7.6 WARRANT IN DEBT IN GENERAL DISTRICT COURT
7.601 In General. The fill-in-the-blank form used to request a civil warrant is General District Court Form DC-412. 72 After the attorney prepares the completed warrant in debt and sends it to the court, the court will assign a docket number to each case and send the appropriate copies to the sheriff for service.
7.602 Plaintiff.
A. In General. If the plaintiff is an individual, his or her name is all that is necessary. 73 If the plaintiff is a corporation, its proper legal name should appear along with a notation that it is a Virginia corporation 74 or nonresident corporation. 75 Other designations such as trustee or executor should also be included if applicable, and the appropriate information given as to the basis of actions in a representative capacity. 76 Often, the plaintiff is an assignee of another party. It is sometimes necessary to put assignment information in the warrant so the defendant will know exactly what the case is about. This is particularly true in negotiable instrument cases, where a note has been sold and the defendant is being sued by a party to whom the note has been assigned and with whom the defendant has not previously dealt.
Suits by or on behalf of incapacitated or incompetent parties must be brought in the name of the party's fiduciary on behalf of the ward. However, failure to file the action in this manner is not fatal, as it would be in the case of a minor; it may be cured by amendment. Jarrell v. Chippenham & Johnston-Willis Hospitals, Inc. 77 discusses pleading and practice in suits by persons under disabilities. After careful analysis of section 37.1-141 [now section 64.2-2025] of the Virginia Code and of other cases dealing with the issue, the judge concluded that even this rule was based on the language of old cases and that he was reading into them the fact that there might be a flaw in an action brought by the fiduciary in the ward's name. Based on
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Jarrell, it appears that the best practice is to style such a case in the following manner: "John Doe, Conservator, on behalf of Jane Roe, Incapacitated, Plaintiff."
It is important that the defendant know why the particular institution has sued him or her. In the climate of bank mergers and sales of divisions of financial institutions, the defendant is often sued by an entity with whom he or she has never done business. In a name change by merger, the plaintiff's name might read Big Bank, a Virginia corporation, successor by merger to Little Bank, a Delaware corporation. When the collection division of a company has been sold or has assigned its accounts receivable to another company that is now collecting the old accounts, the warrant might read ABC Corporation, a Virginia corporation, successor in interest to the accounts of American Bag Company, a Virginia corporation. 78 If the account has been assigned several times, it may be necessary to list all of the owners of the account (the previous assignees) to establish a chain of title to the account from the original credit grantor to the ultimate owner, the party filing the suit.
The plaintiff may also be filing suit to enforce an interest that is obtained by subrogation, such as an action by an insurance company to recover property damages it paid to its insured when the driver of another vehicle was at fault. In these actions, the plaintiff's name should appear, for example, as "Aetna Insurance Company, subrogee of John Jones, plaintiff v. Sam Smith, defendant." 79
If the plaintiff is a partnership, the action should name the partners as plaintiffs. 80
A professional person, such as an accountant or dentist suing for fees for services rendered, should include his or her designation in the style of the case. 81 A sole proprietor trading under a fictitious name must provide both his or her own name and the name under which he or she trades. 82 All such fictitious names must be registered in the city or county in which the business is conducted under that name. 83
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B. Minors. Special rules apply when filing suit on behalf of a minor plaintiff. A minor cannot file a suit in his or her own name; the action must be filed by the minor's next friend, which may be either or both parents. 84 The parent or other next friend cannot be the plaintiff; the plaintiff is the minor. In Herndon v. St. Mary's Hospital, Inc., 85 the plaintiffs named in the motion for judgment were Debbie Thompson Herndon, as mother and next friend of Matthew McNeil Herndon, and Larry McNeil Herndon, as father and next friend of Matthew McNeil Herndon. Also named in the motion for judgment was Matthew McNeil Herndon, in his own right. The defendant filed a motion to dismiss because the action did not conform to section 8.01-8 pertaining to suits by minors. The circuit court agreed and dismissed the action without prejudice. The plaintiffs appealed the dismissal concerning the portion of the action brought in the parents' names. The Supreme Court of Virginia affirmed the action of the trial court, holding that the plain language of the statute required the plaintiff to be the minor himself by his next friend. 86
A minor who is not represented by counsel must sign his or her pleading, motion, or other paper by the minor's next friend. 87 In all state courts, either or both parents of the minor may sign on the minor's behalf as his or her next friend, if not prohibited by section 64.2-716(6) of the Virginia Code, which states that a parent may not represent and bind a minor if a guardian for the minor has been appointed.
Practice warning: When representing a minor plaintiff, the attorney must be careful to determine the source from which his or her fee is to be paid. Although it is possible to contract with a minor, and although litigation may be beneficial to that minor, the attorney fee contract is voidable by the minor if the subject matter of the litigation does not involve the minor's "necessaries."
In Zelnick v. Adams, 88 counsel for a 16-year-old entered into a contingent fee contract to litigate a trust matter
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and established the minor as the beneficiary of the trusts. When the beneficiary turned 18, he disavowed the fee agreement. After substantial litigation, the Supreme Court of Virginia affirmed the trial court's finding that the "legal services at issue were not necessities under all the circumstances because postponing the litigation . . . until after the plaintiff attained the age of majority would not have compromised his legal position as to his claim to beneficiary status." This case is a primer on the doctrine of necessaries as it applies to a minor.
In tort actions to recover the costs of medical treatment of an injured minor child, it is important to recognize special rules for cases of this type. As a part of a "tort reform" package of bills, the 2013 legislature mandated that the parent's claim for medical reimbursement becomes a lien on any action by the minor, and settlement of the minor's claim or tender of proceeds to the minor releases the defendants from the claim of the parents. Additionally, the statute of limitations for recovery by the parent is five years from the date of payment; the statute for recovery by the minor is controlled by the laws governing the claims of infants. 89
C. Nonresident Plaintiffs.
1. In General. There is no requirement that the plaintiff reside in Virginia in order to sue in state courts. But there are some special requirements for nonresidents.
2. Bond. When the plaintiff is a nonresident, upon the suggestion of a defendant or any officer of the court, the court may require that the plaintiff post a costs bond in the amount of costs and damages that may be awarded to the defendant. Failure to do so within 60 days (or in the alternative to prove that the plaintiff is a resident) will result in the dismissal of the case.
As a practical matter, defendants do not often invoke section 17.1-607. It does not apply to general district court. Title 17.1 refers to courts of record only. However, the issue was raised in Torres v. Dixon. 90 The defendants requested a bond of $15,000 in a medical malpractice case. After a full
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hearing, the court concluded that expert witness fees were not part of the costs. The court required a bond sufficient to cover the costs of the essentials for prosecution of the suit, such as filing fees, and the cost of service of process. The bond was set at $316 with the caveat that this requirement was to be case-specific and was not intended "to express an opinion on possible future post-judgment awards given to the prevailing party." 91
Practice tip: It appears that the reason the defendant requested a bond was to make it prohibitively expensive to file an action of this type. Because the court's ruling limited the bond required, there is little or no reason to make such a motion in most cases.
3. Special Rules for Foreign Corporations. A foreign corporation transacting business in the Commonwealth without a certificate of authority may not maintain a proceeding in any court in the Commonwealth until it obtains a certificate of authority. This requirement applies equally to a successor to or assignee of that entity. If a court becomes aware that the corporation does not have a certificate of authority, the proceeding must be stayed until the certificate has been obtained. 92 This rule has been extended to foreign business trusts, foreign limited partnerships, and foreign limited liability companies. 93
Plaintiffs' counsel must be aware of this statute. It would be very embarrassing to have all of the plaintiff's witnesses ready for a trial and in court only to have the issue raised at the very last moment by a defense attorney who finds it necessary to obtain more time before trial or who simply wishes to make plaintiff's counsel appear to be unprepared.
Similarly, in small cases, if the issue is raised by the defense, the plaintiff...
