Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Russell and Koontz, S.JJ.
BARBARA A. RUTTER, ADMINISTRATRIX
OF THE ESTATE OF
VIRGIL W. RUTTER, DECEASED
OPINION BY
v. Record No. 100499 CHIEF JUSTICE CYNTHIA D. KINSER
JUNE 9, 2011
OAKWOOD LIVING CENTERS
OF VIRGINIA, INC.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
In this appeal, we conclude that Code § 8.01-335(B),
governing the discontinuance or dismissal of inactive cases,
does not permit a trial court to discontinue or dismiss such a
case with a self-executing, prospective order. As that
conclusion renders the order appealed from not final for
purposes of appeal, we will dismiss this appeal without
prejudice.
RELEVANT FACTS AND PROCEEDINGS
Barbara A. Rutter (Rutter), in her capacity as
administratrix of the estate of her deceased husband Virgil W.
Rutter, filed a wrongful death action in July 2000 in the
Circuit Court of the City of Virginia Beach. Rutter named as
defendants Oakwood Living Centers of Virginia, Inc. (Oakwood),
an assisted living facility where Virgil Rutter had lived prior
to his death; Prism Rehab Systems, Inc. (Prism Rehab), a company
that had contracted with Oakwood to provide physical therapy
services to residents of Oakwood; Thomas P. Dixon (Dixon), the
president of Prism Rehab; and Frank Knowlton (Knowlton), an
employee of Prism Rehab whose alleged negligence caused the
decedent to fall and sustain a hip fracture, allegedly resulting
in his death. Rutter claimed that Oakwood, Prism Rehab, and
Dixon were vicariously liable for Knowlton's negligence and
sought damages against the defendants, jointly and severally.
In September 2000, Dixon and Prism Rehab filed a notice of
bankruptcy stay, notifying the circuit court that both Prism
Rehab and its parent company had filed bankruptcy proceedings
and that Rutter's action against Prism Rehab and Dixon was
stayed pursuant to federal bankruptcy law. In response, the
circuit court entered an order on October 4, 2000 (the 2000
Order), stating:
[T]his action is removed from the docket of this
[c]ourt with leave to counsel to place this
action back on the docket of this [c]ourt upon
resolution of the bankruptcy proceeding should
such procedure be deemed advisable.
This action shall be ordered to be discontinued
if after three years there has been no further
order or proceeding under [Code] § 8.01-335(B)[.]
Following entry of this order, Rutter, however, continued
discovery against Oakwood and in February 2001 filed a motion to
compel Oakwood to answer interrogatories. Oakwood responded by
filing a notice of the bankruptcy stay order. Asserting that
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the 2000 Order was "unclear . . . as to whether the action
against Oakwood was also removed" from the docket, Oakwood filed
a motion requesting the circuit court to remove Rutter's action
against it pending resolution of the bankruptcy proceedings. In
March 2001, Knowlton also filed a motion to stay, claiming that
the action against him was stayed pending resolution of the
bankruptcy proceedings.
The circuit court did not rule on either motion, and the
docket reflects no activity in the case until Rutter filed a
motion in June 2005 to set a trial date. Rutter stated the
bankruptcy stay was lifted in April 2002 and the action against
the defendants thus could proceed pursuant to the circuit
court's 2000 Order. Again, no orders or proceedings took place
until April 2009, when Oakwood filed a plea of the statute of
limitations and/or motion to dismiss. According to Oakwood, the
2000 Order served to discontinue Rutter's action on October 4,
2003 pursuant to Code § 8.01-335(B) because, as of that date,
the action had been inactive for three years. Oakwood asserted
that because the matter "abate[d]" as of October 4, 2003, Rutter
then had two months, the balance of the statute of limitations
remaining when she originally filed her complaint, in which to
refile her action. Alternatively, Oakwood asserted that Rutter
could have reinstated the discontinued action, pursuant to Code
3
§ 8.01-335(B), within one year of the discontinuance in October
2003. Oakwood argued that because Rutter had failed to employ
either remedy, she could no longer pursue the action.
Rutter responded that the 2000 Order only removed the
action from the circuit court's docket and did not actually
discontinue it. Rutter maintained that the language of the 2000
Order contemplated a subsequent order being entered after three
years of inactivity and noted that no such order had been
entered. Rutter also contended that Code § 8.01-335(B) does not
permit a prospective dismissal of a case, meaning the 2000 Order
was void to the extent that it attempted to do so.
The circuit court sustained Oakwood's motion. In an order
entered on December 18, 2009 (the 2009 Order), the court stated
that the
case was removed from the [c]ourt's docket and
discontinued as of October 4, 2003. Under the
provisions of [Code] § 8.01-244 . . ., a two year
statute of limitations applies to wrongful death
claims, leaving two months following the
discontinuance of the case for [Rutter] to re-
file her claim.
Because Rutter had not re-filed her action within that time, the
circuit court dismissed "the Complaint against Oakwood" with
prejudice.
Rutter appeals from the circuit court's judgment. She
contends, inter alia, that Code § 8.01-335(B) does not permit a
4
trial court to dismiss an action prospectively, but instead
requires entry of an order subsequent to the period of
inactivity. Thus, according to Rutter, the circuit court erred
in sustaining Oakwood's plea of the statute of limitations and
dismissing the action.
ANALYSIS
The primary question on appeal, whether the circuit court
erred by treating the 2000 Order as a self-executing order
prospectively discontinuing Rutter's action under Code § 8.01-
335(B), requires the Court to interpret the provisions of that
statute. Statutory interpretation is a pure question of law
reviewed de novo on appeal. Conyers v. Martial Arts World of
Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). In
interpreting a statute, we must "'ascertain and give effect to
the intention of the legislature,' which is usually self-evident
from the statutory language." Virginia Polytechnic Inst. &
State Univ. v. Interactive Return Serv., Inc., 271 Va. 304, 309,
626 S.E.2d 436, 438 (2006) (quoting Chase v. DaimlerChrysler
Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003)). When a
statute's terms are clear and unambiguous, we apply the statute
in accordance with its plain language. HCA Health Servs. of
Va., Inc. v. Levin, 260 Va. 215, 220, 530 S.E.2d 417, 419-20
(2000).
5
The provisions of Code § 8.01-335(B) state:
Any court in which is pending a case wherein for
more than three years there has been no order or
proceeding, except to continue it, may, in its
discretion, order it to be struck from its docket
and the action shall thereby be discontinued.
The court may dismiss cases under this subsection
without any notice to the parties. The clerk
shall provide the parties with a copy of the
final order discontinuing or dismissing the case.
Any case discontinued or dismissed under the
provisions of this subsection may be reinstated,
on motion, after notice to the parties in
interest, if known, or their counsel of record
within one year from the date of such order but
not after.
The statute's purpose is
to enable trial courts to eliminate from their
dockets cases for which there is no reasonable
prospect of trial. In summarily dismissing such
cases, trial courts may thus promote efficiency
in the administration of justice by saving the
time of court personnel which would otherwise be
required to preserve on the courts' dockets
actions long forgotten or abandoned by litigants
and lawyers.
Nash v. Jewell, 227 Va. 230, 234, 315 S.E.2d 825, 827 (1984).
As recently stated, that the "plain meaning of this statute is
that any action in which there is no activity by the parties for
three or more years may be removed from the court's docket,
either by dismissal or discontinuance." Conger v. Barrett, 280
Va. 627, 632, 702 S.E.2d 117, 119 (2010). That is, "[a] case
must be inactive for three years before a circuit court may
6
dismiss a case sua sponte under Code § 8.01-335(B)." Collins v.
Shepherd, 274 Va. 390, 401, 649 S.E.2d 672, 677 (2007).
In light of the plain terms of Code § 8.01-335(B) and its
purpose, we conclude that the circuit court erred when it held
that the 2000 Order served to discontinue Rutter's action as of
October 2003. The provisions of Code § 8.01-335(B) allow a
discontinuance when, for three years or more, "there has been no
order or proceeding." (Emphasis added.) A trial court's
determination that there has been no order or proceeding for at
least three years must be made contemporaneously with the entry
of the order discontinuing or dismissing the action. This
temporal requirement complies with the purpose of the statute:
"to enable trial courts to eliminate from their dockets cases
for which there is no reasonable prospect of trial." Nash, 227
Va. at 234, 315 S.E.2d at 827 (emphasis added). A trial court
prospectively entering a self-executing order is unable to
determine whether there has in fact been "no order or
proceeding" for three or more years, or whether there is a
reasonable prospect of trial. In short, such an order would
preclude a trial court from considering factors relevant to the
exercise of its discretion to discontinue an action under Code
§ 8.01-335(B).
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That subsection also requires the clerk of the trial court
to provide the parties with a copy of the final order
discontinuing or dismissing the action and allows reinstatement
of such within one year of the entry of the order. Code § 8.01-
335(B). However, in the case of a self-executing, prospective
order of discontinuance, the clerk could not provide the parties
with "the final order discontinuing or dismissing the case."
Instead, the clerk could only provide an order that may be final
at some point at least three years into the future. In other
words, a party would have to determine on what date the action
had been inactive for a period of three years for lack of an
order or proceeding. Likewise, a party would not know when the
one-year period for reinstatement commenced to run. Such
uncertainty and guesswork is incompatible with the language of
Code § 8.01-335(B) and would undermine "efficiency in the
administration of justice." See Nash, 227 Va. at 234, 315
S.E.2d at 827.
Oakwood contends, however, that we have recognized the
validity of a prospective, self-executing order and cites our
decisions in Norris v. Mitchell, 255 Va. 235, 495 S.E.2d 809
(1998), and Berean Law Grp., P.C. v. Cox, 259 Va. 622, 528
S.E.2d 108 (2000). In both Norris and Berean Law Group, the
respective trial courts entered orders sustaining a demurrer and
8
dismissing the action, but granted leave for the plaintiff to
file an amended complaint by a specific date. 255 Va. at 238,
495 S.E.2d at 811; 259 Va. at 624, 528 S.E.2d at 110. We held
that an order sustaining a demurrer but granting leave to amend
"does not become final 'until after the time limited therein for
the plaintiff to amend his [pleading] has expired.'" Norris,
255 Va. at 239, 495 S.E.2d at 811 (quoting London-Virginia
Mining Co. v. Moore, 98 Va. 256, 257, 35 S.E. 722, 723 (1900));
see Berean Law Grp., 259 Va. at 626, 528 S.E.2d at 111.
Applying that rationale to the present case, Oakwood argues the
prospective discontinuance of Rutter's action similarly was
valid and effective after three years of inactivity.
Unlike the present action, neither Norris nor Berean Law
Group involved the application of a statute. Here, the circuit
court's discretion to discontinue or dismiss an action for lack
of any order or proceeding for more than three years is governed
by Code § 8.01-335(B). And, that statute does not contemplate
entry of a self-executing, prospective order of discontinuance
prior to the period of inactivity. In addition, the orders at
issue in Norris and Berean Law Group, containing a date certain
and specifying the plaintiff’s required act, did not necessitate
the guesswork that would result from a prospective order of
discontinuance under Code § 8.01-335(B).
9
In sum, we conclude that Code § 8.01-335(B) does not allow
a trial court to enter a self-executing order prospectively
discontinuing or dismissing an action. Instead, if a trial
court first determines that there has been no order or
proceeding in an action for more than three years, it then may
discontinue or dismiss the action pursuant to Code § 8.01-
335(B). The circuit court thus erred by concluding that the
2000 Order served to discontinue Rutter's action as of October
2003 and by sustaining Oakwood's plea of the statute of
limitations. The 2000 Order merely removed the action from the
docket and, pursuant to Code § 8.01-335(B), a subsequent order
was required to discontinue or dismiss the action. Rutter's
action thus remained pending in the circuit court, and she was
entitled to move to set a trial date because the bankruptcy stay
had been lifted in 2002.
This conclusion, however, does not end our analysis. The
peculiar circumstances of this appeal require us to address an
additional issue sua sponte. In the 2009 Order, the circuit
court, in sustaining Oakwood's plea of the statute of the
limitations, treated the 2000 Order as prospectively
discontinuing the entire action, i.e., as an order that became
final on October 4, 2003. Because the 2000 Order did not in
fact discontinue the action and Rutter's action remained pending
10
in the circuit court, the 2000 Order never became final. That
fact calls into question whether the 2009 Order, which is
challenged in this appeal, was a final, appealable order. If it
was not, this Court has no jurisdiction to hear this appeal.
In answering that question, we apply the familiar principle
that "[a] court always has jurisdiction to determine its own
jurisdiction." Lewis v. C.J. Langenfelder & Son, Jr., Inc., 266
Va. 513, 516, 587 S.E.2d 697, 699 (2003); United States v.
United Mine Workers, 330 U.S. 258, 292 n.57 (1947); see, e.g.,
Jenkins v. Mehra, 281 Va. 37, 51, 704 S.E.2d 577, 585 (2011).
This principle applies even when, as here, determining
jurisdiction first requires analysis of the merits of an issue.
See United States v. Ruiz, 536 U.S. 622, 628 (2002) ("In order
to make that determination [regarding its own jurisdiction], it
was necessary for the [appellate court] to address the
merits."); Childers v. Chesapeake & Potomac Telephone Co., 881
F.2d 1259, 1263 (4th Cir. 1989) (federal courts may "address a
state claim on its merits in the process of determining its own
jurisdiction"). See generally Myers v. Hancock, 185 Va. 454,
460, 39 S.E.2d 246, 249 (1946) (disposition on realty fixture
issue resulted in the absence of jurisdiction); Western Union
Telegraph Co. v. White, 113 Va. 421, 424-26, 74 S.E. 174, 176
(1912) (analysis of the meaning of a statute on the merits
11
required dismissal for lack of jurisdiction). With these
principles in mind, we now turn to the question whether we have
jurisdiction to hear this appeal.
In relevant part, Code § 8.01-670(A)(3) provides that "any
person may present a petition for an appeal" to this Court if
that person is aggrieved "[b]y a final judgment in any other
civil case." See Comcast of Chesterfield Cnty., Inc. v. Board
of Supervisors of Chesterfield Cnty., 277 Va. 293, 306, 672
S.E.2d 870, 876 (2009) (holding that "Code § 8.01-670(A)(1) does
not authorize appeals of interlocutory orders in those types of
controversies enumerated in that subsection"). A final order
"is one which disposes of the whole subject, gives all the
relief contemplated, provides with reasonable completeness for
giving effect to the sentence, and leaves nothing to be done in
the cause save to superintend ministerially the execution of the
order." James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137
(2002) (internal quotation marks omitted). "'[I]n the absence
of a statutory provision to the contrary, a judgment is not
final for purposes of appeal if it is rendered with regard to
some but not all of the parties involved in the case.'" Leggett
v. Caudill, 247 Va. 130, 133, 439 S.E.2d 350, 351 (1994)
(quoting Wells v. Whitaker, 207 Va. 616, 628, 151 S.E.2d 422,
432 (1966)).
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Rutter named four defendants in her complaint: Oakwood,
Prism Rehab, Dixon, and Knowlton. Because the 2000 Order merely
removed the action from the docket, and no other order was
entered discontinuing the action or dismissing any defendant,
all parties remained before the circuit court when it entered
the 2009 Order. That order, sustaining Oakwood's plea of the
statute of limitations, stated that "the Complaint against
Oakwood is dismissed." The order adjudicated nothing with
regard to defendants Prism Rehab, Dixon, and Knowlton. The 2009
Order, therefore, was only "rendered with regard to some but not
all of the parties involved in the case" and was not a final
order for purposes of appeal. Leggett, 247 Va. at 133, 439
S.E.2d at 351. 1
Under the "severable interests" exception, however, "a
final adjudication of a collateral matter that addresses
separate and severable interests can be appealed [if] the appeal
cannot affect the determination of the remaining issues in the
case, even if the adjudication is reversed." Thompson v. Skate
Am., Inc., 261 Va. 121, 127, 540 S.E.2d 123, 126 (2001). Thus,
"prior to the determination of the case against all defendants,"
a party may appeal an adjudication that is final "as to a
1
The parties did not utilize the procedure for the appeal
of an interlocutory order pursuant to the provisions of Code
§ 8.01-670.1. Thus, we express no opinion whether that
procedure would have been applicable in this instance.
13
collateral matter, separate and distinct from the general
subject of the litigation and affecting only particular parties
to the controversy." Wells, 207 Va. at 628, 151 S.E.2d at 432.
See generally Rule 5:8A(a). 2 In Wells, the Court held that an
order was not a final, appealable order because if the plaintiff
obtained "a reversal on his theory that [the dismissed
defendant] was a joint venturer, then [that defendant] might be
charged with liability for the same acts or omissions which are
the basis of [the remaining defendant's] liability." Id. at
629, 151 S.E.2d at 433.
The 2009 Order, which was not final as to all the
defendants, is thus only appealable if the "severable interests"
exception applies. The 2009 Order adjudicated Rutter's ability
to proceed with the cause of action only as to Oakwood. But,
the interests of all four defendants are joint and not
severable. Like the situation in Leggett, Rutter's allegations
against Oakwood, Prism Rehab, and Dixon derive from the alleged
negligent conduct of Knowlton. See Leggett, 247 Va. at 134-35,
439 S.E.2d at 352. Thus, the circuit court's adjudication as to
Oakwood in the 2009 Order did not concern "a collateral matter,
separate and distinct from the general subject of the
litigation." Wells, 207 Va. at 628, 151 S.E.2d at 432.
2
This rule, addressing appeals from partial final judgments
in multi-party cases, took effect after entry of the 2009 Order.
14
CONCLUSION
In exercising jurisdiction to determine our own
jurisdiction and thereby analyzing the merits of the issue
presented on appeal, we conclude that Code § 8.01-335(B) does
not allow the prospective discontinuance or dismissal of an
action. The 2000 Order therefore merely removed Rutter's action
from the circuit court's docket but did not discontinue or
dismiss the action. It was not final in any respect. Further,
because the 2009 Order only adjudicated Rutter's claim against
Oakwood, whose interests are not severable from those of the
other defendants, that order was not final for purposes of
appeal. As a result, this Court has no jurisdiction over this
appeal and the appeal, therefore, will be dismissed without
prejudice.
Dismissed without prejudice.
15