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
2
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).
3
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)).
5
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.”)
7
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).
8