Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.
EDITH SIMON
v. Record No. 021627 OPINION BY JUSTICE CYNTHIA D. KINSER
April 17, 2003
LESLIE ELLIOT FORER, M.D., ET AL.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Rossie D. Alston, Jr., Judge
In this appeal, we decide whether a statute of
limitations is tolled upon commencement of a nonsuited
action when the plaintiff does not renew the action within
six months from the date of the nonsuit order. The circuit
court concluded that the recommenced action was barred
because it was filed outside both the original two-year
statute of limitations and the six-month period following
entry of the nonsuit order. Finding no error, we will
affirm the circuit court’s judgment.
MATERIAL FACTS AND PROCEEDINGS
On June 18, 1999, Edith M. Simon filed a motion for
judgment for medical malpractice against Leslie Elliot
Forer, M.D., Michael Bruce Robins, M.D., Potomac Hospital
Corporation of Prince William, and Potomac Radiology and
Imaging Associates, Inc. (collectively “the defendants”).
Simon alleged that the defendants did not “comply with the
applicable standard(s) of care” and were negligent by
failing to interpret accurately mammogram screenings
performed in March 1997 and to make a timely diagnosis of
breast cancer based on those mammograms. On July 18, 2000,
the trial court granted Simon’s motion for a nonsuit
pursuant to Code § 8.01-380.
Approximately nine months after entry of the nonsuit
order, on April 16, 2001, Simon re-filed her motion for
judgment against the same defendants. 1 In response, the
defendants filed, among other things, pleas in bar,
asserting that Simon’s cause of action was barred by the
applicable two-year statute of limitations. See Code
§ 8.01-243(A). The parties agree, for purposes of this
appeal, that Simon’s cause of action accrued either on
September 14, 1998 or on September 28, 1998.
After considering the parties’ memoranda and argument,
the circuit court rejected Simon’s argument that the two-
year statute of limitations was tolled while the first
action was pending. Since the second action was filed
outside the original two-year limitations period and not
within six months of entry of the nonsuit order as provided
in Code § 8.01-229(E)(3), the court sustained the pleas in
1
Simon filed both motions for judgment in the Circuit
Court of Arlington County. By order dated February 27,
2002, the second motion for judgment was transferred to the
Circuit Court of Prince William County.
2
bar and dismissed the renewed action with prejudice. Simon
appeals from the circuit court’s judgment.
ANALYSIS
The issue on appeal is whether the applicable two-year
statute of limitations was tolled upon commencement of the
nonsuited action even though Simon did not renew the action
within six months from the date of the nonsuit order.
Resolution of this issue turns on the scope of the tolling
provision in Code § 8.01-229(E)(3) and is a question of
law, there being no material facts in dispute. Thus, the
circuit court’s judgment is subject to de novo review. See
Sheets v. Castle, 263 Va. 407, 410, 559 S.E.2d 616, 618
(2002); Willard v. Moneta Bldg. Supply, Inc., 262 Va. 473,
477, 551 S.E.2d 596, 597 (2001).
In pertinent part, Code § 8.01-229(E) states:
E. Dismissal, abatement, or nonsuit.
1. Except as provided in subdivision 3 of this
subsection, 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.
. . . .
3. If 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
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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, or within
the limitation period as provided by subdivision B 1,
whichever period is longer. This tolling provision
shall apply irrespective of whether the action is
originally filed in a federal or a state court and
recommenced in any other court, and shall apply to all
actions irrespective of whether they arise under
common law or statute.
On appeal, Simon argues that the circuit court erred
by not applying the plain language of Code § 8.01-
229(E)(3), which provides that, when a plaintiff suffers a
voluntary nonsuit, the applicable statute of limitations is
“tolled by the commencement of the nonsuited action.”
Relying on this language, Simon contends that the two-year
statute of limitations was tolled while the first motion
for judgment was pending and that the circuit court’s
decision negated the tolling provision in Code § 8.01-
229(E)(3).
Continuing, Simon acknowledges that the opening clause
of Code § 8.01-229(E)(1) makes the provisions of
subsection(E)(3) controlling in determining the options for
re-filing a nonsuited action. However, Simon asserts that
nothing in subsection (E)(3) states that a plaintiff must
re-file a nonsuited action within six months of the date of
the nonsuit order and that subsection (E)(3) does not
contain a method of calculating the amount of time
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remaining in the “original period of limitation.” For
these reasons, Simon contends that “the reader must then go
back to the language of . . . Code § 8.01-229(E)(1) for
instructions on what to do with the time remaining on the
tolled statute of limitations . . . .” She states that
“[t]his step is necessary because the computation for
tolled time remaining in the original statute of
limitations is not provided for by . . . Code § 8.01-
229(E)(3).”
Applying her interpretation of Code §§ 8.01-229(E)(1)
and –229(E)(3), Simon contends that the two-year statute of
limitations was tolled during the 13 months that the first
motion for judgment was pending before entry of the nonsuit
order. Since nine months of the two years had expired when
Simon first filed her action, she asserts that she had 15
months remaining on the original statute of limitations in
which to renew the nonsuited action. We do not agree with
Simon’s position.
Initially, it is important to point out that this case
does not implicate the tolling provision set forth in Code
§ 8.01-229(E)(1). Under that subsection, a statute of
limitations is tolled when an action, commenced within the
prescribed limitation period, is later dismissed or abates
without determining the merits. The time during which the
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action was pending is not included as part of the period
within which the action could have been brought, and the
action may be re-filed “within the remaining period.” Code
§ 8.01-229(E)(1). However, the initial clause of
subsection (E)(1) specifically precludes the applicability
of that tolling provision to an action that is nonsuited.
In the event of a nonsuit, the provisions of subsection
(E)(3) govern the determination of the time period during
which a nonsuited action may be recommenced.
Subsection (E)(3) provides that, when a plaintiff
suffers a nonsuit, that plaintiff, unlike a plaintiff
coming within the scope of subsection (E)(1), has three
possible time periods in which to renew the nonsuited
action: (1) within six months of the date of the nonsuit
order; (2) within the “original period of limitation;” or
(3) within the period provided in subsection (B)(1). 2 Code
§ 8.01-229(E)(3). A plaintiff may utilize whichever of
these periods is longest. Id. The question we must answer
is whether an “original period of limitation” is tolled
upon commencement of a nonsuited action. We conclude that
it is not.
In Code § 8.01-229(E)(3), the General Assembly
provided that an applicable statute of limitations shall be
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tolled upon commencement of a nonsuited action. But, the
General Assembly did not include the language used in
subsection (E)(1), stating that “the time such action is
pending shall not be computed as part of the period within
which such action may be brought.” Code § 8.01-229(E)(1).
That particular language delineates the period of time
during which a statute of limitations is tolled under
subsection (E)(1), i.e., while an action is pending.
Since subsection (E)(3) does not contain comparable
language, Simon contends that we should refer to the
provisions in subsection (E)(1) to determine the amount of
time remaining on the two-year “original period of
limitation” after entry of the nonsuit order. However, we
find nothing in subsection (E)(3) indicating that reference
to subsection (E)(1) is permissible when an action is
nonsuited. To the contrary, the opening clause of
subsection (E)(1) expressly excludes the applicability of
the tolling provision contained therein to an action that
is nonsuited. But if we adopted Simon’s position that the
“original period of limitation” was tolled upon
commencement of the nonsuited action even though she did
not renew that action within six months of the date of the
nonsuit order, we would necessarily have to refer to
_______________________
2
The third option is not at issue in this case.
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subsection (E)(1) in order to ascertain the duration of the
tolling. Otherwise, the “original period of limitation”
would be tolled for an indefinite period of time under
subsection (E)(3).
Obviously, the General Assembly did not intend for
that scenario to arise. Consequently, we conclude that the
subsection (E)(3) tolling provision must be read in
conjunction only with the option to renew the nonsuited
action within six months of the date of the nonsuit order.
By constructing subsection (E)(3) in this manner, the
General Assembly has provided a window of six months during
which a nonsuited action can be recommenced even if it was
originally filed on the last day of the applicable statute
of limitations. However, when a plaintiff, such as Simon,
suffers a nonsuit and does not renew the action within the
allotted six months, the “original period of limitation” is
not tolled.
Our conclusion is consistent with the General
Assembly’s use of different terms in Code §§ 8.01-229(E)(1)
and –229(E)(3). In subsection (E)(1), the General Assembly
utilized the term “remaining period” to describe the period
of time during which a plaintiff may recommence an action
that is dismissed or abates without determining the merits.
The use of that term is consistent with the fact that a
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statute of limitations is tolled under subsection (E)(1)
while an action is pending. However, in subsection (E)(3),
which specifically applies to an action that has been
nonsuited, the General Assembly used the term “original
period of limitation” to describe one of the possible
periods during which a plaintiff may renew a nonsuited
action. We construe the term “original period of
limitation” to mean the original statute of limitations
without any tolling of that statute while a nonsuited
action is pending. To interpret this term as Simon
suggests would require us either to give that term and the
term “remaining period” the same meaning or to re-write
subsection (E)(3) to say “original period of limitation” as
computed under subsection (E)(1).
We have a duty to “construe the law as it is written.”
Hampton Roads Sanitation Dist. Comm’n v. Chesapeake, 218
Va. 696, 702, 240 S.E.2d 819, 823 (1978). In doing so, we
assume that the “legislature chose, with care, the words it
used when it enacted the relevant statute, and we are bound
by those words.” Barr v. Town & Country Properties, Inc.,
240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). “When the
General Assembly uses two different terms in the same act,
it is presumed to mean two different things.” Forst v.
Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 278, 279
9
S.E.2d 400, 404 (1981). Our interpretation of Code § 8.01-
229(E) is consistent with these principles.
We note that our construction of Code § 8.01-229(E)(3)
is consistent also with the Revisers’ Note regarding that
subsection:
Subsection E 3 qualifies the application of subsection
E 1, and requires a plaintiff who takes a nonsuit to
renew his suit within six months or the running of the
statute of limitations will not be affected by the
commencement of the original action.
See also Scoggins v. Douglas, 760 F.2d 535, 538 (4th Cir.
1985). While the Revisers’ Note is not controlling on this
Court, see Lavery v. Automation Mgmt. Consultants, Inc.,
234 Va. 145, 149 n.3, 360 S.E.2d 336, 339 n.3 (1987), we
have previously referred to it in interpreting Code § 8.01-
229. See Douglas v. Chesterfield County Police Dep’t, 251
Va. 363, 367, 467 S.E.2d 474, 476 (1996).
CONCLUSION
For these reasons, we conclude that, when Simon
suffered a nonsuit of her first motion for judgment and did
not recommence the action within six months of the date of
the nonsuit order, the two-year statute of limitations was
not tolled during the pendency of the nonsuited action.
Consequently, the “original period of limitation” expired
in September 2000. Since Simon did not re-file the
nonsuited action until April 2001, the circuit court
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correctly sustained the defendants’ pleas in bar. We will
affirm the judgment of the circuit court.
Affirmed.
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