Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
MICHAEL B. FREY AND PATRICIA A. FREY
OPINION BY
v. Record No. 950949 SENIOR JUSTICE HENRY H. WHITING
March 1, 1996
JEFFERSON HOMEBUILDERS, INC.
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge
In this appeal, the primary issue is whether a statutory
extension of the time for serving process applies to Rule 3:3.
As pertinent, Rule 3:3 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.
Alleging a breach of contract, Michael B. Frey and Patricia
A. Frey, his wife, filed a motion for judgment against Jefferson
Homebuilders, Inc. (Jefferson) on November 12, 1993. The record
does not indicate that the Freys furnished Jefferson's address to
the clerk when their motion for judgment was filed, as required
*
We note that the General Assembly has codified the one-year
service provision of Rule 3:3 in Code § 8.01-275.1. Gilbreath v.
Brewster, 250 Va. 436, 442 n.3, 463 S.E.2d 836, 838 n.3 (1995).
That section provides:
Service of process in an action or suit within
twelve months of commencement of the action or suit
against a defendant shall be timely as to that
defendant. Service of process on a defendant more than
twelve months after the suit or action was commenced
shall be timely upon a finding by the court that the
plaintiff exercised due diligence to have timely
service made on the defendant.
The applicability of Code § 8.01-275.1, enacted subsequent
to the commencement of the Freys' action, is not at issue in this
case.
by another provision of Rule 3:3 and by Code § 8.01-290.
One year and two days later, on Monday, November 14, 1994,
counsel for the Freys requested the clerk to issue process, which
counsel had delivered to Jefferson's registered agent on that day
by Crystol L. Hiserman, a person who purported to be a private
process server. Hiserman failed to make a return thereof until
almost two months after such delivery.
Jefferson moved to quash the alleged service on the grounds
that Hiserman was not authorized to serve process and that she
failed to make a return of the purported service until almost two
months thereafter. In support of the latter ground, Jefferson
cited Code § 8.01-325, which requires return of service to be
made "promptly to the clerk's office."
For both these reasons, the court found that process had not
been properly served. However, it overruled Jefferson's motion
on the ground that its registered agent's actual receipt of the
notice of motion for judgment was sufficient service under Code
§ 8.01-288.
Whereupon, Jefferson filed a motion to dismiss the action on
the ground that Rule 3:3 precluded the entry of a judgment
against it since it had been served with process more than one
year after the action was commenced. The court sustained this
motion and the Freys appeal. Jefferson assigns cross-error to
the court's denial of its motion to quash the Freys' service of
process.
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I.
In addressing the Freys' assignment of error, we will assume
that the court correctly ruled that the delivery of process was
valid under the saving provision of Code § 8.01-288. Thus, we
consider whether Rule 3:3 prevented the court from entering a
judgment in favor of the Freys because process was served more
than a year after the Freys commenced their action.
The Freys note that the clerk's office was closed on Friday,
November 11, 1994, a legal holiday, and did not reopen until
Monday, November 14. Accordingly, the Freys argue that the one-
year limitation in Rule 3:3 is subject to the following statutory
extension in Code § 1-13.3:1:
When the last day fixed by statute, or by rule of
the Supreme Court of Virginia . . . for any paper to be
served, delivered or filed, or for any other act to be
done in the course of judicial proceedings falls on a
Saturday, Sunday, [or] legal holiday, . . . the paper
may be served, delivered, or filed and the act may be
done on the next day that is not a Saturday, Sunday, or
legal holiday. . . .
Jefferson responds that Code § 1-13.3:1 is inapplicable
because Rule 3:3 neither establishes a "last day" to serve
process on a defendant, nor invalidates the service of process in
this case. Instead, Jefferson contends that Rule 3:3 merely
prohibits the court from entering judgment for a plaintiff who
fails to serve process within a year after his action is
commenced. We disagree.
We think this construction results in the absurdity of
validating a delayed service but effectively nullifying that
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service. And absurd constructions are to be avoided even in
rules that are unambiguous. See Fairfax Hospital System, Inc. v.
Nevitt, 249 Va. 591, 597, 457 S.E.2d 10, 14 (1995); Dominion
Trust Co. v. Kenbridge Constr. Co., 248 Va. 393, 396, 448 S.E.2d
659, 660 (1994).
In our opinion, Rule 3:3 effectively "fixe[s]" the 365th day
after commencement of the action as the "last day" for the motion
for judgment "to be served [or] delivered," thereby subjecting
the one-year period of Rule 3:3 to the saving provision in Code
§ 1-13.3:1. Thus, since November 12, 1994, was a Saturday, Code
§ 1-13.3:1 extended the date for service to be completed until
Monday, November 14, "the next day that [was] not a Saturday,
Sunday, or legal holiday."
Therefore, we conclude that the court erred in holding that
no judgment could be entered in favor of the Freys because of
their delayed service of process.
II.
This brings us to Jefferson's assignment of cross-error.
Jefferson asserts that the court erred in applying Code § 8.01-
288 when it denied Jefferson's motion to quash the Freys'
process. As pertinent, that statute provides:
Except for process commencing actions for divorce
or annulment of marriage or other actions wherein
service of process is specifically prescribed by
statute, process which has reached the person to whom
it is directed within the time prescribed by law, if
any, shall be sufficient although not served . . . as
provided in this chapter.
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(Emphasis added).
Since the process was left with its registered agent,
Jefferson, a domestic corporation, contends the following
statutory language specifically requires personal service on its
registered agent:
[P]rocess may be served on a corporation created by the
laws of this State as follows:
l. By personal service on any . . . registered
agent of such corporation.
Code § 8.01-299 (emphasis added). Thus, Jefferson argues that it
is within the emphasized exception of Code § 8.01-288. We do not
agree.
In our opinion, the emphasized language of Code § 8.01-288
evidences a legislative intent to exclude services of process
from its saving provision only in certain limited instances.
Such an intent is clearly established with respect to suits for
divorce and annulment, which are expressly excluded from the
statute's saving provision. Code § 8.01-288. In other
instances, the General Assembly has included the following
sentence in statutes creating actions: "The provisions of
§ 8.01-288 shall not be applicable to the service of process
required in this subsection," or like language. See Code § 38.2-
2206(E) and (F) (uninsured motorist actions); Code § 54.1-1120(1)
(Contractor Transaction Recovery Fund claims); Code § 54.1-
2114(A)(1) (Real Estate Transaction Recovery Fund claims).
However, we find no such language or any other language
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indicating a legislative intent to exclude the service provisions
of Code § 8.01-299, or to exclude service in actions for breach
of contract, from the saving provision of Code § 8.01-288. And
we also note the use of the word "may" in Code § 8.01-299,
indicating legislative recognition that some other kind of
service might be proper.
Accordingly, we will affirm the court's judgment on the
motion to quash the service of process, reverse the judgment on
the motion to dismiss, and remand the case for further
proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
CHIEF JUSTICE CARRICO, dissenting.
I dissent. I think the majority has misinterpreted the
effect of Rule 3:3. In pertinent part, the Rule provides as
follows:
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.
This language is prohibitory, not permissive, and I do not think
it can be read the way the majority reads it, viz., as fixing
"the last day . . . for any paper to be served, delivered or
filed, or for any other act to be done in the course of judicial
proceedings." Code § 1-13.3:1.
What Rule 3:3 does fix is the outer boundary of a trial
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court's authority to enter judgment against a defendant,
prohibiting such entry when the service of process is delayed for
more than one year after the commencement of an action. There is
only one exception, and that is when "the court finds as a fact
that the plaintiff exercised due diligence to have timely
service."
In my opinion, Code § 1-13.3:1 is not available to save a
plaintiff from the prohibition of Rule 3:3 when he fails to
exercise due diligence and delays serving process until more than
one year after the commencement of an action. That is what
happened here. Hence, I would affirm the judgment of the trial
court.
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