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Nonsuit costs are nixed by late order

The Supreme Court of Virginia has blocked a $20,000 award of costs to medical malpractice defendants after the plaintiff took a mid-trial nonsuit, ruling the order granting costs came more than 21 days after the nonsuit order.

The May 20 decision sharpens the bite of Virginia’s so-called 21-day rule barring further court action 21 days after a final order. Filing “ancillary motions” for costs or other post-trial motions will not re-open the window, the court said in a unanimous opinion written by Justice Stephen R. McCullough.

The opinion is Kosko v. Ramser (VLW 021-6-031).

Hip surgery

Marshall resident Astrid Kosko, 80, sought medical care for an arthritic hip, according to her attorney, John A. Blazer of Fairfax. After three surgeries, her condition was worse than before she came into the office of orthopedist James R. Ramser and his clinic in Warrenton, Blazer said.

Another orthopedic surgeon later told Kosko her condition was permanent and she would always need assistive devices to get around, her second lawsuit claimed.

She sued Ramser and his practice group. On the second day of trial in Fauquier County Circuit Court, Judge Herman A. Whisenant Jr. disqualified Kosko’s expert witness, according to the Supreme Court opinion. Kosko then nonsuited her action. The nonsuit order was entered Sept. 11, 2019.

Two days later, the defendants asked for costs. Va. Code § 8.01-380(C) provides that a defendant can recover costs in the discretion of the judge if a plaintiff takes a nonsuit at trial or during the week before.

Whisenant heard arguments Oct. 1 – the 20th day after entry of the nonsuit order – and determined to award the defendants $20,000 in costs. But his order awarding costs was not entered until Nov. 5, well after 21 days had run from the nonsuit order. Kosko objected to the order and appealed.

Nonsuit order final

The defendants argued that, under the cost-recovery provision of § 8.01-380, a nonsuit order is not final because the statute allows the recovery of costs after the nonsuit is taken, the court said.

“The defendants posit that the possibility of recovering costs means that the nonsuit order does not dispose of the entire action because something remains to be done, namely, the adjudication of a motion to recover costs. We disagree,” McCullough wrote for the court.

The “entire action” refers only to the claims in the complaint and any counterclaims, the court said.

“Here, the medical malpractice action was nonsuited. As a result, the nonsuit order disposed of the entire action,” McCullough wrote.

“The filing of ancillary motions for the recovery of costs or the filing of other post-trial motions does not suddenly transform an otherwise final order into a nonfinal order,” the court said.

The defendants’ reasoning would open a wide doorway, the court said.

“Under the defendants’ logic, anytime a litigant seeks other kinds of recoverable costs, or for that matter files any post-trial motion, there would, by definition, remain something to be done. Cases could be placed on indefinite hold by the filing of post-trial motions. Such an approach has little to commend it,” McCullough wrote.

The court based its ruling on its 1999 decision in Wagner v. Shird (VLW 009-6-096), where a remittitur order was not entered until after a 30-day suspension-of-judgment order had run its course. The judge’s announcement of her decision from the bench did not extend the length of the stay, the Wagner court ruled.

“Once a final written order is entered, a trial court has twenty-one days to enter a new written order or to enter a written order modifying, suspending, or vacating the prior order to allow the court sufficient time to address the post-trial motion,” the Kosko court said, reversing the award of costs.

Kosko’s claims remain in play in the Fauquier County court, where the parties are contesting procedural issues. Blazer said he’s concerned because the court is not giving out any civil trial dates at present.

“I just hope I can get this poor woman some money before it’s too late,” Blazer said May 25.

The defendant orthopedist and his practice are represented by Susan L. Mitchell of Chantilly. She was not available for comment.