Lake v. NORTHERN VA. WOMEN'S MED. CNTR.

483 S.E.2d 220, 253 Va. 255
CourtSupreme Court of Virginia
DecidedFebruary 28, 1997
Docket961088
StatusPublished

This text of 483 S.E.2d 220 (Lake v. NORTHERN VA. WOMEN'S MED. CNTR.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lake v. NORTHERN VA. WOMEN'S MED. CNTR., 483 S.E.2d 220, 253 Va. 255 (Va. 1997).

Opinion

483 S.E.2d 220 (1997)
253 Va. 255

Tina Marie LAKE
v.
NORTHERN VIRGINIA WOMEN'S MEDICAL CENTER, INC., et al.

Record No. 961088.

Supreme Court of Virginia.

February 28, 1997.

Douglas B. Wessel, Reston, for appellant.

Mark A. Barondess (Brian D. West; Milissa R. Spring; Sandground, Barondess, West & New, on brief), Vienna, for appellees.

Present: CARRICO, C.J., COMPTON, LACY, HASSELL, KEENAN, and KOONTZ, JJ., and POFF, Senior Justice.

KOONTZ, Justice.

In this appeal, we consider whether a plaintiff should be permitted to amend a motion for judgment at the threshold of trial to substitute the proper corporate defendant where the error in the original pleading was known to the defendants and actions taken by them misled the plaintiff as to the identity of the proper corporate defendant.

The material facts are not in dispute and primarily involve the various pleadings filed in this procedurally protracted medical malpractice case. For clarity, however, we will first recite those facts in the record which were ultimately disclosed by the defendants and which explain the identities and relationship of the parties.

Northern Virginia Women's Medical Center, Inc. (the Medical Center) operated a medical clinic in Fairfax at which legal abortions were performed. Wayne C. Codding, an accountant, and Dr. Thomas H. Gresinger are the sole stockholders of another legal entity which owns the Medical Center. The abortion involved in this case did not take *221 place at the Medical Center clinic nor was the procedure performed by employees of the Medical Center.

Codding and Gresinger are also the sole shareholders of Fairfax Square Medical Associates, Inc. (Fairfax Square) which operated another medical clinic in Fairfax where the abortion involved in this case was performed. In 1988, Mark A. Barondess, in his capacity as assistant secretary of Fairfax Square, filed a declaration of fictitious name in the land records of Fairfax County to permit Fairfax Square to operate its clinic under the name "NOVA Women's Medical Center." Barondess is counsel for the defendants in the present litigation.

In short, Northern Virginia Women's Medical Center, Inc., and NOVA Women's Medical Center are separate entities. Each operated an abortion clinic in Fairfax and both were controlled by the same individuals.

We now turn to the procedural background of the case reflected by the pleadings. In November 1992, Tina Marie Lake filed a motion for judgment for medical malpractice in the Circuit Court of Warren County against Joel W. Match, M.D.,[1] the Medical Center, Gresinger, and Codding. Upon motion of the defendants, a change of venue to the Circuit Court of Fairfax County was granted, and an amended motion for judgment was filed in that court on February 11, 1993. Lake alleged that she had suffered permanent physical injury during an abortion performed in April 1991, in the course of which her uterus and an artery were lacerated. Lake further alleged that Match performed the abortion, and that Gresinger and Codding were the owners of the Medical Center "which operated a clinic that performed abortions ... in Fairfax, Virginia."

Responding to the 1993 motion for judgment, Gresinger, Codding, and the Medical Center (hereinafter collectively, the defendants), acting in concert, filed grounds of defense in which they admitted the allegations of the motion for judgment which identified them as parties, admitted that the Medical Center was a corporation that performed abortions at a clinic in Fairfax, and admitted that Gresinger and Codding were the sole stockholders and officers of the Medical Center. Additionally, the defendants admitted having required or approved of administrative procedures utilized by Match and other employees of the clinic. This pleading and subsequent pleadings and discovery filed by the defendants were signed by Barondess, as counsel.

Following extensive pre-trial proceedings, Lake took a voluntary nonsuit to the 1993 motion for judgment when her attorney became ill and otherwise unavailable. On June 17, 1994, Lake filed a new motion for judgment against the same parties, asserting the same facts asserted in the 1993 motion for judgment. The defendants filed a demurrer, which the trial court ultimately overruled after permitting Lake to again amend her motion for judgment. Thereafter, the defendants participated in discovery and other pre-trial proceedings, never expressly asserting that the Medical Center was not the clinic where Lake received her abortion.

In addition to these proceedings, in response to a motion to compel discovery filed by Match, the trial court ordered, inter alia, that the discovery related to the 1993 motion for judgment would be incorporated into the new suit. This discovery contained representations by the defendants that would raise the reasonable inference that the Medical Center owned and operated the clinic where Lake received her abortion and that its principals exercised administrative control over the clinic's policies and personnel.

On December 1, 1995, the defendants filed a motion to dismiss, asserting for the first time that Lake's abortion had been performed in the clinic owned and operated by Fairfax Square and which was not associated with the Medical Center, its employees, or its clinic.[2] Gresinger and Codding also sought *222 dismissal, asserting that their liability could only be predicated on a "piercing of the corporate veil" of Fairfax Square, which would make Fairfax Square an absent necessary party.

On December 8, 1995, three days before the trial was scheduled to commence, the trial court conducted a hearing on the motion to dismiss. During argument, Barondess stated that Fairfax Square operated the clinic where Lake's abortion was performed by Match and that Gresinger was the medical director of that clinic. Barondess asserted, however, that he and the defendants had not misrepresented that the Medical Center operated this particular clinic because Lake's counsel "never asked the question as to the ownership of the clinic, as to what corporate entity operated that facility." He further asserted that "there was no concealing [of Fairfax Square's identity], no effort to conceal whatsoever. We just didn't raise this particular issue until this time." Rather, the defendants characterized their posture as having admitted that the Medical Center operated an abortion clinic in Fairfax, which was "a completely accurate statement" since it had done so at one time.[3]

During the hearing, Lake made motions to amend her motion for judgment to include Fairfax Square and for a continuance, or in the alternative for a second nonsuit without prejudice. The trial court denied the defendants' motion to dismiss and Lake's motion for a second nonsuit. Although not expressly addressed in the trial court's summation during the hearing or its subsequent order, Lake's motions to amend the motion for judgment and to continue the trial were also effectively denied by the trial court's ruling that the case would proceed to trial as scheduled. Lake then informed the court that she had dismissed her expert witnesses and would not proceed to trial as scheduled. The defendants, joined by Match, then sought entry of judgment in their favor, which the trial court granted.

Following entry of the final order, Lake obtained an order of suspension and filed motions to set aside the judgment and to permit amendment of the motion for judgment.

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Lake v. Northern Virginia Women's Medical Center, Inc.
483 S.E.2d 220 (Supreme Court of Virginia, 1997)

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483 S.E.2d 220, 253 Va. 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-v-northern-va-womens-med-cntr-va-1997.