Present: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons,
JJ., and Whiting, S.J.
LAURIE F.S. WATERMAN
v. Record No. 000260 OPINION BY
SENIOR JUSTICE HENRY H. WHITING
SANDY (BUTLER) HALVERSON, ET AL. January 12, 2001
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
In this appeal we consider whether the trial court erred
in dismissing plaintiff's motion for judgment as untimely
filed based on its construction of Code § 8.01-275.1.
Laurie F.S. Waterman filed a medical malpractice action
against Sandy (Butler) Halverson, Michelle "Roe" McCormick,
Riverside Hospital, Inc., Nancy Couleman, and Paul Rein in the
Circuit Court of the City of Portsmouth (the defendants). 1
More than twelve months after the filing of this action,
Waterman sought and was granted a nonsuit. The defendants
were not served with process and had no notice of the nonsuit
motion or order granting the motion.
On October 3, 1997, less than six months after the
nonsuit was granted but more than two years after Waterman's
medical treatments ended, Waterman filed this action against
the same parties in the same court and promptly had the
1
Other named defendants, Janine Mooney, Riverside
Regional Medical Center, and James River Anesthesia
defendants served with process. Later, by agreement, the case
was transferred to the Circuit Court of the City of Newport
News.
The defendants filed pleas in bar asserting that the case
should be dismissed on various theories. Following
consideration of the parties' briefs and oral arguments on the
defendants' pleas in bar, the trial court concluded that the
action was barred by the statute of limitations and dismissed
the motion for judgment with prejudice. The trial court's
decision was based on its conclusion that Code § 8.01-275.1
was enacted to "eliminate the problems that the Supreme Court
addressed in Clark v. [Butler Aviation, 238 Va. 506, 385
S.E.2d 847 (1989)]." 2 Adopting a theory advanced by some of
the defendants, the trial court construed Code § 8.01-275.1 to
"eliminate the problems" by providing that service of process,
if not completed within one year of the filing of an action,
was "untimely," and, under those circumstances, the "only
authority the Court should have is to determine if due
diligence was exercised to have timely service effected on the
defendants." Applying that construction of Code § 8.01-275.1
Associates, Inc., were dismissed prior to entry of the trial
court's judgment.
2
Clark involved consideration and reconciliation of the
provisions of Rule 3:3(c) and Code §§ 8.01-229(E)(3) and -380.
238 Va. at 508, 385 S.E.2d at 848.
2
to this case, the trial court concluded that because there was
no service of process within twelve months of filing in the
original action, the jurisdiction of the court in that action
was limited to consideration of the plaintiff's due diligence
in effecting service and, therefore, that court had no
jurisdiction to consider the motion for the nonsuit.
On appeal Waterman assigns error to the trial court's
construction of Code § 8.01-275.1. Waterman asserts that the
statute codified Rule 3:3(c) and did not abrogate the holding
in Clark and its progeny. 3 Having reviewed the relevant
statutes, Rule 3:3(c), and case law, we conclude that Code
§ 8.01-275.1 did not limit the jurisdiction of the trial court
as the trial court held and did not abrogate the principles of
Clark and its progeny.
Code § 8.01-275.1 provides:
Service of process in an action or suit
within twelve months of commencement of the
action or suit against a defendant shall be
timely as to that defendant. 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.
3
Although we have not specifically addressed the
construction of the section, we have previously referred to
Code § 8.01-275.1 as a codification of Rule 3:3. Frey v.
Jefferson Homebuilders, Inc., 251 Va. 375, 377 n.1, 467 S.E.2d
788, 789 n.1 (1996); Gilbreath v. Brewster, 250 Va. 436, 442
n.3, 463 S.E.2d 836, 838 n.3 (1995).
3
Rule 3:3(c) provides in pertinent part:
No judgment shall be entered against a
defendant who was served with process more than
one year after the commencement of the action
against him unless the court finds as a fact that
the plaintiff exercised due diligence to have
timely service on him.
Any variance between a rule of court and a subsequently
enacted statute must be construed to give effect to the
statute. Code § 8.01-3(D). However, there is no variance
between Rule 3:3(c) and Code § 8.01-275.1. Both of these
provisions seek to promote a policy of timely prosecution of
law suits and to avoid abuse of the judicial system. The
statute, but not the rule, defines timely service as one year.
However, the rule implies that timely service means service
within one year. Both the rule and the statute allow a
plaintiff to establish the exercise of due diligence to
perfect service within the one year period. Thus, in the
absence of any conflict or variance, there is no reason to
conclude that the enactment of the statute nullified or
invalidated any portion of the rule.
Similarly, there is no basis to conclude that the
enactment of Code § 8.01-275.1 nullified or invalidated the
cases construing Rule 3:3(c). The General Assembly is
presumed to be aware of the decisions of this Court when
enacting legislation. Dodson v. Potomac Mack Sales & Serv.,
4
Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991). In Clark,
decided before the enactment of Code § 8.01-275.1, we held
that failure to comply with the one year service provision of
the rule did not preclude a trial court from granting a
plaintiff's motion for nonsuit and that the refiled action was
entitled to the tolling provisions of Code § 8.01-229(E)(3).
Rule 3:3(c) "forbade entry of any judgment against [the
defendant] in [the original] action, and the action ended with
entry of the order allowing a nonsuit pursuant to Code § 8.01-
380." Clark, 238 Va. at 511, 385 S.E.2d at 849. We have
applied this holding in cases decided subsequent to the
enactment of Clark. See, e.g., Bremer v. Doctor's Bldg.
P'ship, 251 Va. 74, 81, 465 S.E.2d 787, 791 (1996).
In the absence of any action by the General Assembly
addressing or altering the holding in Clark, we can only infer
that the General Assembly did not intend to abrogate, nullify
or otherwise invalidate the rule or case law decided pursuant
to the rule.
The defendants also argue that the court did not have
jurisdiction to enter the nonsuit order because there was no
"active" or "personal" jurisdiction over the defendants in the
original proceeding. This contention was addressed in
McManama v. Plunk, 250 Va. 27, 458 S.E.2d 759 (1995). In that
case, as in this, the defendant had not been served with
5
process when the trial court granted the plaintiff's motion
for a voluntary nonsuit pursuant to Code § 8.01-380. When the
action was refiled, the trial court held the nonsuit order
would be binding on the defendant only if, among other things,
the defendant had been served with process and was "'before a
court with jurisdiction over the defendant's person.'" Id. at
31, 458 S.E.2d at 761. This Court reversed, stating that
these conditions were not a prerequisite to the entry of a
binding order of nonsuit. Id. at 32, 458 S.E.2d at 761.
Thus, 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.
The cases cited by some of the defendants in support of
their position are inapposite because those cases all involve
the authority of the court to enter a valid judgment on the
merits. Here, as in McManama, the nonsuit order was not a
judgment on the merits and the defendants were "not deprived
of any . . . property interest, or prejudiced in any way" by
the nonsuit order. Id. at 35, 458 S.E.2d at 763.
We have considered the other arguments put forth by
defendants in support of the trial court's decision and find
them without merit. Accordingly, for the reasons stated, we
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will reverse the judgment of the trial court and remand the
case for further proceedings.
Reversed and remanded.
7