PRESENT: All the Justices
MICHAEL HICKS, A MINOR, WHO SUES
BY HIS MOTHER AND NEXT FRIEND,
DARLENE A. HICKS
v. Record No. 070344 OPINION BY
JUSTICE BARBARA MILANO KEENAN
February 29, 2008
PETER MELLIS, M.D.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this appeal, we consider the effect of an order
reinstating a medical malpractice action under Code § 8.01-
335(B) that was entered without notice to the defendant. The
issue arose when the plaintiff obtained a nonsuit of the
reinstated action and filed a new motion for judgment, which
was the first pleading in either of these actions that was
served on the defendant. The judgment order on appeal before
us is the circuit court’s final order dismissing the new
motion for judgment on the ground that the action was barred
by the statute of limitations because the reinstatement order
in the prior action “was improvidently allowed.”
The nature of this case requires a description of the
dates of the parties’ relevant filings. In April 1993,
Darlene A. Hicks (Hicks) filed a motion for judgment in the
Circuit Court of the City of Richmond on behalf of her three-
year-old son Michael D. Hicks (Michael), who was born on
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October 21, 1989. In her motion, Hicks asserted claims of
medical malpractice against the Medical College of Virginia
Hospitals, the Commonwealth of Virginia, and “unnamed health
care providers” for treatment her son had received on December
11, 1990. In July 1995, Hicks sought a nonsuit of the case,
which the circuit court granted.
In October 1999, Hicks filed in the circuit court a
second motion for judgment, alleging the same claims of
medical malpractice and naming as defendants the Medical
College of Virginia Hospitals, the Commonwealth of Virginia,
Peter Mellis, M.D. (Dr. Mellis), Gayle S. Smith, M.D., and
other hospital employees. None of these defendants was served
with the second motion for judgment or other process in the
case. After more than three years with no further filings or
proceedings in the case, in January 2003, the circuit court
entered an order under Code § 8.01-335(B) discontinuing and
striking the case from the docket.
In November 2003, Hicks filed a timely motion to
reinstate the case pursuant to Code § 8.01-335(B). The
circuit court, after observing that none of the defendants had
been served with process, entered an order of reinstatement
returning the case to the court’s docket. In January 2004,
Hicks filed a motion for nonsuit, which the circuit court
granted by order dated May 25, 2004.
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On the same day, Hicks filed a third motion for judgment
naming Dr. Mellis as the sole defendant. In this pleading,
Hicks alleged that Dr. Mellis had provided Michael with
negligent medical treatment in December 1990, and had caused
Michael to suffer severe injuries. Hicks served Dr. Mellis
with a copy of this third motion for judgment on May 23, 2005,
which was the first notice Dr. Mellis had received regarding
Hicks’ claim.
Dr. Mellis filed grounds of defense and a special plea of
the statute of limitations. On November 21, 2006, the circuit
court sustained Dr. Mellis’ special plea of the statute of
limitations and dismissed the case with prejudice.
In its letter opinion, the circuit court concluded that
“reinstatement [of the case] was improvidently allowed”
because Code § 8.01-335(B) required that the parties in
interest be notified prior to reinstating a case that had been
stricken from the docket, and Dr. Mellis had not received such
notice. Thus, the circuit court concluded that the case
remained stricken from the docket, that the second nonsuit was
of “no effect,” and that the third motion for judgment was
barred by the statute of limitations under Code § 8.01-243.1.
Hicks appeals.
Hicks argues that the circuit court erred in sustaining
Dr. Mellis’ plea of the statute of limitations, because the
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notice provision of Code § 8.01-335(B) is not a mandatory
requirement for entry of a reinstatement order. Hicks asserts
that although the circuit court may have erred in its
application of the statute by entering the order in the
absence of notice to Dr. Mellis, the order was merely
voidable, rather than void ab initio, and could not be
challenged more than 21 days after the nonsuit was granted in
the reinstated case. Thus, Hicks contends that because the
final order of nonsuit entered on May 25, 2004 was not
appealed or timely challenged within 21 days of its entry, as
required by Rule 1:1, the reinstatement order remained in
effect and the present motion for judgment was timely filed.
In response, Dr. Mellis observes that the order
discontinuing the malpractice action was a final order
striking the case from the court’s docket and that, in the
absence of a valid reinstatement order, the case remained
stricken. Dr. Mellis cites our decision in Janvier v.
Arminio, 272 Va. 353, 634 S.E.2d 754 (2006), and argues that
the circuit court lacked jurisdiction to enter the nonsuit
order “by virtue of a procedurally defective reinstatement.”
As a consequence, Dr. Mellis maintains, the circuit court
correctly held that the statute of limitations applicable to
Hicks’ injuries had expired, barring the present malpractice
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action. We disagree with the conclusion advanced by Dr.
Mellis.
Although the procedural history of this case is somewhat
complex, the appeal involves a pure question of law, which
requires us to employ an analysis involving both statutory
interpretation and our prior decisions. We begin by
considering the language of Code § 8.01-335(B) under an
established principle of statutory construction.
Courts are bound by the plain meaning of statutory
language. Young v. Commonwealth, 273 Va. 528, 533, 643 S.E.2d
491, 493 (2007); Alliance to Save the Mattaponi v.
Commonwealth, 270 Va. 423, 439, 621 S.E.2d 78, 86-87 (2005);
Horner v. Department of Mental Health, 268 Va. 187, 192, 597
S.E.2d 202, 204 (2004). Therefore, if the language of a
statute is unambiguous, courts may not interpret the language
in a way that effectively holds that the General Assembly did
not mean what it actually expressed. Young, 273 Va. at 533,
643 S.E.2d at 493; Alcoy v. Valley Nursing Homes, Inc., 272
Va. 37, 41, 630 S.E.2d 301, 303 (2006); Alliance to Save the
Mattaponi, 270 Va. at 439, 621 S.E.2d at 87.
The language of Code § 8.01-335(B) is plain. This
provision states that:
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
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to be struck from its docket and the action shall be
thereby 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.
Code § 8.01-335(B).
Under this statutory language, a circuit court may enter
an order reinstating a discontinued case only after notice is
given to known parties in interest. The parties do not
dispute that Dr. Mellis was a known party in interest to the
discontinued action. Therefore, the circuit court entered the
reinstatement order contrary to the notice provision set forth
in Code § 8.01-335(B).
Because the reinstatement order was entered improperly,
we now must consider the effect of that order on the present
litigation. We focus on the question whether the absence of
notice to Dr. Mellis rendered the court’s reinstatement order
void ab initio and subject to collateral attack in the present
malpractice action.
We begin by reviewing the familiar distinction between
orders that are void ab initio and those that are merely
voidable. An order is void ab initio if the court did not
have the jurisdiction to render the order, or if the court
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employed an unlawful mode of procedure in entering the order.
Collins v. Shepherd, 274 Va. 390, 402, 649 S.E.2d 672, 678
(2007); Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549,
551 (2001); Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69,
73, 495 S.E.2d 825, 828 (1998); Lapidus v. Lapidus, 226 Va.
575, 579, 311 S.E.2d 786, 788 (1984). Because an order that
is void ab initio is a complete nullity, the order may be
challenged directly or collaterally “by all persons, anywhere,
at any time, or in any manner.” Collins, 274 Va. at 402, 649
S.E.2d at 678 (quoting Singh, 261 Va. at 52, 541 S.E.2d at
551); accord Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d
73, 75 (2001); Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d
141, 145 (1995).
In contrast, an order is voidable if its issuance was
reversible error but was within the court’s jurisdiction to
enter. Singh, 261 Va. at 51-52, 541 S.E.2d at 551; see
Parrish, 250 Va. at 521, 464 S.E.2d at 145. A court has
jurisdiction to err, as well as to correctly decide the issues
presented in a case, and the remedy to correct an error by a
trial court is to appeal the court’s decision upon entry of a
final order, not to collaterally attack the erroneous decision
in a separate action. See Singh, 261 Va. at 52-53, 541 S.E.2d
at 551-52; Parrish, 250 Va. at 521-22, 464 S.E.2d at 145-46;
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Farant Inv. Corp. v. Francis, 138 Va. 417, 436, 122 S.E. 141,
147 (1924).
A challenge to an order based on a trial court’s
misapplication of a statute generally raises a question of
court error, not a question of the court’s jurisdiction.
Parrish, 250 Va. at 521, 464 S.E.2d at 145. Our review of
Code § 8.01-335(B) in the present case demonstrates that the
circuit court had jurisdiction to enter the reinstatement
order but misapplied the statute.
We first observe that the statute permits a circuit court
to enter a reinstatement order without prior notice to anyone
when the circuit court has determined that there are no known
interested parties or counsel of record. See Code § 8.01-
335(B). Thus, prior notice is not a jurisdictional
requirement for entry of a reinstatement order under the
statute.
Instead, Code § 8.01-335(B) provides that a circuit court
may reinstate a discontinued action after notice to “the
parties in interest, if known, or their counsel of record.”
Id. Significantly, the statute does not direct that notice be
given only to named defendants or their counsel of record, but
leaves for the circuit court’s determination the issue whether
there are known parties who have an interest in the
litigation.
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This determination required by the statute will rest on
the facts and circumstances of a particular case. The
potentially broad scope of the inquiry may require that the
circuit court decide both issues of fact and of law in
reaching a conclusion. Such determinations are core functions
of our courts in the exercise of their jurisdiction.
The fact that Dr. Mellis easily could be identified as a
person of interest in this case did not change the nature of
the legal determination that the circuit court was required to
make under the statute. Thus, the circuit court’s failure to
apply the statute properly did not affect the court’s
jurisdiction to enter the reinstatement order.
Likewise, the circuit court’s reinstatement order was not
void ab initio on the ground that the court employed an
unlawful mode of procedure. See Collins, 274 Va. at 402-03,
649 S.E.2d at 678; Evans, 255 Va. at 73, 495 S.E.2d at 828.
Code § 8.01-335(B) required that the circuit court decide
whether there were known interested parties entitled to notice
before reinstating the case and, thus, the circuit court
lawfully could have made this determination and still have
reached the wrong result. Because the misapplication of the
statute in the present case occurred in the circuit court’s
lawful exercise of its jurisdiction, the reinstatement order
was merely voidable, rather than void ab initio and, thus, was
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not subject to collateral attack in the present action. See
Singh, 261 Va. at 51-52, 541 S.E.2d at 551; Parrish, 250 Va.
at 521, 464 S.E.2d at 145.
Our conclusion is not affected by our holding in Janvier
v. Arminio, 272 Va. 353, 634 S.E.2d 754. There, we held that
an order granting a second nonsuit, in the absence of notice
to the defendant, was not void ab initio because entry of the
order was within the court’s discretion under former Code
§ 8.01-380(B). 1 272 Va. at 367, 634 S.E.2d at 761-62. Unlike
the proceedings in Janvier, the present case involves a legal
determination that the circuit court was required to make in
deciding what parties were entitled to notice before entry of
an order of reinstatement. Thus, the holding in Janvier is
inapposite, because that holding was based on a circuit
court’s lawful exercise of its discretion in the absence of a
statutory notice requirement. Nevertheless, as our holding in
Janvier illustrates, a collateral challenge to an order must
be resolved based on a determination whether the issuing court
1
Code § 8.01-380(B) was amended in 2007 to require that a
defendant be given notice of a plaintiff’s request for a
second or subsequent nonsuit. That subsection presently
provides in relevant part: “Only one nonsuit may be taken to a
cause of action or against the same party to the proceeding,
as a matter of right, although the court may allow additional
nonsuits upon reasonable notice to counsel of record for all
defendants and upon a reasonable attempt to notify any party
not represented by counsel, or counsel may stipulate to
additional nonsuits.” Code § 8.01-380(B).
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had jurisdiction to enter the order in question, not whether
the court erred or abused its discretion in entering the
order. See id. at 367, 634 S.E.2d at 761; see also Parrish,
250 Va. at 521, 464 S.E.2d at 146.
Finally, we are aware that because Dr. Mellis was not
served in the nonsuited action, and had no other notice of
those proceedings, he did not know that the May 25, 2004 order
of nonsuit had been entered and could have been appealed.
This problem, however, cannot be considered in this collateral
action but may raise a question for the General Assembly’s
consideration in future revisions to Code § 8.01-335(B).
Accordingly, we hold that the circuit court erred in
sustaining Dr. Mellis’ plea of the statute of limitations and
in dismissing Hicks’ motion for judgment on that basis. 2
For these reasons, we will reverse the circuit court’s
judgment and remand the case for further proceedings
consistent with the principles expressed in this opinion.
Reversed and remanded.
2
We do not consider Dr. Mellis’ procedural due process
argument because he has not raised this issue on cross-error
before this Court. See Rule 5:18(b).
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