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No fees from unrepresented siblings in partition case

Where appellant, relying on a police report, named the wrong person as the defendant driver in a personal injury case, appellant was entitled to file a new complaint naming the correct person after the statute of limitations expired.


On Dec. 24, 2016, Hampton was a passenger in a Chevy Malibu that was struck by a GMC Suburban. The impact forced the Malibu into a third vehicle that was stopped at a red light. Hampton and the two drivers were transported to a hospital.

On Dec. 11, 2018, Hampton sued to obtain damages from the Suburban’s driver. Relying on a police report, Hampton named Michael Patrick Meyer as the Suburban’s driver. The actual driver was Noah Meyer, Michael’s father. The Meyers’ insurer informed Hampton of this fact on Jan. 18, 2019.

“On February 6, 2019, Hampton obtained an order nonsuiting his complaint. On February 25, 2019, he filed a new complaint explaining that he had filed the 2018 complaint naming Michael as the driver based on the erroneous police report and that he had nonsuited that complaint upon learning the true name of the driver. He asserted that under this Court’s decision in Richmond v. Volk, 291 Va. 60 (2016) … the use of the wrong name in his 2018 complaint was merely a misnomer rather than a misjoinder. …

Noah filed a plea in bar asserting that Hampton’s 2019 complaint was time-barred. … After a hearing, the circuit court entered an amended order sustaining Noah’s plea in bar, ruling that naming Michael in the 2018 complaint was a misjoinder, not a misnomer, because Michael and Noah were separate individuals and that Michael’s name was not a misspelling of Noah’s.

“Hampton filed a motion to reconsider, which the circuit court denied. In its final order, the court stated that ‘what is determinative is that Michael Meyer, by [Hampton’s] own admissions in his complaint, is a real person …. Because of this, Michael Meyer was the improper party to be named and sued in the original action because he is a separate individual from Noah Meyer.’ (Emphasis added.)

“We awarded Hampton this appeal.”


“Hampton asserts that the circuit court erred by sustaining Noah’s plea in bar because naming Michael as the driver of the Suburban in his 2018 complaint was a misnomer and Volk controls. He argues that a misnomer occurs when a defendant is properly identified but incorrectly named, and that courts look to the whole complaint to determine whether it adequately identifies the defendant.

“He argues that his 2018 complaint adequately identified the defendant as the driver of the Suburban – i.e., the person who committed the specific, alleged acts at the alleged time and in the alleged place, in the manner alleged, to cause the alleged injuries.

“Only one person drove the Suburban at the time of the collision, running the red light at the specified intersection to collide with the Malibu on the specified date, and that person – whatever his or her name – caused Hampton’s injuries. Consequently, under our holding in Volk, he continues, a new complaint correctly naming Noah after Hampton nonsuited the 2018 complaint that incorrectly named Michael was not time-barred. We agree. …

“Noah argues that the circuit court correctly distinguished this case from Volk. In that case, the plaintiff’s original complaint named the defendant incorrectly by concatenating the first name of the person who drove the vehicle at the time of the collision with the surname of the vehicle’s owner. …

“The result, according to Noah and the circuit court, was the name of a person who did not exist. Noah asserts that this case is different because, as the circuit court noted, Michael does exist. Moreover, Michael was one of the vehicle’s owners. We disagree.

“The only issue in Volk was that the name created by coupling the driver’s first name with the owner’s surname was not the driver’s correct name. We certainly did not rely on the possibility that no such person existed – a possibility which was not a fact in evidence, and which Hampton asserts is disproved by searching public records – as the reason that the plaintiff’s use of the resulting name was a misnomer.

“Rather, the plaintiff’s use of that incorrect name was a misnomer because the complaint, read as a whole, contained sufficient allegations to identify the proper party defendant even though the incorrect name had been used. …

“The same is true here. It is clear from Hampton’s 2018 complaint that he knew what the cause of action was and who – in terms of the performance of the tortious conduct alleged, from which his claim arose – was the correct defendant for such a cause of action: the driver of the Suburban who allegedly operated it negligently, thereby causing his injuries.

“It is clear that the 2018 complaint correctly identified that entity: the driver. It is clear whom Hampton intended to bring his cause of action for negligent driving against: the driver. Hampton sued the correct person – the driver – but used the wrong name, the one shown in the incorrect police report. Thus, there is no mistake of parties, only one of name. That is a misnomer.”


Hampton v. Meyer, Record No. 191194 (Mims, Kelsey dissenting). Aug. 27, 2020, from the Richmond City Cir. Ct., Juli Mari Porto, Thomas Michael Konvicka for appellant, Henry Stokes Carter, Edward Brandon Ferrell, Kerrigan Catherine Kells O’Malley for appellee. VLW 020-6-057, 30 pp.