2016 Va. Cir. LEXIS 169
Rockingham Cir. Ct.2016Background
- Plaintiff sued Franklin Management Company and Grassy Creek Mobile Home Park, L.L.C. (joint operators) on June 22, 2015; different registered agents for each defendant.
- Franklin’s registered agent (James Sease) was served June 29, 2015; Grassy Creek’s agent (W. Dean Short) was not served despite repeated attempts.
- Defense counsel communicated with plaintiff’s counsel pre-suit about the dispute and registered agents and later requested the complaint be mailed to him.
- Defense counsel filed a joint answer for both defendants on July 30, 2015—nine days late as to Franklin—and admitted the lateness resulted from his inaction.
- Defense counsel suffered a stroke (diagnosed in early September), and counsel’s medical condition and pre-filing communications were considered in assessing excuse for delay.
- Court found both defendants operated as a joint venture, would present identical defenses, and there was no showing of prejudice to plaintiff from the nine-day delay; denied default judgment and granted leave to file late answer for Franklin.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment should be entered for failure to timely answer | Plaintiff urged entry of default as Franklin failed to answer within 21 days | Delay was counsel-caused, brief (9 days), excusable given communications and counsel’s condition; leave should be granted | Denied default; court granted leave to file late answer for Franklin |
| Whether the court should grant leave to file a late answer under Va. Sup. Ct. Rules | Plaintiff argued rules allow default when no timely answer | Defendants relied on Rule 3:19(b) and Rule 1:9 factors (good cause, discretion, lack of prejudice) | Court exercised discretion under Rule 1:9/3:19 to permit late filing |
| Whether Grassy Creek’s later participation affects treatment of Franklin’s default | Plaintiff might benefit from default against Franklin separately | Defendants argued joint-venture status means identical defenses and potential overlap; separate default could produce unfair/duplicative outcomes | Court noted joint-venture posture favors allowing defense to proceed to avoid inconsistent results |
| Whether counsel’s actions (not client’s) weigh against default | Plaintiff emphasized the deadline is mandatory | Defendants argued that defaults caused by attorney error are less compelling to bar merits resolution | Court found attorney-caused delay and lack of prejudice weigh in favor of permitting late answer |
Key Cases Cited
- Herndon v. Wickham, 198 Va. 824 (1957) (Rule 3:19 and Rule 1:9 must be read together regarding late pleadings)
- Westfall v. Westfall, 196 Va. 97 (1954) (leave to plead depends on circumstances of the case)
- Emrich v. Emrich, 9 Va. App. 288 (1989) (factors for granting leave to file a late pleading include prejudice, promptness, meritorious defense, and extenuating circumstances)
- Ashby v. Bell's Administrator, 80 Va. 811 (1885) (a defendant who succeeds on the merits may benefit even if another related defendant is in default)