Hampton v. Meyer

Decision Date27 August 2020
Docket NumberRecord No. 191194
Citation847 S.E.2d 287
Parties Calvin HAMPTON v. Noah J. MEYER
CourtVirginia Supreme Court

847 S.E.2d 287


Record No. 191194

Supreme Court of Virginia.

August 27, 2020

Juli M. Porto, Fairfax, (Thomas M. Konvicka; Blankingship & Keith; The Joel Bieber Firm, on briefs), for appellant.

Henry S. Carter (E. Brandon Ferrell, Richmond; Kerrigan C. K. O'Malley; Carter & Shands, on brief), for appellee.

Amicus Curiae: Virginia Trial Lawyers Association (Ashley T. Davis, Richmond; Mara E. Shingleton; Allen, Allen, Allen & Allen, on brief), in support of appellant.

PRESENT: All the Justices


In this appeal, we consider whether the misidentification of a defendant in a complaint was a misnomer or a misjoinder, and whether the filing of a new complaint to correct it after a nonsuit was barred by the statute of limitations.


Calvin Hampton was a passenger in a 2005 Chevrolet Malibu when it was struck by a 1997 GMC Suburban outside a shopping mall after dark on Christmas Eve 2016. According to the police report of the collision, the driver of the Suburban ran a red light while making a left turn into the mall's entrance, striking the Malibu with sufficient force to propel it across the intersection into a third vehicle waiting at a red light to exit the mall. Hampton was injured. According to the police report, he, the driver of the Malibu, and the driver of the Suburban were taken to the hospital by emergency medical services.

On December 11, 2018, Hampton filed a complaint seeking damages from the driver of the Suburban. The complaint alleged that at the time of the collision the driver of the Suburban "was approaching a red light on Midlothian Turnpike and attempting to make a left hand turn." It alleged that the driver had a duty "to operate his vehicle with reasonable care and with due regard for others using the road." It alleged that the driver "carelessly, recklessly, and negligently operated his vehicle, disregarding a red light, and crashing into the front of the vehicle in which" Hampton was a passenger. It alleged that the driver of the Suburban was negligent by

(a) fail[ing] to keep a proper lookout; (b) fail[ing] to give full time and attention to the operation of his vehicle; (c) fail[ing] to
847 S.E.2d 289
maintain his vehicle under proper control; (d) fail[ing] to obey traffic signals and disregard[ing] a red light in violation of Virginia Code § 46.2-833 ; (e) ... never attempt[ing] to hit his brakes before the crash; and (f) crash[ing] into the vehicle that [Hampton] was riding in with enough force to push the vehicle he was riding in into another vehicle.

(Capitalizations omitted.) The complaint alleged that as a result of this negligence, Hampton "has been caused to sustain serious and permanent injuries" and other damages.

Notably, the complaint alleged a cause of action for negligent operation of the Suburban by the person acting in the capacity of its driver. All of the alleged acts arose from the manner of its operation. The complaint alleged no cause of action connected in any way to the ownership of the Suburban by any person acting in the capacity of its owner.1

The police report identified the driver of the Suburban as Michael Patrick Meyer ("Michael"), including his driver's license number and address. It identified the owner of the vehicle as Patricia Lynn Meyer ("Patricia"), including her address and insurance information. It reflected that Michael was charged with violating Code § 46.2-833 by disregarding a red light. Relying on this police report, Hampton's complaint likewise identified Michael as the driver of the Suburban. It did not identify Patricia as the owner, or name or refer to her in any way. Again, it made no allegations and asserted no claim arising from the ownership of the Suburban or against anyone acting in the capacity of its owner.

On January 18, 2019, the Meyers’ insurer informed Hampton through counsel that Noah Meyer ("Noah") had been driving the Suburban at the time of the collision. Michael was actually Noah's father and a co-owner of the vehicle. The insurer had not provided this information earlier, despite communicating with Hampton about the collision in December 2016 and September 2017.

On February 6, 2019, Hampton obtained an order nonsuiting his complaint. On February 25, 2019, he filed a new complaint explaining that he had filed the 2018 complaint naming Michael as the driver based on the erroneous police report and that he had nonsuited that complaint upon learning the true name of the driver. He asserted that under this Court's decision in Richmond v. Volk , 291 Va. 60, 781 S.E.2d 191 (2016) (" Volk "), the use of the wrong name in his 2018 complaint was merely a misnomer rather than a misjoinder.

Other than changing the first name of the driver from Michael to Noah, the factual allegations in Hampton's 2019 complaint about what the driver of the Suburban had done were substantially the same as in his 2018 complaint. Like his 2018 complaint, Hampton's 2019 complaint alleged a cause of action for negligent operation of the Suburban by the person acting in the capacity of its driver. All of the alleged acts arose from the manner of its operation. The 2019 complaint alleged no cause of action connected in any way to its ownership by any person acting in the capacity of its owner.

Noah filed a plea in bar asserting that Hampton's 2019 complaint was time-barred. Hampton opposed it, arguing that in Volk this Court had reversed a circuit court's judgment dismissing a complaint as time-barred after the plaintiff nonsuited an earlier complaint incorrectly naming the defendant and filed a new complaint using her correct name. He argued that we ruled in Volk that because using the wrong name in the original complaint was merely a misnomer, the parties had not changed. According to him, we held that despite using the wrong name, other information in the original complaint in that case adequately identified the correct defendant. Therefore, we ruled that Code § 8.01-229(E) had tolled the statute of limitations. He argued that the same principles applied with equal force in his own case.

After a hearing, the circuit court entered an amended order sustaining Noah's plea in bar, ruling that naming Michael in the 2018 complaint was a misjoinder, not a misnomer, because Michael and Noah were separate individuals and that Michael's name was not

847 S.E.2d 290

a misspelling of Noah's. Hampton filed a motion to reconsider, which the circuit court denied. In its final order, the court stated that "what is determinative is that Michael Meyer, by [Hampton's] own admissions in his complaint, is a real person .... Because of this, Michael Meyer was the improper party to be named and sued in the original action because he is a separate individual from Noah Meyer." (Emphasis added.)

We awarded Hampton this appeal.


Whether the incorrect identification of a party is a misnomer or a misjoinder is a question of law reviewed de novo. Volk , 291 Va. at 64-65, 781 S.E.2d 191.

Hampton asserts that the circuit court erred by sustaining Noah's plea in bar because naming Michael as the driver of the Suburban in his 2018 complaint was a misnomer and Volk controls. He argues that a misnomer occurs when a defendant is properly identified but incorrectly named, and that courts look to the whole complaint to determine whether it adequately identifies the defendant. He argues that his 2018 complaint adequately identified the defendant as the driver of the Suburban—i.e., the person who committed the specific, alleged acts at the alleged time and in the alleged place, in the manner alleged, to cause the alleged injuries. Only one person drove the Suburban at the time of the collision, running the red light at the specified intersection to collide with the Malibu on the specified date, and that person—whatever his or her name—caused Hampton's injuries. Consequently, under our holding in Volk , he continues, a new complaint correctly naming Noah after Hampton nonsuited the 2018 complaint that incorrectly named Michael was not time-barred. We agree.

[W]here a complaint incorrectly names a party, such an error is either a misnomer or a misjoinder. A misnomer is a mistake in the name, not the identification, of a party. See Rockwell v. Allman , 211 Va. 560, 561, 179 S.E.2d 471 (1971) (per curiam) ("A misnomer is a mistake in name, but not person."). In other words, a misnomer occurs where the proper party to the underlying action has been identified, but incorrectly named. Swann v. Marks , 252 Va. 181, 184, 476 S.E.2d 170 (1996). Misjoinder, on the other hand, arises when "the person or entity identified by the pleading was not the person by or against whom the action could, or was intended to be, brought." Estate of James v. Peyton , 277 Va. 443, 452, 674 S.E.2d 864 (2009).


The key distinction between a misnomer and misjoinder is whether the incorrectly named party in the pleading is, in fact, a correct party who has been sufficiently identified in the pleadings. To determine whether the mistake is a misnomer or misjoinder, "we consider the pleading as a whole." Estate of James , 277 Va. at 455, 674 S.E.2d 864.

Thus, whether a party named in a caption is a proper party to the action is

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