Supreme Court Declines to Penalize Plaintiff for Failure to Correct Misnomer

Linda Richmond alleged injuries from an April 12, 2009 auto accident that occurred when her vehicle was struck by a vehicle driven by Katherine E. Volk. The vehicle operated by Volk was owned by Jeannie Cornett. Richmond filed her Complaint on February 28, 2011, erroneously naming “Katherine E. Cornett” as the defendant. In January of 2012, Richmond altered the style on her process to “Katherine E. Cornett a/k/a Katherine Craft,” and effected service by posting it at the address of Jeannie Cornett.

Volk then filed a motion to quash service, arguing that it was served at the wrong address. Volk did not argue, however, that she was not the individual described in Richmond’s Complaint, and later conceded that she was. Volk filed her motion on February 12, 2012, just under one year after Richmond filed her lawsuit. Richmond then moved to nonsuit her action, and the Court entered a nonsuit order on November 9, 2012.

On December 11, 2012, Richmond re-filed her Complaint, this time identifying the defendant as “Katherine E. Volk, f/k/a Katherine E. Craft, a/k/a Katherine E. Cornett.” Richmond then served her Complaint on Volk at her proper address. Volk brought a plea in bar, asserting that Richmond’s second complaint was time-barred. Volk argued Richmond had filed her second Complaint more than two years after the accident, and it did not relate back to her first Complaint because Richmond never amended her Complaint pursuant to Va. Code § 8.01-6. The Trial court sustained Volk’s plea in bar. On appeal, Richmond argued that her re-filed action was timely, because the filing of her first Complaint tolled the limitations period.

The Supreme Court sided with Richmond in a 4-3 opinion. First, the Court determined that Richmond’s improper identification of Volk was a misnomer, because from the allegations of both Complaints, “it is readily apparent that [Volk] was the person against whom the action was intended to be brought.” Next, the Court held that Richmond’s failure to correct the misnomer did not prevent the applicable statute of limitations from being tolled under Va. Code § 8.01-229(e). The Court analogized the matter to the case of Clark v. Butler Aviation-Washington National, Inc., 238 Va. 506, 385 S.E.2d 847 (1989), in which the plaintiff violated Virginia Supreme Court Rule 3:5(e) by waiting more than one year to serve his Complaint, nonsuited his action, and then re-filed. Although the action was re-filed after the applicable limitations period, the Clark Court found that Rule 3:5(e) did not operate to prevent the statute of limitations from being tolled under Va. Code § 8.01-229(e), such that the action could proceed. The Court found that this logic applied in the instant matter, because "the failure to correct a misnomer under Code § 8.01-6 does not prevent the operation of Code § 8.01-229(E)(3) upon the taking of a nonsuit." Section 8.01-229(E)(3) provided Richmond six months in which to re-file the action after taking her nonsuit.

The dissent criticized this decision as an unnecessary enhancement of the potency of a plaintiff's nonsuit power. It argued that the tolling provision of § 8.01-229(E)(3) did not apply, because Richmond's first and second action were effectively brought against separate and distinct defendants. The dissent was unpersuaded by Richmond's argument that she intended for both parties to be the same, and mistakenly used the wrong name.

The reach of this case should be limited to its particular facts, and its facts are unusual enough that counsel should encounter them only rarely. The case is significant, however, in that it signals the hesitance of the Court to intrude on the "powerful tactical weapon" that is the nonsuit. In that sense, Richmond v. Volk may exert a chilling effect on circuit courts, making them more hesitant to dismiss a plaintiff's previously nonsuited action for any perceived technical deficiencies.

Richmond v. Volk, No. 150192, 2016 Va. LEXIS 4 (Jan. 28, 2016)

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