Janvier v. Arminio

Present: All the Justices

BETHANIE JANVIER
OPINION BY
v. Record No. 052231 JUSTICE LAWRENCE L. KOONTZ, JR.
September 15, 2006
GARY ARMINIO, D.P.M., ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge

In this appeal, which arises from a medical malpractice

action, the principal issue to be resolved is whether an order

granting the plaintiff a second nonsuit without prejudice,

pursuant to Code § 8.01-380(B), is void ab initio in the absence

of notice to the named defendants when the named defendants in

the suit have not yet been served with the plaintiff’s motion

for judgment. The merits of the underlying malpractice claim

are not at issue, and the procedural facts necessary to our

resolution of this appeal are not in dispute.

BACKGROUND

As will become apparent, this case involves protracted

litigation spanning a period of some five years with no

resolution of the merits of the plaintiff’s asserted claim.

Although several familiar statutes and rules of this Court are

implicated by the procedural facts of the case that have been

addressed by this Court in a number of our prior decisions, we

have not addressed previously the specific issue presented here
with regard to the application of Code § 8.01-380 as currently

enacted. Nevertheless, for reasons that will also become

apparent, we take this opportunity initially to observe that the

prospect of similar cases in the future resulting from a series

of nonsuits is not speculative. Both future plaintiffs and

defendants might well benefit should the General Assembly amend

Code § 8.01-380 by providing a requirement for notice or the

exercise of due diligence to give notice to a defendant when a

plaintiff seeks a second or subsequent nonsuit.

The several statutes and rules of this Court implicated in

this case impose, in combination, critical limitations upon the

plaintiff’s right to maintain a civil action such as the present

one. Accordingly, we begin our analysis with a brief

recitation, in pertinent part, of those statutes and rules in

order to bring the procedural facts into appropriate focus.

Code § 8.01-243(A) provides a two-year limitations period

“after the cause of action accrues” in actions for medical

malpractice. Once timely filed, the plaintiff may nonsuit the

action pursuant to Code § 8.01-380 under specific circumstances

and limitations. Code § 8.01-380(A) provides that “[a] party

shall not be allowed to suffer a nonsuit . . . unless he does so

before a motion to strike the evidence has been sustained or

before the jury retires from the bar or before the action has

been submitted to the court for decision.” Code § 8.01-380(B)

2
further provides that “[o]nly one nonsuit may be taken . . . as

a matter of right, although the court may allow additional

nonsuits or counsel may stipulate to additional nonsuits.” When

the plaintiff properly suffers a nonsuit, Code § 8.01-229(E)(3)

provides that “the statute of limitations with respect to such

action shall be tolled by the commencement of the nonsuited

action, and the plaintiff may recommence his action within six

months from the date of the order entered by the court, or

within the original period of limitation . . . , whichever

period is longer.”

In addition to these statutory provisions, the procedural

facts of this case implicate consideration of the applicability

of Code § 8.01-275.1, which provides that “[s]ervice of process

. . . within twelve months of commencement of the action or suit

against a defendant shall be timely as to that defendant.” This

statute further provides that service of process on a defendant

more than twelve months after the suit or action was commenced

“shall be timely upon a finding by the court that the plaintiff

exercised due diligence to have timely service made on the

defendant.”

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 Finally, turning to the rules of this Court implicated in

this case, Rule 3:5(e)1 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

. . . unless the court finds as a fact that the plaintiff

exercised due diligence to have timely service on that

defendant.” Rule 1:1 provides that “[a]ll final . . . orders

. . . 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.”

On May 21, 2001, Bethanie Janvier filed a motion for

judgment in the Circuit Court of Fairfax County (“trial court”)

against Gary Arminio, D.P.M. and Burke Foot and Ankle Center,

P.C. (collectively, “Arminio”), alleging medical malpractice

arising from Dr. Arminio’s treatment of Janvier while acting

within the scope of his employment.2 The last date Janvier

received treatment from Arminio was November 14, 1999. Code

1
Former Rule 3:3(c) was in force at the time the
proceedings in this case were conducted in the trial court. The
provisions of former Rule 3:3(c) are now contained in Rule
3:5(e) and are substantially identical. Accordingly, we will
refer to the current rule in this opinion.
2
Brantley P. Vitek, Jr., M.D. was also named as a
defendant. Dr. Vitek subsequently was dismissed from the suit
with prejudice and is not a party to this appeal.
4
§ 8.01-243(A); see Justice v. Natvig, 238 Va. 178, 180, 381

S.E.2d 8, 9 (1989).

Janvier did not seek to obtain service of process on

Arminio within one year of filing her motion for judgment.

Code § 8.01-275.1. In order to avoid dismissal of the case

under Rule 3:5(e), Janvier filed a motion for entry of a

voluntary nonsuit. Janvier did not provide Arminio with notice

of her intent to seek the nonsuit. On June 3, 2002, the trial

court entered an order of nonsuit (“first nonsuit”). Code

§ 8.01-380(B).

On October 7, 2002, Janvier recommenced her medical

malpractice action against Arminio by filing a second motion for

judgment making substantially the same allegations as in the

first suit. Code § 8.01-229(E)(3). Once again, Janvier did not

seek to obtain service of process on Arminio within one year.

On December 4, 2003, without providing Arminio notice of

intent to do so, Janvier’s counsel appeared before a judge of

the trial court in chambers and requested that the case be

nonsuited. Janvier’s counsel presented the judge with a draft

order of nonsuit, which the judge entered on that day (“second

nonsuit”). Code § 8.01-380(B). The order prepared by Janvier’s

counsel did not indicate that the nonsuit was a subsequent

nonsuit.

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 On May 27, 2004, Janvier filed a third motion for judgment

making the same allegations against Arminio as those made in her

prior two suits. Code § 8.01-229(E)(3). On August 8, 2004,

Arminio was served with the third motion for judgment. On

August 30, 2004, Arminio, unaware of the two prior nonsuited

actions that had preceded the May 27, 2004 motion for judgment,

filed a plea in bar contending that Janvier’s third motion for

judgment was barred by the two-year statute of limitations in

Code § 8.01-243(A).

During the pendency of Arminio’s plea in bar, the parties

engaged in extended discovery proceedings. As germane to this

appeal, Arminio ultimately succeeded in deposing Janvier’s

counsel concerning the proceedings and circumstances that led to

the granting of the second nonsuit. In that deposition,

Janvier’s counsel stated that in making the oral motion for

nonsuit he had advised the trial judge that he was requesting a

second nonsuit. Janvier’s counsel further stated that the judge

had asked whether the order of nonsuit required the endorsement

of opposing counsel, and Janvier’s counsel had replied that he

believed endorsement was unnecessary because Arminio had not

been served with the motion for judgment.3

3
While the record does not reflect the basis for it, the
trial court subsequently concluded that the judge who entered
the second nonsuit order had no recollection of the
6
 The parties then filed memoranda addressing the issue of

whether the second nonsuit order had been properly obtained

pursuant to Code § 8.01-380 and, therefore, whether Code § 8.01-

229(E)(3) provided an extension of the limitations period for

filing the third motion for judgment. Initially, Arminio

contended that the second nonsuit order should not be given

effect because it was obtained by actual or constructive fraud

on the court. Alternatively, Arminio contended that the second

nonsuit order should not be given effect because the named

defendants were not given notice of Janvier’s intent to seek the

order or provided an opportunity to be heard before its entry.

Arminio contended that the lack of notice rendered the trial

court without jurisdiction to enter a second nonsuit order

because to do so would result from “a mode of procedure . . .

the court could ‘not lawfully adopt.’ ” Singh v. Mooney, 261

Va. 48, 51-52, 541 S.E.2d 549, 551 (2001) (quoting Evans v.

Smyth-Wythe Airport Comm’n, 255 Va. 69, 73, 495 S.E.2d 825, 828

(1998)).

Janvier responded that there had been no fraud or deception

perpetrated on the trial court in obtaining the second nonsuit

circumstances surrounding the entry of that order.
Additionally, the record contains an assertion by Janvier’s
counsel that the reason given to this judge for seeking the
second nonsuit was that Janvier’s anticipated expert witness was
no longer willing to testify on Janvier’s behalf.
7
order. She further contended that no provision in Code § 8.01-

380 requires notice to an unserved defendant of a motion for a

second nonsuit. Finally, Janvier maintained that the second

nonsuit order was a final judgment and was not subject to

collateral attack in a subsequent proceeding.

In an opinion letter dated June 22, 2005, the trial court

addressed the issues raised by Arminio’s plea in bar to the May

27, 2004 motion for judgment. The trial court first concluded

that “there [was] no clear evidence of fraud” in Janvier’s

obtaining the second nonsuit order. Thus, despite the order not

specifically stating that a second nonsuit was being granted or

that the nonsuit was without prejudice, the trial court

concluded that it could not “treat the [second nonsuit] as void

for having been procured by fraud.”

The trial court next addressed Arminio’s contention that

the court lacked jurisdiction to enter the second nonsuit order

in the absence of notice to Arminio. The trial court

acknowledged that Code § 8.01-380 “is silent as to whether all

parties must be noticed when a plaintiff requests a nonsuit,

regardless of whether it is the first or an additional nonsuit.”

Citing Waterman v. Halverson, 261 Va. 203, 208, 540 S.E.2d 867,

869 (2001) and McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d

759, 762 (1995), the trial court further acknowledged that this

Court “has held that a plaintiff may take a first nonsuit, as a

8
matter of right, without providing notice to a defendant who has

not yet been served with the Motion for Judgment.” (Emphasis in

original.)

The trial court declined to adopt the view, asserted by

Janvier, that the rationale of Waterman and McManama would apply

to second nonsuits as well a first nonsuits. The trial court

concluded that while a first nonsuit is an absolute right, a

second nonsuit, being only discretionary, requires that “all

affected parties should be heard” before a court could exercise

that discretion. The trial court reasoned that “where a court

is to exercise discretion, it must have the benefit of hearing

from all persons affected thereby” and concluded that when

requesting a second nonsuit “the plaintiff must notice all

defendants affected by such nonsuit regardless of whether they

have been served with process.”

In an order dated June 22, 2005, the trial court adopted

the rationale of its opinion letter and sustained Arminio’s plea

in bar of the statute of limitations, ruling that the second

nonsuit order was void and, thus, the third motion for judgment

was not timely filed as it was not filed within six months of

the entry of the first nonsuit order. The trial court further

concluded, however, that because the second nonsuit order was

void, the suit initiated by Janvier’s second motion for judgment

remained an open case.

9
 Janvier filed a motion for reconsideration of the trial

court’s judgment sustaining Arminio’s plea in bar. The trial

court promptly entered an order suspending execution of that

judgment until such time as the motion for reconsideration could

be argued and decided. Janvier also filed a motion for entry of

nonsuit with respect to the second motion for judgment filed

October 7, 2002. Janvier contended that if the second nonsuit

order was void and, consequently, the October 7, 2002 motion for

judgment was still pending, that action could be properly

nonsuited because Arminio currently would have notice of her

intent to seek a nonsuit.

In a combined hearing, the trial court heard argument on

both motions. With respect to the motion for reconsideration,

Janvier contended that if the second nonsuit order was void,

then her second motion for judgment remained pending and, thus,

the statute of limitations was tolled with respect to her

ability to file the third motion for judgment. In the

alternative, Janvier contended that the trial court could grant

a nonsuit as to the second motion for judgment and that, by

relation back, the third motion for judgment would then be

timely. In the course of this argument, counsel for Janvier

conceded that “it would . . . be too late to proceed [to]

service” in the action on the second motion for judgment under

Rule 3:5(e). Janvier did not contend that she had exercised due

10
diligence to obtain service on Arminio within one year after

filing the second motion for judgment.

In an order dated July 29, 2005, the trial court denied the

motion for reconsideration and lifted the order suspending the

prior judgment. In a subsequent order dated August 4, 2005, the

trial court denied Janvier’s motion for nonsuit and dismissed

the second motion for judgment on the ground that Arminio had

not been served with process within one year of the filing of

that suit, citing Rule 3:5(e).

Janvier filed notices of appeal with respect to both her

second and third motions for judgment and filed a joint petition

for appeal in this Court. Rule 5:17(d). We awarded Janvier an

appeal with respect to both suits.

DISCUSSION

As a preliminary matter, we address an issue raised by

Arminio in a motion to dismiss this appeal. Arminio contends

that Janvier may not combine appeals of the trial court’s

judgments in the cases involving her second and third motions

for judgment under Rule 5:17(d) because the cases were not

“tried together in the [trial] court.” We disagree.

The purpose of Rule 5:17(d) is to promote judicial economy

and ensure consistency in the rulings of this Court. Under this

rule, where “two or more cases were tried together in the court

. . . one petition for appeal may be used to bring all such

11
cases before this Court even though the cases were not

consolidated by formal order.” (Emphasis added.)

As the records of the two cases sent to this Court by the

trial court amply demonstrate, in the proceedings subsequent to

the trial court’s June 22, 2005 order finding that the second

nonsuit order was void and that the suit initiated by the

October 7, 2002 motion for judgment remained an open case, the

trial court received motions relevant to both cases initiated by

the second and third motions for judgment and heard argument

from the parties relevant to both cases in the same hearing.4

The transcript and the trial court’s subsequent opinion letter

reference the separate docket numbers of both cases.

Accordingly, even though the trial court did not consolidate the

two cases and entered separate orders in each case, there can be

4
On brief, Arminio’s counsel contends that they did not
present argument with respect to the motion for entry of a
nonsuit to the October 7, 2002 motion for judgment “[b]ecause
Janvier never served Dr. Arminio . . . with the second action.”
While it may be true that Arminio’s counsel chose not to offer
any argument with respect to the motion for nonsuit, the
contention that they did not, or could not, do so because
Arminio had not been served with the second motion for judgment
is directly contrary to their contention that unserved
defendants are entitled to notice of a motion for a
discretionary nonsuit. Clearly, Arminio had notice of Janvier’s
intention to seek the nonsuit at that stage of the proceedings.
Apparently, Arminio was concerned with not making a general
appearance as opposed to a special appearance in order to
challenge the second nonsuit. We note that such a concern has
been resolved by the current provisions of Code § 8.01-277,

12
no doubt that the “cases were tried together in the court” and,

thus, could be appealed together in a single petition.

We turn now to consider Janvier’s assignments of error.

Because we are presented solely with questions of law, we will

apply a de novo standard of review. Wilby v. Gostel, 265 Va.

437, 440, 578 S.E.2d 796, 798 (2003); Transcontinental Insurance

Co. v. RBMW, Inc., 262 Va. 502, 514, 551 S.E.2d 313, 319 (2001).

As we have already indicated, the procedural facts in this

case provide the basis and explanation for the legal assertions

of the parties premised upon the statutes and rules of this

Court implicated by those facts. A review of those facts in

conjunction with those statutes and rules illustrates that the

ultimate focus here is necessarily upon the validity of the

second nonsuit order at issue.

Janvier was last treated by Arminio on November 14, 1999

and, within the two-year limitations period provided by Code

§ 8.01-243(A), she timely filed her first motion for judgment

asserting a malpractice claim against Arminio on May 21, 2001.

She took a first nonsuit of that action on June 3, 2002 as a

matter of right pursuant to Code § 8.01-380(B). Although

Arminio had not been served with process and had no notice of

Janvier’s motion for a nonsuit, Janvier had an absolute right to

which now specifically permit a special appearance in these

13
this nonsuit because none of the other restrictions on that

right as provided in Code § 8.01-380(A) or (D) were applicable.

Upon suffering the first nonsuit, Code § 8.01-229(E)(3)

permitted Janvier to recommence her malpractice action within

six months from June 3, 2002, the date of the entry of that

nonsuit order. This she did on October 7, 2002. Janvier did

not serve Arminio with process. Rather, on December 4, 2003,

more than twelve months after commencing the suit, she obtained

a second nonsuit of the action without notice to Arminio.

Janvier then, within six months of the entry of the second

nonsuit order, filed her third motion for judgment against

Arminio for the same malpractice claim on May 7, 2004. Arminio

was then served with process in a timely manner.

Despite a two-year limitations period for the filing of a

medical malpractice action, Arminio was not aware and was not

served with process regarding Janvier’s present claim from late

1999 until mid-2004. Clearly, the malpractice claim filed on

October 7, 2002 was potentially subject to dismissal pursuant to

Code § 8.01-275.1 and Rule 3:5(e) because Arminio was not served

with process within twelve months of the filing of that suit.

Moreover, unless the second nonsuit was properly granted,

Janvier’s third malpractice action was clearly barred by the

circumstances.
14
limitations period in Code § 8.01-243(A) because it would not

have had the benefit of a further extension of time for filing

under Code § 8.01-229(E)(3). To unravel this sequence of

procedural knots, the focus is then necessarily upon the trial

court’s judgment vacating the second nonsuit order as void ab

initio. This is so because Rule 1:1 limits the trial court’s

authority to vacate a valid order to a period of 21 days, and no

longer. Here, the trial court on July 29, 2005 vacated a prior

order entered on December 4, 2003. Thus, if the latter order

was not void ab initio this protracted case becomes readily

resolved.

Although Janvier has raised five assignments of error

challenging both the sustaining of the plea in bar to her third

motion for judgment and the dismissal of her second motion for

judgment, the dispositive issue is whether the trial court

correctly determined that in the absence of notice being given

to a party who had not yet been served with the underlying

action and whose rights potentially would be affected thereby,

an order granting a second nonsuit pursuant to Code § 8.01-380

is void ab initio. This issue is ultimately resolved by

whether, as the trial court found, in the absence of such notice

to that party and an opportunity to be heard, a trial court

would lack jurisdiction to enter a second nonsuit “because the

character of the judgment was not such as the court had the

15
power to render because the mode of procedure employed by the

court was such as it might not lawfully adopt.” Anthony v.

Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887); see also Evans,

255 Va. at 73-74, 495 S.E.2d at 828; Watkins v. Watkins, 220 Va.

1051, 1054, 265 S.E.2d 750, 753 (1980). “The lack of

jurisdiction to enter an order under [such] circumstances

renders the order a complete nullity and it may be ‘impeached

directly or collaterally by all persons, anywhere, at any time,

or in any manner.’ ” Singh, 261 Va. at 52, 541 S.E.2d at 551

(quoting Barnes v. American Fertilizer Co., 144 Va. 692, 705,

130 S.E. 902, 906 (1925)).

The trial court acknowledged, and it is self-evident, that

Code § 8.01-380 does not expressly require notice to be given to

a party who has not yet been served with process of the

plaintiff’s intent to seek a nonsuit. And, we have held that

with respect to a first nonsuit a trial court may not place

limitations on the absolute right of the plaintiff to seek the

nonsuit beyond those found in the statute. McManama, 250 Va. at

32, 458 S.E.2d at 762. Thus, in McManama we held that the trial

court erred when it ruled that the plaintiff could not seek a

nonsuit unless the defendant had “ ‘been served with process,

[was] before a court with jurisdiction over the defendant’s

person, and [had] been given notice of hearing and an

opportunity to be heard.’ ” Id.; see also Waterman, 261 Va. at

16
208, 540 S.E.2d at 869 (“McManama stands for the proposition

that a plaintiff can secure a valid voluntary nonsuit pursuant

to Code § 8.01-380 even though there has been no service of

process on the defendants”); Clark v. Butler Aviation-Washington

National, Inc., 238 Va. 506, 511-12, 385 S.E.2d 847, 849-50

(1989).

Janvier contends, as she did in the trial court, that the

rationale of McManama and Waterman with respect to a first

nonsuit should apply to a second nonsuit. Arminio responds that

because a second nonsuit is not a matter of right under Code

§ 8.01-380, the trial court properly rejected the rationale of

those two cases. Arminio contends that, by providing in Code

§ 8.01-380(B) for the ability of a plaintiff to obtain a second

nonsuit at the discretion of the trial court or by stipulation

of the parties, the General Assembly evinced an intent that

second nonsuits be treated differently from first nonsuits with

regard to a notice requirement. We disagree. Contrary to

Arminio’s contention, nothing in the language of Code § 8.01-

380(B) suggests that the General Assembly intended to place any

additional restriction on the granting of a second nonsuit other

than to leave the matter to the trial court’s discretion or the

concurrence of the parties. Thus, the circumstance presented by

this case is not distinguishable from the trial court’s

erroneous judgment in McManama to impose on a plaintiff seeking

17
a second nonsuit procedural “requirements [not] found in the

applicable statutes . . . by judicial fiat.” 250 Va. at 32, 458

S.E.2d at 762.

The duty of the courts is “to construe the law as it is

written.” Hampton Roads Sanitation Dist. Comm’n v. City of

Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819, 823 (1978). We

have consistently held that “[c]ourts cannot add language to the

statute the General Assembly has not seen fit to include. Nor

are they permitted to accomplish the same result by judicial

interpretation. Where the General Assembly has expressed its

intent in clear and unequivocal terms, it is not the province of

the judiciary to add words to the statute or alter its plain

meaning.” Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313,

608 S.E.2d 901, 906 (2005) (internal quotation marks and

citations omitted). Accordingly, we cannot, and will not, add

words to Code § 8.01-380 in order to impose requirements on a

plaintiff seeking a second nonsuit that are not found in the

plain language of the statute as enacted by the General

Assembly.

Arminio contends, however, that when a plaintiff seeks a

second nonsuit and the defendant is not given notice and an

opportunity to be heard on any defenses in opposition to the

granting of the second nonsuit, the defendant is denied his

right to due process. Clearly, the granting of a nonsuit does

18
not operate to deprive a defendant of any valid or vested

defense of the statute of limitations or the time limits of Rule

3:5(e). McManama, 250 Va. at 34, 458 S.E.2d at 763; Clark, 238

Va. at 512 n.5, 385 S.E.2d at 850 n.5; see also Berry v. F & S

Financial Marketing, Inc., 271 Va. 329, 334, 626 S.E.2d 821, 824

(2006). The thrust of Arminio’s contention then is that in the

absence of notice, Arminio was denied the opportunity to ensure

that in exercising discretion, pursuant to Code § 8.01-380(B),

to grant or deny the second nonsuit the trial judge was made

aware that at that stage of the proceedings more than four years

had elapsed since the alleged malpractice occurred and,

moreover, that the second malpractice action had been pending

for more than one year without an attempt to serve Arminio with

process and, thus, was subject to dismissal pursuant to Rule

3:5(e).

We do not disagree with Arminio’s contention insofar as it

ultimately rests on the recognized notion that justice is best

served when a trial judge called upon to exercise discretion has

the benefit of hearing the positions of all parties potentially

affected as a result of the exercise of that discretion.

Indeed, as the trial judge here so aptly noted, “[a] contrary

notion is antithetical to any sense of fair play and substantial

justice.”

19
 Arminio’s contention, however, does not mandate a

conclusion that the second nonsuit order was void ab initio on

the facts of this case and the provisions of Code § 8.01-380(B).

As we have previously demonstrated, Janvier had timely filed her

second motion for judgment in the trial court as permitted by

Code § 8.01-229(E)(3) following her first nonsuit as a matter of

right. At the time Janvier sought her second, discretionary

nonsuit, Arminio could not have asserted a valid defense of the

running of the limitations period provided by Code § 8.01-

229(E)(3), and Arminio did not have an absolute defense of the

time limits of Rule 3:5(e). In the absence of a requirement of

notice to Arminio under Code § 8.01-380(B), the trial judge

could properly exercise discretion to grant the second nonsuit.

It necessarily follows then that the second nonsuit order was

not void ab initio, and pursuant to Rule 1:1 that order was not

subject to be vacated more than 21 days after its entry.

Accordingly, we hold that upon a proper finding that the

second nonsuit order did not result from fraud, the trial court

erred when it found that the failure to provide notice to

Arminio deprived the court of jurisdiction to enter the second

nonsuit order and in declaring that order to be void ab initio.

Because that order was not void ab initio, the trial court had

no authority to vacate it because it became final 21 days after

its entry. We further hold that because that order was not void

20
ab initio, the trial court erred in finding that Janvier’s third

motion for judgment was time barred, because it was filed within

six months of the entry of the second nonsuit order, as

permitted by Code § 8.01-229(E)(3).

CONCLUSION

For these reasons, we will reverse the judgment of the

trial court in case No. L208197 dismissing the second motion for

judgment with prejudice and reinstate the second nonsuit order.

Because the second nonsuit order renders further action with

respect to Janvier’s second motion for judgment moot, we will

enter final judgment as to that suit here. We also will reverse

the judgment of the trial court in case No. L223259 sustaining

Arminio’s plea in bar of the statute of limitations to Janvier’s

third motion for judgment and remand that case for further

proceedings consistent with this opinion.

Reversed in part and final judgment;
and Reversed in part and remanded.

21