Present: All the Justices
JOHN REX PHIPPS
v. Record No. 030800 OPINION BY JUSTICE ELIZABETH B. LACY
March 5, 2004
CECILA RENE LIDDLE
FROM THE CIRCUIT COURT OF CARROLL COUNTY
Duane E. Mink, Judge
In this appeal we consider the applicable limitations
period for refiling a previously non-suited action when the
order granting the non-suit was appealed to, and affirmed by,
this Court.
FACTS
John Rex Phipps filed a personal injury action against
Cecila Rene Liddle on May 2, 2000. By order entered December
15, 2000, the circuit court granted Phipps a voluntary non-
suit. Liddle appealed the December 15, 2000 non-suit order to
this Court. On March 1, 2002, this Court issued its mandate
affirming the trial court's December 15, 2000 order granting
the non-suit. The mandate was entered by the trial court on
March 22, 2002 pursuant to Code § 8.01-685.
Phipps re-filed his personal injury action against Liddle
on August 15, 2002. Liddle filed a special plea asserting
that Phipps' motion for judgment was untimely. Following
briefing and argument of counsel, the trial court sustained
Liddle's plea and dismissed Phipps' motion for judgment
holding that Code § 8.01-229(E)(3) required Phipps to re-file
his non-suited action within six months of the December 15,
2000 order of non-suit. We awarded Phipps an appeal.
DISCUSSION
Code § 8.01-229(E)(3) provides in pertinent part:
If a plaintiff suffers a voluntary nonsuit . . .
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. . . .
(Emphasis added).
Liddle argues that the only order by which Phipps
suffered a non-suit was the December 2000 order, in which the
trial court dismissed his action without prejudice. Thus,
Liddle concludes, without a specific statutory provision
tolling the limitations period, Phipps had to re-file his non-
suited action within six months of the December 2000 order.
Relying on Code § 8.01-685, Phipps responds that the
phrase at issue "the order entered by the court," refers to
the March 22, 2002 order entering the mandate of this Court
affirming the December 2000 order of non-suit. Code § 8.01-
685 states in relevant part that the court "from which any
case may have come to an appellate court shall enter the
decision of the appellate court as its own." Thus, Phipps
maintains, the trial court's March 22, 2002 order entering the
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decision of this Court "as its own" is the order identified in
Code § 8.01-229(E)(3) as the order from which the six-month
refiling period commences.
We resolve the conflict in this case by applying a well-
established principle of statutory construction. If possible,
we must harmonize apparently conflicting statutes to give
effect to both. Lake Monticello Owner's Assoc. v. Lake, 250
Va. 565, 570, 463 S.E.2d 652, 655 (1995); Albemarle County v.
Marshall, 215 Va. 756, 761, 214 S.E.2d 146, 150 (1975). If
the language at issue in Code § 8.01-229(E)(3) refers to the
trial court's December 2000 order of non-suit, as Liddle
contends, it conflicts with Code § 8.01-685, which by its
terms required the trial court to enter the mandate of this
Court affirming the order of non-suit "as its own" order.
This conflict can be avoided by construing the "order
entered by the court" in Code § 8.01-229(E)(3) as the order
entered "as its own" by the trial court on March 22, 2002.
This construction harmonizes these statutes and gives each
meaning. It also reflects the fact that, although Phipps was
granted a non-suit by the December 2000 order, that order was
subject to change because of Liddle's appeal. Phipps was not
finally entitled to the non-suit until the appeal was resolved
in his favor in March 2002. Finally, by so construing these
two statutes we avoid the incongruity of a simultaneous appeal
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and trial of a single cause of action, a circumstance Liddle's
construction of the statute would permit.
For the above reasons, we conclude that Code § 8.01-
229(E)(3) required Phipps to re-file his non-suited action
within six months of March 22, 2002, the date the trial court
entered "as its own" the mandate of this Court affirming the
trial court's December 15, 2000 order. Because Phipps re-
filed his action within that time period, the trial court
erred in dismissing his action as untimely. Accordingly, we
will reverse the judgment of the trial court and remand the
case for further proceedings.
Reversed and remanded.
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