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C. Same Conduct, Transaction, or Occurrence
The Supreme Court, in deciding Funny Guy, 293 Va. at 154-55, provided a framework
for determining whether claims arise from the same conduct, transaction, or occurrence for
purposes of a res judicata analysis. The analysis takes a practical approach and focuses on
“uncovering the true underlying dispute between the parties.” Id. at 155. The test considers six
factors, none of which, by itself, is dispositive. Id. at 154. Summarizing those six factors, “[t]he
proper approach asks ‘whether the facts are related in time, space, origin, or motivation, whether
they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’
expectations or business understanding or usage.” Id. (quoting Restatement, supra, § 24(2)).
A “party asserting res judicata as a defense” bears the burden of proof by a
preponderance of the evidence. D’Ambrosio v. Wolf, 295 Va. 48, 53 (2018). Here, the circuit
court determined that res judicata did not apply because each invoice represented a separate
transaction. We now examine each of the six factors provided in Funny Guy.
1. Time
Claims can arise out of the same transaction or occurrence when the charged conduct
spans months. See Fox v. Deese, 234 Va. 412, 416-18, 422-23 (1987). The circuit court found
that “[t]he time . . . factor for each water bill [wa]s different as the amount sought under each bill
[wa]s for a different billing period.” While this part is true, we note that although the charges
were billed monthly, they were continuous. See Newport News, Va., Code § 42-42(a),
https://perma.cc/YSQ4-SJGD (providing monthly billing for water usage); see also Newport
News, Va., Code § 33-33, https://perma.cc/GF86-VLRB (calculating sewer usage charges based
on water consumption). The service, too, was continuous and uninterrupted. Jump to an indexed page (12 of 12)