Amending Pleadings

Brien Roche

In Virginia, amending pleadings is an issue that arises frequently. In the personal injury context, the issue may consist of increasing the amount sued for.

Amending Pleadings-Criteria

The only standard set forth in the rules is found in Rule 1:8 which says that “Leave to amend should be liberally granted in furtherance of the ends of justice.”

However the case law on the subject has further refined the criteria.  It is within the sound discretion of the court as to whether amendment should be granted.  Ogunde v. Prison Health Services, Inc., 274 Va. 55, 67 (2007)  A court’s refusal to allow amendment after a showing of good cause is an abuse of discretion in ordinary circumstances as stated in Ford Motor Co. v. Benitez, 273 Va. 242, 252 (2007)

Good cause is based upon several criteria:

• Any previous attempts at amendment.
• Timeliness of the motion.
• Prejudice to the opposing party.
• Aside from prejudice, the court should also consider whether such prejudice will affect that party’s ability to have a fair trial. Peterson v. Castano, 260 Va. 299, 303 (2000)
• Is the request made to avoid or unnecessarily delay the trial?  Ogunde at 67

Amending Pleadings – Abuse of Discretion

It may be that your most compelling argument to the court is that to not allow amendment constitutes an abuse of discretion. If that issue is brought up on appeal, then the standard of review by the appellate court is what is called “abuse of discretion”. The issue in allowing an amendment is simply whether or not it will prevent the other party from having a fair trial. Most amendments are not going to preclude a fair trial. 

If on the other hand the court allows the amendment and then a demurrer is filed to the amended pleading, the standard of review on appeal is what is called de novo. That means that the appellate court reviews the pleading anew as if the trial court had not made any decision. 

The de novo standard essentially takes the trial judge off the hook. That is, the trial judge, if wrong, cannot be criticized for having abused discretion. The trial judge simply didn’t agree with the appellate court.

That may well be the most convincing argument to the trial court as to why the amendment should be allowed.

In Costanzo v. Costanzo, WL 230159 (2009), the court concluded that there was an abuse of discretion in not allowing an amendment to an answer where the moving party had not previously sought amendment and there was nothing to suggest that the moving party was attempting to avoid the trial date.  Also in that case the non-moving party’s suggestion that an amendment would increase attorneys’ fees was meritless.

Amendments to Pleadings-Approaching Trial Date

In addition the issue sometimes arises as to how long before trial such amendments should be allowed.  In Godfrey v. Hofheimer, 33 Va. Cir. 427 (1994), the court allowed an amendment of the ad damnum 3 to 4 days before trial.  Further in Bell v. Kirby, 226 Va. 641, 646 (1984), the court permitted an amendment to increase the ad damnum 2 days before trial, doubling the amount sued for.

In AGCS Marine Ins. v. Arlington County, 293 Va. 469, 487 (2017), the court summarized exceptions to Rule 1:8’s presumption in favor of granting leave to amend.  

Call, or contact us for a free consult. Also for more info on pleadings see the Wikipedia pages. Also see the post on this site dealing with admissibility of pleadings.