Lyren v. Ohr

Present: All the Justices

MARILYN LYREN

v. Record No. 050768 OPINION BY JUSTICE CYNTHIA D. KINSER
January 13, 2006
CHRISTOPHER OHR, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge

The issue in this appeal concerns whether a defendant,

who was served with process more than one year after

commencement of an action and did not take advantage of

that defect in service of process by filing a motion in

accordance with Code § 8.01-277, can raise the bar against

judgment in Rule 3:3(c) after having entered a general

appearance by filing a pleading to the merits. Because a

general appearance waives all questions concerning service

of process, we will reverse the judgment of the circuit

court granting a motion to dismiss under Rule 3:3(c).

RELEVANT FACTS AND PROCEEDINGS1

The appellant, Marilyn Lyren, filed a motion for

judgment against Christopher Ohr on December 27, 2002,

seeking damages for personal injuries she allegedly

sustained as a result of an automobile accident. Process

1
The facts are taken from a written statement of
facts filed pursuant to Rule 5:11(c).
was not issued until December 2003. Ohr filed an “Answer

and Grounds of Defense” on January 14, 2004.

Before filing his grounds of defense, Ohr’s attorney

contacted Lyren’s attorney to confirm that proper service

of process had been made upon Ohr. On several occasions

between January 2004 and August 28, 2004, Lyren’s attorney

represented to Ohr’s attorney that Ohr had been timely and

properly served in person with the motion for judgment and

that either a proof of service or an affidavit of service

had been filed with the circuit court. However, no proof

of service or affidavit of service was filed in the circuit

court until August 25, 2004, in response to Ohr’s motion to

quash service of process, which he filed on August 6, 2004.

At that time, Lyren filed an affidavit from a private

process server stating that he had served Ohr personally at

Ohr’s home sometime before December 25, 2003 (he could not

remember the exact date), and that he had filed the proof

of service in the circuit court clerk’s office during the

first week of January 2004. The circuit court denied Ohr’s

motion to quash service of process.

Ohr subsequently filed a motion to dismiss the case

with prejudice under the provisions of Rule 3:3(c). He

asserted that a judgment could not be entered against him

because he had been served with process more than one year

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after commencement of the action.2 After hearing testimony

from the private process server and Ohr, the circuit court

found that service of process on Ohr occurred on January 7,

2004, more than one year after commencement of this action,

and that Lyren presented no evidence that she had exercised

due diligence in attempting to serve Ohr on or before

December 27, 2003. Thus, the circuit court granted Ohr’s

motion and dismissed the case with prejudice pursuant to

the provisions of Rule 3:3(c). Lyren appeals from the

circuit court’s judgment.

ANALYSIS

The sole issue on appeal is whether the circuit

court erred in granting Ohr’s motion to dismiss under

Rule 3:3(c). In relevant part, subsection (c) of Rule

3:3 states:

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.

2
Pursuant to Code § 38.2-2206, Lyren served the
motion for judgment on Assurance Company of America, and
Assurance filed a “Response” on January 21, 2004. In that
response, Assurance questioned whether Ohr had been served
with process within one year of the commencement of the
action and asserted that a judgment therefore could not be
entered against Ohr under the provisions of Rule 3:3(c).

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 Lyren argues that Ohr’s filing a pleading to the

merits constituted a general appearance and thus

waived any defect in service of process. Citing the

provisions of Code § 8.01-277, Lyren contends that, in

order to challenge the defect in the service of

process in this case, namely her failure to serve Ohr

with process within one year of commencement of the

action, Ohr would have been required to raise the

issue in a motion filed prior to or simultaneously

with his answer and grounds of defense.

Ohr counters that the circuit court properly

dismissed this action with prejudice under Rule 3:3(c)

because Ohr was served with process more than one year

after commencement of the action. Continuing, Ohr

argues that the fact he entered an appearance in the

case by filing an answer and grounds of defense did

not waive his right to rely on the provisions of Rule

3:3(c). According to Ohr, Code § 8.01-277 directs the

manner and time for raising defects in the issuance,

service, or return of process; whereas, Rule 3:3(c)

provides the specific consequence for failing to serve

process within one year of commencing an action.

Thus, Ohr argues that the provisions of Code § 8.01-

277 do not impact a defendant’s right to assert the

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bar against judgment provided in Rule 3:3(c) when

service of process is accomplished more than one year

after commencement of an action.

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 service thereof 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 & Ocean View Ry. Co. v. Consolidated Tpk. Co., 111

Va. 131, 136, 68 S.E. 346, 348 (1910); accord Gilpin v.

Joyce, 257 Va. 579, 581, 515 S.E.2d 124, 125 (1999). There

is no question that Ohr entered a general appearance in

this case when he filed an answer and grounds of defense.

See Kiser v. Amalgamated Clothing Workers of Am., 169 Va.

574, 591, 194 S.E. 727, 734 (1938) (pleading the general

issue constitutes a general appearance); Maryland Cas. Co.

v. Clintwood Bank, Inc., 155 Va. 181, 186, 154 S.E. 492,

494 (1930) (any action by a defendant, except an objection

to jurisdiction, recognizing a case as in court amounts to

a general appearance). A general appearance “‘is a waiver

of process, equivalent to personal service of process, and

confers jurisdiction of the person on the court.’” Gilpin,

257 Va. at 581, 515 S.E.2d at 125 (quoting Nixon v.

Rowland, 192 Va. 47, 50, 63 S.E.2d 757, 759 (1951)).

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 The question here is whether Ohr, having made a

general appearance without challenging service of process

made more than one year after commencement of the action in

a motion filed either prior to or simultaneously with his

pleading to the merits, can still invoke the bar against

judgment under Rule 3:3(c). To answer this question, we

must address the interplay between Rule 3:3(c) and Code

§ 8.01-277. That statute states:

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.

Code § 8.01-277.

In Gilpin, we concluded that both Code § 8.01-277

and Rule 3:3(c), by their express terms, apply only

when process has actually been served on a defendant.

257 Va. at 582, 515 S.E.2d at 126. Such was not the

situation in that case. There, the defendant’s

general appearance was entirely voluntary because he

had never been served with a notice of motion for

judgment. Id. at 581, 515 S.E.2d at 125. Thus, we

held Code § 8.01-277 did “not permit [the defendant]

to simultaneously make a general appearance and assert

the protection of the bar provided in Rule 3:3 because

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he was not served with process.” Id. at 582, 515

S.E.2d at 126.

Here, Ohr was served with process; therefore, his

general appearance, unlike that of the defendant in

Gilpin, was not voluntary. Instead he was “under a

compulsion to make an appearance or suffer a default

judgment.” Id. That distinction, however, does not

entitle Ohr to raise a defect in service of process

after he entered his general appearance. Under the

provisions of Code § 8.01-277, Ohr, having been served

with process, was required to assert any defect in

service of process by a motion “filed prior to or

simultaneously with the filing of any pleading to the

merits.” Code § 8.01-277. Lyren’s service of process

upon Ohr more than one year after commencement of this

action constituted a defect in service of process.

Thus, when Ohr failed to take advantage of that defect

in a motion filed prior to or simultaneously with his

pleading to the merits, he waived all defects in the

issuance, service, or return of process. See Moore v.

Green, 90 Va. 181, 184, 17 S.E. 872, 873 (1893) (“[A]

general appearance waives all question of the service

of process.”)

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 Although Ohr alludes to the representations of

Lyren’s attorney that proper service of process had

been effected upon Ohr as his reason for pleading to

the merits of the action, he nonetheless entered a

general appearance without raising the defect in

process by a motion filed at the same time. By doing

so, he waived the protection of the bar against

judgment set forth in Rule 3:3(c). His general

appearance likewise waived any defects in service of

process and conferred personal jurisdiction of his

person upon the circuit court. See Nixon, 192 Va. at

50, 63 S.E.2d at 759.

CONCLUSION

For these reasons, we conclude that the circuit

court erred in granting Ohr’s motion to dismiss under

Rule 3:3(c). We will therefore reverse the judgment

of the circuit court and remand this case for further

proceedings.3

Reversed and remanded.

3
There is no merit to Ohr’s argument that Lyren’s
petition for appeal was not timely filed under Rule
5:17(a)(1). Pursuant to Rule 5:5, Lyren received an
extension of time for filing her petition for appeal, and
the record of this Court reflects that Lyren timely filed
the petition for appeal by mailing in accordance with the
provisions of Rule 5:5(b).

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