Bowman v. Concepcion

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Koontz, S.J.

JACQUELINE BOWMAN
OPINION BY
v. Record No. 102144 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
March 2, 2012
NICANOR B. CONCEPCION

FROM THE CIRCUIT COURT OF WISE COUNTY
John C. Kilgore, Judge

In this appeal, we consider whether the requirement for a

plaintiff to obtain service of process on a defendant within

twelve months of filing an action, Code § 8.01-275.1 and Rule

3:5(e), was subject to extension by the circuit court for

"good cause." We further consider whether the court correctly

determined that the plaintiff's failure to obtain service on

the defendant within twelve months from the filing of the

complaint resulted from a lack of due diligence on her part.

BACKGROUND

The relevant facts of this case are not in dispute. In a

complaint timely filed on February 5, 2009 in the Circuit

Court of Wise County, Jacqueline Bowman alleged that Nicanor

B. Concepcion, M.D. committed medical malpractice during his

treatment of her beginning on October 16, 2006. Bowman

alleged that she first learned of Dr. Concepcion's failure to

diagnose and properly treat her medical condition when she
"received a second opinion from Dr. Felix E. Shepard on

February 21, 2008."

On February 5, 2010, Bowman filed a motion in the circuit

court in which she asserted that "[i]t has now been 12 months

since the complaint was filed . . . and plaintiff has not been

successful in obtaining service of process on the defendant in

this matter." Bowman asked the court to "find that she has

shown good cause for lack of service of process on the

defendant within the statutory 12 month period; that said lack

of service is not prejudicial to the defendant; and that the

court grant her an extension to serve the defendant until July

1, 2010." Following an ex parte hearing on the day the motion

was filed, the court entered an order granting the extension,

finding "that the plaintiff has shown good cause as to why the

defendant has not been served in this matter within the 12

month period provided for by statute" and allowed "an

extension of time" to July 1, 2010 in which to obtain service

upon the defendant. 1 Thereafter, Bowman obtained service of

process of the complaint on Dr. Concepcion on March 30, 2010.

1
This order was entered by Judge Joseph R. Carico. No
record of the ex parte proceeding is available; however, as
will be discussed infra, in subsequent proceedings Bowman
averred as to the nature of the argument that was presented to
the court.

2
 On April 1, 2010, Dr. Concepcion filed a motion to

dismiss the complaint on the ground that Bowman had not

obtained service of process on him within twelve months of

filing the complaint and could not show that she had exercised

due diligence in attempting to obtain service on him. The

motion was supported by an affidavit in which Dr. Concepcion

averred that he had been living and working in Wise County or

the City of Norton during the period in which the complaint

had been pending, that he had been available for service of

process at his home or office except for brief intervals when

he was travelling, and that he was not aware of any effort to

serve process on him during the twelve months following the

filing of the complaint on February 5, 2009.

Dr. Concepcion filed a memorandum in support of the

motion to dismiss in which he addressed the February 5, 2010

order purporting to grant Bowman an extension of time to

obtain service of process. Dr. Concepcion contended that the

February 5, 2010 order was void because the court did not have

personal jurisdiction over him at the time it was entered. He

further contended that if this order was merely voidable,

rather than void, it nevertheless should be set aside because

the court applied the wrong standard in determining that

Bowman's failure to obtain service of process on him was

excusable. Dr. Concepcion contended that "good cause" as

3
referenced in the order was a less rigorous standard than "due

diligence," which he maintained was the correct standard under

Code § 8.01-275.1 and Rule 3:5(e).

Finally, Dr. Concepcion contended that Bowman

subsequently could not be allowed to claim that her failure to

obtain service of process on him was not the result of a lack

of due diligence because the record showed that no effort was

made to obtain service of process until after the order

granting the extension was entered. To the contrary, he

maintained that the record affirmatively showed that Bowman

"d[id] not wish to have the complaint served" when it was

filed and did not request service of process at any time

during the next twelve months.

Bowman filed a memorandum in response to Dr. Concepcion's

motion to dismiss. Therein, for the first time on the record

she asserted that the complaint had been filed "on February 5,

2009 to protect her rights and toll the running of the statute

of limitations." She further asserted that after filing the

complaint, her "counsel diligently sought after an expert to

review the medical records . . . and provide the written

certification required in a medical malpractice case" by Code

§ 8.01-20.1, without which she could not request service of

process on Dr. Concepcion. Bowman contended that in the ex

parte proceeding on February 5, 2010, her counsel represented

4
this circumstance to the circuit court as the basis for

seeking the extension of time to obtain service of process on

Dr. Concepcion, which "obviously the [c]ourt[] believed

qualified as 'Due Diligence'" as subsumed within a "good

cause" standard.

Bowman further contended that the February 5, 2010 order

was not void because it was not necessary for the court to

have personal jurisdiction over Dr. Concepcion before

extending the time to obtain service of process on him.

Finally, Bowman contended that even if the February 5, 2010

order did not validly extend the time for obtaining service of

process on Dr. Concepcion, the court nonetheless should find

that she exercised due diligence in obtaining service of

process once the expert opinion required by Code § 8.01-20.1

had been obtained. 2

Following oral argument by the parties, the circuit court

issued a memorandum opinion dated August 5, 2010. The court

first concluded that the February 5, 2010 order was "void."

The court reasoned that in entering the order, the judge "did

not address whether due diligence to obtain service as late as

2
Bowman also contended that Dr. Concepcion had made a
general appearance in the case and, thus, waived any objection
to a defect in the service of process. The circuit court
rejected this argument, and we refused Bowman's assignment of
error addressing this aspect of the court's judgment.

5
March 30, 2010, could be justified, rather the court

legislated that the time for obtaining service in this case

would not be one year as otherwise required by law." Because

"[n]o such statutory authority exists" that would permit the

court to grant such an extension, especially in an ex parte

proceeding, the court determined that Bowman could not rely

upon the order to validate her untimely service of process on

Dr. Concepcion.

The circuit court then opined that the due diligence

requirement of Code § 8.01-275.1 and Rule 3:5(e) means

"diligence to have a defendant served in a manner provided by

law. It does not mean diligence in obtaining a medical report

to satisfy the requirements of Code § 8.01-20.1." The court

expressly found that "[s]ervice upon the defendant was not

requested" within the twelve months following the filing of

the complaint "because plaintiff's counsel did not at that

time have in hand a written report as required by Code § 8.01-

20.1." Nonetheless, because Dr. Concepcion "was easily

accessible for service of process at most any time during the

one year following the filing of this suit," the court

determined that Bowman had not exercised due diligence in

having the complaint served on him.

By an order dated August 13, 2010, the circuit court

entered final judgment granting Dr. Concepcion's motion to

6
dismiss Bowman's complaint with prejudice. 3 We awarded Bowman

an appeal from this judgment limited to the following

assignments of error:

1. The trial court erred in ruling that the Order
entered on February 5, 2010, extending the period of
time to perfect service of process on defendant was
null and void.

3. The trial court erred in ruling that Plaintiff
had not exercised due diligence in this case.

DISCUSSION

We begin our analysis with the principal statutory

provisions and our Rule 3:5(e) as invoked by the particular

circumstances of this medical malpractice case. These

provisions establish the procedural framework from which the

parties make their various contentions in this appeal.

In pertinent part, Code § 8.01-20.1 provides that in any

case in which a pleading alleges an act of medical malpractice

which requires the opinion of a qualified expert witness, when

the plaintiff requests service of process upon a
defendant, or requests a defendant to accept
service of process, [that request] shall be deemed
a certification that the plaintiff has obtained
from an expert witness whom the plaintiff
reasonably believes would qualify as an expert
witness pursuant to subsection A of § 8.01-581.20 a
written opinion signed by the expert witness that,
based upon a reasonable understanding of the facts,
the defendant for whom service of process has been

3
Judge Designate Charles B. Flannagan II issued the
August 5, 2010 memorandum opinion in this case. Judge Kilgore
entered the August 13, 2010 final order.

7
 requested deviated from the applicable standard of
care and the deviation was a proximate cause of the
injuries claimed.

This statute further provides that "[i]f the plaintiff did not

obtain a necessary certifying expert witness at the time the

plaintiff requested service of process on a defendant as

required under this section, the court shall impose sanctions

according to the provisions of § 8.01-271.1 and may dismiss

the case with prejudice." (Emphasis added.)

Code § 8.01-275.1 provides that "[s]ervice of process in

an action or suit within twelve months of commencement of the

action or suit against the defendant shall be timely as to

that defendant. Service of process on a defendant more than

twelve months after the suit or action was commenced shall be

timely upon a finding by the court that the plaintiff

exercised due diligence to have timely service made on the

defendant."

Rule 3:5(e) provides that "[n]o order, judgment or decree

shall be entered against a defendant who was served with

process more than one year after institution of the action

against that defendant unless the court finds as a fact that

the plaintiff exercised due diligence to have timely service

on that defendant."

In pertinent part, Code § 8.01-277(B) provides that:

8
 A person, upon whom process has not been served
within one year of commencement of the action
against him, may make a special appearance, which
does not constitute a general appearance, to file a
motion to dismiss. Upon finding that the plaintiff
did not exercise due diligence to have timely
service and sustaining the motion to dismiss, the
court shall dismiss the action with prejudice. . . .
Nothing herein shall prevent the plaintiff from
filing a nonsuit under Code § 8.01-380 before the
entry of an order granting a motion to dismiss
pursuant to the provisions of this section.

(Emphasis added.)

Guided by these procedural requirements, we turn now to

Bowman's first assignment of error in which she asserts that

the circuit court erred in ruling that the February 5, 2010

order purporting to extend the twelve-month period of time

from the filing of the complaint on February 5, 2009 to July

1, 2010 to obtain service of process on Dr. Concepcion was

void. On appeal, the parties essentially repeat the

assertions made in the circuit court.

The thrust of Bowman's assertion regarding the validity

of the February 5, 2010 order is that she had made a good

faith attempt to comply with the requirement of Code § 8.01-

20.1 before requesting service of process on Dr. Concepcion

and this order resulted in no prejudice to him and merely

removed the application of the twelve month requirements of

both Code § 8.01-275.1 and Rule 3:5(e) for timely service of

process on Dr. Concepcion. The thrust of Dr. Concepcion's

9
assertions on this issue is that the February 5, 2010 order

was void because the court lacked personal jurisdiction over

him and he was prejudiced because absent an extension of time

to obtain service of process on him within the time

requirements of Code § 8.01-275.1 and Rule 3:5(e), he would

have been entitled to a dismissal of Bowman's complaint

against him.

There is no dispute in this case that the alleged acts of

malpractice occurred within the geographical jurisdiction of

the circuit court and that Bowman's complaint was timely filed

in that court. Moreover, it is clear that the court upon the

filing of the complaint had subject matter jurisdiction over

the case. Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d

753, 755 (1990). While it is true that absent service of

process of the complaint upon Dr. Concepcion the court lacked

personal jurisdiction over him, the February 5, 2010 order was

not void but rather at best voidable. Both Code § 8.01-275.1

and Rule 3:5(e) expressly permit, after service of process,

the court to find that service of process beyond the

prescripted time period of twelve months may be allowed if the

plaintiff can demonstrate "due diligence" in attempting to

obtain service of process on the defendant. See Gilpin v.

Joyce, 257 Va. 579, 582-83, 515 S.E.2d 124, 126 (1999); see

also Code § 8.01-335(D)(providing that a case "wherein process

10
has not been served within one year" will not be struck from

the docket if the plaintiff can show "that due diligence has

been exercised to have service timely effected on the

defendant.")

We agree with the circuit court that no statutory

authority exists that would permit a court to grant

prospectively an extension of time beyond one year from

commencement of an action for service of process on a

defendant. However, this observation by the circuit court

misses the point in this case. In the February 5, 2010 order,

the court did not specifically address whether the plaintiff

had exercised due diligence to obtain service of process of

the complaint on Dr. Concepcion and there was no pending

motion to dismiss filed by him pursuant to Code § 8.01-277(B)

raising the due diligence issue. Thus, the case remained on

the court's docket and was subject to the filing of a motion

to dismiss by the defendant at a later time. In this

procedural posture of the case the February 5, 2010 order

purported to grant an extension of time for obtaining service

of process on the defendant without a proper determination of

the due diligence issue. Therefore, the order was erroneous

and simply did not resolve the present contentions of the

parties. Indeed, both parties conceded during oral argument

of this appeal that even if the February 5, 2010 order was

11
properly set aside, Bowman could still prevail in this appeal

if the circuit court erred in finding, pursuant to Dr.

Concepcion's motion to dismiss, that she failed to demonstrate

due diligence in attempting to obtain timely service of

process of her complaint on Dr. Concepcion. For these

reasons, we hold that even though the circuit court erred in

ruling that the February 5, 2010 order was void, it did not

err in setting aside the February 5, 2010 order and requiring

Bowman to demonstrate that she exercised due diligence in

attempting to obtain service of process on Dr. Concepcion.

Accordingly, we now turn to Bowman's other assignment of

error asserting that the circuit court erred in finding that

she had not shown due diligence in her efforts to obtain

timely service of process of her complaint on Dr. Concepcion.

Unlike the procedural posture of the case at the time of the

entry of the February 5, 2010 order, the issue of due

diligence was before the circuit court pursuant to Dr.

Concepcion's April 1, 2010 motion to dismiss following service

of process on him on March 30, 2010.

Bowman contends that, as applied by the circuit court in

this case, there is a conflict between Code § 8.01-20.1 and

Code § 8.01-275.1. Bowman maintains that the conflict arises

because under the circuit court's interpretation of these

statutes a plaintiff may not serve a defendant in a medical

12
malpractice action without the necessary expert opinion

required by Code § 8.01-20.1, but is nonetheless required to

obtain service of process on the defendant within twelve

months of filing the action as required by Code § 8.01-275.1,

even if the plaintiff has not yet obtained the expert opinion.

Bowman contends that to harmonize these two statutes, we must

conclude that the due diligence requirement of Code § 8.01-

275.1 can be satisfied if the plaintiff in a medical

malpractice action demonstrates due diligence in the effort to

obtain the Code § 8.01-20.1 expert opinion. Bowman does not

dispute that she readily could have obtained service of

process on Dr. Concepcion without any hindrance by him at

almost any time during the twelve months following the filing

of her complaint. She relies solely on her unsuccessful

efforts to obtain the Code § 8.01-20.1 opinion during that

time as the basis for asserting that she exercised due

diligence in attempting service on Dr. Concepcion. 4

"[W]e construe statutes as a consistent and harmonious

whole to give effect to the overall statutory scheme." Ott v.

Monroe, 282 Va. 403, 407, 719 S.E.2d 309, 311 (2011) (citing

4
The circuit court did not make an express finding as to
whether Bowman's counsel's efforts to obtain the Code § 8.01-
20.1 opinion were sufficiently diligent. For purposes of our
analysis, we will assume, without deciding, that the failure
to obtain the expert statement was not for lack of an
appropriate effort on counsel's part.

13
Virginia Electric & Power Co. v. Board of County Supervisors,

226 Va. 382, 388, 309 S.E.2d 308, 311 (1983)). Thus, we will

construe statutes that address the same general subject "so as

to avoid repugnance and conflict between them and, if

possible, to give force and effect to each of them." City of

Lynchburg v. English Constr. Co., 277 Va. 574, 584, 675 S.E.2d

197, 202 (2009); see also Evans v. Evans, 280 Va. 76, 84-85,

695 S.E.2d 173, 177 (2010); Sexton v. Cornett, 271 Va. 251,

257, 623 S.E.2d 898, 901 (2006)

The purpose and intent of Code § 8.01-275.1, and its

procedural complement in Rule 3:5(e), "is to provide for

timely prosecution of lawsuits and to avoid abuse of the

judicial system." Gilbreath v. Brewster, 250 Va. 436, 441,

463 S.E.2d 836, 838 (1995). Code § 8.01-20.1 serves a similar

purpose specifically for medical malpractice actions, in that

it seeks to avoid delay in the prosecution of an action which

requires the plaintiff to provide expert testimony concerning

the standard of care, as well as to interdict the prosecution

of frivolous suits where no expert can be found to support the

plaintiff's contention.

There is no conflict in the complementary purposes of

these statutes in that each expedites the prosecution of

actions while discouraging abuse of the judicial system.

These purposes would not be served if, as Bowman urges, Code

14
§ 8.01-20.1 were applied effectively to toll the application

of Code § 8.01-275.1. If a plaintiff could avoid the

operation of the latter statute by showing that the delay in

having the defendant served with process resulted solely from

the inability to meet the requirements of the former despite a

diligent but unsuccessful effort to find an expert willing to

support the plaintiff's claim, the time for obtaining service

on a defendant in a medical malpractice action might be

extended indefinitely.

Moreover, we are of opinion that the effort expended by

the plaintiff to obtain the Code § 8.01-20.1 expert opinion

does not constitute part of the due diligence effort to obtain

service of process on the defendant expressly required under

Code § 8.01-275.1. Otherwise, a plaintiff would have a

virtually unlimited time to acquire the Code § 8.01-20.1

opinion as long as the effort to obtain it was being pursued

with "due diligence," a standard that does not appear in that

statute. We do not believe that the legislature could have

intended such a result, which effectively defeats the purposes

of both Code § 8.01-20.1 and § 8.01-275.1, as statutes

" 'should never be construed in a way that leads to absurd

results.' " Bank of the Commonwealth v. Hudspeth, 282 Va.

216, 221, 714 S.E.2d 566, 569 (2011) (quoting Meeks v.

Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007)).

15
 As we have already noted, Bowman does not contend that

there would have been any hindrance on her effort to have

process served upon Dr. Concepcion during the twelve months

following the filing of her complaint had she attempted it,

but only that she did not request service on him because she

had not yet satisfied the requirement of Code § 8.01-20.1. In

that circumstance, she was not without a procedural remedy to

resolve her asserted dilemma. Rather, as permitted by Code

§ 8.01-277(B), she could have taken a nonsuit as a matter of

right pursuant to Code § 8.01-380 and refiled her complaint in

accord with the provisions of Code § 8.01-229(E)(3).

Accordingly, we hold that the circuit court did not err in

finding that Bowman had not shown that she exercised due

diligence in seeking to obtain service of process upon Dr.

Concepcion within twelve months of the filing of her

complaint.

CONCLUSION

For these reasons, we will affirm the judgment of the

circuit court dismissing the complaint with prejudice for

Bowman's failure to obtain service of process on Dr.

Concepcion within twelve months after filing her complaint.

Affirmed.

JUSTICE POWELL, concurring.

16
 I agree with the majority's conclusion that a plaintiff's

attempts to find an expert to render an opinion under Code

§ 8.01-20.1 do not establish due diligence to satisfy the

requirements of Code § 8.01-275.1. I also agree with the

ultimate holding of the case. I respectfully disagree,

however, with that portion of the majority's discussion

suggesting that the February 5, 2010, order was not void, and

I would affirm the judgment based, in part, on the fact that

the extension of time order was null and void ab initio.

The majority states that

[w]e agree with the circuit court that no
statutory authority exists that would permit a
court to grant an extension of time beyond one
year from commencement of an action for service
of process on a defendant. However, this
observation by the circuit court misses the
point in this case.

In my opinion, this is the point in this case. Code § 8.01-

275.1 states:

Service of process in an action or suit within
twelve months of commencement of the action or
suit against a defendant shall be timely as to
that defendant. Service of process on a
defendant more than twelve months after the
suit or action was commenced shall be timely
upon a finding by the court that the plaintiff
exercised due diligence to have timely service
made on the defendant.

Clearly, the time limit for serving process under Code § 8.01-

275.1 is purely statutory. Therefore, any authority the

17
circuit court had to extend the time period must, of

necessity, derive from the statute. As the majority correctly

states, no such statutory authority exists.

The distinction between an action of the
court that is void ab initio rather than merely
voidable is that the former involves the
underlying authority of a court to act on a
matter whereas the latter involves actions
taken by a court which are in error. An order
is void ab initio if entered by a court in the
absence of jurisdiction of the subject matter
or over the parties, if the character of the
order is such that the court had no power to
render it, or if the mode of procedure used by
the court was one that the court could "not
lawfully adopt." The lack of jurisdiction to
enter an order under any of these circumstances
renders the order a complete nullity and it may
be "impeached directly or collaterally by all
persons, anywhere, at any time, or in any
manner."

Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001)

(citations and footnote omitted). Therefore, the February 5,

2010, order is void because a circuit court lacks the

authority to extend the time in which the plaintiff must serve

the defendant, as opposed to later finding upon consideration

of defendant's motion to dismiss that the plaintiff exercised

due diligence even though service of process was not

accomplished within one year.

Therefore, I concur in the disposition of the judgment

below, but I would stress that under our precedent the circuit

18
court was correct in ruling that the February 5, 2010, order

was void.

19