Present: All the Justices
EMILY KATHERINE JAMES, BY MOTHER
AND NEXT FRIEND, JOY L. DUNCAN, ET AL.
OPINION BY
v. Record No. 011448 CHIEF JUSTICE HARRY L. CARRICO
April 19, 2002
DOUGLAS WILLIAM JAMES
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
This appeal involves issues resulting from the entry of two
nonsuit orders and the subsequent imposition of contempt
penalties and monetary sanctions, including the dismissal with
prejudice of the two motions for judgment ostensibly nonsuited.
The motions for judgment were filed May 4, 1999, one on behalf
of Emily Katherine James and the other on behalf of Mary
Elizabeth James, infants then aged twelve and nine years,
respectively, by their mother and next friend, Joy L. Duncan
(Duncan). The motions for judgment sought damages for emotional
and physical injuries allegedly inflicted upon the infants by
their father, Douglas William James (James). 1 James filed
grounds of defense denying liability for the infants' alleged
injuries.
1
The record shows that Duncan and James were married June
28, 1986, and that they were divorced by final decree entered
August 23, 1994. The decree affirmed, ratified, and
incorporated a written agreement entered into between Duncan and
James which provided that Duncan "shall have custody of the
infant children born of the marriage."
On March 1, 2000, James filed motions for an independent
medical examination of the infants. On May 22, 2000, the trial
court entered orders requiring that the infants submit to
examination by two doctors named in the orders "on dates to be
determined . . . within 6 weeks after the last date of school
classes." The orders also provided that Duncan, "as next
friend, shall deliver the infant plaintiff[s] to the examiner on
the date and time ordered herein."
On June 9, 2000, James' counsel notified Duncan's counsel
by letter of the available dates for the independent
examination. In addition, numerous telephone calls were made to
Duncan's counsel requesting that the infants be produced for the
independent examination. Duncan's counsel failed to respond.
On July 28, 2000, James filed in each case a motion to
sanction Duncan pursuant to Rule 4:12(b)(2) for her failure to
obey the trial court's orders of May 22, 2000, requiring the
independent examination of the infants. 2 James also gave Duncan
notice that the motions for sanctions would be heard on November
6, 2000.
On October 30, 2000, acting pro se following the withdrawal
of her counsel, Duncan filed motions to nonsuit both cases. On
2
Rule 4:12(b)(2) provides that the court in which an action
is pending may make such orders as are just in regard to the
failure of a party to obey an order to provide or permit
2
October 31, 2000, the trial court entered an order in each case
noting Duncan's motion for nonsuit and ordering that "this
action stand dismissed without prejudice."
On November 3, 2000, Duncan sent James' counsel a note
stating she would be unable to attend the hearing on November 6
and asking for a rescheduled date because her son had a medical
appointment at a hospital. On November 6, counsel for James
appeared for the hearing, but Duncan did not. The trial judge
noted that Duncan had requested a continuance because of her
son's illness, but, without granting or denying the motion for
continuance, proceeded with the hearing in Duncan's absence.
The trial judge asked counsel for James "[w]here [he]
want[ed] to go [that day]." Noting that "we are within the 21-
day period from [the court's] entry of the [nonsuit orders],"
counsel replied that he "would ask [the court to] enter an order
requiring [Duncan] to show cause why she's not in contempt of
[the court's] two orders [requiring independent examination of
the infants]."
Later on in the discussion, James' counsel asked the court
to "set [the nonsuit orders] aside pending a hearing on the
matter." At one point, the trial judge stated that he would
"set aside the order[s] of nonsuit and continue to hold that in
discovery. Five categories of permissible sanctions are
provided.
3
abeyance until all the matters are heard." Immediately,
however, James' counsel stated that if, within the 21-day period
following entry of the nonsuit orders, he obtained an order
requiring Duncan to show cause why she should not be held in
contempt, the court would not "really need to set aside the
nonsuit"; counsel "won't really care about that." The trial
judge instructed counsel to "get [him] the order right away."
On November 8, 2000, within the 21-day period following
entry of the nonsuit orders, the trial court entered two orders
with respect to the November 6 hearing. The nonsuit orders were
not mentioned in either of the November 8 orders. Rather, the
November 8 orders merely required Duncan to appear on December
21, 2000, to show cause why she should not be held in contempt
and further provided as follows:
4. This matter is continued on the Court's docket to
the 21[st] day of December, 2000, at 9:30 a.m. at Powhatan
Courthouse.
5. This matter continues on the docket.
On December 21, 2000, Duncan appeared with counsel, and the
trial court conducted a hearing on the rule to show cause issued
against Duncan in each case. On January 25, 2001, the court
entered an order finding Duncan in contempt and taking under
advisement the imposition of punishment and sanctions until each
party filed a chronology of events. Following receipt of the
chronologies, on April 4, 2001, the court entered a final order
4
in each case sentencing Duncan to pay a fine of $1,000.00 and to
serve 30 days in jail, with the jail sentence suspended on
condition that she be of good behavior and pay to James' counsel
the sum of $20,000.00 in attorney's fees. 3 The court also
dismissed with prejudice the motion for judgment filed in each
case. We awarded Duncan this appeal.
At this point, the Court finds itself faced with an
anomaly. Duncan asks the Court to reverse the trial court's
finding that she is in contempt for failure to obey orders
requiring her to produce other persons for independent medical
examination. Rule 4:12(b)(2)(D) permits a court to treat a
failure to obey a discovery order as contempt, "except an order
to submit to a physical or mental examination," and Rule
4:12(b)(2)(E) precludes a court from treating a failure "to
produce another for examination" as contempt. Yet, Duncan cited
neither rule in the trial court, cited only Rule 4:12(b)(2)(D)
in her petition for appeal to this Court, and cited neither rule
in the brief she filed here. Hence, she has waived the right to
rely on either rule. Rule 5:25.
Nevertheless, Duncan questions whether the trial court had
jurisdiction to consider her alleged violations of the discovery
3
The order entered in one of the cases stated that "the
jail sentence, the fine and the attorney's fees herein are not
cumulative to those ORDERED in the [other] case, . . . but shall
run concurrently."
5
rules after the expiration of the twenty-one day period
following entry of the orders of nonsuit. 4 We resolve this
question by focusing upon the nonsuit orders and the provisions
of the nonsuit statute, Code § 8.01-380, and Rule 1:1. At the
time the nonsuit orders were entered, Code § 8.01-380 provided
as follows:
A. A party shall not be allowed to suffer a nonsuit as
to any cause of action or claim, or any other party to the
proceeding, 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. . . .
B. 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 or
counsel may stipulate to additional nonsuits. The court,
in the event additional nonsuits are allowed, may assess
costs and reasonable attorney's fees against the nonsuiting
party.
C. A party shall not be allowed to nonsuit a cause of
action, without the consent of the adverse party who has
filed a counterclaim, cross claim or third-party claim
which arises out of the same transaction or occurrence as
the claim of the party desiring to nonsuit unless the
counterclaim, cross claim, or third-party claim can remain
pending for independent adjudication by the court.[ 5 ]
4
James argues on brief that Duncan did not properly
preserve the question of jurisdiction. He charges Duncan has
changed the language of an assignment of error and has raised
issues before this Court not encompassed in either her
assignments of error or her petition for appeal. Our
examination discovers none of these defects, and we reject
James' argument.
5
A 2001 amendment added to Code § 8.01-380 a new subsection
C and redesignated former subsection C as subsection D. The new
subsection provides for the assessment against the nonsuiting
party of certain fees and costs incurred by the opposing party
6
Rule 1:1 provides in pertinent part that "[a]ll 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."
We have not previously considered whether a nonsuit order
is a final judgment, order, or decree for purposes of Rule 1:1.
In several cases, however, we have said that a nonsuit order is
not a final judgment for appeal purposes unless a dispute exists
whether the trial court properly granted the motion for nonsuit.
Swann v. Marks, 252 Va. 181, 184-85, 476 S.E.2d 170, 172 (1996);
McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d 759, 761 (1995);
Mallory v. Taylor, 90 Va. 348, 349, 18 S.E. 438, 439 (1893); see
Wells v. Lorcom House Condo. Council, 237 Va. 247, 251, 377
S.E.2d 381, 383 (1989).
Here, no dispute exists whether the trial court properly
granted the motions for nonsuit filed by Duncan, so the nonsuit
orders would not qualify as final judgments for appeal purposes.
However, it does not necessarily follow that the nonsuit orders
are also disqualified as final judgments for purposes of Rule
1:1.
if notice to take a nonsuit of right is given to the opposing
party within five days of trial. 2001 Va. Acts ch. 825.
7
Generally speaking, a final order for purposes of Rule 1:1
"is one which disposes of the whole subject, gives all the
relief contemplated, provides with reasonable completeness for
giving effect to the sentence, and leaves nothing to be done in
the cause save to superintend ministerially the execution of the
order." Daniels v. Truck & Equipment Corp., 205 Va. 579, 585,
139 S.E.2d 31, 35 (1964) (citations and inner quotation marks
omitted).
We are of opinion that, from its very nature, an order
granting a nonsuit should be subject to the provisions of Rule
1:1, with or without the existence of a dispute over the
propriety of granting the nonsuit. A plaintiff has an absolute
right under Code § 8.01-380 to one nonsuit. Nash v. Jewell, 227
Va. 230, 237, 315 S.E.2d 825, 829 (1984). "The election is his
and if he insists upon taking the nonsuit within the limitations
imposed by the statute, neither the trial court nor opposing
counsel can prevent him from doing so." 6 Id. Furthermore, when
a court enters a nonsuit order, the case becomes "concluded as
to all claims and parties," and "nothing remain[s] to be done."
Dalloul v. Agbey, 255 Va. 511, 515, 499 S.E.2d 279, 282 (1998).
Hence, the concept of nonsuit is sufficiently imbued with the
attributes of finality to satisfy the requirements of Rule 1:1.
6
None of the limitations imposed by Code § 8.01-380 is
applicable to the present case.
8
Absent some badge of finality, a nonsuit order would be
left hanging in the balance, with unintended results. As noted
in Wells, supra, the nonsuit statute contains a number of
limitations on a party's absolute right to take a voluntary
nonsuit, and if a nonsuit is allowed in violation of those
limitations, appellate review must be available to correct the
error. 237 Va. at 251, 377 S.E.2d at 383. The same
considerations apply to Rule 1:1. If such a violation occurs, a
trial court should have the opportunity provided by Rule 1:1 to
correct the error.
Here, as noted previously, each of the trial court's orders
of November 8, 2000, although entered within the 21-day period
following entry of the nonsuit orders, merely required Duncan to
appear on December 21, 2000, to show cause why she should not be
held in contempt and then provided that the matter was continued
on the trial court's docket. The November 8 orders were
completely ineffective to vacate or suspend the nonsuit orders
within the intendment of Rule 1:1. "The running of time under
[Rule 1:1] may be interrupted only by the entry, within the 21-
day period after final judgment, of an order suspending or
vacating the final order." Berean Law Group, P.C. v. Cox, 259
Va. 622, 626, 528 S.E.2d 108, 111 (2000) (quoting School Bd. of
the City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va.
550, 556, 379 S.E.2d 319, 323 (1989)); see also Super Fresh Food
9
Markets of Virginia, Inc. v. Ruffin, No. 011230, slip op. at 11
(April 19, 2002) (order entered after entry of final judgment
but within twenty-one days and stating trial court "shall retain
jurisdiction" over action until it ruled on motion for
reconsideration held ineffective to extend period of trial
court's jurisdiction because order did not modify, vacate, or
suspend final judgment). 7
Duncan maintains that once the 21-day period expired
without the entry of orders suspending or vacating the nonsuit
orders, the trial court lost jurisdiction to take the actions
that followed and each action was a mere nullity. James argues
on the other hand that the trial court retained jurisdiction
after entry of the nonsuit orders for consideration of pending
motions and enforcement of its prior orders by contempt. 8
We have not found any decision directly on point involving
the question whether a trial court retains post-nonsuit
jurisdiction to consider pending motions and enforcement of its
prior orders. We have found several decisions involving the
7
We also said in Super Fresh that an order which both
renders judgment and "retains jurisdiction to reconsider the
judgment or to address other matters still pending," is not a
final order under Rule 1:1 and does not commence the running of
the 21-day period. Slip Op. at 7-8 (distinguishing Concerned
Taxpayers v. County of Brunswick, 249 Va. 320, 455 S.E.2d 712
(1995)).
8
Code § 18.2-456, related to "[c]ases in which courts and
judges may punish summarily for contempt," is not at issue in
this case.
10
interplay between the 21-day rule and orders imposing sanctions
that we consider highly persuasive, if not well-nigh conclusive.
With respect to James' argument concerning pending motions,
we assume he refers to his motions for sanctions, which were
pending on the twenty-first day following entry of the nonsuit
orders. However, we have said that "[n]either the filing of
post-trial or post-judgment motions, nor the court's taking such
motions under consideration, nor the pendency of such motions on
the twenty-first day after final judgment, is sufficient to toll
or extend the running of the 21-day period prescribed by Rule
1:1." Berean Law Group, 259 Va. at 626, 528 S.E.2d at 111
(emphasis added).
With respect to James' argument concerning the trial
court's retention of jurisdiction to enforce its prior
orders, we assume James refers to the orders requiring
Duncan to produce the infants for independent medical
examination. However, in Murray v. Hadid, 238 Va. 722, 385
S.E.2d 898 (1989), final judgment was entered on May 4,
1988, and the trial court heard the appellant's motion for
sanctions on May 26, 1988, more than twenty-one days after
entry of final judgment. The trial court denied the motion
for sanctions. We approved the denial, stating that "after
twenty-one days elapsed [following entry of final
11
judgment], the trial court no longer had jurisdiction over
the matter." Id. at 733, 385 S.E.2d at 905.
Similarly, in Smith v. Stanaway, 242 Va. 286, 410
S.E.2d 610 (1991), final judgment was entered in favor of
the defendant on September 18, 1990. Within twenty-one
days, on September 25, 1990, the defendant filed a motion
for sanctions, and on October 24, 1990, well past the
twenty-one day period, the trial court awarded sanctions.
We reversed, stating as follows:
[T]he September 18 order was final [and this]
means that the trial court was without jurisdiction to
enter the October 24 order of sanctions. Rule 1:1
provides that final judgments remain under the control
of the trial court for only 21 days unless modified,
vacated, or suspended during that time. . . .
Consequently, we will annul the award of
sanctions and dismiss the appeal as improvidently
awarded.
Id. at 289-90, 410 S.E.2d at 612.
We agree with Duncan that once the twenty-one day
period expired in this case without the entry of orders
vacating or suspending the nonsuit orders, each action of
the trial court taken thereafter was a nullity. See Davis
v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996)
(after expiration of 21-day period following entry of final
judgment, trial court was divested of jurisdiction and each
12
action taken thereafter to alter or vacate final order was
a nullity).
But, James argues, this view of the matter overlooks
this Court's decision in Eddens v. Eddens, 188 Va. 511, 50
S.E.2d 397 (1948). There, James says, we recognized the
inherent power of a court to punish a party in a contempt
proceeding for a willful refusal to obey a lawful decree
despite the fact that the decree had become final. Id. at
521, 50 S.E.2d at 402.
Eddens is inapposite because it involved an entirely
different legal and factual setting. The case involved the use
in a divorce case of a rule requiring a husband to show cause
why he should not be held in contempt for his failure to pay an
outstanding obligation for court costs and attorney's fees
awarded the wife in the final decree of divorce entered ten
years previously. We said this late use of the trial court's
inherent power was proper because the rule to show cause was
"ancillary to and in support of the divorce suit and its
decrees." Id.
Here, once the nonsuit orders became final upon expiration
of the 21-day period, there was nothing to which a rule to show
cause could be ancillary or of which it could be supportive. At
that point, no outstanding obligation existed, the motions for
judgment brought on behalf of the infants had been dismissed,
13
the orders for independent medical examination had been
superseded, the cases had been "concluded as to all claims and
parties," and "nothing remained to be done." Dalloul, 255 Va. at
515, 499 S.E.2d at 282.
Because the trial court lost jurisdiction to take the
actions that followed the expiration of the 21-day period after
entry of the nonsuit orders, we will reverse the judgment
appealed from, reinstate the nonsuit orders, and enter final
judgment in favor of Duncan.
Reversed and final judgment.
14