SIGNIFICANT CASE SUMMARY

Virginia Significant Case Summary

Tessema v. Moulthrop
Virginia Court of Appeals
No. 0865-24-2

Decided: September 30, 2025

When curing a misnomer, Plaintiff must provide timely notice of the institution of the action to the proper defendant within the statute of limitations.

Background

In April of 2017, Plaintiff and Defendant were involved in a vehicle-bicycle collision. In April 2019, shortly before the statute of limitations was set to expire, Plaintiff filed a Complaint against “Katherine A. Illingworth AKA Katherine A. Multhrop.” In 2020, Plaintiff served the Complaint on an individual living in Colorado named Illingworth, née Moulthrop, who was unconnected to the accident. Subsequently, Plaintiff moved the Court for leave to amend his Complaint and correct a misnomer pursuant to Virginia Code § 8.01-6. Plaintiff’s Motion claimed that Defendant and Defendant’s insurance company were on notice of the claim since 2017, although the Motion lacked any claim or evidence that Defendant, or Defendant’s insurance company, were on notice of Plaintiff instituting an action against Defendant. Despite this, the Court granted Plaintiff’s Motion, and deemed the Amended Complaint filed.

Defendant subsequently filed a plea in bar arguing that Plaintiff’s Amended Complaint did not relate to the original filing and the statute of limitations barred Plaintiff’s claim. Before Defendant’s plea in bar could be heard, Plaintiff nonsuited the case. Plaintiff filed a new action against Defendant in December 2021, and served Defendant in 2022. Defendant filed another plea in bar, asserting that the statute of limitations barred Plaintiff’s claim. The Trial Court sustained the plea in bar on the basis that neither the Defendant, nor Defendant’s insurance company, had notice of the lawsuit filed in 2019. Without notice, the Trial Court reasoned that the Amended Complaint did not relate back and dismissed Plaintiff’s claim with prejudice. Plaintiff appealed.

Holding

The Court of Appeals affirmed. The Court reasoned that plaintiffs have two options to correct misnomers: they may (1) move to amend the pleading, or (2) they can nonsuit the case and refile. In either case, the plaintiff must show that the correct party or its agent received notice of the institution of the action within the applicable statute of limitations, pursuant to Virginia Code § 8.01-6. Here, the Court found that neither the Defendant nor the Defendant’s insurance company received notice of the commencement of the action within the statute of limitations, which expired in 2019. As such, Plaintiff’s refiled Complaint to cure his misnomer did not relate back to the first filing date, as he failed to give timely notice of the institution of the action to the Defendant within the statute of limitations.

Questions about this case can be directed to Nicolette DeFrank at (571) 470-0395 or ndefrank@tthlaw.com.