Conger v. Barrett

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


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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.


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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



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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


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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).


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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).


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