Present: Carrico, C.J., Compton, Stephenson, Whiting, 1 Lacy,
Hassell, and Keenan, JJ.


KIRWAN & COMPANY, P.C.

v.   Record No. 941657            OPINION BY JUSTICE HENRY H. WHITING
                                           September 15, 1995

WILMA PELLETIER-BAKER, ETC.


                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         Stanley P. Klein, Judge


         This is an appeal from a final judgment in favor of the

defendant in an action to collect an account.       The plaintiff,

Kirwan & Company, P.C. (Kirwan), claims that the circuit court

erred in sustaining a plea in bar based upon the defenses of res

judicata and collateral estoppel filed by the defendant, Wilma L.

Pelletier-Baker, also known as Wilma Pelletier (Baker).       Counsel

stipulated that the evidence in support of the plea is reflected

in a written statement of facts and in the defendant's earlier-

filed motion for summary judgment with exhibits attached thereto.
         In October 1989, Eckert & Taylor, Ltd., a professional

corporation engaged in the practice of public accountancy (Eckert

& Taylor), contracted with Baker to provide accounting services

under the supervision of Warren W. Taylor, Jr., a certified

public accountant, and an employee, officer, director, and
                                   2
shareholder of Eckert & Taylor.        In July 1991, Eckert & Taylor
     1
     Justice Whiting prepared and the Court adopted the opinion in
this case prior to the effective date of his retirement on August
12, 1995.
     2
     The record also indicates that on October 17, 1989, Taylor
executed another contract apparently modifying the October 7
contract. The modifications are not material to this appeal.
sued Baker to recover $79,963 in unpaid accounting fees allegedly

due under the contract.

        On December 27, 1991, Taylor met with the shareholders and

president of Kirwan, another professional corporation engaged in

the practice of public accountancy, and the parties agreed that

Taylor would "join Kirwan when he left [Eckert & Taylor] on

January 1, 1992."    The minutes of the meeting state that Taylor

"expects some accounts receivable which he generated as an

employee of Eckert & Taylor, Ltd. to be assigned as he directs."

 The minutes also indicate that Kirwan would "accept the

assignment of various accounts receivable from Eckert & Taylor,"

which Kirwan would "collect on behalf of Taylor and apply same

towards his share of overhead and pay any balance to him as

compensation."    According to the statement of facts, "[t]he

assignment [of Baker's account] to Kirwan is reflected in [the]

December 27, 1991 agreement." 3

        In March 1992, Taylor became an officer and director of

Kirwan.    In June 1992, Eckert & Taylor nonsuited its case against

Baker.

        Alleging under oath that he was "successor-in-interest" of

Eckert & Taylor, "Warren W. Taylor, Jr., t/a Eckert & Taylor,

Ltd." sued Baker in December 1992, claiming the sum of $80,531

due "[a]s of September, 1990."    Taylor's claim was based upon the

    3
     Baker does not question Taylor's authority on behalf of Eckert
& Taylor to assign her account to Kirwan.




                                  -2-
same claim for unpaid accounting fees asserted in the first

action.   At the trial of this case in October 1993, Taylor

testified about the damages.   Upon the conclusion of Taylor's

case, the court sustained Baker's motion to strike Taylor's

evidence on the grounds that he had not "presented sufficient

evidence to allow this case to go to the jury" to (1) establish

his status as a successor in interest to Eckert and Taylor, and

(2) "sustain his burden with respect to proof of damages."

Taylor did not appeal this judgment.
     In January 1994, Kirwan sued Baker asserting the same claim

of $80,531 in unpaid accounting fees.   Baker filed a motion for

summary judgment "on the grounds of res judicata and collateral

estoppel."   The court denied that motion on the ground that such

defenses should be raised in a plea in bar.   Baker later filed

such a plea, adopting by reference "the Motion for Summary

Judgment and points and authorities in support thereof."

     In its final order, the court sustained the plea in bar,

finding (1) that Taylor was in privity to Eckert & Taylor since

he was a principal in that corporation, (2) that after leaving

Eckert & Taylor, Taylor sued Baker for services he rendered to

her through Eckert & Taylor alleging that he was a successor in

interest to it, (3) that the evidence in Taylor's case was

"struck on the grounds that no damages were proven," and (4) that

Kirwan could not bring the action "alleging standing as an

assignee."   Kirwan appeals.



                                -3-
     Kirwan contends that it is not bound by the judgment adverse

to Taylor because (1) the account had been validly assigned to it

before Taylor filed his action against Baker; therefore, Kirwan,

not Taylor, was the only party who could have brought the action

against Baker after that assignment, and (2) it is not collecting

the judgment solely for Taylor's benefit.    On the other hand,

Baker contends that her plea in bar was properly sustained for

either of two reasons.   Either Kirwan, as Eckert & Taylor's

assignee, is bound by that judgment since Taylor was then in

privity with Eckert & Taylor or Kirwan is now in privity with

Taylor because Kirwan is collecting the account against Baker

solely for Taylor's benefit.   We agree with Kirwan.
     Since the claim was assigned by Eckert & Taylor to Kirwan in

December 1991, the fact that Taylor was then a principal in

Eckert & Taylor and, in the words of Baker, "has appeared three

times against Baker represented by the same lawyers in each

case," is immaterial to the issues in this case.    Eckert & Taylor

was a separate legal entity from Taylor.    Neither Taylor nor

Eckert & Taylor owned the claim or was in privity with Kirwan

when Taylor filed his action against Baker, a year after the

claim had been assigned to Kirwan.     And Kirwan, as the assignee,

is not bound by an adverse adjudication against the assignor,

after the assignment.    See Restatement (Second) of Judgments

§ 55(2) (1982) (determination of issues in action by or against

either assignor or assignee against third party not preclusive as



                                 -4-
to the other of them unless action brought by assignor before

assignment).

     Further, the fact that any amount collected from Baker will

be applied to Taylor's share of the overhead at Kirwan and the

balance paid Taylor as compensation does not affect the validity

of the assignment.   The record indicates that the account was

assigned by one corporation to another, both separate legal

entities from Taylor, long before Taylor filed and tried his

individual action.
     And, contrary to Baker's contention, the record does not

establish that the assignment's allocation provisions were solely

for Taylor's benefit, thus making Kirwan a mere agent and privy

of Taylor for the collection of Baker's alleged debt.    Kirwan's

contractual obligation to apply part of any collection from Baker

"toward [Taylor's] share of overhead" does not establish that

Kirwan would receive no benefit from those funds.   Presumably,

the overhead referred to is that which Kirwan would have incurred

after Taylor joined the firm, and the record fails to show that

Kirwan's allocation of any sums collected from Baker could not

have benefitted Kirwan.   The burden of showing this lack of

benefit is upon Baker, who asserts the bar of res judicata and

collateral estoppel.    Bernau v. Nealon, 219 Va. 1039, 1043, 254

S.E.2d 82, 85 (1979).

     Hence, we conclude that the trial court erred in sustaining

Baker's plea in bar.    Accordingly, we will reverse the judgment




                                 -5-
of the court and remand the case for further proceedings.

                                           Reversed and remanded.




                               -6-
