Written by: Jessica Relyea
Edited by: Brian A. Cafritz
As we previously explained, Virginia allows for one nonsuit, or voluntary dismissal, by plaintiff per case. A nonsuit allows the plaintiff to correct a flaw in their case and reset the matter to the start in a future filing, with no real penalty or hardship. While it is a powerful tool at plaintiff’s discretion, it does not shield plaintiff from their own wrongdoing. This begs the question of what happens if plaintiff waits to nonsuit their case until after a defendant gets a favorable verdict in General District Court? Can plaintiff appeal and nonsuit, allowing it to refile in district court and obtain a new trial, essentially voiding the judgment? Can the defendant move to dismiss the refiled pleading on the grounds of res judicata because the first district court judgment is final?
To understand this issue, a little background is important. In Virginia, the district court is a court of limited jurisdiction. The maximum recovery is $25,000, discovery is limited, and a judge decides all cases. Either party can appeal the judge’s verdict to the Circuit Court for a de novo jury trial. Importantly however, is that if there is a defense verdict in district court, then on appeal, plaintiff cannot increase his or her ad damnum and seek more than $25,000. Afify v. Simmons, 254 Va. 315, 317-318 (1997). If plaintiff nonsuits after an appeal to Circuit Court, but before the jury trial, where does the case get refiled? What rules apply when it does?
This issue came before the Supreme Court in the 2011 case of Davis v. County of Fairfax, 282 Va. 23 (2011). In that case, the County of Fairfax (“Fairfax”) filed a petition in district court to declare Davis an unfit pet owner and take control of her animals. Following a trial, the district court found in favor of Fairfax, but Davis appealed the ruling to Circuit Court. After the appeal was filed and while the case was still pending in the Circuit Court, Fairfax nonsuited its case. It then attempted to refile the petition in the district court to avoid having to return Davis’s animals to her while the case proceeded. A dispute arose between the parties on which court was the appropriate venue for the refiled action. This issue made its way up to the Supreme Court, who stated, “After a nonsuit no new proceeding on the same cause of action or against the same party shall be had in any court other than that in which the nonsuit was taken, unless that court is without jurisdiction […].” Id. at 29. citing Va. Code. Ann. § 8.01-280(A). The Court then held that while Va. Code. Ann. § 17.1-513 prevents the Circuit Court from having original or general jurisdiction over a matter that was originally filed in the district court, the Circuit Court did have appellate jurisdiction over matters appealed from the district court. As such, after a nonsuit, a Plaintiff is required to re-file its petition in the Circuit Court, and the Circuit Court would retain appellate jurisdiction. Id. at 30 (2011).
Practically speaking, this means that the Circuit Court would hear the de novo appeal, but any jurisdictional limits on Plaintiff’s recovery would remain in effect. It would also prevent Plaintiff from getting three bites of the apple. Meaning, Plaintiff could not have a district court trial, appeal, nonsuit, refile in district court, have a second district court trial, appeal for a second time and receive a de novo jury trial in Circuit Court. Alternatively, it also means that the defendant cannot move to dismiss the refiled action on grounds of res judicata. Additionally, plaintiff would still have six months from the date of the nonsuit to refile the appeal in Circuit Court.
If you are facing a procedural oddity like this, the lawyers are KPM LAW are skilled and experienced in the nuances of Virginia Procedure. If you have any questions about how to manage your case between the district and circuit courts, the attorneys at KPM LAW are here to help.