VIRGINIA:
IN THE CIRCUIT COURT FOR THE CITY OF ALEXANDRIA
GRACE CERRONE,
Plaintiff
vs.
REAGAN HYDEN,
Defendant
Case No. CL210001159-00
MOTION TO VACATE SUMMARY JUDGMENT
COMES NOW, Plaintiff GRACE CERRONE, and respectfully moves this honorable
to vacate its Order granting Summary Judgment to the Defendant. The Plaintiff states as
follows:
FACTS IN SUPPORT OF MOTION
On or about February 12, 2021, Plaintiff filed a Complaint in this Court regarding
injuries she sustained in a motor accident that occurred on or about March 7, 2019. In the
Complaint, the Plaintiff alleged inter alia, that the Defendant’s negligence caused the
accident. Plaintiff therefore sought recovery for her injuries.
On or about June 17, 2022, the Defendant filed a Motion to Deem Requests for
Admissions as Admitted and for Summary Judgment. The Defendant also filed a Motion to
Appear Remotely at Trial. In the said motion, the Defendant requested to appear “via video
teleconference through Zoom or other appropriate videoconference software”.
However, Plaintiff did not receive any notice from the Defendant regarding the
scheduled hearing.
On or about July 13, 2022, this Court issued an Order granting Defendant’s Motion to
Deem Requests for Admissions as Admitted and for Summary Judgment. The court held inter
alia, that, it is deemed admitted that: the motor vehicle accident took place on March 7, 2019;
the accident occurred in the parking lot at New Grand Mart, Alexandria, Virginia; Plaintiff
did not have the right of way at the intersection where the accident happened; Plaintiff failed
to exercise reasonable care by failing to yield the right of way to Defendant; Plaintiff’s
negligence was the sole proximate cause of the accident; Defendant was not negligent in
connection with the accident and his negligence was not the proximate cause for any injury
Plaintiff sustained. In that regard, the Court held that since the foresaid facts are deemed
admitted, no material issue of fact remains for resolution at trial. The Court therefore granted
Defendant’s Motion for Summary Judgment, and dismissed Plaintiff’s Complaint with
prejudice.
The Court also approved Defendant’s Motion to Appear Remotely.
On July 14, 2022, the Plaintiff filed an Order for Nonsuit, in which she requested the
Court to dismissed the action without prejudice.
Plaintiff hereby files this Motion to Vacate and/or Reconsider the said Summary
Judgment.
ARGUMENTS
I. Standard for Review
In considering a Motion for Summary Judgment, the trial court must adopt those
inferences from the facts that are most favorable to the nonmoving party, unless those
inferences are forced, strained, or contrary to reason. Dickerson v. Fatehi, 253 Va. 324, 327,
484 S.E.2d 880, 882 (1997) (citing Carson v. LeBlanc, 245 Va. 135, 139-40, 427 S.E.2d 189,
192 (1993)). Summary judgment is authorized only where the moving party is entitled to
judgment as a matter of law and is appropriate only where the record, taken as a whole, could
not lead a rational trier of fact to find for the nonmoving party. Id.
II. Plaintiff is entitled to the Non-Suit
So long as there are no cross-claims or counterclaims filed, a plaintiff has an absolute
right to request a dismissal without prejudice and has a right to re-file their case. See Va.
Code Ann. § 8.01-380. It has also been held that "[t]he right to take a nonsuit is a powerful
tactical weapon in the hands of a plaintiff." Temple v. Mary Wash. Hosp., 288 Va. 134, 140
(2014).
"[T]here is no ‘prevailing party’ when a nonsuit is awarded." Sheets v. Castle, 263 Va.
407, 414 (2002). Notably, a nonsuit does not involve a decision on the merits, rather, it
“simply [puts] an end to the present action, but is no bar to a subsequent action for the
same cause.” Payne v. Buena Vista Extract Co., 124 Va. 296, 311, 98 S.E. 34, 39 (1919)
(Emphasis added).
In the instant action, Plaintiff has a right to file a nonsuit. She needs a nonsuit because
she was unaware of the July 13 th hearing. Notably, Plaintiff did not did not receive the Motion
for Summary Judgment that the Defense counsel scheduled for July 13 th . Defendant claims to
have served Plaintiff via USPS regular mail, but Plaintiff has all of her Informed Delivery for
both June and July, and there is nothing from the office related to this case. This explains
why her Order for Nonsuit was filed on July 14 th . Plaintiff shall attach exhibits, which will be
the multiple informed delivery email notices to show the Defendant did not send the notice of
hearing to Plaintiff.
In addition to the foregoing, Defendant lied under oath about the events of the case.
First, the Defendant lied that Plaintiff did not have the right of way at the intersection where
the accident happened; that Plaintiff failed to exercise reasonable care by failing to yield the
right of way to Defendant; that Plaintiff’s negligence was the sole proximate cause of the
accident; and that Defendant was not negligent in connection with the accident and his
negligence was not the proximate cause for any injury Plaintiff sustained.
In light of the foregoing, Plaintiff avers that she is entitled to the nonsuit, which is the
Plaintiff’s right under Virginia law.
III. The court erred in dismissing Plaintiff’s complaint with prejudice.
The dismissal of a suit “with prejudice” is typically an adjudication on the merits of
the dispute, and amounts to a “final disposition” that prohibits the right to bring or maintain
an action on the same claim. See Reed v. Liverman, 250 Va. 97, 99, 458 S.E.2d 446, 447
(1995). The underlying policy of a dismissal with prejudice:
“is that when a plaintiff’s claim against a defendant has been resolved
adversely to the plaintiff, whether on the merits or because of another bar to
recovery such as sovereign immunity or the statute of limitations, the
plaintiff is not allowed to subject the defendant to repetitive litigation on the
same, previously resolved claim.”
See Lambert v. Javed, 273 Va. 307, 311 (2007).
On the other hand, dismissal of a suit “without prejudice” means that the court is not
deciding the controversy on its merits, and that the whole subject of litigation will remain as
much open to another suit as if no suit had ever been brought. See Newberry v. Ruffin, 102
Va. 73, 76 (1903)). In other words, dismissing a case without prejudice terminates the action
but does not prohibit its refiling.
In the instant action, as it has already been argued above, the Plaintiff did not did not
receive the Motion for Summary Judgment that the Defense counsel scheduled for July 13 th .
Defendant claims to have served Plaintiff via USPS regular mail, but Plaintiff has all of her
Informed Delivery for both June and July, and there is nothing from the office related to this
case. Plaintiff shall attach exhibits, which will be the multiple informed delivery email
notices to show the Defendant did not send the notice of hearing to Plaintiff.
Plaintiff further avers that she did not receive the Request for Admissions, out of an
excusable mistake on Plaintiff’s part. Plaintiff found it in her informed delivery but she
mistook it for an auto insurance policy quote and, she threw it out. Plaintiff was shopping for
car insurance during the late winter and spring. Besides, the Request for Admissions letter
was addressed to: Mr. Cerrone, who is an individual completely unknown to Plaintiff.
Accordingly, dismissing the Complaint with prejudice is against the interest of justice,
and is in the Plaintiff’s detriment.
IV. The Court abused its discretion by dismissing the Complaint with prejudice
There are three primary ways a court can abuse its discretion: when a relevant factor
that should have been given significant weight is not considered; when an irrelevant or
improper factor is considered and given significant weight; and when all proper factors, and
no improper ones, are considered, but the court, in weighing those factors, commits a clear
error of judgment. Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346,
352, 717 S.E.2d 134, 137 (2011).
“Whether such discretion has been properly exercised will, of course, depend upon
the circumstances of the particular case.” Westfall v. Westfall, 196 Va. 97, 103, 82 S.E.2d
487, 490 (1954).
In Mortarino v. Consultant Engineering Servs., Inc., 251 Va. 289, 296, 467 S.E.2d
778, 782 (1996), it was held that the Court abused its discretion where “nothing in the record
suggest[ed] that the defendants would have been prejudiced” by the amendment and the
plaintiff “had not previously amended” his pleading.
In the instant action, the Plaintiff avers that the Court abused its discretion when it
failed to give significant weight to the concern whether the Plaintiff was properly notified of
the hearing and whether she received the Request for Admission. Besides, instead of
dismissing the Complaint with prejudice, the Court ought to have allowed Plaintiff leave to
amend the Complaint.
CONCLUSION
In light of the foregoing, Plaintiff avers that dismissing the Complaint with prejudice
is against the interest of justice. Further, the Plaintiff is entitled to her right to file a nonsuit.
WHEREFORE, the Plaintiff prays that the honorable Court:
1. Vacates its Order dated July 13, 2022, for the reasons stated herein;
2. Any other Order this Court deems fit and just.
DATED: ______________
Respectfully Submitted,
______________________
GRACE CERRONE
CERTIFICATION OF MAILING
Plaintiff affirms that a copy of the above Motion to Vacate Summary Judgment was
served upon the Defendant to this action by electronic and/or U.S. mail to their respective
addresses as stated below:
[ENTER ADDRESS]
DATED: ______________
Respectfully Submitted,
______________________
GRACE CERRONE
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