Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Poff, Senior Justice
TINA MARIE LAKE
OPINION BY JUSTICE LAWRENCE L. KOONTZ,
v. Record No. 961088 FEBRUARY 28, 1997
NORTHERN VIRGINIA WOMEN'S MEDICAL
CENTER, INC., ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
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 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
1
Dr. Match is not a party to this appeal.
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
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
2
As was the case with most of the pleadings filed by the
defendants, this motion to dismiss was styled in the name of
Northern Virginia Women's Medical Clinic, rather than Northern
Virginia Women's Medical Center, Inc., the accurate name of the
entity against which the suit was brought, or NOVA Women's
Medical Center, the accurate trade name of the owner of the
clinic in question.
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
3
completely accurate statement" since it had done so at one time.
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
3
These assertions reference, in part, the following
allegation of the motion for judgment which was admitted by the
defendants in their grounds of defense: "DR. MATCH, with the aid
of employees of WOMEN'S MEDICAL CENTER, and with the tools and
facilities of WOMEN'S MEDICAL CENTER, performed an abortion
procedure on Ms. Lake at THE ABORTION CLINIC in Fairfax,
Virginia, on April 13, 1991."
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. Lake also sought to
have the trial court impose sanctions on Barondess and the
defendants for alleged misrepresentations in the pleadings and
discovery.
At the hearing on Lake's post-judgment motions, Barondess,
responding to questions from the trial court, conceded that he
was aware "[a]t the very beginning" that Lake had not named the
proper corporate defendant in her original suit. Barondess again
asserted that the representation that the Medical Center operated
an abortion clinic in Fairfax was true, since it did, at one
time, operate an abortion clinic in Fairfax where Lake might
previously have had an abortion. Barondess further asserted that
any admissions which appeared to assert the Medical Center's
involvement with or control over the employees, facilities, and
polices of the clinic operated by Fairfax Square were
"inadvertent oversight[s]."
The trial court stated that it was troubled by the
irregularities of the case, and that in "the best light . . .
[Barondess was] flirting with the line between appropriate and
inappropriate behavior." Nonetheless, considering Lake's own
failure to search the land records to discover the true corporate
ownership of the clinic and her refusal to proceed to trial
against the individual defendants, the trial court ruled that
sanctions were not appropriate, and entered an order denying
Lake's motions.
We awarded Lake this appeal. Lake assigns numerous errors
to the trial court's rulings in this case. However, the issue of
the denial of the motion to amend the motion for judgment is
dispositive in our resolution of the appeal.
It is axiomatic that a plaintiff has the duty to name the
proper parties as defendants in the motion for judgment. As we
said in Baldwin v. Norton Hotel, Inc. 163 Va. 76, 80, 175 S.E.
751, 752 (1934):
It is necessary, in the orderly administration of
justice, that the identification of parties to a cause
be certain. Hence one of the rules of good pleading
requires that the correct name of the parties litigant
be used in the pleadings. . . . These matters are
elemental, and a mere restatement of them discloses the
necessity for definiteness and accuracy in naming the
defendant.
In the present case, the plaintiff clearly failed to
identify the proper corporate defendant, naming instead a
corporation controlled by the same individuals and with a name
similar to the trade name of the proper corporate defendant.
Barondess admitted to the trial court that he and the defendants
were aware of the plaintiff's error from "the very beginning."
While the defendants and their counsel had no affirmative
duty to inform the plaintiff or the trial court of the
plaintiff's error or to disclose voluntarily the identity of the
proper corporate defendant, they were subject to the requirement
that pleadings or other papers signed and submitted to the court
must be "well grounded in fact . . . and . . . not interposed for
any improper purpose." Code § 8.01-271.1; see also Rule 1:4(a)
and (d). Accordingly, when responding to the factual allegations
of a pleading or discovery request, a party is not free to assign
differing definitions to identical terms from one response to the
next in order to confuse or obscure the true facts, and, thus to
mislead the opposing party. The defendants and their counsel
were therefore required to respond to the initial motion for
judgment, participate in discovery, and otherwise conduct
themselves before the trial court in a manner consistent with
their knowledge that the Medical Center was not the proper
corporate defendant.
The record of this case discloses that this was not done.
Rather, beginning with the initial response to the 1992 motion
for judgment and continuing up to filing of the motion to
dismiss, every action of the defendants and their counsel was
calculated to give the impression that the Medical Center was,
and admitted to being, the owner of the clinic where Lake
received her abortion. Certainly, there is no room for debate
that the defendants' admission that Lake received an abortion in
Fairfax on April 13, 1991, at the Medical Center was not "a
completely accurate statement" as asserted by Barondess, because
she could not have had more than one abortion on the same day and
at two different clinics. See note 3, supra. Even granting that
some other representations were potentially made through
"mistake" and "inadvertent oversight," the resulting effect of
misrepresenting the identity of the Medical Center as the proper
corporate defendant understandably misled the plaintiff.
Thus, while the error in naming the incorrect corporate
defendant was Lake's, the failure to discover this error in a
timely manner was occasioned by acts of the defendants, either
deliberate or careless, which would lead any reasonable plaintiff
to infer that the Medical Center was a proper party to the suit.
Where an error has been made in a pleading with respect to
the identification of parties, that fact alone will not defeat
the action. Code § 8.01-5. Rather, the trial court may permit
the error to be cured through an amendment of the pleading to
substitute the proper party. Id. As with any amendment to a
pleading, whether a substitution of a party should be permitted
is a matter committed to the sound discretion of the trial court.
Rule 1:8. Nonetheless, we have further recognized that, under
Rule 1:8, amendment of pleadings should be liberally granted if
doing so will further the ends of justice. Fox v. Deese, 234 Va.
412, 429, 362 S.E.2d 699, 709 (1987).
Amendment of a pleading to substitute a party is especially
appropriate "'[w]here the substituted party bears some relation
of interest to the original party and to the suit, and there is
no change in the cause of action . . . .'" Jacobson v. Southern
Biscuit Co., 198 Va. 813, 817, 97 S.E.2d 1, 4 (1957). "'[The]
discretionary power of the court to such end is to be liberally
exerted in favor of, rather than against, the disposition of a
case upon its merits.'" Id.
The facts of the present appeal are not dissimilar in their
essential respects from those we considered in Jacobson. In that
case, the plaintiffs filed suit on an account they held in the
name of "Southern Biscuit Company," nominating the defendant
under this name and adding "Inc." Southern Biscuit Company,
Inc., was a Virginia corporation which had dissolved some years
before the debt in question accrued. The actual debtor was the
Weston Biscuit Company, Inc., a Delaware corporation, which had
assumed control of the assets of Southern Biscuit Company, Inc.,
and continued to operate under the trade name "Southern Biscuit
Company" in Virginia.
After initially permitting the motion for judgment to be
amended, the trial court reversed itself and dismissed the suit.
We reversed, holding that dismissal was improper because "[t]he
amendment . . . worked no change in the cause of action sued on,
the party which it substituted bore a real relation of interest
to the original party and to the suit, and nobody was misled or
prejudiced by the mistake." Id. at 818, 97 S.E.2d at 4-5.
Here, as in Jacobson, the principals of the proper corporate
defendant have been parties to the suit from the beginning, and
substitution of the proper corporate defendant would not alter
the nature of the cause of action. The rationale of Jacobson
holds true here, especially in consideration of the acts of the
defendants which misled Lake as to the identity of the corporate
defendant. Accordingly, Lake should have been permitted to
substitute Fairfax Square for the Medical Center so that the case
might proceed, after a reasonable continuance, to a disposition
on its merits. For these reasons, we hold that the trial court
erred in not permitting Lake to amend her motion for judgment.
Lake also assigns error to the trial court's denial of her
motion to impose sanctions against Barondess and the defendants.
In light of the reason for our holding that Lake is to be
permitted to amend her motion for judgment, we will not rule on
this issue now, but will remand to allow the trial court to
reconsider its denial of sanctions against Barondess and the
defendants.
Accordingly, the judgment of the trial court will be
reversed, and the case remanded for further proceedings after the
court permits Lake to amend her motion for judgment to name the
proper party defendants.
Reversed and remanded.
Lake v. NORTHERN VA. WOMEN'S MED. CNTR.
Court: Supreme Court of Virginia
Date filed: 1997-02-28
Citations: 483 S.E.2d 220, 253 Va. 255
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