Legal Question in Civil Litigation in Virginia

One year ago I successfully defended myself in a small claims court action. Plaintiff appealed to circuit court but after a time decided to non-suit the appeal. Now, 5-1/2 months later, plaintiff has attempted to reinstate the appeal and also filed a new small claims court case against me and a new defendant that seeks a slightly lesser dollar amount of damages. (1) Did the non-suit of plaintiff's appeal effectively dismiss the circuit court case with prejudice? (2) Is plaintiff barred from bringing a new claim against me for the same matter, even for a lesser amount, due to the underlying general district court decision in my favor? (3) If a new claim against me is barred, could a new claim still proceed against the new defendant? (4) If the new claim against me and/or the new defendant is barred, could a counterclaim brought by either of us against the plaintiff still proceed? Thank you.


Asked on 1/09/14, 10:17 am

1 Answer from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

1. No, merely nonsuiting a de novo appeal properly taken to the circuit court

in no way acts to dismiss with prejudice or bar the refiling of the case with

the circuit court. See Davis v. County of Fairfax, 710 S.E.2d 468 (Va. Sup. Ct Jun. 9. 2011 & Va. Code Sec. 8.01-380(A)

2. Yes, your Answer & Grounds of Defense to this new suit in the general district court should include a Motion to Dismiss grounded on the defense of collateral estoppel, aka. known as issue preclusion since all matters of fact as well as law have been effectively and finally adjudicated against you in the previous general district court case although not for the other newly-named defendant (hence making inapplicable the defense of res judicata)..

3. Yes, once you're dismissed as a defendant in this new case.

4. Per Va. Code Sec. 8.01-380(A), any counterclaim filed by you should

take place only in the circuit court, once the plaintiff's de novo appeal

is reinstated in that particular court. (This would apply only to you and not to the newly-named defendant in the new action in the lower court.)

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Answered on 1/09/14, 12:45 pm


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