The Power of Procedural Precision
Andreya Steidl
McGavin, Boyce, Bardot, Thorsen & Katz, P.C.
Defense wins often come down to knowing the rules and using them precisely. In Ramiro v. Kershner, No. 1158-24-4 (Va. Ct. App. June 10, 2025), the Court of Appeals of Virginia affirmed the dismissal of a negligence claim where the plaintiff failed to serve within the statutory one-year window and then compounded the error by mishandling the appellate record.
The takeaway? Serve the rules, and they’ll serve you.
If you’re a young litigator, read on. If you’re a seasoned attorney, consider this a cautionary tale worth revisiting.
1. The One-Year Rule is Not a Suggestion
Virginia Code § 8.01-275.1 requires service within one year of filing. If not, the plaintiff must affirmatively prove “due diligence.” This is a high bar, and courts are rightfully skeptical of vague efforts or unexplained delays.
In this case, the defendant was not served until over fifteen months after filing, despite no clear explanation for the delay. The defendant moved to dismiss under Rule 3:5 and § 8.01-277(B), arguing that plaintiff failed to act with diligence. The circuit court agreed and dismissed the claim with prejudice.
2. The Appeal Failed Because the Record Did
Instead of filing a transcript of the dismissal hearing, the plaintiff attempted a written statement of facts—a risky substitute that must strictly comply with Rule 5A:8(c):
● Must be filed within 60 days of final judgment.
● Must include notice that the statement will be presented to the trial judge between 15 and 20 days after filing.
● Must be served on opposing counsel the same day it’s filed.
● Must be signed by the judge to be valid.
The plaintiff’s statement failed all of the above. Without a valid statement or transcript, there was no record of what was argued or decided and thus, nothing for the appellate court to review. The Court held that the plaintiff waived his assignment of error, and the dismissal was affirmed without oral argument.
Which brings us to the most satisfying sentence for a defense attorney to hear:
“We cannot consider the issue… Ramiro’s assignment of error is thus waived.”
3. Defense Strategy Takeaways
● Always preserve your wins.
If you secure a dismissal, build a record that can survive appeal. Here, the defense made sure the circuit court’s ruling was clear, factual, and firmly grounded in the plaintiff’s lack of diligence.
● Know how Rule 5A:8 works—for both sides.Appellants often misuse statements of facts, failing to utilize the proper procedure. Know the checklist cold and be ready to challenge any defects that prevent the record from being properly formed.
● Hold the plaintiff to their burden.The law requires diligence—don’t let vague claims of "trying" or "following up" substitute for documented, consistent service efforts.
4. Final Word: Let the Rules Work for You
Ramiro v. Kershner is a reminder that in civil litigation, technical missteps can be fatal, and good advocacy isn’t just about persuasive writing or good oral argument. It’s about knowing the rules and following them to the letter.
In defense litigation, that’s not just strategy. That’s survival.
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