If you Think Law of the Case Applies in a Case Filed after a Non-Suited Case, Think Again

Heather K. Bardot, Esquire
September 30th, 2014
By: Heather K. Bardot, Esquire

Many cases in Virginia are non-suited and refiled before they are ever tried. When a litigant receives an unfavorable discovery ruling in the initial case, the litigant generally accepts the ruling as “law of the case,” and does not attempt to re-litigate the issue in the subsequently filed case. Based on a recent case out of the Supreme Court of Virginia, this is likely a mistake. In the case of Temple v. Mary Washington Hospital, Inc., et al.¸Record No. 131754 (Sept. 12, 2014), the Virginia Supreme Court was tasked with deciding whether discovery rulings made by the trial court in a case which was non-suited and subsequently refiled were reviewable on appeal of the refiled case where the trial court entered an order stating that all discovery in the prior action “is hereby incorporated into the instant action”?

In holding that the discovery rulings in the first case were not appealable in the refiled action, the court succinctly found that the order entered when the action was refiled, stating that all discovery in the prior action “is hereby incorporated into the instant action,” did not incorporate the motions, objections, or rulings made by the trial court in the prior nonsuited action. As a result, those rulings could not be appealed following judgment in the refiled action. Lesson to be learned: rulings made in a case which is non-suited do not become part and parcel of the refiled action. This leaves open the possibility of having the discovery issue re-litigated in the subsequent case. Alternatively, if a litigant wants the prior motions, objections or rulings incorporated into the subsequent action, any order entered must expressly do so. Otherwise, if the case does not turn out as you hoped, you will have no ability to appeal the rulings made in the initial case.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More