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.
14