Motion to Dismiss when Amount Sued for is Increased

Melissa H. Katz, Esquire
January 15th, 2010
By: Melissa H. Katz, Esquire

Viability of Motion to Dismiss when new case filed with increase in amount sued for

There is now a conflict in circuit court opinions regarding whether a plaintiff brings a new action as a result of increasing the amount sued for after a nonsuit. Last summer, Judge James H. Chamblin of the Circuit Court of Loudoun County dismissed plaintiff’s action after she increased her ad damnum to $500,000.00 after the nonsuit of her original action in which she sought only $325,000.00. Judge Chamblin agreed with the defendant’s position that raising the amount sought makes it a new case which is subject to dismissal if the statute of limitation period has expired. The plaintiff appealed this decision to the Supreme Court of Virginia and filed her Petition for Appeal in December 2009. See Spear v. MWATA, Record No. 092451. Oral argument for a writ should occur sometime this Spring.

Recently, Judge James V. Lane of the Circuit Court of Rockingham County denied defendant’s Special Plea in Bar and Motion to Dismiss when the defendant raised a similar argument. In the case of O’Hearn v. Mawyer, Case No. CL09-00442, the plaintiff nonsuited and when the second action was filed sought $300,000.00 in compensatory damages, which was a $50,000.00 increase from the first action. Judge Lane held that the increase in compensatory damages did not make the re-filed case a different cause of action.

It is expected that the split in decisions will continue throughout the Commonwealth. The Supreme Court of Virginia has an opportunity to establish the law on this issue. Stay tuned regarding whether the Court agrees to hear the Spear v. MWATA 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