ANALYSIS OF JANUARY 28, 2016 SUPREME COURT OPINION
[Posted January 28, 2016] The Supreme Court hands down a single published opinion today. This one will be of keen interest to lawyers on both sides of the litigation aisle.
We enter the landmine-strewn field of misnomers in Richmond v. Volk. This case arose from an auto collision in the Roanoke area. Katherine Craft was driving someone else’s car – with permission – when she hit Linda Richmond’s car from behind. The usual exchange of information took place, including the fact that the car Craft drove was insured; its owner, one Jeannie Cornett, had a State Farm policy.
But in framing her (timely filed) pleading, Richmond made a mistake: she used Craft’s first name, but Cornett’s last name. That generated a nonexistent person: Katherine Cornett.
Richmond sent a courtesy copy of the complaint to State Farm and tried unsuccessfully to negotiate a settlement. Probably during that process, she learned about the mistake in name. When she got around to serving process, she listed on the summons the name, “Katherine E. Cornett a/k/a Katherine Craft,” thereby trying to correct the mistake without getting leave to amend. (Cue the ominous music.) Even so, she still blew it; she sent the process server to the owner’s address – that would be Ms. Cornett – instead of to Craft’s home.
Craft, who had remarried and now went by the name Katherine Volk, entered a special appearance and objected to the service or process, since it went to the wrong address. In the objection, Volk described herself as “erroneously identified in the caption of the complaint as ‘Katherine E. Cornett.’”
Perhaps sensing that the ship was at least listing if not sinking, Richmond nonsuited and decided to try again. She refiled well within the six-month period, this time naming as the defendant “Katherine E. Volk, f/k/a Katherine E. Craft, a/k/a Katherine E. Cornett.” She properly served the complaint on Volk at her home address.
Volk filed a special plea of the statute of limitations. She contended that the original complaint didn’t toll the running of the statute because Richmond hadn’t met the requirements for relation back. And anyway, she had never actually amended her original complaint, so the relation-back doctrine couldn’t help even if it did apply.
The trial court agreed with Volk and dismissed the case. The justices agreed to take a look.
I’ll interject here that I’ve handled a small number of cases involving either misnomer or misjoinder, and based on that experience, I’m always glad to have a little extra guidance on a very murky topic. After all, if you mean to sue John Smith but you sue John Jones, which situation is that? The field is fraught with ambiguity, so any exposition will be very useful to bench and bar.
The parties here agreed that this was a misnomer and not a misjoinder – the rules may differ depending on which situation you have – but the court goes ahead and analyzes this issue anyway, since the court isn’t bound by the parties’ concessions of law. A bare majority of the court – Justice Powell writes for the chief justice, plus Justices Mims and Roush – agrees that this is a misnomer situation. Here’s how the majority describes the difference:
[A] misnomer occurs where the proper party to the underlying action has been identified, but incorrectly named. 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.”[Citations omitted] The majority looks at the pleadings as a whole and finds that the person described in the complaint is, in fact, Volk:
[T]he intended defendant was the driver of a specific vehicle that was in a specific location at a specific time and … 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.
The next issue is whether Richmond blew it by not correcting the misnomer in the first action, before nonsuiting. The majority finds that she’s in the clear, since the taking of a nonsuit ends the previous action and permits a refiling within six months. The new suit “stands independently of any prior nonsuited action,” and the nonsuit statute allows refiling based on the identity of the parties, not on the name that may have been mistakenly attached to them. Having found that the party identified (though incorrectly named) in the first suit was Volk, the majority rules that the second action was timely filed, so the court sends the case back to the circuit court for trial.
Justice Kelsey dissents, and Justices Goodwyn and McClanahan join him. He begins by pointing out that the nonsuit statute is, as the court has previously described it, “’a powerful tactical weapon’ found only ‘in the arsenal of a plaintiff.’” He believes the court shouldn’t extend that protection any further than it has been extended before.
Justice Kelsey believes that the tolling provision doesn’t help Richmond because “Katherine E. Cornett is not now, and never has been, the ‘identity of the [defendant].’” He notes that Richmond could have availed herself of the misnomer statute’s protection in the first case, but never did that; instead she tried to “amend” by changing the name on the summons to “Katherine E. Cornett a/k/a Katherine Craft.” But he correctly points out that Volk (then named Craft) had never been “also known as” Katherine Cornett.” No one has that name, as far as we know.
The dissent argues that changing the party you’re suing under the misnomer statute can be “to correct a misnomer or otherwise.” That’s what it says, right in the body of the statute, so it isn’t limited to just misnomer corrections. A court order is the statutorily prescribed means of getting this relief. This means that you can’t resort to the convenience of a nonsuit when what you really have to do is secure leave to amend. Under a line of cases that includes the memorably named Mechtensimer v. Wilson, only a court can authorize an amendment, and the dissent believes that this plaintiff has just found a way around that.
I should add one point before wrapping up this analysis. The dissent has some powerful arguments here, but I don’t believe its argument should have been built on the foundation of the “powerful tactical weapon” available only to the plaintiff. I agree, of course, that it is powerful, and it’s obviously available only to the plaintiff. But this argument relies on a false equivalence.
Here’s the opening line of the dissent:
The nonsuit statute, Code § 8.01-380, goes a long way toward inoculating plaintiffs (but not defendants) from many of the adverse consequences associated with missing filing deadlines or violating other procedural rules governing litigation.
This is the false equivalence: the suggestion that plaintiffs have a get-out-of-trouble-free card, but defendants don’t.
If a defendant misses a filing deadline – let’s say he’s three days late in filing an answer – then technically he’s in default, and a whole lot of what we can agree are bad things can start happening. But the rules provide for relief from that default: a defendant can come into court and ask the judge for leave to file a late answer. Some judges will demand a damned good reason before they’ll allow that, but in my experience, those judges are in a small minority; most trial judges will allow a defendant a short extension in the absence of prejudice. Rule 3:19(b) provides for that relief “for good cause shown,” which is usually a low threshold – at least before you get to an appellate court, where that standard becomes a lawyer-eating dragon.
But when a plaintiff misses a filing deadline – she files suit three days past the statute of limitations – the rules can only shrug as the judge dismisses the case. Plaintiffs don’t have a good-cause exception the way defendants do. No matter how good the lawyer’s explanation is, the court cannot refuse to dismiss when the defendant raises the statute of limitations. This, you will readily agree, is not the equivalent of what happens when a defendant misses a filing deadline.
Yes, the nonsuit statute is a single-edged sword; but so is the statute of limitations. Personally, I believe that the dissent’s arguments are quite cogent, and quite strong enough without the need to set up this artificial justification. This thinly veiled attack on the wisdom of the nonsuit statute conveys at least the perception that the dissenting justices are looking for ways to minimize the statute’s effect, instead of carrying out the will of the General Assembly.