Richmond v. Volk

Decision Date28 January 2016
Docket NumberRecord No. 150192.
Citation291 Va. 60,781 S.E.2d 191
Parties Linda RICHMOND v. Katherine E. VOLK, f/k/a Katherine E. Craft, a/k/a Katherine E. Cornett.
CourtVirginia Supreme Court

Devon J. Munro (C. Richard Cranwell ; Cranwell & Moore, on briefs), Vinton, for appellant.

John D. Eure (Brian J. Brydges ; Johnson, Ayers & Matthews, on brief), Roanoke, for appellee.

Present: All the Justices.

Opinion by Justice CLEO E. POWELL.

Linda E. Richmond ("Richmond") appeals the decision of the trial court granting a special plea in bar of the statute of limitations to a re-filed complaint in a personal injury action. According to Richmond, the initial complaint tolled the running of the statute of limitations, even though the initial complaint contained a misnomer that misnamed the defendant, Katherine E. Volk ("Volk").

I. BACKGROUND

On April 12, 2009, Richmond was injured when her vehicle was struck from behind by a vehicle driven by Volk.1 The vehicle that Volk was driving at the time of the accident was owned by Jeannie Cornett ("Cornett"). As Volk was a permissive user of Cornett's vehicle, it was covered by Cornett's insurance policy, which was issued by State Farm Mutual Automobile Insurance Company ("State Farm").

On February 28, 2011, Richmond filed a complaint (the "2011 complaint") to recover damages for injuries she suffered in the collision. The 2011 complaint was styled "Linda E. Richmond v. Katherine E. Cornett." A copy of the 2011 complaint was sent to State Farm on April 13, 2011.

On January 26, 2012, after failing to negotiate a settlement with State Farm, Richmond directed the clerk to serve process on "Katherine E. Cornett a/k/a Katherine Craft." Richmond further provided the clerk with Cornett's address instead of Volk's address. The process was subsequently posted at Cornett's residence. On February 1, 2012, State Farm learned that process had been served on the wrong address. State Farm subsequently contacted Volk to discuss the claim on February 7, 2012.

On February 12, 2012, Volk filed a motion to quash service of process on the grounds that the service was invalid because it was served on the wrong address. Notably, Volk never claimed that she was not the person identified in the lawsuit. Indeed, in her motion to quash, Volk stated that she was "erroneously identified in the caption of [Richmond's] complaint as Katherine E. Cornett.’ "

Richmond subsequently moved to nonsuit her claim. On November 9, 2012, the trial court entered a consent order granting the nonsuit. Counsel for Volk endorsed the consent order as "Counsel for Defendant."

On December 11, 2012, Richmond refiled her complaint (the "2012 complaint"). The 2012 complaint was styled: "Linda E. Richmond v. Katherine E. Volk, f/k/a Katherine E. Craft, a/k/a Katherine E. Cornett. " The 2012 complaint was properly served on Volk at her home address.

On December 27, 2012, Volk filed a special plea in bar, asserting that Richmond's claim was barred by the statute of limitations. In her plea in bar, Volk argued that the 2011 complaint did not toll the statute of limitations because the 2012 complaint did not relate back to the 2011 complaint due to Richmond's failure to meet the requirements of Code § 8.01–6.

After hearing argument on the matter, the trial court issued a letter opinion dated September 25, 2014. In its letter opinion, the trial court ruled that Volk "is not the same person or entity as Katherine E. Cornett." The trial court further determined that Richmond could not rely on Code § 8.01–6 because she had not sought to correct the error within the time period established in the statute. Accordingly, the trial court sustained Volk's plea in bar.

Richmond appeals.

II. ANALYSIS

On appeal, Richmond argues that the trial court erred in sustaining the special plea in bar because the statute of limitations was tolled when she filed the 2011 complaint. Richmond contends that the record demonstrates that Volk was always the other party to the case, even though the 2011 complaint used the misnomer "Katherine E. Cornett." Richmond relies heavily on the fact that, by endorsing the nonsuit order, Volk acknowledged the fact that she was the party defendant to the 2011 complaint. Volk acknowledges that the name "Katherine E. Cornett" is a misnomer, but asserts that the filing of the 2011 complaint did not toll the running of the statute of limitations because Richmond failed to correct the misnomer within the time period contemplated by Code § 8.01–6. According to Volk, absent such an amendment, she was never actually a party to the nonsuited action.

This Court has recognized that, where 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, 472 (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, 171 (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, 869 (2009).

In the present case, the parties agree that Richmond's use of the name "Katherine E. Cornett" was a misnomer. However, the determination of whether an incorrectly named party is a misnomer or misjoinder is a question of law. See id. at 447, 674 S.E.2d at 865 ("Whether a pleading has adequately identified the proper party to be sued is a question of law."). Accordingly, we are not bound by the parties' agreement on this issue. See Wright v. Commonwealth, 278 Va. 754, 760 n. 3, 685 S.E.2d 655, 658 n. 3 (2009) (stating that questions of law are "not subject to a concession binding on this Court").

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 at 869.

Thus, whether a party named in a caption is a proper party to the action is to be determined not merely by how that party is identified in the caption of the pleading, but by the allegations set forth within a pleading that identify that party more specifically.

Id.

Here, although Richmond named "Katherine E. Cornett" as the defendant in the 2011 complaint, the pleading, when considered as a whole, clearly identifies Volk as the proper party to the action. Notably, the facts laid out in the 2011 complaint establish that the intended defendant was the driver of a specific vehicle that was in a specific location at a specific time and that the driver of that vehicle committed a specific act. As Volk is the only person that fits this description, it is readily apparent that she was the person against whom the action was intended to be brought. Thus, we agree that Richmond's use of the name "Katherine E. Cornett" was a misnomer and not misjoinder.

Having determined that the naming of "Katherine E. Cornett" in the 2011 complaint was a misnomer, we next must determine what effect, if any, the failure to correct that misnomer prior to taking a nonsuit had in the present case. Volk claims that Code § 8.01–62 is the sole mechanism for correcting a misnomer and that the failure to correct the misnomer under Code § 8.01–6 prevents Code § 8.01–229(E) from tolling the statute of limitations. We note, however, that Volk's argument is analogous to an argument that we expressly rejected in Clark v. Butler Aviation–Washington National, Inc., 238 Va. 506, 385 S.E.2d 847 (1989).

In Clark, the plaintiff served process on the defendant more than one year after the action was commenced. Id. at 508, 385 S.E.2d at 847. In response to defendant's motion to quash, the plaintiff took a nonsuit. Id. When the plaintiff refiled his action, the defendant filed a plea in bar, arguing that the claim was barred by the provisions of what is now Rule 3:5(e) and the statute of limitations. Id. The trial court sustained the plea in bar and the plaintiff appealed the ruling to this Court. Id. On appeal, this Court ruled that, although the predecessor of current Rule 3:5(e) prevented the entry of any judgment against the defendant in the original action, it did not prevent the statute of limitations from being tolled by operation of Code § 8.01–229(E). Id. at 511–12, 385 S.E.2d at 849–50.

Although the present case involves a statute rather than a rule of Court, the logic of Clark is still applicable. As with the failure to serve process within one year of filing the action, the failure to correct a misnomer under Code § 8.01–6 may have an adverse effect on the trial court's ability to enter judgment for or against a party in the original action.3 However, as a practical matter, 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. Notably, the plain language of Code § 8.01–6 indicates that any amendment made under the statute "relates back to the date of the original pleading. " (Emphasis added.) The taking of a nonsuit, however, puts an end to the original action, Thomas Gemmell, Inc. v. Svea Fire & Life, Ins., 166 Va. 95, 97, 184 S.E. 457 (1936), and the recommenced action "stands independently of any prior nonsuited action," Antisdel v. Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 165 (2010). Thus, there is no "original pleading" to relate back to for the purposes of Code § 8.01–6.

Furthermore, Code § 8.01–229(E) tolls the statute of limitations independent of Code § 8.01–6. This Court has recognized that, for the tolling provisions of Code § 8.01–229(E) to apply, "there must be...

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