Opinion
Civil No. CL16-6711
03-02-2018
RE: Shatrell McCoy v. Ashton Gray
Lance R. Garner, Esq. Joynes & Gaides 502 Viking Drive, Suite 201 Virginia Beach, Virginia 23452 Caswell Richardson, Esq. Office of GEICO Staff Counsel 192 Ballard Court, Suite 310 Virginia Beach, Virginia 23462
EVERETT A. MARTIN JR. JUDGE Lance R. Garner, Esq.
Joynes & Gaides
502 Viking Drive, Suite 201
Virginia Beach, Virginia 23452 Caswell Richardson, Esq.
Office of GEICO Staff Counsel
192 Ballard Court, Suite 310
Virginia Beach, Virginia 23462 Dear Gentlemen:
The automobile accident out of which this action arises occurred on August 31, 2012. The plaintiff filed a warrant in debt in the General District Court ("GDC") on July 8, 2014. The GDC awarded the plaintiff $8,000 in damages, and she appealed. She suffered a nonsuit in this court on February 9, 2016. (Civil No. CL14-7660).
She filed the present action on June 20, 2016, with an ad damnum of $200,000. The defendant has filed a motion to reduce the ad damnum to $25,000, claiming that in the refiled action this court's jurisdiction is derivative of that of the GDC. He relies upon Davis v. County of Fairfax, 282 Va. 23, 710 S.E.2d 466 (2011) and Waller v. Anthony, 16 Va. Cir. 132 (Richmond 1989). The facts in Waller are indistinguishable.
The general understanding in Virginia has been that a refiled action after a nonsuit is a new action that stands independently of the prior nonsuited action. Temple v. Mary Washington Hosp., 288 Va. 134, 762 S.E.2d 751 (2014); Daniels v. Warden, 266 Va. 399, 402, 588 S.E.2d 382, 383 (2003). Davis casts doubt on that understanding.
There is no need to recite the facts of Davis in detail as you are familiar with them. Even though the statute under which the action was brought, former Code of Virginia ("Code") § 3.1-796.115(A), provided the petition was to be filed in the GDC, after an appeal by the plaintiff and a nonsuit in circuit court, the Supreme Court ruled the GDC had no jurisdiction over the refiled case. In such circumstances, the Supreme Court held:
The circuit court's subsequent grant of the County's nonsuit did not divest the circuit court of its appellate jurisdiction. Accordingly, the circuit court retained appellate jurisdiction to hear this case after it granted the County's nonsuit and, as a result, the County was required by Code § 8.01-380 to re-file its petition in the circuit court.282 Va. at 30, 710 S.E.2d at 469. Thus, even though a nonsuit order is final, James v. James, 263 Va. 474, 562 S.E.2d 133 (2002), after the entry of one in an appeal from GDC, this court retains a continuing appellate jurisdiction over the case. (The jurisdiction might also be called lingering, inchoate, or potential as there would be no pending case.) As this court's jurisdiction in the refiled case is appellate, not original, the plaintiff would be limited to an ad damnum of $25,000. Code § 16.1-77 (1).
The plaintiff counters that this would be "absurd and arbitrary" as she would be under no such limitation if she suffered her nonsuit in GDC and refiled in this court. Conner v. Rose, 252 Va. 57, 471 S.E.2d 478 (1996). But in such a circumstance this court's jurisdiction would be original, not appellate.
On the reasoning of Davis, I ought to grant the motion. I recognize this result could cause an injustice to a plaintiff. The GDC is designed to administer prompt justice in civil cases. There is no discovery to throw sand in the gears of the proceeding. A plaintiff who files in the GDC might learn that she needs expensive treatment for her injuries during the pendency of an appeal in this court. If she has appealed, she cannot amend her ad damnum beyond $25,000. Stacy v. Mullins, 185 Va. 837, 40 S.E.2d 265 (1946). If she suffers a nonsuit here, she could not seek more than $25,000 in a refiled case. This might deter plaintiffs from filing in the GDC, which is contrary to the policy the General Assembly adopted by increasing its jurisdictional amount in 2011.
However, I overrule the motion for two reasons. First, I do not believe the Supreme Court intended Davis to have this result. (I confess an ipse dixi is not a convincing ratio decidendi). The second is a practical consideration. This case has gone on too long; the trial is in three weeks. If I grant the motion and a jury awards the plaintiff $25,000 in damages, she may appeal, and if the Supreme Court concludes I was mistaken, it would have to reverse and remand for a new trial. If I overrule the motion and a jury awards a large verdict to the plaintiff, the defendant may renew his motion, and if again overruled, the Supreme Court, on the defendant's appeal, could reverse and enter final judgment for the plaintiff for $25,000. If this court grants the defendant's renewed motion, the plaintiff can appeal, and the Supreme Court could reverse and enter final judgment for the plaintiff in the amount of the jury's verdict.
I attach an order reflecting this ruling.
Sincerely yours,
/s/
Everett A. Martin, Jr.
Judge EAMjr./mls