                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1128



TIMOTHY R. RANNEY,

                                             Plaintiff - Appellant,

           versus


PRISCILLA D. NELSON,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CA-04-1274-1)


Argued:   February 2, 2006                 Decided:   April 19, 2006


Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.


ARGUED: Raymond Donald Battocchi, GABELER, BATTOCCHI, GRIGGS &
POWELL, P.L.L.C., McLean, Virginia, for Appellant. Matthew Allan
Ranck, ECCLESTON & WOLF, P.C., Washington, D.C., for Appellee. ON
BRIEF: Tracie N. Wesner, ECCLESTON & WOLF, P.C., Washington, D.C.,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

        Appellant Timothy R. Ranney appeals from the order of the

district court dismissing his action against Appellee Priscilla D.

Nelson for professional malpractice and conspiracy.               We affirm in

part, reverse in part, and remand.



                                      I.

     In July 2000, Ranney’s wife Carol began individual therapy

sessions with Nelson, a licensed professional counselor.                  On a

number of occasions, Ranney also joined Carol for therapy sessions

with Nelson. Ranney alleges that during this time, while Carol was

alone with Nelson, Nelson learned that Carol had been married four

times prior to marrying Ranney–-a fact of which Ranney was unaware

at the time he married Carol.          Ranney alleges further that Carol

told Nelson that Ranney “would not have married [her] had he known

about    her   four    prior   marriages,”   and    directed   Nelson   not   to

disclose this information to Ranney “because if he learned of them

he would promptly separate from Carol, and she would not receive

any of [Ranney’s] separate property.”          J.A. 6.     Prior to marrying

Carol,    Ranney      received   substantial   stock    options    in   Network

Solutions, Inc., his employer, and Ranney alleges that proceeds

from these stock options account for the majority of the $6.3

million he earned during the marriage.             In September 2000, Nelson

informed Ranney that she could no longer counsel him as a patient;


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however, Carol’s therapy with Nelson continued on an individual

basis.    Ultimately, according to Ranney, despite the joint and

individual therapy sessions with Nelson, his marriage to Carol

continued to deteriorate until April 2002, when they separated.

Carol subsequently filed an action for divorce in Fairfax County,

Virginia, and Carol identified Nelson as a potential witness on her

behalf.    Ranney alleges that Nelson routinely took handwritten

notes during the individual and joint sessions.            During divorce

proceedings,    Ranney   obtained   Nelson’s   purported   joint   therapy

session notes pursuant to a subpoena.          Ranney alleges, however,

that the typewritten notes produced by Nelson were fabricated and

that Nelson shredded her original notes, which were handwritten,

immediately before complying with the subpoena.            Ranney asserts

further that the Commissioner in Chancery determined that Nelson

destroyed her original handwritten notes and produced redacted,

typewritten notes.       Ultimately, “all of the assets that were

purchased with proceeds from the sale of stock options . . . [were

classified] as marital . . . property.”          Ranney v. Ranney, 608

S.E.2d 485, 493 (Va. Ct. App. 2005).

     As the divorce proceedings wound down, Ranney began a series

of three civil actions against Carol and Nelson.           In March 2003,

Ranney filed a civil suit in Virginia state court against Carol,

alleging fraud in the inducement of marriage and defamation of

character.     The primary factual allegation was that Carol falsely


                                     3
told Ranney that she had been married only once before.                          In

November 2003, Ranney brought another civil action in the Circuit

Court for Fairfax County -- this time naming both Nelson and Carol

as defendants.         Ranney asserted five claims against Nelson: (1)

that Nelson violated the Virginia Consumer Protection Act, see Va.

Code Ann. § 59.1-200.14; (2) that Nelson breached a general legal

duty to produce genuine documents pursuant to the subpoena issued

by Ranney in the divorce proceedings; (3) that Nelson fraudulently

concealed her genuine session notes during the divorce proceedings;

(4) that Nelson breached professional duties owed to Ranney as his

licensed therapist and therefore committed malpractice; and (5)

that Nelson engaged in a conspiracy with Carol to produce false

documents and conceal genuine documents.                 Nelson filed a general

demurrer    to   all    counts    asserted      by    Ranney,    which   the   court

sustained   except      as   to   the   cause    of    action    for   professional

malpractice.      The     court    granted   Ranney      leave    to   replead   the

malpractice cause of action in accordance with the technical

requirements of Va. Code § 8.01-271.1.

     In October 2004, while the malpractice claim was still pending

in state court, Ranney brought the present action against Nelson in

federal court. Ranney’s federal action includes claims for “injury

to property and property interests,” “continuing malpractice and

concealment,” and “conspiracy to injure property.”                       J.A. 9-11.

Ranney premised these claims on the theory that Nelson had a duty,


                                         4
as his counselor, to inform him or to “strongly urge Carol to

inform” Ranney of the undisclosed prior marriages, or to terminate

further services to either spouse if Carol refused to do so,

because “Nelson was in a conflict of interest position.”                J.A. 6.

Ranney    contends        that   had   Nelson    properly     discharged   her

professional duty, he would have ended his marriage to Carol sooner

which, in turn, would have “reduc[ed] the estate from which Carol

could claim an interest by virtue of the marriage.”              J.A. 7.   The

factual predicate for these claims, in contrast to Ranney’s claims

against   Nelson     in    state   court,    began    with   Nelson’s   alleged

misconduct during the summer of 2000 when Ranney and Carol were

both receiving counseling from Nelson.               Ranney’s previous claims

against Nelson in state court focused only on Nelson’s conduct

during the divorce proceedings in 2003.

     The district court dismissed the “injury to property” and

“continuing malpractice” claims on statute of limitations grounds,

and dismissed the “conspiracy to injure property” claim as well

based on principles of res judicata.             Ranney appeals, contending

that the district court applied the wrong statute of limitations

and therefore erroneously dismissed the malpractice and injury to

property claims as time-barred.             He also challenges the district

court’s application of res judicata to the conspiracy count.




                                        5
                                        II.

     Virginia law imposes a general two-year limitations period for

bringing actions for personal injuries: “Unless otherwise provided

in this section or by other statute, every action for personal

injuries, whatever the theory of recovery, . . . shall be brought

within two years after the cause of action accrues.”                   Va. Code Ann.

§ 8.01-243.A.       By contrast, Virginia law imposes a more generous

five-year limitations period for the filing of an action alleging

“injury      to   property,”    Va.   Code        Ann.    §   8.01-243.B,    such    as

diminution of property value caused by the operation of a nearby

industrial plant.       See Adams v. Star Enters., 851 F. Supp. 770, 771

(E.D. Va. 1994).        When the claim arises from duties rooted in a

written contract, the applicable limitations period is five years.

See Va. Code Ann. § 8.01-246.2.                 In an action based upon an oral

contract, the limitations period is three years. See Va. Code Ann.

§ 8.01-246.4.       For most causes of action under Virginia law, the

limitations period begins to run when the defendant commits the

wrong   as    opposed   to     when   the       wrong    is   or   should   have   been

discovered.       See Va. Code Ann. § 8.01-230 (“[T]he right of action

shall be deemed to accrue and the prescribed limitations period

shall begin to run from the date the injury is sustained in the

case of injury to the person or damage to property . . . .”).

     The district court determined that the two-year limitations

period for personal injuries applied to both Ranney’s claim for


                                            6
“injury to property” and his claim for malpractice.          The district

court concluded that, because both claims were premised on Nelson’s

alleged breach of her duties to Ranney, both causes of action

should be characterized as personal injury claims. With respect to

the “injury to property” claim, the district court explained that

the essence of Ranney’s claim was that Nelson breached duties she

owed him -- resulting in a personal injury -- not that she injured

his property.   Because Nelson’s alleged misconduct occurred well

over two years before Ranney filed this action, the district court

concluded the claim was time-barred.         As for Ranney’s “continuing

malpractice” claim, the district court treated it as one for

medical   malpractice,   which   falls   within    the   two-year   period

applicable to personal injury claims.         See Castillo v. Emergency

Medicine Assocs., 372 F.3d 643, 646 (4th Cir. 2004).         The district

court also afforded Ranney the benefit of the one-year extension

that Virginia law permits when “fraud, concealment or intentional

misrepresentation prevented discovery of the injury within the two-

year period” for filing a medical malpractice claim. Va. Code Ann.

§   8.01-243.C.2.   Nevertheless,      the   district    court   held   that

Ranney’s claim was time-barred because Ranney “discovered the

injury in May 2003 when he received a copy of [Nelson]’s notes” but

did not file his complaint until October 22, 2004.          J.A. 104.

      On appeal, Ranney argues that the district court applied the

wrong statute of limitations.      In Ranney’s view, the appropriate


                                   7
limitations period for both of these claims is the five-year period

prescribed for claims alleging injury to property.                  See Va. Code

Ann. § 8.01-243.B.       First, Ranney suggests that his “injury to

property” claim is properly characterized, as Nelson’s alleged acts

and omissions caused him to lose substantial proceeds from his

stock options in the divorce.       We cannot agree.           The mere fact that

Ranney characterized his claim as one for injury to property does

not    control    our   analysis   for       purposes     of    identifying    the

appropriate statute of limitations.                It is “the object of the

litigation and not its form [that] determines the applicability of

a statute of limitations.”         Richmeade, L.P. v. City of Richmond,

594 S.E.2d 606, 608-09 (Va. 2004). Section 8.01-243.B applies when

the alleged wrongdoing was “aimed at the property” itself.                Id. at

609.    Ranney, however, seeks to recover based on Nelson’s alleged

breach of duty to him individually; the resulting loss of property

he alleges merely flows as a consequence of his alleged injury.

See Pigott v. Moran, 341 S.E.2d 179, 182 (Va. 1986); see also Brown

v. Am. Broad. Co., 704 F.2d 1296, 1303 (4th Cir. 1983) (applying

the two-year personal injury statute where the “injury to property”

claim asserted nothing more than “an indirect or consequential

injury” flowing from an alleged personal injury).

       Nelson urges us to affirm the district court’s conclusion that

Ranney’s claims are time-barred; however, Nelson suggests that the

appropriate      limitations   period       is   the   three-year   period    that


                                        8
applies to actions based on unwritten contractual duties.            See Va.

Code Ann. § 8.01-246.4.        As the district court correctly observed,

both claims are premised upon the alleged breach of duties that

Nelson    owed   Ranney   as   his   therapist,   regardless   of   Ranney’s

characterization of the claims.         Thus, Nelson contends, the duties

she allegedly breached arose, if at all, as a matter of contract or

agreement between counselor and client.            Nelson points out that

Ranney does not allege that she breached any duty arising as a

matter of law, and in that respect Ranney’s claim (for statute of

limitations purposes) is much like one for legal malpractice.             In

contrast to medical malpractice actions, professional malpractice

actions under Virginia law typically fall within the limitations

period applicable to contract actions.          Compare Boone v. C. Arthur

Weaver Co., 365 S.E.2d 764, 766 (Va. 1988) (“[T]he contract statute

of limitations applies to an action to recover for the professional

negligence of an attorney, despite the fact that the motion for

judgment was framed in tort.”) with Castillo, 372 F.3d at 646.

     We agree with the district court that Ranney’s allegations do

not state an “injury to property” for purposes of determining the

applicable limitations period.              We need not decide, however,

whether the claims at bar are technically more akin to claims for

medical   malpractice     or   breach   of   contract.   In    either   case,

Ranney’s claims are time-barred. If we classify Ranney’s complaint

as asserting a cause of action for medical malpractice, his claims


                                        9
are time-barred for the reasons stated by the district court in its

order of dismissal.      Alternatively, Ranney’s claims are likewise

barred by the three-year limitations period applicable to claims

based   on   oral   contracts.   See    Va.   Code   Ann.   §   8.01-246(4).

Accordingly, we affirm the order of the district court to the

extent it dismisses Ranney’s “injury to property” and “continuing

malpractice” claims on statute of limitations grounds.



                                  III.

     The district court dismissed Ranney’s conspiracy claim on res

judicata grounds.       Under Virginia law, “[t]he doctrine of res

judicata precludes parties from relitigating the same cause of

action when a valid, final judgment was previously entered.”

Scales v. Lewis, 541 S.E.2d 899, 901 (Va. 2001).            A party seeking

to raise res judicata as a defense to a claim must establish: (1)

“identity of the remedy 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.”

Davis v. Marshall Homes, Inc., 576 S.E.2d 504, 506 (Va. 2003).

Thus, under Virginia law, “res judicata only applies if the cause

of action a plaintiff asserts in the pending proceeding is the same

as the cause of action asserted in the former proceeding.”              Id.

The Virginia Supreme Court has explained, furthermore, that “[f]or

the purposes of res judicata, a cause of action may be defined


                                   10
broadly as an assertion of particular legal rights which have

arisen out of a definable factual transaction.”               Allstar Towing,

Inc. v. City of Alexandria, 344 S.E.2d 903, 905-06 (Va. 1986)

(internal quotation marks omitted).

     Because the conspiracy claim alleged in Ranney’s federal

complaint appears to encompass conduct distinct from and occurring

prior to the conspiracy claim alleged in state court, we are unable

to conclude that the identity of the causes of action has been

established.      Ranney’s    federal      conspiracy    claim   alleges    that

“[b]eginning in or about 2000, and continuing to the present,

Nelson undertook and conspired with Carol to allow Carol to acquire

and spend Ranney’s property, and capture as much of it as possible

in a divorce case.    Nelson also conspired with Carol to conceal her

malpractice from [Ranney].”        J.A. 11.     The factual predicate for

this claim involves Nelson’s actions during or near the time of the

joint   therapy   sessions   in    2000.      The   prior    conspiracy    claim

disposed   of   by   the   state   court    focused     on   Nelson’s   alleged

destruction or fabrication of facts and evidence during court

proceedings in 2003.         Although both claims rest on a factual

predicate that is related in terms of subject matter, they do not

arise from the same factual transaction.

     Accordingly, we conclude that Ranney’s conspiracy cause of

action is not barred by the doctrine of res judicata.              We take no

position as to the viability of this claim otherwise.


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                                IV.

     For the reasons stated above, we affirm the dismissal of

Ranney’s   claims   for   “injury    to   property”   and   “continuing

malpractice” as time-barred.        We reverse the district court’s

application of res judicata to Ranney’s conspiracy claim, and

remand it to the district court for further proceedings.



                                                      AFFIRMED IN PART,
                                                      REVERSED IN PART,
                                                           AND REMANDED




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