McManama v. Plunk

Present: All the Justices

JOY R. McMANAMA
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 941440 June 9, 1995

DORIS C. PLUNK, ADMINISTRATRIX, ETC.

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Kenneth E. Trabue, Judge

This appeal attacks a party's statutory right to one

voluntary nonsuit, as authorized by Code § 8.01-380(B).
Code § 8.01-229(E)(3) also is implicated here. As

pertinent, the subsection provides that "[i]f a plaintiff suffers

a voluntary nonsuit as prescribed in § 8.01-380, the statute of

limitations with respect to such action shall be tolled by the

commencement of the nonsuited action, and the plaintiff may

recommence his action within six months from the date of the

order entered by the court, or within the original period of

limitation, . . . whichever period is longer."

The chronology is important. On September 5, 1988,

appellant Joy R. McManama, the plaintiff below, was injured while

a passenger in a vehicle that was struck by a vehicle operated by

Terry L. Plunk.

On August 27, 1990, the plaintiff filed a first motion for

judgment in the trial court against Plunk seeking recovery of

damages for negligently inflicted personal injuries. When the

suit papers were filed, counsel for the plaintiff instructed the

clerk not to effect service of process "at this time." Plunk

never was served with process.
 On February 26, 1991, Plunk was killed while on active duty

with the armed forces in the Persian Gulf War. On July 30, 1991,

Doris C. Plunk qualified as "administratrix" * T of the estate of

Terry L. Plunk, deceased.

On August 29, 1991, in an ex parte order that is the focus

of this controversy, the trial court granted plaintiff's motion

for a voluntary nonsuit of the pending action.

On January 6, 1992, the plaintiff filed a second motion for

judgment on the same cause of action asserted in the first motion

for judgment, naming as defendant appellee "Doris C. Plunk,

Administratrix of the Estate of Terry L. Plunk, deceased." The

defendant was served with process and, on January 23, 1992, filed

a special plea of the two-year statute of limitations and motion

to dismiss. Defendant objected to the filing of the second

action on the ground that a refiling after a nonsuit must be

"against the same party," Code § 8.01-380(A), and an individual

decedent and the personal representative of his estate are not

"the same party."
On February 6, 1992, plaintiff filed a third motion for

judgment on the same cause of action asserted in the two previous

motions for judgment, naming "Terry L. Plunk" as defendant. On

February 19, 1992, plaintiff filed a motion in the third action

asking to substitute the personal representative "as the
*
The relevant statutes deal with qualification of an
"administrator," not an "administratrix." See, e.g., Code
§§ 64.1-117, -120, -122.1, -128, and -131.

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Defendant herein."

On the same day, an ex parte order was entered at the

request of plaintiff's counsel allowing the substitution and the

filing of an amended motion for judgment naming the personal

representative as defendant. The order recited that it appeared

"this is the refiling of a previously non-suited action against

Terry L. Plunk, who is now deceased." The order further provided

for service of process upon the substituted defendant.
On March 13, 1992, the defendant personal representative

filed a special plea of the statute of limitations and motion to

dismiss, asking that the third action be dismissed with

prejudice. The trial court heard oral argument on the pleas and

motions in April 1992.

In an April 1994 letter opinion, the trial court sustained

the special pleas and granted the motions to dismiss. During its

recitation of facts, the court noted that the August 29, 1991

nonsuit order was entered one year and two days after the first

action was filed. The court stated that it "never acquired in

personam jurisdiction over the defendant prior to his death; and

no administrator, executor, or personal representative was ever

substituted in his stead; and the order which dismissed the case

on August 29, 1991, was ex parte and was without notice of

hearing or opportunity to be heard by either the defendant or his

estate."

The court determined "that the `nonsuit order' entered in

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the initial suit had the limited effect of being a dismissal

order without determining the merits and that the tolling of the

statute of limitations during the pendency of the suit is

governed" by Code § 8.01-229(E)(1). The portion of that

subsection upon which the trial court focused provides that "if

any action is commenced within the prescribed limitation period

and for any cause abates or is dismissed without determining the

merits, the time such action is pending shall not be computed as

part of the period within which such action may be brought, and

another action may be brought within the remaining period." The

court said, "The initial suit was filed nine days prior to the

running of the two-year statute of limitations; and inasmuch as

neither suit No. 2 nor suit No. 3 was filed within nine days of

the nonsuit order of August 29, 1991, plaintiff's causes of

action are barred."
Noting the plaintiff's contention that she had six months

from the date of the nonsuit order to reinstitute the action

pursuant to Code § 8.01-229(E)(3), supra, the trial court held

"that the nonsuit order . . . did not have the legal effect of

triggering a six months' extension to the statute of limitations

under" the foregoing subsection. The court said, "A valid

voluntary nonsuit order . . . is a final judgment in a civil case

appealable under" Code § 8.01-670 (providing for appeals of final

judgments).

Continuing, the trial court stated that "for such an order

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to have any binding effect on a defendant or to adversely affect

the substantive rights of a defendant, the defendant must first

had to have been served with process, must have been before a

court with jurisdiction over the defendant's person, and the

defendant must have been given notice of hearing and an

opportunity to be heard." The court said, "To hold otherwise

would be to deny the defendant civil due process of law as

guaranteed by Article I, Section 11, of the Constitution of

Virginia."
Concluding, and noting that Rule 3:3 provides that no

judgment shall be entered against a defendant served with process

more than one year after the commencement of the action unless

the plaintiff has exercised due diligence to have timely service

made, the trial court stated, "The plaintiff had this action

dismissed because she did not attempt service of process within

one year. A dilatory plaintiff should not be permitted to create

a two-year-and-six-month statute of limitation in an action for

personal injury simply by filing a suit and never serving the

defendant with process during the pendency thereof."

We awarded the plaintiff an appeal from the May 1994 order

dismissing with prejudice both pending actions. The trial court

designated the papers in the second action to be "the master

file" and provided that any determination by this Court on appeal

would be binding in both the second and third actions. Thus, for

clarity, we will address the second action only.

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 We disagree with the trial court's statutory analysis and

with its constitutional ruling. First, the August 1991 order

granting the plaintiff a voluntary nonsuit was not a final,

appealable order. Ordinarily, an order of nonsuit is not to be

considered a final judgment for purposes of appeal. Mallory v.

Taylor, 90 Va. 348, 349, 18 S.E. 438, 439 (1893). An order of

nonsuit is a final, appealable order within the meaning of Code

§ 8.01-670(A)(3) ("any person may present a petition for an

appeal to the Supreme Court if he believes himself aggrieved

. . . [b]y a final judgment in any . . . civil case"), only when

a dispute exists whether the trial court properly granted a

motion for nonsuit. Wells v. Lorcom House Condominiums' Council,

237 Va. 247, 251, 377 S.E.2d 381, 383 (1989).

In the present case, there was no dispute at the time the

nonsuit order was entered about the propriety of the trial

court's action in granting the nonsuit. Code § 8.01-380, the

nonsuit statute, while giving a party the absolute right to one

voluntary nonsuit, contains a number of limitations on that

right, none of which could have applied here. Therefore, the

trial court erred in ruling that the nonsuit order had "the

limited effect of being a dismissal order without determining the

merits" and that Code § 8.01-229(E)(1) governed the tolling of

the statute of limitations during the pendency of the first

action. On the contrary, the August 1991 order was fully and

completely effective as a nonappealable voluntary nonsuit.

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 Second, the trial court erroneously placed limitations on

the plaintiff's right to the voluntary nonsuit when it ruled that

defendant "must first had to have been served with process, must

have been before a court with jurisdiction over the defendant's

person, and the defendant must have been given notice of hearing

and an opportunity to be heard." None of these requirements is

found in the applicable statutes, and a court should not add them

by judicial fiat. The trial court had subject matter

jurisdiction over the first action enabling it to properly enter

an order granting plaintiff a voluntary nonsuit. See Morrison v.

Bestler, 239 Va. 166, 173, 387 S.E.2d 753, 758 (1990).

Therefore, the plaintiff's nonsuit of her first action was valid,

the two-year statute of limitations was tolled, and the plaintiff

properly recommenced her action within six months from the date

of the nonsuit order as authorized by Code § 8.01-229(E)(3).

Finally, the trial court's alternative, constitutional

ruling is erroneous. Supporting the trial court's ruling,

defendant contends that, while plaintiff had the right to sue

Plunk within two years of the accident, Plunk had a "substantive

right" not to be sued more than two years after the accident.

Defendant says that Plunk had the following additional

"substantive rights": to defend plaintiff's action; to

challenge, if appropriate, plaintiff's termination of the

litigation by nonsuit; to challenge where and when plaintiff

recommenced an action terminated by a proper nonsuit; and to

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notice an appeal from "an improper nonsuit."

According to defendant, Plunk's entitlement to due process

protection of these "substantive rights" attached when plaintiff

filed her first motion for judgment, and plaintiff thereafter

could not affect Plunk's "substantive rights" at any stage of the

litigation without according Plunk due process. Thus, contends

defendant, plaintiff "could not use the termination of the First

Action to adversely affect Plunk's substantive right not to be

sued more than two years after the accident." We disagree.
We have already rejected a similar argument in Clark v.

Butler Aviation-Washington Nat'l, Inc., 238 Va. 506, 512 n.5, 385

S.E.2d 847, 850 n.5 (1989). In Clark, a personal injury action

arising from a motor vehicle collision, plaintiff filed a motion

for judgment two days before the two-year statute of limitations

was due to run on the claim. Process was not served on the

defendant until more than one year after the date of filing the

motion for judgment. Defendant moved to quash the service of

process, but before any action on such motion, plaintiff was

granted a voluntary nonsuit. Then, more than two years after the

accident occurred, plaintiff recommenced his action by filing

another motion for judgment asserting the same claim. The trial

court sustained defendant's plea of the statute of limitations.

We reversed the trial court, and harmonized an apparent

conflict between Rule 3:3, § 8.01-229(E)(3), and § 8.01-380. In

addition, we addressed the Clark defendant's "warning" that a

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ruling adverse to its position would result in the denial of due

process of law. It asserted a "justifiable expectation" that it

was protected by the time limits of the applicable statute of

limitations and Rule 3:3. Clark, 238 Va. at 512 n.5, 385 S.E.2d

at 850 n.5. The Clark defendant claimed that once the time

limits of the statute of limitations and the Rule had expired,

its right to assert the statute and the Rule as a defense became

a vested right, fully protected by the due process clauses of the

State and Federal constitutions.
We stated, however, that when the plaintiff suffered a

voluntary nonsuit, he too had a "justifiable expectation," viz.,

that he would be entitled to the benefit of the six-month period

allowed by § 8.01-229(E)(3) in which to recommence his action.

Id. We said that if both postulates are accepted, a complete

legal standoff would result. Accordingly, we accepted the

plaintiff's premise, and rejected the defendant's, to avoid the

standoff. Id.

Likewise, as the Clark defendant had no legitimate
constitutional claim of entitlement or vested right in the

statute of limitations or Rule 3:3 defenses, neither did the

defendant in this case. Article I, § 11 of the Constitution of

Virginia provides that "no person shall be deprived of his life,

liberty, or property without due process of law." Procedural due

process guarantees that a person shall have reasonable notice and

opportunity to be heard before any binding order can be made

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affecting the person's rights to liberty or property. Commission

of Fisheries v. Hampton Roads Oyster Packers and Planters Ass'n,

109 Va. 565, 585, 64 S.E. 1041, 1048 (1909). The procedural due

process guarantee does not create constitutionally protected

interests; rather, it provides procedural safeguards against

government's arbitrary deprivation of certain interests.

Etheridge v. Medical Center Hospitals, 237 Va. 87, 97, 376 S.E.2d

525, 530 (1989).
Certainly, no liberty interest is implicated here; so the

focus is on a property interest. When procedural due process

respecting deprivation of a property interest is challenged, a

two-step inquiry is employed. Klimko v. Virginia Employment

Comm'n, 216 Va. 750, 754, 222 S.E.2d 559, 563, cert. denied, 429

U.S. 849 (1976). "The first inquiry is whether the interest is a

property interest protected by procedural due process guarantees;

if so, the second is whether the procedures prescribed or applied

are sufficient to satisfy the due process `fairness' standard."
Id., 222 S.E.2d at 564.

We need pursue only the first inquiry, that is, whether

entry of the ex parte order of voluntary nonsuit in the first

action deprived Plunk of any protected property interest. We

answer that query in the negative.

The grant of the nonsuit did not operate to deprive Plunk of

any valid or vested defense of the statute of limitations, or of

the time limits of Rule 3:3, as we pointed out in Clark. The

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fact that the Clark defendant may have had actual knowledge or

notice of the nonsuit, while this defendant did not, does not

affect the force of the Clark precedent. We determined in Clark

that the defendant, like Plunk in the present case, simply had no

property interest to protect. In other words, Plunk had no

justifiable expectation of a Rule 3:3 or statute of limitations

defense under Virginia law that was entitled to protection under

the due process clause of the Constitution.
And, Plunk was not deprived of any other property interest,

or prejudiced in any way, by the nonsuit. For example, this was

not a situation, as in Iliff v. Richards, 221 Va. 644, 272 S.E.2d

645 (1980), in which the defendant was prevented from prosecuting

a cross-claim when an order of nonsuit was entered without notice

to him. The defendant here has specified no reason why the

plaintiff did not enjoy the absolute right to the grant of a

voluntary nonsuit.

Consequently, the trial court erred in refusing to give

effect to the order of nonsuit on the ground that its ex parte
entry violated the constitutional guarantee of procedural due

process.

In conclusion, we reject defendant's contention that neither

the second action nor the third action was timely. Both were

filed within the six-month extension granted by § 8.01-229(E)(3).

Contrary to defendant's contention, the filing of the third

action, "against a known dead person," was not a nullity. Cf.

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Rennolds v. Williams, 147 Va. 196, 199, 136 S.E. 597, 598 (1927)

(judgment against one dead when action brought a nullity). And,

the personal representative properly was substituted as a party

defendant. Code § 8.01-229(B)(2)(b) ("If a person against whom a

personal action may be brought dies before suit papers naming

such person as defendant have been filed with the court, then

such suit papers may be amended to substitute the decedent's

personal representative as party defendant before the expiration

of the applicable limitation period. . ."). Plunk died before

the suit papers in the third action had been filed with the

court. Thus, the foregoing statutory provision applied.
Therefore, the judgment appealed from will be reversed, and

the case will be remanded for further proceedings.

Reversed and remanded.

JUSTICE WHITING, with whom JUSTICE KEENAN joins, dissenting.

In my opinion, the majority has misconstrued Code § 8.01-380

as a grant of a statutory right when it is actually a restriction

upon a common-law right. Thus, this section does not specify the

requirements for obtaining a nonsuit at common-law, including the

requirement of service of process on the defendant. Instead, the

statute merely imposes additional restrictions upon the use of

this common-law procedure.

I base my opinion upon a consideration of (1) the basis and

long-standing use of nonsuits at common-law, and (2) the

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following statutory provisions:
A party shall not be allowed to suffer a
[voluntary] nonsuit as to any cause of action or claim,
or any other party to the proceeding, unless he does so
before a motion to strike the evidence has been
sustained or before the jury retires from the bar or
before the action has been submitted to the court for
decision.

Code § 8.01-380(A) (emphasis added) (the nonsuit statute).

If a plaintiff suffers a voluntary nonsuit as
prescribed in [Code] § 8.01-380, the statute of
limitations with respect to such action shall be tolled
by the commencement of the nonsuited action, and the
plaintiff may recommence his action within six months
from the date of the order entered by the court, or
within the original period of limitation . . .
whichever period is longer.

Code § 8.01-229(E)(3) (emphasis added) (the nonsuit tolling

statute).
[I]f any action is commenced within the prescribed
limitation period and for any cause abates or is
dismissed without determining the merits, the time such
action is pending shall not be computed as part of the
period within which such action may be brought, and
another action may be brought within the remaining
period.

Code § 8.01-229(E)(1) (emphasis added) (the dismissal statute).

"Nonsuit at common-law was the judgment given against the

plaintiff when he was not in court to answer to the demand of the
defendant." Neil C. Head, The History and Development of

Nonsuit, 27 W.Va.L.Q. 20, 21 (1920) (emphasis added). According

to Blackstone:
[I]f the plaintiff neglects to deliver a declaration
for two terms after the defendant appears . . . , he is
adjudged not to follow or pursue his remedy as he ought
to do, and thereupon a nonsuit or non prosequitur is
entered; and he is said to be nonpros.'d. And for thus
deserting his complaint, after making a false claim or

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 complaint . . . he shall not only pay costs to the
defendant, but is liable to be amerced to the king.

3 William Blackstone, Commentaries *295-96 (1768) (emphasis

added).

A Virginia commentator, citing applicable Virginia statutes,

noted that:
If the plaintiff neglects to file his declaration
on the rule day at which the process is returned
executed, the defendant may give him a rule to declare,
and if he fails or neglects to do so at the next rule
day, which is one month after, or if he at any time
fails to prosecute his suit (1 R.C. ch. 128, § 72,) he
is adjudged not to follow or pursue his remedy as he
ought to do [and] a nonsuit . . . is entered.

2 Henry St. George Tucker, Commentaries on the Laws of Virginia

251 (1837) (emphasis added).

And the following nonsuit statutes in Virginia reflected the

common-law rule:
A defendant may appear at the rule day at which the
process against him is returnable, or, if it be
returnable in term, at the first rule day after the
return day, and, if the declaration or bill be not then
filed, may give a rule for the plaintiff to file the
same. If the plaintiff fail to do this at the
succeeding rule day, or shall, at any time after the
defendant's appearance, fail to prosecute his suit, he
shall be non-suited, and pay the defendant, besides his
costs, five dollars.

Code § 8-86 (repealed Acts 1954, c. 593); Code § 6078 (1942);

Code § 6078 (1919); Code § 3240 (1887); Code 1849 c. 171 § 5.
The plaintiff shall file his declaration in the
clerk's office on the rule day at which the writ or
other process shall be returned executed; or, the
defendant having entered his appearance, may give a
rule for the plaintiff to declare; which if he fails or
neglects to do, at the succeeding rule day, or shall at
any time fail to prosecute his suit, he shall be
nonsuited, and pay to the defendant or tenant, besides

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 his costs, five dollars.

Code 1819, c. 128 § 72 (emphasis added).

[I]n all personal actions the plaintiff shall file his
declaration, within one month after the defendant shall
have entered his appearance with the clerk in the
secretary's office, and if the plaintiff shall fail or
neglect so to do, or if any plaintiff or demandant
fails to appear and prosecute his suit, he shall be
nonsuit.

That where any nonsuit shall be awarded, there
shall be paid for the same, to every defendant or
tenant, one hundred and fifty pounds of tobacco, and
costs. . . .

Acts 1753, c. 1 § 24; 6 William Waller Hening, Statutes at Large

335. (Emphasis added.)

I read these statutes (1) as reflecting the common-law right

to "suffer a nonsuit" after a defendant has been served, and (2)

as imposing a penalty upon that common-law right. As this Court

said in applying Chapter 72 of the Code of 1819, the five-dollar

penalty provision justly imposes
a penalty on the Plaintiff for vexing his adversary
with a suit, which is afterwards abandoned, and giving
some remuneration to the Defendant, for the expense and
trouble to which he has been exposed [and] extends, in
our opinion, to all cases of a voluntary desertion of
the cause by the Plaintiff after the appearance of the
Defendant, whether that desertion shall happen in a
failure to declare; to answer his adversary in any of
the subsequent stages of the cause before issues are
formed; or shall be occasioned by the dismission, or
discontinuance of the suit after an appearance.

Pinner v. Edwards, 27 Va. (6 Rand.) 675, 677 (1828) (emphasis

added.)

Henry St. George Tucker's comment and these statutes also

reflect the common-law evolvement of the voluntary nonsuit.

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Thus, the plaintiff's failure to file the necessary declaration

was expanded to permit him to "suffer" the voluntary nonsuit even

though he was actually present in court. Slocum v. New York Life

Ins. Co., 228 U.S. 364, 392 (1913); James L. Tucker, Note, The

Voluntary Nonsuit in Virginia, 7 Wm. & Mary L. Rev. 357 (1966).

The General Assembly indicated its awareness of this evolution by

imposing additional restraints upon this common-law right in its

enactment of the ancestor of the present nonsuit statute

containing the following restriction upon the common-law right

"to suffer" a voluntary nonsuit during trial: "Every person

desirous of suffering a non-suit, on trial shall be barred

therefrom, unless he do so before the jury retire from the bar."

Acts 1788, c. 67 § 61; 12 William Waller Hening, Statutes at
Large 749. This restriction has been refined and continued in

the present nonsuit statute.

In this common-law and statutory setting, the General

Assembly enacted a nonsuit tolling statute in 1977. Implicit in

this enactment was a recognition that the defendant had been

served with process at the time of the nonsuit. Acts 1977, c.

617. Given this background, I conclude that the General

Assembly did not feel it necessary to state the obvious--that a

defendant had been served with process before a nonsuit order was
**
"appropriate."
**
I believe the majority's misconstruction is best reflected
in its statement that "there was no dispute at the time the
nonsuit order was entered about the propriety of the trial
court's action in granting the nonsuit."

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 Accordingly, I do not regard the requirement of service of

process upon the defendant as a "judicial fiat," but a

construction of the statute consistent with the history of

nonsuits in Virginia and in the manner intended by the General

Assembly. This construction reflects a fair balancing of the

rights of both parties and makes sense in the context of at least

two restrictions upon the plaintiff's nonsuit rights that were

enacted in 1983 and set forth in Code § 8.01-380(A) and (B):

after a nonsuit, ordinarily, the new action must be filed in the

same court and a defendant can object to a second nonsuit.***

Acts 1983, c. 404. If the defendant never knew of the first

action, how could he assert either of these objections? And this

construction is consistent with our practice of avoiding,

whenever possible, a construction of statutes in a manner that
(..continued)

How could there have been a dispute when the defendant had
no notice of (1) the pendency of the action, or (2) the
plaintiff's plan to nonsuit her case "at the time the [ex-parte]
nonsuit order [prepared by plaintiff's counsel] was entered?"
However, promptly upon notification, the opposing party disputed
"the propriety of the trial court's action in granting the
nonsuit." And upon being advised of "the dispute," the trial
court effectively ruled that the order was entered improperly as
a nonsuit order by holding that "the `nonsuit order' entered in
the initial suit had the limited effect of being a dismissal
order without determining the merits."
***
As pertinent here, Code § 8.01-380(A) provides that:
"After a nonsuit no new proceeding on the same cause of action or
against the same party shall be had in any other court other than
that in which the nonsuit was taken," and Code § 8.01-380(B)
provides that "[o]nly one nonsuit may be taken to a cause of
action or against the same party to the proceeding, as a matter
of right."

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raises the constitutional issues discussed by the majority. See

Jacobs v. Meade, 227 Va. 284, 287, 315 S.E.2d 383, 385 (1984);

Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940).****

Here, to avoid the restriction of Rule 3:3(c),***** the

plaintiff could have had her "commenced,"****** but unserved,

action dismissed and received the benefit of the tolled period of

the dismissal statute--the nine-day period remaining in the

original statute of limitations at the time she filed the action.

However, the plaintiff sought the longer period of six months

under the nonsuit tolling statute--a period entirely unrelated to

the original period of the statute of limitations. Unlike the

majority, I think the plaintiff had to obtain service of process

upon the defendant to avail herself of this extra six months.
For these reasons, I would affirm the judgment of the trial

court.

****
In Clark v. Butler Aviation-Washington Nat'l, Inc., 238
Va. 506, 385 S.E.2d 847 (1989), which the majority cites as a
controlling case, process had been served upon the defendant.
Therefore, we did not decide the present issue in Clark.
*****
Rule 3:3(c) 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.
******
An action is "commenced" when the motion for judgment is
filed in the clerk's office, Rule 3:3(a), and the statute of
limitations is tolled during the pendency of the action. Code
§ 8.01-229(E)(1).

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