
    Richmond
    Saba Apartments, Incorporated, A. Andrew Giangreco, Nancy G. Giangreco, Billie Mae Sabatini and Robert P. J. Sabatini v. Allan Lang.
    January 15, 1973.
    Record No. 8025.
    Present, All the Justices.
    
      A. Andrew Giangreco (Giangreco, Seay and Manuel, on brief), for plaintiffs in error.
    
      Leonard C. Collins [D. C.] (William T. Ward, on brief), for defendant in error.
   Per Curiam.

This writ of error was granted to a final order of the trial court awarding summary judgment in favor of Allan Lang (Lang) upon a motion for judgment filed against him and others by the appellants (Saba), who were the plaintiffs below.

Saba’s motion for judgment alleged that Lang and the eleven other named defendants conspired to fraudulently and falsely misrepresent the market value, loan value, rents and profits of three apartment buddings in Arlington County. It was further alleged that Saba relied on these false and fraudulent representations in purchasing and financing the property. It also alleged that three “bearer” notes, given as a part of the consideration for the property, were executed to replace notes which had been fraudulently executed at an earlier time as a part of the same conspiracy.

Lang filed a plea of res judicata based on a final judgment in his favor rendered by the Circuit Court of Fairfax County in a law action instituted there by Lang against Saba.

The trial court, after examining portions of the record in the Fair-fax action, granted summary judgment in favor of Lang on the pleadings.

When Lang asserted the defense of res judicata he had the burden of proving that the very point or question was in issue and determined in the former suit. Worrie v. Boze, 198 Va. 533, 95 S.E. 2d 192 (1956); Fishburne v. Ferguson, 85 Va. 321, 7 S.E. 361 (1888).

Lang proved in the court below that (1) he had previously filed an action against Saba in Fairfax County seeking to enforce collection of the three “bearer” notes executed by Saba as a part of the. consideration for the three apartment buildings, (2) Saba had asserted as a defense to the Fairfax action brought by Lang the same alleged conspiracy and fraud in the inducement as are now alleged by Saba to support the present action against Lang, and (3) the Fairfax action had been determined in favor of Lang.

Having carried his burden of establishing that the identical question had theretofore been at issue and determined in his favor between the same parties by a court of competent jurisdiction, Lang was entitled to have his plea of res judicata sustained.

Affirmed.  