Richmond v. Volk, 291 Va. 60

Summary

The Supreme Court of Virginia considered whether a plaintiff’s initial personal-injury complaint tolled the statute of limitations when the defendant was incorrectly named through a misnomer. The Court held that the pleading as a whole identified the intended defendant, that the naming error was a misnomer rather than misjoinder, and that the nonsuit and refiling provisions tolled the limitations period. The Court reversed the trial court’s dismissal and remanded the case.

Holdings

1. The initial complaint contained a misnomer, not a misjoinder, because the pleading as a whole sufficiently identified Volk as the intended defendant even though it used the name Katherine E. Cornett.
2. Failure to correct the misnomer under Code § 8.01-6 before taking a nonsuit did not prevent Code § 8.01-229(E) from tolling the statute of limitations.
3. The refiled complaint was timely because the 2011 complaint tolled the limitations period and the nonsuit provided an additional six-month period for recommencement under Code § 8.01-229(E)(3).

Questions Presented

1. Whether the incorrect naming of Katherine E. Cornett in the initial complaint was a misnomer rather than a misjoinder.
2. Whether the initial complaint tolled the statute of limitations under Code § 8.01-229(E) despite Richmond's failure to correct the misnomer under Code § 8.01-6 before taking a nonsuit.
3. Whether Richmond's refiled complaint was timely because it was filed within six months after the nonsuit.

Disposition

reversed_and_remanded