Fredericksburg Construction Co. v. J.W. Wyne Excavating, Inc.

Present: All the Justices

FREDERICKSBURG CONSTRUCTION COMPANY, INC.
OPINION BY
v. Record No. 992259 JUSTICE LAWRENCE L. KOONTZ, JR.
June 9, 2000
J.W. WYNE EXCAVATING, INC.

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
J. Peyton Farmer, Judge

In this appeal we consider whether the trial court properly

denied a motion to vacate a judgment that a defendant contended

was void because the judgment had been entered without proper

notice.

BACKGROUND

On January 19, 1994, Fredericksburg Construction Company,

Inc. (Fredericksburg), filed a motion for judgment against J.W.

Wyne Excavating, Inc. (Wyne), alleging breach of contract for

failure to complete certain subcontracting work and seeking

damages of $21,419.72. 1 On February 28, 1994, Wyne filed a

demurrer, grounds of defense, and a counterclaim asserting that

Fredericksburg was indebted to Wyne for completed work under the

subcontracts in the amount of $108,038.07. On March 22, 1994,

1
In the caption of the motion for judgment, Fredericksburg
listed its address as “P.O. Box 172, Lorton, Virginia” and in
the text of that motion Fredericksburg listed its address as
“7000 E. Newington Road, Lorton, Virginia.” The significance of
these addresses will become apparent later in this opinion.
Fredericksburg filed a response to the demurrer and its grounds

of defense to the counterclaim alleging payment of the claimed

debt.

On May 19, 1994, the trial court sustained Wyne’s demurrer

to the motion for judgment. Fredericksburg was given leave to

file an amended motion for judgment and amended grounds of

defense to Wyne’s counterclaim. Thereafter, Fredericksburg

filed an amended grounds of defense, but did not file an amended

motion for judgment.

On September 1, 1994, the trial court, for reasons not

reflected in the record, entered an order permitting Wyne to

file a motion for judgment restating the claims of its original

counterclaim and permitting Fredericksburg to respond to that

pleading. Wyne complied by filing a motion for judgment on

September 9, 1994. On September 27, 1994, Fredericksburg filed

its grounds of defense and asserted a counterclaim against Wyne. 2

Thus, while still within the framework of the original

litigation, the roles of the parties had essentially been

reversed.

2
On November 3, 1994, the trial court stayed further
proceedings until the conclusion of a federal court proceeding
arising out of the same acts and transactions in which Wyne was
pursuing a claim against an indemnitor and Fredericksburg had
sought to intervene. Wyne subsequently dismissed its federal
claim.

2
 During these proceedings, the law firm of Arent, Fox,

Kintner, Plotkin & Kahn (Arent Fox) represented Fredericksburg

and the firm name was signed to the pleadings. In accordance

with Rule 1:5, the pleadings were signed by Brian D. Sullivan,

an associate attorney of Arent Fox. In addition, R. Steven

Holt, a partner of this firm, was listed as counsel of record on

several pleadings.

On April 12, 1996, Arent Fox, by R. Steven Holt, filed a

motion to withdraw as counsel alleging that Fredericksburg “has

failed substantially to fulfill obligations to Arent Fox

regarding its services.” The motion further stated that

Fredericksburg had agreed to Arent Fox’s withdrawal from this

case. The motion was signed “By: Brian D. Sullivan for . . .

R.S. Holt, a partner.” The motion was served on Bill Barnes,

Fredericksburg’s president, and on counsel for Wyne.

On April 15, 1996, the trial court entered an order

stating:

Brian D. Sullivan, counsel for Fredericksburg
Construction Company, Inc., requested that he be
allowed to withdraw as counsel of record.

It is ordered that motion to withdraw as counsel
be granted and further that Brian D. Sullivan, VSB
#35268 be and is hereby granted leave to withdraw his
appearance as counsel for [Fredericksburg] in the
action.

Bill Barnes endorsed this order as did counsel for Wyne.

3
 On January 13, 1997, Wyne filed a praecipe seeking a

hearing on January 20, 1997, in order to set a trial date. The

certificate of service reflects that the praecipe was served on

Barnes by mail at “P.O. Box 172, Lorton, Virginia,” which was

one of the addresses listed in Fredericksburg’s original motion

for judgment. January 20, 1997 was a legal holiday and,

accordingly, the trial court was not open on that day. Court

records for January 21, 1997, indicate that the case was called

on the term day docket and was passed over. No indication of an

appearance by either party at that hearing is found in the

record.

On January 27, 1997, Wyne filed another praecipe for a

hearing to set a trial date on April 21, 1997, which was again

served on Barnes by mail at the Lorton post office box address.

Counsel for Wyne appeared on the hearing date and a trial date

of September 25, 1997 was set. A letter from Wyne’s counsel

notifying Fredericksburg of the trial date was sent to Barnes at

the Lorton post office box address and also at 7000 E. Newington

Road, Lorton, Virginia, which was the street address given as

its place of business in Fredericksburg’s original motion for

judgment. 3

3
Wyne subsequently contended that both addresses were
utilized at the direction of the trial court.

4
 On September 25, 1997, Wyne appeared for trial. No

appearance for Fredericksburg, either by a principal or by

counsel, was made at trial. A final order dated October 7,

1997, recites that Wyne “presented evidence sufficient for a

finding by the Court that Fredericksburg Construction Company,

Inc. was duly indebted to J.W. Wyne Excavating, Inc. in the

amount of . . . $85,068.62.” The order further recites that

there was no evidence presented on Fredericksburg’s

counterclaim. Accordingly, the trial court entered judgment for

Wyne, awarded it $85,068.62, and dismissed the counterclaim with

prejudice. Finally, the order recites, in apparent

contemplation of Rule 1:13, that because “[t]he Court announced

its ruling as contained herein in open court. . . endorsement of

this Order by the parties is not required.”

On November 20, 1998, Fredericksburg, appearing with new

counsel, filed a motion to vacate the October 7, 1997 judgment,

asserting for several reasons that this judgment was void. 4 In a

supporting memorandum, Fredericksburg asserted that the April

15, 1996 order granted only Brian D. Sullivan leave to withdraw

and did not relieve Holt or Arent Fox of a continuing duty to

represent Fredericksburg. Thus, Fredericksburg contended that

4
Fredericksburg also sought to quash garnishments that had
been issued on the judgment and to obtain all funds held by the
court pursuant to those garnishments.
5
on January 20, 1997, Joseph M. Sullivan, Frederickburg’s new

counsel, appeared on behalf of Fredericksburg “because Mr. Holt

was unavailable.” 5

Fredericksburg further maintained that it never received

from Wyne the subsequent notice of the new hearing date or the

letter containing notice of the trial date. In addition,

Fredericksburg contended that the service of these two notices

had been defective because Arent Fox was its counsel of record

and those notices had not been served on Arent Fox in accordance

with the provisions of Code § 8.01-314. Fredericksburg further

contended that, assuming it was not represented by counsel,

service by first class mail on a principal of the corporation

was insufficient under the provisions of Code § 8.01-299.

Finally, Fredericksburg asserted that under the circumstances of

this case the entry of the final order without endorsement was

an abuse of the discretion afforded to the trial court under

Rule 1:13.

5
Fredericksburg conceded at the hearing in the trial court
on its motion that Joseph M. Sullivan is not associated with
Arent Fox and did not appear on its behalf. Rather,
Fredericksburg retained him after Holt declined to resume the
representation. Moreover, as indicated above, the record does
not reflect an appearance by either party on January 20, 1997, a
legal holiday, or on the day following when the case was
actually called on the trial court’s term day docket.

6
 Wyne responded by brief asserting that the record clearly

indicated that the trial court’s order granting the motion to

withdraw applied to Arent Fox and to all its members and

associates. Wyne further asserted that service by mail on a

principal of a corporation appearing pro se was proper under

Code § 8.01-319. Fredericksburg filed a reply brief asserting

that Wyne’s reliance on Code § 8.01-319 was misplaced because a

corporation could not appear pro se in a circuit court.

On March 12, 1999, the parties appeared for a hearing on

Frederickburg’s motion to vacate the judgment. At that hearing,

the parties’ arguments conformed to the positions outlined

above. Referring to the effect of the April 15, 1996 order, the

trial court stated that “[i]t certainly was the intent of the

Court . . . because the Court found at that time — and the Court

finds here again today — that [Fredericksburg] was not

represented by Arent Fox.” The trial court further found that

Fredericksburg “had all of the notice that it was entitled to,”

and because Fredericksburg was without counsel there was no

requirement for any endorsement on the final order. On June 23,

1999, the trial court entered an order denying Fredericksburg’s

motion. We awarded Fredericksburg this appeal.

DISCUSSION

On appeal, the parties essentially repeat the contentions

made before the trial court. We will address those contentions

7
in turn. Fredericksburg first contends that “[n]o written order

in the Record grants leave to withdraw by Mr. Holt, or Arent

Fox.” This is so, Fredericksburg maintains, because “[w]hile

[the] Motion filed by Arent Fox may have well intended to

withdraw the firm and both Mr. Holt and Mr. [Brian D.] Sullivan,

the Order entered by the Court only granted leave to withdraw to

Brian Sullivan.” 6

“It is the firmly established law of this Commonwealth that

a trial court speaks only through its written orders.” Davis v.

Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). We further

acknowledge, as has the Court of Appeals of Virginia, the

general principle that trial courts have the authority to

interpret their own orders. See Rusty’s Welding Service, Inc.

v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999).

“Furthermore, when construing a lower court’s order, a reviewing

court should give deference to the interpretation adopted by the

lower court.” Id. at 129, 510 S.E.2d at 260.

6
In support of its argument on this issue in the trial
court, Fredericksburg procured an affidavit from Holt in which
he states that “[a]s [he] read[s] the Order entered on April 15,
1996 . . . only Brian Sullivan was removed as counsel for
[Fredericksburg].” Fredericksburg further asserted in argument
to the trial court that Sullivan had withdrawn from the case
because he was leaving Arent Fox and “moved to Georgia or
Florida to practice law.” Neither of these statements is
relevant to our interpretation of the trial court’s April 15,
1996 order.

8
 Here in its summation, the trial court made clear that its

April 15, 1996 order was intended to relieve Arent Fox from its

responsibility as counsel for Fredericksburg. That

interpretation of this order is supported by the record. There

is no dispute, nor can there be, that the order was entered

pursuant to the motion to permit Arent Fox to withdraw as

counsel. The motion clearly requests that “the law firm” of

Arent Fox be permitted to withdraw as counsel for

Fredericksburg. It is the order granting that motion that

admittedly is not artfully drawn. However, whatever the effect

of the language in the final sentence of the order expressly

permitting Brian D. Sullivan “to withdraw his appearance as

counsel for [Fredericksburg] in the action,” the first clause of

that sentence addresses the motion of Arent Fox to withdraw. 7

Accordingly, we will not disturb the trial court’s

interpretation of this order on appeal.

We turn now to Fredericksburg’s contention that even if it

became unrepresented as a result of the April 15, 1996 order,

the manner of service of the notice of the January 27, 1997

7
Assuming that we were to accept Frederickburg’s assertion
that Brian D. Sullivan was terminating his employment with Arent
Fox at the time this order was entered, it would be self-evident
that the second clause of the final sentence was added to make
clear that Sullivan would not continue his representation of
Fredericksburg after he left the firm.

9
praecipe and the subsequent notice of the trial date were

ineffective because the service was not in accord with the

provisions of Code § 8.01-299. As previously noted, Wyne

contends that when Fredericksburg became unrepresented following

the entry of the April 15, 1996 order, it was thereafter subject

to the provisions of Code § 8.01-319(A). We agree with Wyne.

In addressing Fredericksburg’s contention with regard to

the applicability of Code § 8.01-299 following the withdrawal of

its counsel, the procedural posture of the case is signficant.

Although Fredericksburg initially invoked the jurisdiction of

the trial court by filing its motion for judgment against Wyne,

thereafter, as we have previously noted, the roles of the

parties became reversed. By leave of the trial court, Wyne

filed a motion for judgment against Fredericksburg on September

9, 1994, and Fredericksburg filed its grounds of defense and

counterclaim on September 27, 1994. At that point the parties

were properly before the trial court and subject to its

jurisdiction to direct further proceedings in the matter,

including the method by which reasonable notice was to be given

for those proceedings where the manner of providing that notice

is not otherwise specified by statute or rule.

The further proceedings critical to our consideration here

are the January 27, 1997 praecipe and the setting of the

September 25, 1997 trial date. There is no dispute that this

10
trial court employs the praecipe system for the orderly

management of its docket as permitted by Rule 1:15. That rule,

however, does not prescribe the manner in which the praecipe is

to be served on a domestic corporation that has become

unrepresented by counsel, as in the present case. See also Rule

1:12. Nevertheless, we disagree with Fredericksburg’s

contention that Code § 8.01-299 then becomes applicable and

prescribes the manner in which notice must be given.

Although the term “process” is deemed to include “notice,”

Code § 8.01-285, we are of opinion that Code § 8.01-299, which

provides for how process “may” be served on a domestic

corporation, is not applicable in the procedural context under

consideration here. The thrust of Code § 8.01-299 concerns the

initial service of process on a domestic corporation rather than

interim service of notice for subsequent hearings and other

proceedings, such as the filing of a praecipe, after the parties

are properly before the court. See Frey v. Jefferson

Homebuilders, Inc., 251 Va. 375, 380, 467 S.E.2d 788, 790

(1996)(holding Code § 8.01-299 does not provide the exclusive

manner in which a domestic corporation may be served with

process).

In contrast, Code § 8.01-319(A), which governs the manner

for giving interim notice following institution of an action in

certain circumstances, provides, in pertinent part, that:

11
 [a] party, who appears pro se in an action, shall file
with the clerk of the court in which the action is
pending a written statement of his place of residence
and mailing address, and shall inform the clerk in
writing of any changes of residence and mailing
address during the pendency of the action. The clerk
and all parties to the action may rely on the last
written statement filed as aforesaid. The court in
which the action is pending may dispense with such
notice for failure of the party to file the statement
herein provided for or may require notice to be given
in such manner as the court may determine.

The failure of a party who is unrepresented to provide an

address sufficient to ensure such notice may prevent a case from

proceeding in an orderly manner. See Byrum v. Lowe & Gordon,

Ltd., 225 Va. 362, 363-64, 302 S.E.2d 46, 47 (1983).

Accordingly, an unrepresented litigant who wishes to be informed

of the proceedings must either keep the court advised of where

service may be accomplished or retain counsel upon whom service

may be had. See Eddine v. Eddine, 12 Va. App. 760, 764, 406

S.E.2d 914, 917 (1991). We see no reason why this rule should

not apply to corporations as well as natural persons. We also

agree with the Court of Appeals’ holding in Eddine that the

application of Code § 8.01-319 is not limited to those cases

initiated by publication. Id. at 764 n.2, 406 S.E.2d at 917

n.2.

At the time Fredericksburg became unrepresented, the Lorton

street address had been listed as its place of business and the

Lorton post office box address was also given as its mailing

12
address in its initial pleading. Because there was no statement

filed pursuant to Code § 8.01-319 at the time Fredericksburg

became unrepresented or thereafter, Wyne was entitled to rely

upon the addresses given by Fredericksburg in its pleadings as

being accurate until such time as Fredericksburg filed such a

statement or entered an appearance with new counsel. Cf.

Soliman v. Soliman, 12 Va. App. 234, 240, 402 S.E.2d 922, 926-27

(1991)(holding that giving address in pleadings is sufficient to

satisfy requirement of § 8.01-319(A)). In the absence of such a

statement being filed, the manner of service of notice rested

with the discretion of the trial court. The trial court found

that the notice given to Fredericksburg was reasonable and

adequate, and we find no abuse of the trial court’s discretion

in that determination.

Finally, Fredericksburg contends that the trial court’s

order awarding judgment to Wyne is void because the trial court

abused its discretion in entering that order without endorsement

of counsel pursuant to Rule 1:13. We disagree.

As applicable at the time of these proceedings, Rule 1:13

provided, in pertinent part, as follows:

Drafts of orders and decrees shall be endorsed by
counsel of record, or reasonable notice of the time
and place of presenting such drafts together with
copies thereof shall be served by delivering or
mailing to all counsel of record who have not endorsed
them. Compliance with this rule . . . may be modified
or dispensed with by the court in its discretion.

13
 This rule is designed to protect parties who are without

notice of a proceeding. State Hwy. Comm’r v. Easley, 215 Va.

197, 201, 207 S.E.2d 870, 873 (1974). “However, the mere fact

that an order may have been entered without endorsement of

counsel of record does not automatically render it void. The

last sentence of Rule 1:13 authorizes the trial court in its

discretion to modify or dispense with the requirement of

endorsement of counsel.” Davis, 251 Va. at 147, 666 S.E.2d at

93.

Here, the trial court properly found that Fredericksburg

was not represented by counsel at the time the final order was

entered. Moreover, the record supports the trial court’s

finding that Fredericksburg had failed to appear for trial after

due notice. In such circumstances, entry of a final order

without endorsement by an unrepresented party does not

constitute an abuse of the trial court’s discretion under Rule

1:13.

CONCLUSION

For these reasons, we hold that the trial court did not err

in this case and will affirm the judgment of the trial court

denying the motion to vacate the judgment and quash

garnishments.

Affirmed.

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