Conger v. Barrett
702 S.E.2d 117
| Va. | 2010Background
- Conger, as personal representative, filed a wrongful death action on May 21, 2002, against two doctors for Paul Conger's death (died March 7, 2001).
- No activity occurred after June 10, 2003, and on March 29, 2007, the Doctors moved to dismiss under Code § 8.01-335(B).
- The circuit court dismissed the case on May 3, 2007, under 8.01-335(B).
- Conger moved to reinstate the case on April 29, 2008, and the court granted this motion on May 1, 2008.
- The Doctors argued that the dismissal restarted the two-year limitation under 8.01-244(B) due to a pending action being ended, so no reinstatement could save the action once the two-year window expired.
- The circuit court agreed with the Doctors, holding that 8.01-244(B) applied and that the action was time-barred; Conger appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8.01-244(B) bars reinstitution after dismissal | Conger: no new action; 244(B) tolls only another action. | Barrett: dismissal constitutes abandonment restarting 244(B) period. | No; 244(B) does not apply to reinstatement of the same action. |
| Whether reinstatement under 8.01-335(B) creates a new action for SOL purposes | Conger: reinstatement revives the same action; no new action created. | Doctors: reinstatement is a new commencement subject to 244(B). | Reinstatement revives the existing action; not a new action, so 244(B) does not bar it. |
| Which statute governs the effect of dismissal/reinstatement on SOL when there is no merits adjudication | Conger: 244(B) tolls only if a new action is filed; reinstatement is within 335(B). | Doctors: 335(B) provides one-year reinstatement window; dismissal resumes 244(B) timing. | The 335(B) one-year window applies; the action was reinstated within that period; 244(B) does not bar. |
Key Cases Cited
- Nash v. Jewell, 227 Va. 230 (1984) (distinguishes between discontinuance and dismissal for 335 purposes)
- Willard v. Moneta Bldg. Supply, 262 Va. 473 (2001) (statutory construction principles for tolling and harmonization)
- Viking Enter. v. County of Chesterfield, 277 Va. 104 (2009) (more specific statute controls when statutes seemingly conflict)
- James v. Peyton, 277 Va. 443 (2009) (statutory interpretation and interplay of 8.01-244(B) and 8.01-335(B))
- McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243 (1987) (timing and effects of dismissal on subject-matter jurisdiction)
- Ahari v. Morrison, 275 Va. 92 (2008) (limitations and amendments to actions under Virginia law)
- Neff v. Garrard, 216 Va. 496 (1975) (limitations on new claims within commenced actions)