Moore v. Gillis, 890277

• Decision Date: 02 March 1990
• Docket Number: No. 890277,890277
• Citation: 389 S.E.2d 453,239 Va. 239
• Parties: Clarence C. MOORE v. Elvertha D. GILLIS. Record
• Court: Virginia Supreme Court

Page 453

389 S.E.2d 453

239 Va. 239

Clarence C. MOORE v. Elvertha D. GILLIS.

Record No. 890277.

Supreme Court of Virginia.

March 2, 1990.

Walter H. Emroch (William P. Hanson, Jr., Richmond, on brief), for appellant.

Caroline Lowdon Lockerby, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen.; Gail Starling Marshall, Deputy Atty. Gen., on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

Code § 8.01-380(A) contains a limitation which provides that "[a]fter a nonsuit no new proceeding on the same cause of action or against the same party shall be had in any court other than that in which the nonsuit was taken." The question for decision in this case is whether the limitation applies to a second proceeding brought in another court prior to the time the first proceeding is nonsuited. The trial court held that the limitation does apply and dismissed the second proceeding. We granted an appeal to review the trial court's action.

The record shows that on April 18, 1985, the plaintiff, Clarence C. Moore, was an inmate at the Brunswick Correctional Center in Brunswick County and that the defendant, Elvertha D. Gillis, was a corrections officer employed at the same facility. On that date, Moore was injured when an electronically operated door through which he was passing slammed against him.

On March 11, 1987, Moore filed a motion for judgment against Gillis in the Circuit Court of the City of Richmond. In the motion, Moore alleged that Gillis negligently caused the door to slam against him and, accordingly, that she was liable to him in damages.

On April 6, 1987, Gillis filed a motion to transfer venue of the action to the Circuit Court of Brunswick County. Moore agreed to the transfer, but, on April 16, 1987, before the transfer order was entered, filed another motion for judgment on the same claim in the Circuit Court of the City of Richmond. By order dated May 18, 1987, the Richmond court transferred venue of the first action to Brunswick County. Nearly a year later, on April 18, 1988, Moore nonsuited the first action, which was then pending in the Circuit Court of Brunswick County.

On December 7, 1988, acting on its own motion, the Circuit Court of the City of Richmond held that it lacked jurisdiction to "hear the 'new' proceeding." On December 29, 1988, the court dismissed Moore's second action.

Moore contends that the statutory limitation contained in Code § 8.01-380(A) "does not apply to cases where two lawsuits are pending simultaneously and one is subsequently nonsuited." A defendant's only option in such a situation, Moore says, is to "make a motion to require the plaintiff to elect which suit he will pursue."

Gillis contends that the limitation in question "is intended to prevent a plaintiff from 'forum-shopping' by instituting his suit in a new court after encountering difficulties in his original suit." Gillis maintains that to "allow a plaintiff to circumvent the statute in this way would lead to an absurd result--a plaintiff who desires to nonsuit and refile in a new court need only file in the new court the day before he nonsuits." (Emphasis in original.)

Gillis says that this Court has "the duty to construe the statute so as to avoid [an absurd] result, and to adopt a reasonable construction within the legislative intent and purpose." And we must adopt that interpretation "which...