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SCV: Expert necessary to support legal malpractice claim

A plaintiff needed to produce an expert to prove her former attorneys failed to exercise reasonable care, skill, and dispatch. She said counsel had caused her personal injury claim to become time-barred by suing the wrong entity.


Plaintiff Gigi Sere alleges that, on January 1, 2006, she suffered an injury in 2006 in an Alexandria store. She retained Joseph T. Trapeni Jr. P.C. to represent her as she sought compensation.

Sere sued the Store Owner under the name Target Stores, Inc. The Store Owner responded that it had been improperly named, and Target Corporation was the only proper defendant. It also removed the action to federal court. Sere filed a stipulated dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

On October 27, 2008, again through Trapeni, Sere sued the Store Owner under the name Target Corporation. The Store Owner responded that Sere’s first action did not toll the statute of limitations under Code § 8.01-229(E)(3) because it had not named the proper defendant, and the new complaint could not relate back. The circuit court ruled that evidence was required to establish the Store Owner’s true name. After the parties took discovery, the Store Owner again moved to dismiss. Sere thereafter terminated Trapeni’s representation and, through new counsel, filed an opposition asserting that: (1) the Store Owner’s true name was unascertainable by searching the records of the Commission; (2) any error in the Store Owner’s name was simply a misnomer curable under Code § 8.01-6; and (3) the statute of limitations had been tolled under Code §§ 8.01-6.1 and 8.01­ 229(E)(3). The circuit court granted the Store Owner’s latest motion, sustained its plea in bar, and dismissed the complaint with prejudice.

In April 2016, Sere, through new counsel, commenced the present action against Trapeni, as a firm and individually, asserting professional negligence for failing to amend the original complaint to name the Store Owner as Target Corporation, thereby allowing the statute of limitations to expire. After the expert-designation deadline, the Defendants moved for summary judgment on grounds that Sere hadn’t designated an expert witness to establish a breach of duty. Sere contended that no expert was needed because the statute-of-limitations and naming issues had been adjudicated in the underlying action, and the remaining issues were matters within the common knowledge of laymen (whether an attorney should know how to sue the correct defendant, how to correct a pleading, and how to do so without allowing the statute of limitations to run).

The circuit court ruled that the case required expert testimony and granted the Defendants’ motion for summary judgment. Sere appealed.

No preclusive effect

As an initial matter, the circuit court’s rulings in the underlying personal injury action have no preclusive effect in this malpractice action.

Claim preclusion is irrelevant because Sere’s claim in the underlying action was for personal injury, whereas her claim here is for professional negligence. Similarly, issue preclusion is irrelevant because Sere’s cause of action in this case is different than in the underlying personal injury case. Finally, collateral estoppel is irrelevant because the Defendants represented Sere in the underlying personal injury case; they were not parties to it.

Consequently, the determinations in the underlying personal injury action have no preclusive effect in this case. To hold otherwise would mean that an attorney could never succeed in a malpractice case, since the prior loss would foreclose any defense.

Lay opinion insufficient

An adjudication of Sere’s malpractice claim required a determination that the action had, in fact, become time-barred. That conclusion could not be reached without first resolving at least four questions: (1) whether a voluntary dismissal under Rule 41 is the same as a nonsuit under Code § 8.01-380 in terms of tolling; (2) whether the Defendants joined the Store Owner to the underlying personal injury action under its proper name; (3) whether any name error was a misjoinder or simply a misnomer; and (4) whether failure to correct the misnomer, if any, prevented tolling.

This court has never considered the first question. As to the second question, the Store Owner’s proper name in Virginia may be Target Stores, Inc., as Trapeni asserted. Former Code § 13.1-762 prohibited the Store Owner from transacting business in Virginia under the name Target Corporation but allowed it to do so under an available “designated name.” The State Corporation Commission certificate upon which the Store Owner relied appears to conflate the term “designated name” with “assumed or fictitious name.” This court has never ruled that the terms are synonymous or that a foreign corporation may not be sued under the “designated name” under which the Commission is required to issue certificates.

As to the third and fourth questions, assuming that the Store Owner was sued under an improper name, this court concluded in Richmond v. Volk, 291 Va. 60 (2016), that when a complaint clearly describes the proper party through specific factual allegations, the use of an improper name is simply a misnomer. Volk also held that Code § 8.01­ 229(E)(3) tolls the statute of limitations when the original action is brought against the proper party, even if that party was improperly named. Filing a new complaint against the same defendant, using its proper name, after nonsuiting a previous complaint that used an improper name merely corrects the misnomer without changing the identity of the defendant.

Thus, the question whether the Defendants’ actions caused Sere’s personal injury action to become time-barred required resolution of at least four complex legal questions not within the common knowledge of a layperson, or perhaps, even the average attorney. The need to resolve those questions supports the circuit court’s conclusion that the issue of whether the Defendants breached their professional duty to Sere was not within the common knowledge of a layperson. Consequently, the exception Sere invokes does not apply here. Expert testimony was required regarding the issue of whether Trapeni failed to exercise a reasonable degree of care, skill, and dispatch in rendering the services for which he was employed.


Sere v. Trapeni, Record No. 170842, July 26, 2018. SCV (per curiam), from Fairfax Cir. Ct. VLW No. 018-6-056, 8 pp.

VLW 018-6-056

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