Shepelak v. Pascuzzi

Virginia Circuit Court

Shepelak v. Pascuzzi

13 Va. Cir. 285, 1988 Va. Cir. LEXIS 389

CourtVirginia Circuit Court

DecidedAugust 16, 1988

DocketCase No. 3260-L

StatusPublished

This text of 13 Va. Cir. 285 (Shepelak v. Pascuzzi) is published on Counsel Stack Legal Research, covering Virginia Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shepelak v. Pascuzzi, 13 Va. Cir. 285, 1988 Va. Cir. LEXIS 389 (Va. Super. Ct. 1988).

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Opinion

By JUDGE HERBERT A. PICKFORD

The defendants’ pleas of the statute of limitations are granted. By letter of her counsel of December 16, 1986, plaintiff forwarded to the court clerk a proposed nonsuit order relative to the motion for judgment she filed December 30, 1985. No formal nonsuit motion was filed. The suit had been filed on the last day of the limitations period allowed for it by statute.

Virginia Code Section 8.01-380(B) gives a plaintiff the absolute right to suffer one nonsuit; however, the litigation subject of a nonsuit motion is not terminated until the trial court enters an appropriate order granting the motion. Nash v. Jewell, 227 Va. 230 (1984) at page 237. Rule 3:3 permitted the plaintiff one year after December 30, 1985, in which to secure service upon the defendants. The action was not terminated until entry on January 7, 1987, of the nonsuit order. Service not having been obtained within the requisite period, and no showing having been made by the plaintiff of an exercise of due diligence to have effected timely service upon [286]*286the defendants, her cause of action became time barred. The January 7, 1987, nonsuit order and the savings provision of Code Section 8.01-229(D)(3) could not resurrect it.

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By JUDGE HERBERT A. PICKFORD

The defendants’ pleas of the statute of limitations are granted. By letter of her counsel of December 16, 1986, plaintiff forwarded to the court clerk a proposed nonsuit order relative to the motion for judgment she filed December 30, 1985. No formal nonsuit motion was filed. The suit had been filed on the last day of the limitations period allowed for it by statute.

Virginia Code Section 8.01-380(B) gives a plaintiff the absolute right to suffer one nonsuit; however, the litigation subject of a nonsuit motion is not terminated until the trial court enters an appropriate order granting the motion. Nash v. Jewell, 227 Va. 230 (1984) at page 237. Rule 3:3 permitted the plaintiff one year after December 30, 1985, in which to secure service upon the defendants. The action was not terminated until entry on January 7, 1987, of the nonsuit order. Service not having been obtained within the requisite period, and no showing having been made by the plaintiff of an exercise of due diligence to have effected timely service upon [286]*286the defendants, her cause of action became time barred. The January 7, 1987, nonsuit order and the savings provision of Code Section 8.01-229(D)(3) could not resurrect it.

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Bluebook (online)

13 Va. Cir. 285, 1988 Va. Cir. LEXIS 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepelak-v-pascuzzi-vacc-1988.

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