Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
THE BEREAN LAW GROUP,
P.C., ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 991641 April 21, 2000
DAVIE L. COX
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
In this appeal, we consider whether the circuit court had
control over a final order when it entered a later order
permitting a plaintiff to take a voluntary nonsuit.
Plaintiff, Davie L. Cox, filed his motion for judgment
against The Berean Law Group, P.C., David T. Daulton, Brett
Lucas, Davis & Brynteson, P.C., Douglas W. Davis, Mark D.
Brynteson, and Richard L. Popp. The plaintiff alleged that
the defendants, who are either attorneys or professional
corporations, committed acts of legal negligence against him
when they represented him in a prior action against his former
employer.
The defendants filed demurrers to the plaintiff's motion
for judgment. The circuit court ruled during a hearing on
August 25, 1998, that it would sustain the demurrers and that
the plaintiff would be permitted to file an amended motion for
judgment. The circuit court also ruled on other motions
during the hearing, including the defendants' motion to compel
the plaintiff to produce certain documents. The plaintiff
advised the circuit court that he was required, pursuant to
the terms of a settlement agreement, to give notice to counsel
for his former employer before producing certain documents
which were the subject of the motion to compel. The circuit
court granted the defendants' motion to compel, but permitted
the plaintiff to comply with the terms of the confidentiality
provisions in the settlement agreement.
The circuit court entered two orders on September 24,
1998. Both orders were endorsed by counsel. One order
sustained the defendants' demurrers and permitted the
plaintiff to file an amended motion by a certain date. This
order stated in relevant part:
"It is ORDERED that the Demurrers to the Motion
for Judgment filed on behalf of [the defendants] be,
and . . . hereby are, SUSTAINED and that plaintiff's
action against [the defendants] shall STAND
DISMISSED unless on or before September 17, 1998,
the plaintiff shall file an Amended Motion for
Judgment which is sufficient in law, leave to file
such an Amended Motion for Judgment being hereby
GRANTED."
The other order, captioned "ORDER FOR PRODUCTION AND
PROTECTIVE ORDER" stated in relevant part:
"Plaintiff's counsel having represented to the
court that [a] confidentiality agreement requires
the plaintiff to give notice to counsel [for certain
parties] in the event that production of documents
subject to said agreement are sought in a judicial
proceeding, it is FURTHER ORDERED that this order
shall be, and it hereby is, SUSPENDED for thirty
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days following its entry, during which thirty day
period plaintiff's counsel shall promptly provide
. . . the notice required by the aforesaid
confidentiality agreement and a copy of this order."
Also, on September 24, 1998, counsel for plaintiff and
defendants had a telephone conference with the circuit court.
During that conference, the circuit court agreed to extend the
time in which the plaintiff would be required to file his
amended motion for judgment. The plaintiff claims that the
court ruled during this telephone conversation that he was
entitled to file an amended motion for judgment no later than
November 16, 1998. The defendants claim that the plaintiff
was required to file an amended motion for judgment no later
than October 30, 1998. The circuit court had no recollection
of the extension date. Neither counsel for plaintiff nor
defendants requested that the circuit court enter an order
suspending, modifying, or vacating the September 24, 1998
order which sustained the demurrers.
On November 16, 1998, plaintiff delivered a "Notice and
Amended Motion for Judgment" to the clerk of the circuit
court. On December 8, 1998, the defendants filed a "Joint
Motion to Reject and to Dismiss Plaintiff's Amended Motion for
Judgment and to Remove Action from Court's Docket" because
more than 21 days had elapsed following the entry of the
September 24, 1998 order that sustained the demurrers. On
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December 18, 1998, the plaintiff filed a motion for a nonsuit.
The defendants opposed the motion. The circuit court
considered memoranda and argument of counsel and entered an
order dated April 1999 that permitted the plaintiff to nonsuit
his action. The defendants appeal.
Rule 1:1 states in part:
"All 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. . . . The
date of entry of any final judgment, order, or
decree shall be the date the judgment, order, or
decree is signed by the judge."
The defendants argue that the circuit court could not
consider the plaintiff's motion for a nonsuit because the
court lost control over the plaintiff's action 21 days after
the entry of the September 24, 1998 order that sustained the
demurrers. Responding, the plaintiff argues that the
September 24, 1998 order which granted him leave to file an
amended motion was not a final order. Continuing, the
plaintiff asserts that this order was modified, vacated, or
suspended within the intendment of Rule 1:1 by the "ORDER FOR
PRODUCTION AND PROTECTIVE ORDER." We disagree with the
plaintiff.
It is the well-established law of this Commonwealth that
a circuit court speaks only through its written orders.
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Austin v. Consolidation Coal Co., 256 Va. 78, 81, 501 S.E.2d
161, 162 (1998); Walton v. Commonwealth, 256 Va. 85, 94, 501
S.E.2d 134, 140, cert. denied, 525 U.S. 1046 (1998); Davis v.
Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996); Town of
Front Royal v. Front Royal and Warren County Industrial Park
Corp., 248 Va. 581, 586, 449 S.E.2d 794, 797 (1994); Robertson
v. Superintendent of the Wise Correctional Unit, 248 Va. 232,
235 n.*, 445 S.E.2d 116, 117 n.* (1994). Additionally, an
order of the circuit court becomes final 21 days after its
entry unless modified, vacated, or suspended by the court
during that time. Rule 1:1.
We have stated 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 . . . . 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."
School Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556,
379 S.E.2d 319, 323 (1989) (citations omitted); accord Wagner
v. Shird, 257 Va. 584, 587, 514 S.E.2d 613, 614-15 (1999).
Moreover, an order that sustains a demurrer and dismisses the
case if the plaintiff fails to amend his motion for judgment
within a specified time becomes a final order upon the
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plaintiff's failure to file an amended motion within the
specified time. Norris v. Mitchell, 255 Va. 235, 239, 495
S.E.2d 809, 811 (1998); accord Bibber v. McCreary, 194 Va.
394, 395, 73 S.E.2d 382, 383 (1952); London-Virginia Mining
Co. v. Moore, 98 Va. 256, 257, 35 S.E. 722, 723 (1900).
The plaintiff, relying upon Norris, argues that the
circuit court did not lose control over the September 24, 1998
final order and, thus, his nonsuit motion was timely. We
disagree. In Norris, the circuit court held that a motion for
judgment failed to state a cause of action, and the court
sustained the defendants' demurrers and dismissed the action
in a written order entered June 20, 1996. This order granted
the plaintiffs leave to file an amended motion on or before
July 8, 1996. Three days before the July 8 deadline, the
plaintiffs filed a motion for a nonsuit which the court
granted in a written order entered on July 15, 1996. The
order granting the nonsuit was entered more than 21 days after
the June 20 order, but less than 21 days after the July 8
deadline. Norris, 255 Va. at 238, 495 S.E.2d at 811. We held
in Norris that the circuit court's written order that gave the
plaintiffs leave to file an amended motion for judgment could
not have become final until the July 8 deadline. Thus, the
circuit court had 21 days after that time in which to modify,
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vacate, or suspend its order, and the circuit court did so by
entering its order of nonsuit. Id. at 239, 495 S.E.2d at 811.
Unlike Norris, the plaintiff in this action filed his
nonsuit motion after the circuit court lost control of the
September 24, 1998 order pursuant to Rule 1:1. No written
order was entered that modified, vacated, or suspended the
circuit court's September 24, 1998 order sustaining the
demurrers. Additionally, the express language contained in
that order states that the "plaintiff's action against [the
defendants] shall STAND DISMISSED unless on or before
September 17, 1998, the plaintiff shall file an Amended Motion
for Judgment," which the plaintiff failed to do.
It is true, as the plaintiff asserts, that the circuit
court agreed orally during a telephone conference with all
counsel to permit the plaintiff to file an amended motion for
judgment on a date later than the date specified in the
September 1998 written order. However, the circuit court's
oral ruling cannot nullify its written final order, and it was
incumbent upon the plaintiff to submit timely a written order
to the circuit court suspending, modifying, or vacating the
September 24, 1998 order sustaining the demurrers.
The plaintiff argues that the "ORDER FOR PRODUCTION AND
PROTECTIVE ORDER" modified, vacated, or suspended the
September 24, 1998 order that sustained the demurrers and
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granted him leave to amend. Continuing, the plaintiff says
that one of the purposes of the "ORDER FOR PRODUCTION AND
PROTECTIVE ORDER" was to permit him to obtain certain
confidential information that he needed to plead certain facts
in his amended motion for judgment. The plaintiff also
contends that the "ORDER FOR PRODUCTION AND PROTECTIVE ORDER,"
when read with the order sustaining the demurrers, creates an
ambiguity, and, hence, the "ORDER FOR PRODUCTION AND
PROTECTIVE ORDER" must be viewed as granting an extension of
time in which he had to file his amended motion for judgment.
The plaintiff's contentions are without merit. We have
reviewed both orders, and we conclude that the so-called
"ORDER FOR PRODUCTION AND PROTECTIVE ORDER" did not vacate,
modify, or suspend the circuit court's order fixing the time
within which the plaintiff was required to file his amended
motion for judgment. Furthermore, no ambiguity exists between
the two orders.
Finding no merit in the plaintiff's remaining arguments,
we hold that the circuit court did not have control of the
final order when it entered the written order granting the
plaintiff's motion for a nonsuit. Accordingly, we will
reverse the order of nonsuit, and we will enter final judgment
on behalf of the defendants.
Reversed and final judgment.
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