s] trial did not

affect the merit of his earlier argument or result in an

effective abandonment of his claim.”).

     Rhoten properly preserved the res judicata issue for

appeal in the present case with his motion to dismiss, his oral

arguments before the circuit court, his objection to the court


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order denying his motion and his stated objection on the final

order.   The circuit court had the opportunity to rule

intelligently on the issue of res judicata after Rhoten made

the court aware of his argument.

     Rhoten’s agreement to stipulations that streamlined the

trial on the 2011 petition, after his motion to dismiss the

petition was denied, do not clearly and unmistakably

demonstrate an intent to abandon his claim of res judicata.

Therefore, we hold that his stipulations did not affect the

earlier preservation of his argument and that Rhoten did not

waive his res judicata argument in the circuit court.    We now

turn to the merits of this appeal.

     The SVPA ensures that those who have been convicted of

sexually violent offenses are evaluated before being released

into society when their period of incarceration is over.     Cf.

Shivaee v. Commonwealth, 270 Va. 112, 120, 613 S.E.2d 570, 574

(2005) (“[A] State may ‘in certain narrow circumstances

provide[] for the forcible civil detainment of people who are

unable to control their behavior and who thereby pose a danger

to the public health and safety.’”) (quoting Kansas v.

Hendricks, 521 U.S. 346, 357 (1997)).     To that end, the Act

charges the Director of the Department of Corrections with

maintaining a database of prisoners incarcerated for sexually

violent offenses.   Code § 37.2-903(A).   Every month, the


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Director must review the database to identify prisoners

incarcerated for sexually violent offenses who are scheduled

for release in the following ten months.    Code § 37.2-903(B).

Such prisoners must undergo an initial mental health screening

to determine whether they “may meet the definition of a

sexually violent predator” under the Act.   Code §§ 37.2-903(B)

and (C).

     The Act defines a “sexually violent predator” as “any

person who (i) has been convicted of a sexually violent offense

. . . and (ii) because of a mental abnormality or personality

disorder, finds it difficult to control his predatory behavior,

which makes him likely to engage in sexually violent acts.”

Code § 37.2-900.   Those who meet a certain threshold upon

screening are assessed further by a mental health evaluation.

Code §§ 37.2-903(E) and -904.   The Commitment Review Committee

reviews the evaluation and, depending on the results,

recommends to the Attorney General that the prisoner be

committed, put in conditional release or not be committed.

Code §§ 37.2-904(B) and (C).    Information is forwarded to the

Attorney General to enable the Commonwealth to petition for the

prisoner’s civil commitment pursuant to the Act if the Attorney

General so chooses.   Code §§ 37.2-904(C) and -905(A).

     The parties disagree about the appropriate res judicata

standard to be applied in this case.   However, under either


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standard the result is the same because the 2011 petition was

not based upon the same transaction as the 2005 proceeding and

did not require the same evidence.

     The current governing law of res judicata in the

Commonwealth is Rule 1:6.   Raley v. Haider, 286 Va. 164, 170,

___ S.E.2d ___, ___ (2013).   The rule states:

     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 . . . .

Rule 1:6(a).   This rule applies to “judgments entered in civil

actions commenced after July 1, 2006.”   Rule 1:6(b).

     This Court’s res judicata jurisprudence prior to the

enactment of Rule 1:6 required four elements before res

judicata would bar a claim: “(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.”   Caperton, 285 Va. at 549,

740 S.E.2d at 7 (quoting Smith v. Ware, 244 Va. 374, 376, 421

S.E.2d 444, 445 (1992)).    To establish identity of cause of

action, a party formerly had to show that the prior and

subsequent claims required the same evidence.    Davis v.

Marshall Homes, Inc., 265 Va. 159, 168, 576 S.E.2d 504, 508



                                 9
(2003).   By contrast, Rule 1:6 explicitly does not rely on a

showing of the same evidence or elements to establish res

judicata.    Rule 1:6(a) (“regardless of the legal elements or

the evidence upon which any claims in the prior proceeding

depended”); see also Martin-Bangura v. Commonwealth Dep’t of

Mental Health, 640 F. Supp. 2d 729, 738 (E.D. Va. 2009)

(Virginia’s “transactional” test under Rule 1:6 replaced the

prior “same evidence” test).

     In support of his res judicata argument, Rhoten focuses

almost exclusively on the fact that he committed no new

sexually violent offense between the 2005 proceeding and 2011

petition.    We note that evaluation is triggered under the Act

by incarceration for a sexually violent offense and impending

release from incarceration, not by conviction of a new sexually

violent offense.   See Code § 37.2-903(B) (“Each month, the

Director shall review the database and identify all such

prisoners who are scheduled for release from prison within 10

months.”).

     When the Commonwealth filed its 2011 petition, Rhoten was

serving time for a sexually violent offense.   See Townes v.

Commonwealth, 269 Va. 234, 240-41, 609 S.E.2d 1, 4 (2005) (“[A]

prisoner must be serving an active sentence for a sexually

violent offense . . . at the time he is identified as being

subject to the SVPA.”).   To civilly commit Rhoten, the


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Commonwealth had to prove by clear and convincing evidence not

only that Rhoten has been convicted and incarcerated because of

a sexually violent offense, but also that he suffers from a

“mental abnormality or personality disorder” that makes it

difficult to control his “predatory behavior.”      Code §§ 37.2-

900 and -908(C).      The statutory language necessitates an

evaluation of the prisoner’s current mental health status.      See

Code §§ 37.2-900 (“finds it difficult to control . . . which

makes him likely to engage”) (emphasis added); -908(C) (“The

court or jury shall determine whether, by clear and convincing

evidence, the respondent is a sexually violent predator.”)

(emphasis added).      Regarding both the 2005 proceeding and the

2011 petition, Rhoten’s mental health evaluations assessed his

condition and risk of future predatory behavior as of the time

of evaluation.     See Code § 37.2-907; see also Code § 37.2-

904(B) (“The licensed psychiatrist or licensed clinical

psychologist shall determine whether the prisoner or defendant

is a sexually violent predator, as defined in § 37.2-900.”)

(emphasis added). ∗

     We agree with the Commonwealth that the Act assumes the

mental health of a sexually violent offender may change over

     ∗
       Rhoten stipulated that the Commonwealth’s evidence was
sufficient to prove by clear and convincing evidence that he
was, at the time of the ruling presently on appeal, a sexually
violent predator as defined in the Act.



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time.    See, e.g., Code §§ 37.2-910(A), (B) and (D) (outlining a

process for reevaluation after commitment and requiring release

if a court “finds, based upon the report and other evidence

provided at the hearing, that the respondent is no longer a

sexually violent predator”).     As the Commonwealth correctly

points out, Rhoten’s mental health condition in 2011 could not

have been litigated in the 2005 proceeding.

        The 2011 petition arose as a result of Rhoten’s impending

release from custody after a new term of incarceration for a

sexually violent offense and concerned Rhoten’s mental health

status in 2011.    The 2011 petition was not dependent upon the

same evidence as the 2005 proceeding, nor did the 2011 petition

arise from the same conduct, transaction or occurrence.

Therefore, application of res judicata is inappropriate.      See

Rule 1:6; Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917,

920-21 (1974) (“A valid, personal judgment on the merits in

favor of defendant bars relitigation of the same cause of

action, or any part thereof which could have been litigated,

between the same parties and their privies.”) (footnote

omitted).    The 2011 petition was not barred by res judicata.

        Therefore, we hold the circuit court did not err in

denying Rhoten’s motion to dismiss.     Accordingly, the judgment

of the circuit court will be affirmed.

                                                     Affirmed.


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