Present: All the Justices
KIMBERLEY M. GILPIN
OPINION BY
v. Record No. 981801 JUSTICE LAWRENCE L. KOONTZ, JR.
April 16, 1999
KEVIN CHARLES JOYCE
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
The dispositive issue in this appeal is whether a defendant
who makes a general appearance without having been served with
process is entitled to assert the bar against judgment provided
by our Rule 3:3.
The parties have stipulated to the facts and proceedings in
the trial court. On June 20, 1996, Kimberley M. Gilpin filed a
motion for judgment seeking damages from Leslie Mae Dailey and
Kevin Charles Joyce for injuries Gilpin alleged she had received
in an automobile accident on June 23, 1994. Gilpin did not
request service of process on either defendant.
On October 30, 1997, Joyce, by counsel, filed a “motion to
dismiss” citing that part of Rule 3:3 which provides:
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.[ 1 ]
1
A similar provision appears in Rule 2:4 applicable to
pleadings in chancery suits.
Joyce also filed grounds of defense, a counterclaim arising out
of the same automobile accident, a certificate of service of
interrogatories, and a motion to produce. Joyce had never been
served with a notice of motion for judgment.
On December 1, 1997, the trial court granted Gilpin’s
motion for a nonsuit of her claims against Dailey. 2 On that same
day, the trial court heard oral argument on Joyce’s motion to
dismiss. At that hearing, it was stipulated that Gilpin had not
exercised due diligence in order to obtain service of process on
Joyce. Thereafter, in accord with a request from the trial
court, the parties filed briefs stating their respective
positions on the issue of dismissal of Gilpin’s action.
On May 29, 1998, the trial court entered an order
sustaining Joyce’s motion and dismissing Gilpin’s motion for
judgment with prejudice. We awarded Gilpin this appeal.
“An appearance for any other purpose than questioning the
jurisdiction of the court—because there was no service of
process, or the process was defective, or the action was
commenced in the wrong county, or the like—is general and not
special, although accompanied by the claim that the appearance
is only special.” Norfolk and Ocean View Railway Co. v.
2
On brief, Gilpin correctly states that she was prohibited
from taking a nonsuit of her claims against Joyce because of his
counterclaim against her. See Code § 8.01-380(C).
2
Consolidated Turnpike Co., 111 Va. 131, 136, 68 S.E. 346, 348
(1910)(emphasis added). Joyce did not make a special
appearance. Rather, by filing a grounds of defense and a
counterclaim, Joyce made a general appearance in the trial court
proceedings. Indeed, on brief, Joyce concedes this is so. A
general appearance “is a waiver of process, equivalent to
personal service of process, and confers jurisdiction of the
person on the court.” Nixon v. Rowland, 192 Va. 47, 50, 63
S.E.2d 757, 759 (1951).
In 1977, the General Assembly enacted Code § 8.01-277,
which provides in pertinent part that:
A person, upon whom process to answer any action
has been served, may take advantage of any defect in
the issuance, service or return thereof by a motion to
quash filed prior to or simultaneously with the filing
of any pleading to the merits.
(Emphasis added.)
Under familiar principles, because this statute is in
derogation of the common law, we will strictly construe it. By
its express terms, this statute applies only where process has
actually been served on the defendant. Thus, this statute does
not permit Joyce to simultaneously make a general appearance and
assert the protection of the bar provided in Rule 3:3 because he
was not served with process. Joyce’s general appearance was
entirely voluntary.
3
We reach the same conclusion with regard to Rule 3:3 under
the circumstances of this case. By its express terms, this rule
applies only where there has been service of process. As we
have noted, Joyce made a voluntary general appearance without
having been served with process.
Joyce contends, however, that his general appearance more
than one year after the commencement of an action should be
equivalent to a service of process more than one year after the
commencement of an action. Thus, he asserts that he is entitled
to the protection of Rule 3:3. The bedrock of Joyce’s position
is that, because the trial court had not obtained personal
jurisdiction over him within one year following commencement of
Gilpin’s action, Rule 3:3 serves as an absolute bar to any
judgment being entered against him. We disagree.
It is true that a voluntary general appearance subjects a
defendant to the jurisdiction of the trial court and, thus, may
be considered “equivalent to personal service of process.”
Nixon, supra. However, unlike a defendant who makes a voluntary
appearance, a defendant actually served with process is under a
compulsion to make an appearance or suffer a default judgment.
Thus, in Gilbreath v. Brewster, 250 Va. 436, 463 S.E.2d 836
(1995), we held that the defendants, who were actually served
with process more than one year after commencement of the action
against them, were entitled to dismissal of the claim against
4
them with prejudice under Rule 3:3 while still maintaining a
counterclaim and a third-party claim. Id. at 441-42, 463 S.E.2d
at 838.
The distinction between the facts in Gilbreath and those in
the present case is that in the former case service of process
was actually secured on the defendants and, thus, their
appearance was necessary to avoid default. Here, Joyce was
under no such compulsion. We believe that this is the very
distinction the legislature intended to create when it enacted
Code § 8.01-277 permitting only a defendant who has been
actually served with process to raise specific jurisdictional
challenges prior to or simultaneously with the filing of any
pleading to the merits. This same distinction is consistent
with the express terms of Rule 3:3 and our holding in this
appeal. 3
3
We recognize that in Dennis v. Jones, 240 Va. 12, 393
S.E.2d 390 (1990), we held that where substituted service of
process through the Department of Motor Vehicles was ineffective
and, thus, personal jurisdiction was not obtained over the
defendant, the resulting default judgment would be set aside and
the motion for judgment would “be dismissed under Rule 3:3
because it had been pending since 1987 and defendant has not
been served with valid process.” Id. at 20, 393 S.E.2d at 395
(emphasis added). Unlike the present case, in Dennis the
plaintiff made an actual attempt to serve process, and the
defendant was subsequently required to appear in order to
contest the resulting default judgment against her. Here,
however, Joyce’s appearance was entirely voluntary.
5
For these reasons, the judgment of the trial court will be
reversed, Gilpin’s motion for judgment will be reinstated, and
the matter will be remanded for a trial on the merits of the
motion for judgment and on Joyce’s counterclaim.
Reversed and remanded.
6