PRESENT: All the Justices
SHIRLEY CONGER, ADMINISTRATOR
OF THE ESTATE OF PAUL RAE CONGER
OPINION BY
v. Record No. 091492 JUSTICE WILLIAM C. MIMS
November 4, 2010
EUGENE J. BARRETT, M.D., ET AL.
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
In this appeal, we consider whether the statute of
limitations for wrongful death actions established by Code
§ 8.01-244(B) bars the reinstatement of an action dismissed
under Code § 8.01-335(B).
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Paul Rae Conger died on March 7, 2001. His widow, Shirley
Conger (“Conger”), qualified as his personal representative.
On May 21, 2002, Conger filed a complaint under Code § 8.01-50
against Eugene J. Barrett, M.D. and James C. VandeWater, M.D.
(collectively “the Doctors”) alleging they wrongfully caused
Paul’s death. The Doctors filed timely responsive pleadings.
The record reflects no other papers filed, no proceedings
conducted, and no orders entered after June 10, 2003.
On March 29, 2007, Barrett sought entry of an order
dismissing the case under Code § 8.01-335(B). The circuit
court entered the order on May 3, 2007. On April 29, 2008,
Conger filed a motion pursuant to that statute to reinstate the
case. The court entered an order granting Conger’s motion on
May 1, 2008.
The Doctors subsequently filed pleas of the statute of
limitations in which they argued that the court’s earlier
dismissal under Code § 8.01-335(B) dismissed the case “without
determining the merits of [the] action” within the meaning of
Code § 8.01-244(B). They asserted that the two-year limitation
period had run because 440 days had elapsed between Paul’s
death and the filing of the complaint and 362 more days had
elapsed between the dismissal and the filing of the motion to
reinstate.
Conger argued that Code § 8.01-335(B) permits a plaintiff
whose case is dismissed under that statute to reinstate it
within one year. Conger contended Code § 8.01-244(B) did not
apply because a motion to reinstate revives the original action
and thus there was not “another action” as contemplated by that
statute.
Relying on this Court’s decision in Nash v. Jewell, 227
Va. 230, 315 S.E.2d 825 (1984), in which we considered the
difference between “discontinuance” and “dismissal” for the
purposes of Code § 8.01-335, the circuit court held that its
earlier dismissal restarted the limitation period established
in Code § 8.01-244(B) and found that the limitation period had
expired before the case was reinstated. In addition, the court
2
determined that to the extent Code §§ 8.01-244(B) and 8.01-
335(B) were in conflict, the former was more specific and
therefore controlled. The court then sustained the Doctors’
pleas and dismissed the case. We awarded Conger this appeal. 1
II. ANALYSIS
There are no facts in dispute, so the applicability of the
statute of limitations is a purely legal question of statutory
construction which we review de novo. Willard v. Moneta Bldg.
Supply, 262 Va. 473, 477, 551 S.E.2d 596, 597 (2001). “[T]he
primary objective of statutory construction is to ascertain and
give effect to legislative intent.” Turner v. Commonwealth,
226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). “[W]hen a given
controversy involves a number of related statutes, they should
be read and construed together in order to give full meaning,
force, and effect to each.” Ainslie v. Inman, 265 Va. 347,
353, 577 S.E.2d 246, 249 (2003). Therefore “[w]e accord each
statute, insofar as possible, a meaning that does not conflict
with any other statute.” Ragan v. Woodcroft Village Apts., 255
Va. 322, 325, 497 S.E.2d 740, 742 (1998). “When two statutes
seemingly conflict, they should be harmonized, if at all
possible, to give effect to both. However, when two statutes
do conflict, and one statute speaks to a subject generally and
1
We also granted the Doctors’ assignment of cross-error
that the circuit court erred in granting Conger’s motion to
reinstate after the two-year limitation period had expired.
3
another deals with an element of that subject specifically, the
more specific statute is controlling.” Viking Enter. v. County
of Chesterfield, 277 Va. 104, 110, 670 S.E.2d 741, 744 (2009)
(internal citations, quotation marks, and alterations omitted).
In this case, Code §§ 8.01-244(B) and 8.01-335(B) are both
implicated but they are not in conflict. Code § 8.01-244(B)
provides, in relevant part, that if any wrongful death action
is brought within [a] period of two years after
such person's death and for any cause abates or
is dismissed without determining the merits of
such action, the time such action is pending
shall not be counted as any part of such period
of two years and another action may be brought
within the remaining period of such two years as
if such former action had not been instituted.
By its plain terms, this language tolls the two-year
limitation period while a wrongful death lawsuit is pending.
In the event such a pending suit is ended, however, whether by
abatement or dismissal without determining the merits, the time
available within the limitation period begins to run again and
the plaintiff may commence a new action only if he does so
before any remaining time expires. Thus, if a plaintiff
commences his wrongful death action one year after the death of
the decedent and that action abates or is dismissed without
determining the merits, then one year remains to commence a new
action beginning on the date the original action abated or was
dismissed. The remaining time is calculated without regard to
4
how long the original action was pending. But after the
remaining time elapses, Code § 8.01-244(B) bars the
commencement of a new action.
By contrast, Code § 8.01-335(B) provides that
[a]ny 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 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. 2 Thereafter the court may
2
As originally enacted in 1977, Code § 8.01-335
distinguished between discontinuances in subsection A and
dismissals in subsection B. 1977 Acts. ch. 617. The
legislative report explaining the re-codification of Title 8.01
makes clear that this distinction was deliberate. House Doc.
No. 14, Virginia Code Commission, Report on Revision of Title 8
of the Code of Virginia at 219 (1977) (“The present language
[of former Code § 8-154] has been altered to better distinguish
between a dismissal and a discontinuance, when each is
available, and the effect of each.”). The statute retained
this distinction in 1984 when we decided Nash. However, the
General Assembly subsequently replaced references to dismissal
with references to discontinuances in Code § 8.01-335(B). 1997
Acts ch. 680. The legislature then re-introduced references to
5
reinstate the case on motion but only within one year of the
dismissal or discontinuance. Thus, the statute creates a rare
exception to the rule that a circuit court loses jurisdiction
over a case 21 days after entering a final order. 3 See Rule 1:1
(“All final judgments, orders, and decrees, irrespective of
terms of court, shall remain under the control of the trial
court and subject to be modified, vacated, or suspended for
twenty-one days after the date of entry, and no longer.”).
The dismissal of an action under Code § 8.01-335(B) is a
dismissal without determining the merits for the purposes of
Code § 8.01-244(B), and such a dismissal resumes the two-year
limitation period established for a wrongful death action. But
statutes of limitation operate to bar the commencement of
actions and generally have no effect on an action already
pending before the court. 4 See Code § 8.01-228 (“Every action
for which a limitation period is prescribed by law must be
dismissal and made some, but not all, of the references to
dismissal and discontinuances disjunctive, thereby creating the
appearance that discontinuance and dismissal were identical for
some purposes but not others. 1999 Acts ch. 652.
In the case before us, the circuit court’s May 3, 2007,
order clearly dismissed Conger’s action. Consequently, in this
case, the distinction between dismissal and discontinuance is
not relevant to our inquiry.
3
Code § 8.01-428 is a similar exception. McEwen Lumber Co. v.
Lipscomb Bros. Lumber Co., 234 Va. 243, 247, 360 S.E.2d 845,
848 (1987).
4
Of course, statutes of limitation may bar the addition of
new claims, parties, or demands to a commenced action. Ahari
v. Morrison, 275 Va. 92, 96-97, 654 S.E.2d 891, 893-94 (2008);
Neff v. Garrard, 216 Va. 496, 498, 219 S.E.2d 878, 879 (1975).
6
commenced within the period prescribed . . . .”); Code § 8.01-
235 (A plea of the statute of limitations is a plea “that an
action [was] not commenced within the limitation period
prescribed by law.”). Thus, by its plain terms, Code § 8.01-
244(B) bars only the filing of “another action” if the two-year
limitation period has expired.
Conger’s motion to reinstate her earlier case did not
create “another action” and therefore is not subject to the
limitation period in Code § 8.01-244(B). 5 See Rule 3:2(a) (“A
civil action shall be commenced by filing a complaint in the
clerk's office.”). Rather, Conger’s motion to reinstate merely
invited the circuit court to invoke the statutory expansion of
its jurisdiction provided by Code § 8.01-335(B) to reopen the
existing action and thereby resume proceedings in the existing
action despite the entry of an otherwise final order. The
statute establishes a one-year limitation period for
reinstatement from the date the case was dismissed or
5
The Code § 8.01-244(B) limitation period would apply if a
new action were filed for any reason, unless the new action
were filed following a voluntary nonsuit. Code § 8.01-244(B)
(“[I]f a plaintiff suffers a voluntary nonsuit pursuant to
§ 8.01-380, the nonsuit shall not be deemed an abatement nor a
dismissal pursuant to this subsection, and the provisions of
subdivision E 3 of § 8.01-229 shall apply to such a nonsuited
action.”). Such reasons could include that a plaintiff sought
to amend the complaint to add claims, parties, or demands; or
that a new complaint was required to cure some defect, such as
misjoinder. See James v. Peyton, 277 Va. 443, 456, 674 S.E.2d
864, 870 (2009) (requiring the filing of a new action to cure
misjoinder).
7
discontinued; that period had not expired when the court
entered the order. 6 Thus, in this case, the original action was
effectively reinstated and the original commencement date of
that action is controlling for the purposes of the statute of
limitations.
Consequently, the circuit court erred in sustaining the
Doctors’ pleas and dismissing the case as barred by Code
§ 8.01-244(B). Accordingly, we will reverse the judgment of
the circuit court and remand for further proceedings.
Reversed and remanded.
6
This holding disposes of the Doctors’ assignment of
cross-error because the circuit court did not err in granting
Conger’s motion to reinstate the case within the one-year
limitation period established by Code § 8.01-335(B).
8