Jogananda Hazra, Plaintiff-appellant, v. William A. Smith, Jr., Archie W. Futrell, Iii, Defendants-appellees, 840 F.2d 10 (4th Cir. 1988)

Jogananda Hazra appeals from the district court's dismissal of his suit alleging that the defendants committed fraud against Hazra in their representation of him in prior breach of contract litigation against the United States. We affirm.

Hazra argues that the district court incorrectly found this suit barred as res judicata. This argument is without merit. These fraud allegations, like the previously litigated legal malpractice allegations, "arise out of the same ... series of transactions even [though] they involve different harms or different theories or measures of relief." Harnett v. Billman, 800 F.2d 1308, 1314 (4th Cir. 1986), cert. denied, 107 S. Ct. 1571 (1987).

Hazra's efforts to bring his claim within the fraud exception to the general res judicata rule fail because the alleged fraud did not cause the plaintiff to fail to include the fraud claim in the former malpractice action. Harnett, 800 F.2d at 1313. A review of the record, including the complaint and its attachments, along with Hazra's appellate filings, shows that the alleged fraud existed at the time of the entry of the North Carolina judgment. And, " [f]or purposes of res judicata, ... it is the existence of the present claim, not party awareness of it, that controls." Harnett, 800 F.2d at 1313.

We dispense with oral argument because the dispositive issue has recently been decided authoritatively.

AFFIRMED.