Tort Law

Brien Roche

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 Pleadings-Amendment. For more information about pleadings see the pages on Wikipedia. 

Pleadings-Amendment Statutes

See Va. Code § 8.01-6 et. seq. as to relation back for amendment of pleadings.

Pleadings-Amendment Cases

2008 Whitaker v. Heinrich Schepers GMBH & Co. KG, 276 Va. 332, 661 S.E.2d 828.

Plaintiff filed this personal injury action in Circuit Court seeking damages of $74,000.00. In discovery, plaintiff answered that the damages may exceed that amount. Defendant sought to remove to Federal Court but the removal was remanded back to State Court. Plaintiff then sought to increase the amount sued for and trial court refused on the grounds that defendant had been prejudiced by plaintiff’s bad faith conduct in deliberately pleading below the federal jurisdictional amount. Standard for an amendment of pleadings is whether defendant will be prejudiced and will that prejudice affect defendant’s ability to have a fair trial. In this case, the trial court abused its discretion in not allowing the amendment since the record shows that defendant’s inability to remove was because of its failure to file a timely notice of removal.

2008 Ahari v. Morrison, 275 Va. 92, 654 S.E.2d 891.

Plaintiff filed suit against a county and the Commonwealth of Virginia alleging failure to maintain the roadway resulting in the decedent’s death. Plaintiff thereafter sought leave to amend by filing a motion three days before the statute of limitations ran. The motion was subsequently granted allowing the amendment to join additional defendants. Those additional defendants then raised the statute of limitations defense. The mere filing of the motion does not toll the statute of limitations. The limitation period was tolled only when those new defendants were added. As such, the claims against these new defendants were time barred.

2007 Ogunde v. Prison Health Servs., 274 Va. 55, 645 S.E.2d 520.

Plaintiff sought leave to amend, which was improperly denied by the trial court. Plaintiff had not previously sought to amend and filed his request in a timely manner following relevant rulings of the trial court and the conclusion of discovery. Nothing in the amendments suggests that the defendants would have been prejudiced.

2006 Kone v. Wilson, 272 Va. 59, 630 S.E.2d 744.

In this wrongful death action filed by administrator who is not a licensed attorney, that pleading was defective and invalid. As such, any amendment of it was likewise defective and invalid.

2004 Billups v. Carter, 268 Va. 701, 604 S.E.2d 414.

Action by prisoner against Virginia Department of Corrections alleging assault and battery. Plaintiff failed to join Commonwealth of Virginia but sought to amend so as to add Commonwealth. Such amendment should have been allowed since attorney general had been defending the case from the beginning. In addition, motion to amend was brought within limitation period.

2000 Cook v. Radford Cmty. Hosp. Inc., 260 Va. 443, 536 S.E.2d 906.

Suit brought on behalf of person adjudged to be incapacitated. Action was dismissed because guardian had not been named as plaintiff and amendment allowing joinder of guardian was not appropriate. In this case, the right person was Cook’s guardian. The right person was not incorrectly named, instead the wrong person, Cook, was named and therefore, an amendment was not appropriate.

2000 Peterson v. Castano, 260 Va. 299, 534 S.E.2d 736.

Plaintiff made motion to amend suit papers to increase amount sued for on February 1, 1999. On that same date, court continued trial date to July 1999. Trial court denied motion to amend. This was abuse of discretion.

1997 Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797.

Trial court did not abuse discretion in allowing amendment of answer so as to raise additional affirmative defenses. Amendment was properly allowed even though it comes more than a year after suit was filed. Another case cited wherein trial court did not abuse discretion in permitting plea of the statute of limitations to be filed more than 11 months after action was instituted and eight days before trial.

1997 Blake v. Northern Virginia Women’s Medical Ctr., 253 Va. 255, 483 S.E.2d 220.

Trial court should have allowed plaintiff to amend on threshold of trial so as to substitute proper corporate defendant where error in original pleading was known to defendants and actions were taken by them to mislead plaintiff as to identity of proper corporate defendant.

1996 Mortarino v. Consultant Eng’g Servs., 251 Va. 289, 467 S.E.2d 778.

After demurrer was sustained, amendment should have been allowed. Failure to do so is reversible error where nothing in record suggests that defendants would have been prejudiced by allowing amendment and where there had been no prior amendments.

1993 Mechtensimer v. Wilson, 246 Va. 121, 431 S.E.2d 301.

Plaintiff filed motion for judgment. Before obtaining service plaintiff amended motion for judgment without leave of court. Defendant filed answer. Subsequently defendant learned that amended motion had been filed without leave of court and moved to quash service and dismiss action on grounds of lack of jurisdiction. Supreme Court held trial court lacked jurisdiction to adjudicate claim since amended motion for judgment had been filed without permission. Pleadings filed by defendant responding to that amended motion cannot confer jurisdiction on court.

1986 Harbour Gate Owners’ Ass’n v. Berg, 232 Va. 98, 348 S.E.2d 252.

New plaintiff may not be substituted for original plaintiff who lacked standing to sue (footnote 4).

1986 Powell v. Sears, Roebuck & Co., 231 Va. 464, 344 S.E.2d 916.

Pleadings-amendment. In personal injury case of this kind involving unliquidated damage claim post verdict amendment increasing ad damnum may not be granted.

1986 Hetland v. Worcester Mut. Ins. Co., 231 Va. 44, 340 S.E.2d 574.

Pleadings-amendment. Review of trial court’s decision on motion to amend is limited to whether trial judge abused his discretion. Motion was denied in this case due to lack of diligence by plaintiff in asserting new element of claim.

1984 Bell v. Kirby, 226 Va. 641, 311 S.E.2d 799.

Pleadings-amendment. Court allowed plaintiff to amend her pleading as to amount sued for from $50,000 to $100,000 two days before trial. There was no showing of an abuse of discretion by trial court.

1976 Niese v. Klos, 216 Va. 701, 222 S.E.2d 798.

Pleadings-amendment. Amendment to pleadings are to be liberally allowed.

1971 Rockwell v. Allman, 211 Va. 560, 179 S.E.2d 471.

Pleadings-amendment. Plaintiff sues defendant’s administrator for personal injury. Administrator thereafter established that his appointment was void. Not error to overrule plaintiff’s motion to amend by substituting correct administratrices who bore no relation to defendant and were never served with process. Misnomer is mistake in name but not person.

1970 Haymore v. Brizendine, 210 Va. 578, 172 S.E.2d 774.

Pleadings-amendment. Leave to amend was conditioned on retrial. Plaintiff refused retrial and leave to amend was denied. By refusing, plaintiff waived objections. Trial court has authority to impose conditions in granting leave to amend.

1967 Pittman v. Pittman, 208 Va. 476, 158 S.E.2d 746.

Pleadings-amendment. Rule allowing amendment of pleadings is to be liberally construed.

1959 Virginia Ry. v. Calhoun, 200 Va. 908, 108 S.E.2d 239.

FELA case. Defendant failed to plead that plaintiff fraudulently obtained employment and was therefore barred from presenting evidence of such at trial.

1957 Herndon v. Wickham, 198 Va. 824, 97 S.E.2d 5.

Pleadings-amendment. Court allowed defendant to amend his grounds of defense so as to assert statute of limitations as defense even though 21 days for filing answer had expired.

1957 Jacobson v. Southern Biscuit Co., 198 Va. 813, 97 S.E.2d 1.

Pleadings-amendment. Where right party is before court under wrong name, amendment to cure misnomer will be allowed in spite of running of statute of limitations.

1948 Walker v. Memorial Hosp., 187 Va. 5, 45 S.E.2d 898.

Pleadings-amendment. Plaintiff did not allege failure to warn as act of negligence. Defendant did not object to this consideration at trial. In any case, plaintiff probably would have been granted leave to amend to include failure to warn.

1947 P.L. Fanner, Inc. v. Cimino, 185 Va. 965, 41 S.E.2d 1.

Pleadings-amendment. Liberalized amendment rule provides for amendments when it appears there is variance.