Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1
LARRY R. COLLINS
OPINION BY
v. Record No. 061728 JUSTICE LAWRENCE L. KOONTZ, JR.
September 14, 2007
FAYE M. SHEPHERD
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
This appeal principally concerns an order entered sua
sponte by the circuit court dismissing with prejudice a civil
action for personal injuries pursuant to a local rule adopted
by that court that provides for the dismissal of cases not
served on the defendant within one year of filing. We
consider two issues: (1) whether the local rule is valid and,
therefore, the circuit court was within its authority to
dismiss the case pursuant to that rule, and (2) what is the
effect, if any, of the failure to challenge that dismissal
order until after the expiration of the twenty-one day
limitation period in Rule 1:1.
BACKGROUND
The parties do not dispute that the local rule at issue
is Local Rule 2(F)(3) which is contained in the Civil Case
1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
Management Administrative Plan originally adopted by the
Circuit Court of the City of Norfolk on October 8, 1998. The
plan has as its purpose the laudable goal of “concluding all
civil cases, except by leave of court and in suits for
divorce, within twelve months of filing.” In an apparent
effort to achieve that goal, Local Rule 2(F)(3) provides that
“[i]f any civil action is not served within the time provided
by Supreme Court Rule [3:5(e)], the Clerk shall prepare a
notice of dismissal and send such notice to counsel for the
plaintiff.”2
The application of Local Rule 2(F)(3) became implicated
in the following procedural context. On September 7, 2004,
Larry R. Collins filed a motion for judgment in the Circuit
Court of the City of Norfolk against Faye M. Shepherd for
personal injuries allegedly resulting from the negligent
operation of her motor vehicle. Collins did not serve
Shepherd with process. On September 15, 2005, the circuit
August 16, 2007.
2
During the proceedings in the circuit court, the local
rule referenced former Rule 3:3(c). Effective January 1,
2006, our Rules of Court were reorganized and Rule 3:3(c)
became Rule 3:5(e). The provisions of former Rule 3:3(c) are
nearly identical to the provisions of Rule 3:5(e) and the
circuit court’s Local Rule 2(F)(3) has been revised to
reference Rule 3:5(e). Accordingly, we will refer to the
current rule in this opinion.
2
court, in accord with its local rule, mailed to Collins’
attorney a “Notice of Dismissal” stating that the circuit
court “on Friday, October 7, 2005 at 9:00 a.m. . . . pursuant
to Supreme Court Rule [3:5(e)] and Nelson v. Vaughan, 210 Va.
1 [, 168 S.E.2d 126] (1969), will dismiss this case because
[Shepherd] has not been served with process within one year
after the filing of the . . . Motion for Judgment . . . unless
the [c]ourt finds that [Collins] has exercised due diligence
to have timely service on [Shepherd].”
Collins did not appear on or before the October 7, 2005
date designated in the notice of dismissal. On October 20,
2005, the circuit court entered an order dismissing Collins’
action against Shepherd with prejudice. The dismissal order
provided that Collins, “having failed to show that due
diligence was exercised to have timely service upon
[Shepherd], . . . this case [is] dismissed with prejudice in
accordance with Supreme Court Rule [3:5(e)] and Nelson v.
Vaughan, 210 Va. 1 [, 168 S.E.2d 126] (1969).” The dismissal
order also provided that endorsement by counsel was waived
pursuant to Rule 1:13.
3
Collins subsequently filed a motion on March 9, 2006
requesting that the circuit court vacate the dismissal order
and restore his case to the court’s docket. Collins did not
give Shepherd notice regarding this motion. By an order dated
March 16, 2006, the circuit court vacated its prior dismissal
order and reinstated Collins’ case on the court’s docket.3 On
the same day, the circuit court by separate order granted
Collins’ motion to nonsuit the case.
The record does not demonstrate how Shepherd became aware
of the March 16, 2006 order.4 However, Shepherd filed a motion
on March 27, 2006 requesting that the circuit court reconsider
its decision to enter the March 16, 2006 dismissal order.
3
The March 16, 2006 order provided that the circuit court
was reinstating the case “in the interest of justice, in that
it appears that a clerical error and/or a fraud on the court
occurred.” This ruling was apparently in response to
assertions made by Collins’ counsel that a disloyal employee
of his office had deliberately withheld or destroyed the
notice of dismissal and the dismissal order that were mailed
by the circuit court. Collins’ counsel relied, in part, upon
the provisions set forth in Code § 8.01-428. However, it is
clear that Collins’ argument under Code § 8.01-428 did not
form the basis of the circuit court’s ultimate ruling in this
case that gave rise to this appeal. Therefore, we will not
address the applicability, if any, of Code § 8.01-428 in this
case.
4
On brief, Shepherd states that Collins filed a “second
but identical complaint” and “immediately served the new
complaint upon [Shepherd]” following the entry of the March
16, 2006 order granting Collins a nonsuit of the original
4
Shepherd asserted that Collins’ motion to vacate the October
20, 2005 dismissal order was barred under Rule 1:1 for failure
to challenge that order within twenty-one days of its entry
and, therefore, that the circuit court was without authority
to enter the March 16, 2006 order. Accordingly, Shepherd
requested that the circuit court vacate the March 16, 2006
order.
The circuit court held a hearing on April 3, 2006 on
Shepherd’s motion for reconsideration. At the hearing,
Collins contended that, under the procedural posture of the
case at the time, the circuit court did not have the authority
to enter the October 20, 2005 dismissal order and, therefore,
the order was void ab initio. The circuit court took the
matter under advisement.
In a letter brief to the circuit court, Shepherd
contended that even if entry of the October 20, 2005 dismissal
order was error, such error rendered that order voidable
rather than void ab initio. Accordingly, Shepherd maintained
that the dismissal order was subject to Rule 1:1 and Collins
was barred from challenging the order more than 21 days after
its entry. Furthermore, Shepherd contended that the circuit
action. For purposes of our resolution of this appeal, we
5
court should have the authority to dismiss cases that have not
been served within a year of filing so that dockets will not
“become unduly burdened with pending cases which have not been
served but which the [c]ourt may not manage in any manner.”
Responding by letter brief, Collins contended that the
sua sponte dismissal order was void ab initio because “the
character of the order is such that the court had no power to
render it” and “the mode of procedure used by the court was
one that the court could not lawfully adopt.” Therefore,
Collins asserted that his challenge to the order was not
subject to the 21 day time limitation of Rule 1:1. Collins
also contended that the authority the circuit court cited in
the dismissal order, Rule 3:5(e) and Nelson, authorize
dismissal of a suit only after process has been served on the
defendant more than one year after filing and only after the
defendant files a motion to dismiss, neither of which occurred
in this case. Collins further contended that circuit courts
are authorized by statute to clear inactive cases from their
dockets through the mechanism prescribed in Code § 8.01-335.
Finally, Collins contended that the circuit court’s Local Rule
2(F)(3) was invalid under Code § 8.01-4 because it abridged
will accept that assertion as accurate.
6
Collins’ substantive right to nonsuit the action prior to
service of process on Shepherd.
In order to consider the issues presented, the circuit
court entered an order on April 6, 2006 vacating its prior
order granting Collins a nonsuit. Subsequently, the circuit
court issued a letter opinion in which it rejected Collins’
assertions that the October 20, 2005 dismissal order was void
ab initio. The circuit court stated that the procedure used
to dismiss Collins’ case was a “docket control procedure”
created to deal with “moribund” cases where no service has
been made within a year and the plaintiff has failed to
exercise due diligence to effectuate service. The circuit
court concluded that its docket control procedure was not
inconsistent with the provisions of Code § 8.01-4 authorizing
circuit courts to adopt such docket control procedures so long
as they do not “abridge the substantive rights of the
parties.” Addressing Collins’ contention that his case
remained viable after one year because he still had a right to
nonsuit and refile, the circuit court noted that Collins had
the opportunity to exercise his right to nonsuit up until the
return date on the notice of dismissal. The circuit court
acknowledged that Code § 8.01-335 provided a mechanism for
clearing its docket of inactive cases, but found that
mechanism inadequate to prevent the “indefinite tolling of the
7
statute of limitations and harassment of the defendant,” which
was an abuse that Rule 3:5(e) was designed to prevent. The
circuit court explained that the local rule was intended to
prevent such abuse while at the same time giving the plaintiff
the “opportunity to protect his substantive rights.”
Accordingly, the circuit court ruled that the October 20,
2005 dismissal order was valid. Collins filed a motion for
reconsideration. By order entered May 26, 2006, the circuit
court ruled that the dismissal order was not void ab initio,
denied Collins’ motions to vacate the dismissal order and for
reconsideration, and dismissed Collins’ September 7, 2004
suit. This appeal followed.
DISCUSSION
In three assignments of error, Collins principally
asserts that the circuit court’s October 20, 2005 dismissal
order was void ab initio because it was entered pursuant to an
invalid local rule. According to Collins, the local rule is
invalid because it abridges his substantive right to take a
nonsuit and refile his case, conflicts with the procedures for
discontinuance set forth in Code § 8.01-335, and permits
dismissal of a case that was never served on the defendant in
contravention of Rule 3:5(e), which he asserts applies only
where the defendant is served with process outside of the one-
year period. Shepherd assigns cross-error on two grounds:
8
(1) that the dismissal order was a final order and all orders
entered subsequent to it were void, and (2) this Court is
without jurisdiction over this appeal because Collins did not
appeal the dismissal order, which was entered on October 20,
2005, until June 16, 2006. Because the assignments of error
and cross-error raise solely questions of law, we will apply a
de novo standard of review. Janvier v. Arminio, 272 Va. 353,
363, 634 S.E.2d 754, 759 (2006).
Similar to Rule 3:5(e), the local rule at issue targets
cases not served within a year of filing. 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 the 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.” However, unlike the local rule, Rule 3:5(e) does
not expressly contemplate dismissal of cases not served within
a year, although such cases are potentially subject to
dismissal under Rule 3:5(e) upon motion by the defendant. See
Gilbreath v. Brewster, 250 Va. 436, 440, 463 S.E.2d 836, 837
(1995).
Despite the local rule’s reference to Rule 3:5(e), the
critical question raised in this appeal is whether the circuit
court had the authority to adopt a local rule that essentially
9
translates Rule 3:5(e) into a mode of procedure for the court
dismissing unserved cases sua sponte.5 Collins asserts that
the circuit court did not have such authority because the
local rule violates the provisions of Code § 8.01-4. Code
§ 8.01-4 provides that:
The district courts and circuit courts may,
from time to time, prescribe rules for their
respective districts and circuits. Such rules shall
be limited to those rules necessary to promote
proper order and decorum and the efficient and safe
use of courthouse facilities and clerks’ offices.
5
The linchpin of the analysis in the dissenting opinion
in this case upon which rests the ultimate conclusion that the
circuit court’s erroneous October 20, 2005 dismissal order was
merely voidable and not void ab initio is the initial
conclusion that the circuit court did not enter that order
pursuant to its Local Rule 2(F)(3) but, rather, pursuant to
our Rule 3:5(e). It reaches that conclusion by applying the
settled principle that a court speaks only through its written
orders.
In this case, however, the parties do not dispute that
the authority upon which the circuit court dismissed Collins’
action was the circuit court’s Local Rule 2(F)(3). This is
supported by the record before us in this appeal. Indeed, the
circuit court in its opinion letter of April 19, 2006, which
it subsequently incorporated into its May 26, 2006 order
holding that the October 20, 2005 dismissal order was not
void, leaves no room for dispute that the circuit court
entered the dismissal order in reliance upon the “docket
control procedure this court has adopted.” The docket control
procedure adopted by the circuit court is Local Rule 2(F)(3)
and obviously not our Rule 3:5(e). Additionally, if there
could be any remaining doubt, the circuit court explained in
some detail in its opinion letter its concern with our
decision in Gilpin v. Joyce, 257 Va. 579, 515 S.E.2d 124
(1999), which addressed the application of Rule 3:3(c), now
Rule 3:5(e), and, thus, why it was relying upon its docket
control procedure instead.
10
No rule of any such court shall be prescribed or
enforced which is inconsistent with this statute or
any other statutory provision, or the Rules of
Supreme Court or contrary to the decided cases, or
which has the effect of abridging substantive rights
of persons before such court. Any rule of court
which violates the provisions of this section shall
be invalid.
The courts may prescribe certain docket control
procedures which shall not abridge the substantive
rights of the parties nor deprive any party the
opportunity to present its position as to the merits
of a case solely due to the unfamiliarity of counsel
of record with any such docket control procedures.
Collins contends that the local rule is invalid because
it abridged his substantive right to proceed with his lawsuit,
noting that even after failing to serve Shepherd with process
within one year of filing his civil action, he retained the
right to take a nonsuit under Code § 8.01-380 and subsequently
recommence the action against Shepherd. Collins also asserts
that the local rule is invalid because it conflicts with the
provisions governing the discontinuance of cases set forth in
Code § 8.01-335. We agree with Collins.6
6
Collins’ assignments of error also raise the issue of
whether Rule 3:5(e) only applies when the defendant is served
with process more than one year after filing, and here
Shepherd was never served. Our decision in Gilpin resolves
this issue. 257 Va. at 582, 515 S.E.2d at 126 (“[T]his rule
applies only where there has been service of process.”).
11
Code § 8.01-4 delegates to circuit courts the authority
to establish rules regarding the management of their courts
and the cases handled therein. Clearly, however, Code § 8.01-
4 denotes that such authority must be carefully exercised so
that local rules do not encroach upon statutes, Rules of
Court, or case law. To this end, Code § 8.01-4 expressly
states that local rules must not “abridge the substantive
rights of the parties” or deprive any party from having a case
heard on the merits, reflecting the General Assembly’s
intention that local rules govern the administration, but not
become the determining factor in the ultimate outcome, of
cases.
Here, by operation of a procedure effectuated solely by
its local rule, the circuit court dismissed Collins’ case with
prejudice without the case being heard on the merits. In the
absence of this local rule, Collins would have retained the
right to take a nonsuit and refile his civil action beyond the
one-year limitation period established by the local rule. See
Code § 8.01-380; Berry v. F&S Fin. Mktg., 271 Va. 329, 332-33,
626 S.E.2d 821, 823 (2006) (citing Waterman v. Halverson, 261
Va. 203, 208, 540 S.E.2d 867, 869 (2001); McManama v. Plunk,
250 Va. 27, 32, 458 S.E.2d 759, 762 (1995)). The dismissal
under a local rule of a case that the plaintiff would
otherwise be able to pursue under the Code, case law, and
12
Rules of Court exceeds the authority delegated to circuit
courts under Code § 8.01-4.
The tension between this particular local rule and the
Code is further demonstrated by a comparison of this rule to
Code § 8.01-335, which governs circuit courts’ authority to
discontinue inactive cases. Code § 8.01-335 provides, in
relevant part, that:
A. [A]ny court in which is pending an action,
wherein for more than two 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. However, no case shall be
discontinued if either party requests that it be
continued. The court shall thereafter enter a
pretrial order pursuant to Rule 4:13 controlling
the subsequent course of the case to ensure a
timely resolution of that case. If the court
thereafter finds that the case has not been
timely prosecuted pursuant to its pretrial order,
it may strike the case from its docket. The
clerk of the court shall notify the parties in
interest if known, or their counsel of record at
his last known address, at least fifteen days
before the entry of such order of discontinuance
so that all parties may have an opportunity to be
heard on it. Any case discontinued 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.
B. 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
13
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.
Under Code § 8.01-335(A), the earliest point at which the
circuit court may discontinue a pending case is after two
years of inactivity, and even then discontinuance may be
ordered only if neither party requests a continuance or the
parties fail to abide by a schedule set by the court following
a continuance.7 A case must be inactive for three years before
7
After the trial court’s disposition in this case, and
after the briefing in this appeal was completed, the General
Assembly has added a new subsection (D) to Code § 8.01-335,
effective July 1, 2007, which provides:
Any court in which is pending a case wherein process
has not been served within one year of the
commencement of the case may, in its discretion,
order it to be struck from the docket, and the
action shall thereby be discontinued. The clerk of
the court shall notify the plaintiff or his counsel
of record at his last known address at least 30 days
before the entry of an order of discontinuance so
that the plaintiff may have an opportunity to show
that service has been timely effected on the
defendant or that due diligence has been exercised
to have service timely effected on the defendant.
Upon finding that service has been timely effected
or that due diligence has been exercised to have
service timely effected, the court shall maintain
the action on the docket and, if service has not
been timely effected but due diligence to effect
14
a circuit court may dismiss a case sua sponte under Code
§ 8.01-335(B). Additionally, Code § 8.01-335 provides the
parties to a discontinued case the opportunity to reinstate
the case within one year of the discontinuance.
In comparison to Code § 8.01-335, Local Rule 2(F)(3)
would drastically expand the circuit court’s authority to
dismiss an inactive case by permitting dismissal, sua sponte,
after one year rather than after two or three years.
Furthermore, unlike Code § 8.01-335 the local rule does not
provide an opportunity for revival of a discontinued case,
thus the local rule totally ignores the statutory distinction
between a discontinuance and a dismissal with prejudice. As
Code § 8.01-4 expressly provides, “[n]o rule . . . shall be
prescribed or enforced which is inconsistent with . . . any
. . . statutory provision.” Here, the inconsistency between
service has been exercised, shall require the
plaintiff to attempt service in any manner permitted
under Chapter 8 (§ 8.01-285 et seq.) of this title.
Nothing herein shall prevent the plaintiff from
filing a nonsuit under § 8.01-380 before the entry
of a discontinuance order pursuant to the provisions
of this subsection. Nothing in this subsection
shall apply to asbestos litigation.
We express no opinion about the validity of the subject local
rule of court in light of this amendment to the statute.
15
Local Rule 2(F)(3) and Code § 8.01-335 is palpable and beyond
debate.
For these reasons, the circuit court did not have the
authority under Code § 8.01-4 to adopt a local rule permitting
the sua sponte dismissal with prejudice of cases not served
within a year of the filing date. Accordingly, we hold that
Local Rule 2(F)(3), which purports to authorize the circuit to
do so, is invalid. Thus, the circuit court’s entry of the
October 20, 2005 dismissal order based on that local rule was
in error.
We turn now to address the effect, if any, of Collins’
failure to challenge the October 20, 2005 dismissal order
until after the twenty-one day period set forth in Rule 1:1.
Under Rule 1:1, “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.” Collins took no action regarding the October 20,
2005 order until March 10, 2006, well beyond the twenty-one
day period.
Collins contends that the circuit court entered the
dismissal order pursuant to a “mode of procedure the court
could not lawfully adopt,” making the dismissal order void ab
initio and, thus, not subject to the limitation period of Rule
16
1:1. Shepherd responds that even if the circuit court’s entry
of the dismissal order was in error, such error merely
rendered the order voidable, not void ab initio. Therefore,
Shepherd argues that the dismissal order was subject to Rule
1:1. Again, we agree with Collins.
An order is void ab initio, rather than merely voidable,
if “the character of the judgment was not such as the court
had the power to render, or because the mode of procedure
employed by the court was such as it might not lawfully
adopt.” See 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); Watkins v. Watkins, 220
Va. 1051, 1054, 265 S.E.2d 750, 753 (1980); Barnes v. American
Fertilizer Co., 144 Va. 692, 706, 130 S.E. 902, 906 (1925);
Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887). An
order that is void ab initio is a “complete nullity” that may
be “impeached directly or collaterally by all persons,
anywhere, at any time, or in any manner.” Singh v. Mooney,
261 Va. 48, 52, 541 S.E.2d 549, 551 (2001).
In this case, the procedure utilized by the circuit court
to enter the dismissal order was done pursuant to a local rule
that, under Code § 8.01-4, the circuit court was not
authorized to adopt. As such, the “mode of procedure”
utilized by the circuit court was one that it could “not
17
lawfully adopt.” Accordingly, the dismissal order was void ab
initio and subject to challenge at any time.8
CONCLUSION
For the foregoing reasons, we hold that the circuit court
erred in entering the October 20, 2005 order dismissing
Collins’ lawsuit against Shepherd, and that the dismissal
order was void ab initio. We further hold that Collins was
entitled to the nonsuit granted by the circuit court’s March
16, 2006 order and, accordingly, the April 6, 2006 order
vacating that order was entered in error and upon remand
Collins’ subsequent action against Shepherd is to be restored
if necessary to the circuit court’s active docket. We will
reverse the judgment of the circuit court and remand the case
for further proceedings in accordance with the principles
stated herein.
Reversed and remanded.
JUSTICE KINSER, with whom JUSTICE AGEE and SENIOR JUSTICE LACY
join, concurring in part and dissenting in part.
I concur in the portion of the majority opinion holding
that the circuit court’s entry of the October 20, 2005
dismissal order was in error. However, the majority also
8
In light of our resolution of these issues, we need not
address any remaining issues raised in Shepherd’s assignments
18
concludes that the dismissal order was void ab initio. I
respectfully disagree. The dismissal order was not void ab
initio because it involved an action by the circuit court that
was in error rather than an action concerning the underlying
authority of the circuit court to act on a matter. See Singh
v. Mooney, 261 Va. 48, 51, 541 S.E.2d 549, 551 (2001).
The majority focuses on the Circuit Court of the City of
Norfolk Local Rule 2(F)(3) and states that the “critical
question raised in this appeal is whether the circuit court
had the authority to adopt a local rule that essentially
translates Rule 3:5(e) into a mode of procedure for the court
dismissing unserved cases sua sponte.” By its terms, that
local rule only authorizes the clerk of the circuit court to
send a notice of dismissal to a plaintiff’s counsel advising
that, because the plaintiff’s civil action has not been served
within one year after commencement of the action, it will be
dismissed unless the plaintiff has exercised due diligence to
serve process.
While the local rule at issue was the impetus for the
notice of dismissal being sent to counsel for the plaintiff,
of cross-error.
19
Larry R. Collins,9 it was not the authority upon which the
circuit court relied to enter the October 20, 2005 order
dismissing the action filed by Collins against Faye M.
Shepherd. Instead, the court stated in the dismissal order
that “[Collins] having failed to show that due diligence was
exercised to have timely service upon [Shepherd], and it
seeming proper to the [c]ourt to do so, it is ORDERED that
this case be dismissed with prejudice in accordance with
Supreme Court Rule [3:5(e)] and Nelson v. Vaughan, 210 Va. 1[,
168 S.E.2d 126] (1969).”10 (Emphasis added.) Thus, contrary
to the majority’s conclusion, the circuit court did not
dismiss Collins’ action “by operation of a procedure
effectuated solely by its local rule.” Speaking through the
plain terms of its written order, the circuit court, instead,
applied this Court’s Rule 3:5(e) and our decision in Nelson to
9
The notice of dismissal sent to Collins’ counsel stated
that, pursuant to the predecessor of current Rule 3:5(e) and
Nelson v. Vaughan, 210 Va. 1, 168 S.E.2d 126 (1969), the
circuit court would dismiss the action because Shepherd had
not been served with process within one year unless the court
found that Collins had exercised due diligence to serve
process.
10
In Nelson, the trial court dismissed an action because
of a “long delay” in serving process on the defendant. 210
Va. at 1-2, 168 S.E.2d at 127. We reversed the trial court’s
judgment because process had been served within one year after
the filing of the motion for judgment. Id.
20
dismiss the action.11 See Conyers v. Martial Arts World, 273
Va. 96, 103, 639 S.E.2d 174, 177 (2007) (“[A] court speaks
only through its written orders.”); Rose v. Jaques, 268 Va.
137, 147, 597 S.E.2d 64, 70 (2004) (same); Upper Occoquan
Sewage Auth. v. Blake Constr. Co., 266 Va. 582, 588, 587
S.E.2d 721, 724 (2003) (same).
There is no question that the circuit court erred in
dismissing Collins’ action because the court misconstrued the
provisions of Rule 3:5(e). As we explained in Gilpin v.
Joyce, 257 Va. 579, 515 S.E.2d 124 (1999), only a defendant
who has been served with process more than one year after
commencement of an action can invoke the provisions of Rule
11
In a letter opinion incorporated by reference in its
May 26, 2006 order denying Collins’ motion to vacate the
dismissal order, the circuit court referenced a “docket
control procedure” that, in its view, was designed to allow a
defendant “to have a stale claim against him dismissed.” The
docket control procedure reflected in Local Rule 2(F)(3)
provided the circuit court with a method to identify what it
regarded as stale claims, but it was not the basis of the
circuit court’s dismissal order. See Berean Law Group, P.C.
v. Cox, 259 Va. 622, 627, 528 S.E.2d 108, 111 (2000) (holding
that an oral ruling of a court cannot nullify its written
order); Wagner v. Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615
(1999) (holding that an agreement of parties extending stay
cannot change terms of court’s written order).
I also disagree with the majority’s assertion that the
local rule abrogated Collins’ right to take a nonsuit. After
the circuit court issued the notice of dismissal, nothing
precluded Collins’ from taking a nonsuit pursuant to Code
21
3:5(e) in order to obtain a dismissal of the action with
prejudice. Id. at 583, 515 S.E.2d at 126; see also Gilbreath
v. Brewster, 250 Va. 436, 442, 463 S.E.2d 836, 838 (1995)
(“[A] dismissal under Rule [3:5(e)] is a dismissal with
prejudice.”). When the circuit court dismissed the action,
Collins had not served Shepherd with process, nor had Shepherd
filed any pleading invoking the provisions of Rule 3:5(e).
Collins’ argument that the circuit court’s dismissal
order was void ab initio is similar to the argument we
rejected in Singh. There, the trial court entered an order
that did not comply with the provisions of Rule 1:13. 161 Va.
at 51, 541 S.E.2d at 551. The issue before us was whether the
order was “void ab initio or merely voidable.” Id. at 50, 541
S.E.2d at 550. We held that “a claim that an order does not
comply with Rule 1:13 is a claim that the trial court abused
its discretion in dispensing with the requirements of the Rule
when it entered the order.” Id. at 52, 541 S.E.2d at 552.
Such a claim “involves a question of court error; it is not a
question of the jurisdiction or authority of the court to
enter the order.” Id. at 52, 541 S.E.2d at 552.
§ 8.01-380. Indeed, the circuit court acknowledged this fact
in its letter opinion.
22
Likewise, in the case before us, the circuit court’s
failure to adhere to the provisions of Rule 3:5(e) when it
dismissed Collins’ action raises a question of error by the
court. See Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d
141, 145 (1995) (“The validity of a judgment based upon a
challenge to the application of a statute raises a question of
trial error, and not a question of jurisdiction.”). “[I]f the
inferior court has jurisdiction of the subject matter of the
controversy, and the parties are before it, . . . a mistaken
exercise of that jurisdiction does not render its judgment
void.” County School Bd. v. Snead, 198 Va. 100, 107, 92
S.E.2d 497, 503 (1956). An order containing reversible error,
such as the dismissal order at issue, “is merely voidable
[and] may be set aside by motion filed in compliance with Rule
1:1 or provisions relating to the review of final orders” such
as Code § 8.01-428. Singh, 261 Va. at 52, 541 S.E.2d at 551.
A trial court has the power to dismiss an action pending
before it. That it does so for the wrong reason does not
render its dismissal order void ab initio. An order is void
ab initio only “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, . . . if the mode of procedure used by the court
was one that the court could ‘not lawfully adopt,’ ” id. at
23
51-52, 541 S.E.2d at 551 (quoting Evans v. Smyth-Wythe Airport
Comm’n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)), or if the
order was obtained by extrinsic or collateral fraud. Rook v.
Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987).
Nevertheless, the majority concludes that the circuit
court employed a “mode of procedure” that it could “not
lawfully adopt” and that the dismissal order was therefore
void ab initio. That “mode of procedure,” according to the
majority, was “the procedure utilized by the circuit court to
enter the dismissal order . . . pursuant to a local rule that,
under Code § 8.01-4, the circuit court was not authorized to
adopt.” As I previously explained, the local rule authorized
only the issuance of a notice of dismissal. And, the circuit
court relied on Rule 3:5(e), not the local rule, as the
authority for its dismissal order. Moreover, the few cases
cited by the majority in which this Court has addressed
whether an order was void ab initio because the “character of
the judgment was not such as the court had the power to
render, or because the mode of procedure employed by the court
was such as it might not lawfully adopt” are inapposite.
Evans, 255 Va. at 73, 495 S.E.2d at 828.
Three of those cases involved issues that arose in the
context of divorce proceedings and addressed the validity of
orders awarding certain types of relief that were not
24
authorized by statute. In Barnes v. The American Fertilizer
Co., 144 Va. 692, 130 S.E. 902 (1925), we stated that, without
specific statutory authority, a circuit court “has no power to
transfer to the wife any specific portion of her husband’s
real estate as alimony,” and that the character of such an
order doing so would not be such as the court had the power to
render. Id. at 709, 130 S.E. at 907. We concluded, however,
that the order at issue there was “within the limits of the
court’s jurisdiction, and did not constitute an attempt on the
part of the court to transfer to [the wife] title to her
husband’s real estate as alimony.” Id. at 714, 130 S.E. at
908. Similarly, in Watkins v. Watkins, 220 Va. 1051, 265
S.E.2d 750 (1980), the issue before us was whether “the trial
court, as a part of the maintenance and support provisions of
the final decree, [had] jurisdiction to enjoin the husband
from disposing of his shares of stock in two family-owned
corporations.” Id. at 1051-52, 265 S.E.2d at 751. We
concluded that “the court lacked the statutory power to
lawfully adopt the remedy in question.” Id. at 1055, 265
S.E.2d at 753. Finally, in Lapidus v. Lapidus, 226 Va. 575,
311 S.E.2d 786 (1984), the trial court directed the husband in
a divorce proceeding “to contract for life insurance as a part
of spousal support for his wife.” Id. at 577, 311 S.E.2d at
787. Again, we found that “[n]othing in the divorce statutes
25
empowered the court to take the action it took.” Id. at 579,
311 S.E.2d at 788.
In Anthony v. Kasey, 83 Va. 338, 5 S.E. 176 (1887), a
surety attacked the validity of a personal judgment previously
entered against him on the basis that the trial court lacked
jurisdiction to render the decree. Id. at 339-40, 5 S.E. at
177. We affirmed the trial court’s judgment that the decree
was null and void because the surety was not a party to the
original suit and “the procedure by rule to bring [him] in and
subject [him] for liability as suret[y] on the bond of the
receiver . . . was against every sound principle of
jurisprudence and without any recognized precedent.” Id. at
341, 5 S.E. at 178.
The remaining case cited by the majority, Evans v. Smyth-
Wythe Airport Commission, involved an order that restricted an
airport commission’s power of eminent domain. 255 Va. at 70,
495 S.E.2d at 826. We held that the order was “void ab initio
because the circuit court did not have the power to render a
judgment which permitted a governmental entity to relinquish
the power or right of eminent domain.” Id. at 74, 495 S.E.2d
at 828. Neither this case nor the other cases discussed
support the majority’s position that the local rule, which the
26
majority declares invalid,12 is tantamount to a “mode of
procedure” that the circuit court could not lawfully adopt,
thereby rendering its dismissal order void ab initio.
The circumstances in which a court employs a “mode of
procedure” that it could not lawfully adopt or renders a
judgment the character of which was beyond its power to render
is perhaps best illustrated by this passage from Windsor v.
McVeigh, 93 U.S. 274 (1876):
All courts, even the highest, are more or less
limited in their jurisdiction: they are limited to
particular classes of actions, such as civil or
criminal; or to particular modes of administering
relief, such as legal or equitable; or to
transactions of a special character, such as arise
on navigable waters, or relate to the testamentary
disposition of estates; or to the use of particular
process in the enforcement of their judgments.
Though the court may possess jurisdiction of a
cause, of the subject-matter, and of the parties, it
is still limited in its modes of procedure, and in
the extent and character of its judgments. It must
act judicially in all things, and cannot then
transcend the power conferred by the law. If, for
instance, the action be upon a money demand, the
court, notwithstanding its complete jurisdiction
over the subject and parties, has no power to pass
judgment of imprisonment in the penitentiary upon
the defendant. If the action be for a libel or
personal tort, the court cannot order in the case a
specific performance of a contract. If the action be
for the possession of real property, the court is
powerless to admit in the case the probate of a
12
In my view, it is not necessary to decide whether Local
Rule 2(F)(3) is invalid because the circuit court based its
dismissal order on Rule 3:5(e), not the local rule.
27
will. . . . The judgments mentioned, given in the
cases supposed, would not be merely erroneous: they
would be absolutely void; because the court in
rendering them would transcend the limits of its
authority in those cases.
Id. at 282 (citation omitted). Surely, it cannot be said that
a trial court “transcends the limits of its authority” when it
dismisses an action properly before it, even when it does so
erroneously, or when, according to the majority, it does so
based on an invalid local rule.
Today’s decision will allow litigants to mount collateral
attacks on final judgments whenever a local rule, or even a
Rule of this Court, is subsequently invalidated. In other
words, litigants will be able to circumvent the mandate of
Rule 1:1 that “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.” (Emphasis added.) For these reasons, I respectfully
concur in part and dissent in part, and would affirm the
judgment of the circuit court.
28