Present:    All the Justices

WILLIAM R. BROWN

v.   Record No. 002794      OPINION BY JUSTICE ELIZABETH B. LACY
                                       November 2, 2001
HAROLD SPARKS, ET AL.

           FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                 Kenneth E. Trabue, Judge Designate

      In this appeal, William R. Brown seeks reversal of the

circuit court's judgment holding that Brown's motion for

judgment was precluded by an accord and satisfaction.

      Brown and Harold Sparks, an employee of Interstate

Batteries of Raleigh, N.C., t/a Interstate Battery Systems of

Southern Virginia (Interstate), had an altercation on

Interstate's business premises.    Brown and Sparks swore out

criminal warrants against each other for assault and battery.

Prior to the general district court hearing, the parties

through counsel, orally agreed to dismiss the charges against

each other and the agreement was not later reduced to writing.

The general district court dismissed the charges and wrote on

Sparks' criminal warrant, "Plea of satisf. cost assessed."

      Brown subsequently initiated the instant litigation

against Sparks on the theory of assault and battery and

against Interstate on the theory of respondeat superior.

Sparks and Interstate filed a joint motion for summary

judgment, asserting that, pursuant to the holding in Orndorff
v. Bond, 185 Va. 497, 39 S.E.2d 352 (1946), any right to a

civil remedy against Sparks was relinquished when Brown

compromised and settled his criminal claim against Sparks.

Following an ore tenus hearing, the circuit court granted the

motion and ruled that certain undisputed conduct of the

parties established an accord and satisfaction.    We awarded

Brown an appeal.

     Sparks seeks to have the Court uphold the trial court's

summary judgment order by arguing that "principles of res

judicata" bar Brown's motion for judgment in this case.

According to Sparks, dismissal of the criminal charges against

him in the general district court pursuant to Code § 19.2-151

and the notations on the warrant, "Plea of satisf. cost

assessed," conclusively established the existence of an accord

and satisfaction for all purposes and Brown is bound by that

judgment.

     Sparks' argument is flawed in two respects.    First, a

final judgment in a criminal proceeding does not operate as

res judicata in a civil proceeding based on the same events.

Smith v. New Dixie Lines, Inc., 201 Va. 466, 472, 111 S.E.2d

434, 438 (1959).   Moreover, in this case, the trial court did

not consider the dismissal of the criminal warrants pursuant

to Code § 19.2-151 as conclusive evidence that the parties had

entered into an accord and satisfaction.   Rather the trial


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court stated that Code § 19.2-151 was not the "exclusive

method for the accomplishment of an accord and satisfaction,"

and that "the conduct of the parties," as outlined by the

court, established the accord and satisfaction.

     The circumstances of this case are much like those found

in Orndorff.     That case involved dismissal of a misdemeanor

charge of obtaining money under false pretenses pursuant to

the predecessor to Code § 19.2-151, former § 4849 (Code of

1942).   The agreement to compromise and settle the criminal

complaint was not reduced to writing as the statute required.

The Court in Orndorff refused to allow the failure to comply

with the written agreement requirement of the statute to

"prevent its application where it appears that the aggrieved

party received satisfaction, appeared before the justice, and

the warrant was dismissed."    185 Va. at 502, 39 S.E.2d at 354.

The Court in Orndorff considered the facts surrounding the

previous compromise and found that the evidence "conclusively"

established that the plaintiff voluntarily agreed to pay the

amount sought by the defendant in return for dismissal of the

criminal charge and that the agreement had been fully

performed.   Under these circumstances, the plaintiff "knew

what was going on and agreed to it" and was not entitled to

escape the effect of that agreement.    185 Va. at 503, 39

S.E.2d at 355.    Consequently, the Court held that the


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plaintiff was precluded from bringing a subsequent action for

malicious prosecution based on the bringing of the criminal

charge.

     As in Orndorff, the parties in this case did not reduce

their agreement to writing.   Thus, evidence was required in

order to determine the terms of the compromise and settlement,

and the parties' agreement to those terms.

     In an ore tenus hearing before the trial court, Brown's

attorney testified that he told the general district court

judge that Brown and Sparks had reached an agreement to

dismiss the criminal charges and that "Mr. Brown would be

allowed to pursue any civil matters against Mr. Sparks or

others, and that this [in] no way affected the civil side of

the case, they were simply allowing, or agreeing, that the

criminal warrants would be dismissed."   This testimony was

corroborated by Sparks' attorney, who testified that during

the criminal prosecution, Brown's attorney represented that,

in agreeing to dismiss the criminal warrants, Brown "wanted to

preserve his civil remedies."   Sparks' former attorney also

testified that, when the general district court sought a

response, he told the court, "I'm here with an accord and

satisfaction and that's fine with me, but if we need to try it

we will try it."   Following this exchange, the general




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district court made notations on the criminal warrants and

dismissed the cases.

     Brown's refusal to relinquish his civil remedies is not

disputed.   Both the attorneys and the court knew that Brown's

intent was to retain his civil remedies.   Further, the

statement from Sparks' attorney, indicating that despite the

accord and satisfaction he would proceed to trial if

necessary, creates an inference that Sparks would not accept

an accord and satisfaction without the inclusion of civil

remedies.   The general district court, however, proceeded to

dismiss the cases.   Neither trial counsel objected to the

dismissal of the cases or asked for clarification regarding

the basis for the dismissal.   Thus, the evidence is not clear

whether the dismissal of the cases without a trial included an

understanding that Brown's civil remedies were precluded by

the dismissal, or whether the dismissal of the cases without a

trial was based on an agreement regarding settlement of the

criminal matters only.

     Summary judgment is available to a litigant only when no

material facts are in dispute.   Rule 3:18; Turner v. Lotts,

244 Va. 554, 556, 422 S.E.2d 765, 766 (1992).   We agree with

Brown that there was a material conflict in the evidence

regarding the nature of any agreement.   Disputes of material




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facts should be submitted to the finder of fact and not

resolved on summary judgment.

     Accordingly, the judgment will be reversed and the case

remanded for further proceedings consistent with this opinion.

                                         Reversed and remanded.




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