Probate action does not bar by res judicata a claim to title to Virginia real property that is not part of the probate estate.

In 2005, Donald Gunter filed an action against Robbie S. Martin individually and in her capacity as administrator of the estate of George F. Martin. Gunter alleged that Robbie, the decedent’s widow, filed an incorrect list of heirs as administrator indicating that she was the sole heir of the decedent and excluding Gunter, who claimed to be the decedent’s biological child. The court granted Robbie’s to dismiss the lawsuit because Gunter failed to file an affidavit of parenthood within one year of the decedent’s date of death as required under Virginia law.

In 2009, Gunter filed an action in the Colonial Heights Circuit Court to quiet title to real property owned by the decedent at the time of his death, claiming that he was entitled to an interest in the property as the decedent’s biological son. Robbie filed a plea in bar of res judicata based on the judgment of the 2005 action, arguing that Gunter’s 2009 action was barred because all of the relief he sought was dependent upon the determination that he was a child of the decedent, a matter decided in the 2005 action. The court found in Robbie’s favor on the grounds that both cases involve the same cause of action because they arise out of the same transaction or occurrence - the paternity status of the decedent. Gunter appealed.

On appeal, the Virginia Supreme Court reversed the circuit court decision and held that the 2009 quiet title action was not barred by res judicata on the grounds that: (1) Gunter did not seek the same remedy that he sought in the 2005 action; (2) in the prior action, Gunter sought relief as an heir to the decedent’s estate, while in the 2009 action Gunter was seeking an interest in real estate that would have passed to him outside of the estate; and (3) therefore, the remedy sought in the two actions did not have the same identity and the second action was not barred.