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Non-Suits-Effect:Cases Summarized

Fairfax Injury Lawyer Brien Roche Summarizes Cases Dealing With Non-suits-Effect.
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This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Non-Suits-Effect. For more information on non-suit see the pages on Wikipedia.


2016 Richmond v. Volk, 291 Va. 60, 781 S.E.2d 191.
In original Complaint correct defendant involved in auto collision was identified but incorrect last name was used. This was a misnomer. Misnomer was not corrected in the original filing. Case was nonsuited and then refiled within six (6) months. Within the refiled action the defendant was correctly identified. The statute of limitations was tolled.

2015 Allstate v. Ploutis, 290 Va. 227.
Two (2) year limitation period within insurance policy is not tolled by nonsuit.

2014 Temple v. Mary Washington Hospital, 288 Va. 134, 762 S.E.2d 751.
Where nonsuit is taken and in re-filed action, prior discovery is incorporated, that only applies to the discovery and not motions, objections, or rulings made in the prior action.

2012 Laws v. McIlroy, 283 Va. 594, 724 S.E.2d 699.
Plaintiff requested non-suit. Before non-suit order entered, plaintiff re-filed identical action. The re-filed action deemed by the Supreme Court to be timely within the language of Section 8.01-229.

2012 McKinney v. Virginia Surgical Associates, 284 Va. 455, 732 S.E.2d 27.
In this medical malpractice action, plaintiff initially brought claim for personal injuries during his lifetime. Personal injury action converted into an action for wrongful death. Plaintiff thereafter non-suited the wrongful death action and two months later filed action for personal injuries suffered by the decedent arising out of the same alleged negligence as a survival action pursuant to Section 8.01-25. There was a single cause of action of which the survival claim is a part and therefore plaintiff allowed to re-file within six (6) months of date of non-suit.

2008 Hicks v. Mellis, 275 Va. 213, 657 S.E.2d 142.
In April of 1993, plaintiff filed suit on behalf of her three year old son. In July 1995, plaintiff non-suited. In October 1999, plaintiff filed a second suit. In January 2003, the Circuit Court entered an order of discontinuance pursuant to Va. Code § 8.01-335(B). In November 2003, plaintiff filed motion to reinstate, which was granted. On May 25, 2004, that second suit was non-suited. On that same day plaintiff filed a third motion for judgment. The issue on appeal is whether or not the reinstatement was appropriate given the fact that defendant was not given notice of it. The court held that order of reinstatement was simply voidable because of statutory noncompliance as opposed to void ab inito. An order is void ab initio if the court did not have jurisdiction to render the order or if the Court employed an unlawful mode of procedure in entering the order. In this case, the court simply made a mistake in not giving notice to the defendant which simply makes the order voidable. As such, the plea of the statute of limitations was properly denied.

2006 Janvier v. Arminio, 272 Va. 353, 634 S.E.2d 754.
An order granting plaintiff a second non-suit without prejudice was not void due to failure to give notice to defendants, who had not been served. Since that order was not void the trial court had no authority to vacate the second non-suit more than 21 days after its entry. The action refiled within six months of the entry of the second non-suit was timely.

2005 Nerri v. Adu-Gyamfi, 270 Va. 28, 613 S.E.2d 429.
Suit was initiated by attorney whose license had been administratively suspended. As such, he was not authorized to practice law nor to file pleadings for a client. The subsequent attempt to non-suit the case was likewise null and void because the lawsuit itself had no legal effect.

2004 Phipps v. Liddle, 267 Va. 344, 593 S.E.2d 193.
Order of non-suit was appealed to supreme court and was affirmed by this court. Plaintiff had six months from the date of that mandate entered by the trial court to refile.

1998 Dalloul v. Agbey, 255 Va. 511, 499 S.E.2d 279
Non-suits-effect: statute only applies to actions and parties that are currently before court. Those parties or actions that have been dismissed out for whatever reason are not governed by non-suit.

1998 Riddett v. Virginia Elec. & Power Co., 255 Va. 23, 495 S.E.2d 819.
Non-suits-effect:Wrongful death action arising from death in 1987 was non-suited in January 1995, refiled in June 1995. Action is time barred. When original action was filed only four days of two year limitation period remained. As such, when plaintiff non-suited she had four days to refile pursuant to tolling provisions of Va. Code § 8.01-244(B). This refiled action was therefore time barred.

1996 Swann v. Marks, 252 Va. 181, 476 S.E.2d 170.
Non-suits-effect:Nonsuit order is appealable only when dispute exists regarding propriety of granting nonsuit. Nonsuit order is not final judgment as to substitution of parties and in this instance did not clothe substitution order with force of res judicata.

1991 Dodson v. Potomac Mack Sales & Serv., 241 Va. 89, 400 S.E.2d 178.
Tolling provisions of Va. Code § 8.01-229 in event of non-suits do not apply to wrongful death actions.

1989 Clark v. Butler Aviation, 238 Va. 506, 385 S.E.2d 847.
Non-suits-effect:Plaintiff filed suit two days before limitation expired, effected service more than one year later and then non-suited. Apparent conflict in Rules and statutes resolved in favor of plaintiff to allow non-suit and refiling of action within six months thereafter.

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