Singh v. Mooney

• Decision Date: 12 January 2001
• Docket Number: Record No. 000636.
• Citation: 541 S.E.2d 549,261 Va. 48
• Parties: Ram SINGH, M.D., et al. v. Nathaniel MOONEY.
• Court: Virginia Supreme Court

541 S.E.2d 549

261 Va. 48

Ram SINGH, M.D., et al. v. Nathaniel MOONEY.

Record No. 000636.

Supreme Court of Virginia.

January 12, 2001.

Mark E. Frye, Bristol (Richard E. Ladd, Jr.; Penn, Stuart & Eskridge, on briefs), for appellants.

H. Patrick Cline, Norton (Frederick W. Adkins; Cline, Adkins & Cline, on brief), for appellee.

Present: All the Justices.

LACY, Justice.

In this case, we determine whether an order entered in violation of Rule 1:13 is void ab initio or merely voidable.

Nathanial Mooney filed a medical malpractice action against Ram Singh, M.D., Sanyogta Singh (collectively "Singh"), Volunteer Healthcare Systems, Inc. d/b/a Dickenson County Medical Center, and Sabry Radawi, M.D.,¹ in March of 1995. By order entered October 2, 1998, Mooney was directed to make his expert witness available for deposition by October 20, 1998. The October 2 order also stated that if Mooney did not comply with the order, his action would be "subject to dismissal."

Mooney failed to comply with the October 2 order, and, on October 21, Singh filed a motion to dismiss. Copies of this motion and proposed order were sent to Mooney along with a cover letter. In that letter, Singh requested the trial court to enter the dismissal order if it did "not receive any objections from counsel for the plaintiff within ten days of the date of this letter." Two days later, on October 23, the trial court entered the proposed order dismissing Mooney's action with prejudice. On September 24, 1999, Mooney filed a motion to vacate the October 23, 1998 order, asserting it was void because it did not comply with Rule 1:13. Mooney also filed a motion for nonsuit.

The trial court agreed with Mooney and held that "`reasonable notice of the time and place of presenting such drafts ...' of the final order was not properly given" to Mooney's counsel as required by Rule 1:13. The trial court "in its discretion" declared the October 23, 1998 order "void ab initio" and granted Mooney's motion to vacate the order. The trial court also granted Mooney's motion for a nonsuit and dismissed the original action without prejudice. We awarded Singh an appeal.

On appeal, Singh presents the following single assignment of error:

The trial court had no authority to vacate the final order and grant a nonsuit of this action on January 7, 2000, because the trial court lost jurisdiction of this action twenty-one days after the entry of the final order on October 23, 1998.

Resolution of this issue requires consideration of whether an order entered in violation of Rule 1:13 is void ab initio or merely voidable. If it is the former, it can be challenged at any time; if the latter, it is not subject to collateral attack and is subject to the limitations of Rule 1:1. Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 145 (1995). While some of this Court's prior cases have referred to a final order which did not comply with Rule 1:13 or its predecessor as "void," we have never directly addressed whether such failure renders the final order void ab initio or merely voidable. For the reasons that follow, we conclude that the failure to comply with Rule 1:13 renders an order voidable, not void ab initio.

The distinction between an action of the court that is void ab initio rather than merely voidable is that the former involves the underlying authority of a court to act on a matter whereas the latter involves actions taken by a court which are in error. An order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court could "not lawfully adopt." Evans v. Smyth-Wythe Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)(quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887)).² The lack of jurisdiction to enter an order under any of these circumstances renders the order a complete nullity and it may be "impeached directly or collaterally by all persons, anywhere, at any time, or in any manner." Barnes v. Am. Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925). Consequently, Rule 1:1 limiting the jurisdiction of a court to twenty-one days after the entry of the final order does not apply to an order which is void ab initio.

In contrast, an order is merely voidable if it contains reversible error made by the trial court. Such orders may be set aside by motion filed in compliance with Rule 1:1 or provisions relating to the review of final orders. See, e.g., Code § 8.01-623 (bill of review); Code § 8.01-428 (relief from judgments).

Keeping these principles in mind, we now turn to Rule 1:13. That Rule provides:

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 ... 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.

The Rule on its face allows a trial court, in its discretion, to dispense with the requirements of notice and endorsement. Such dispensation by the court need not appear on the face of the order. Napert v. Napert, ___ Va. ___ 540 S.E.2d 882 (2001), decided today; Smith v. Stanaway, 242 Va. 286, 288-89, 410 S.E.2d 610, 611-12 (1991); Rosillo v. Winters, 235 Va. 268, 272-73, 367 S.E.2d 717, 719 (1988). Thus, in this context, a claim that an order does not comply with Rule 1:13 is a claim that the trial court abused its discretion in dispensing with the requirements of the Rule when it entered the order in question. Abuse of discretion analysis involves a question of court error; it is not a question of the jurisdiction or authority of the court to enter the order.

Review of our prior cases considering Rule 1:13 and its predecessor supports the proposition that the failure to comply with Rule 1:13 is a question of trial court error, not of jurisdiction. Our cases consistently apply an abuse of discretion standard in reviewing the action of the trial court. Fredericksburg Constr. Co. v. J.W. Wyne Excavating, Inc., 260 Va. 137, 147, 530 S.E.2d 148, 154 (2000)(entry of final order without endorsement of counsel not an abuse of discretion); Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 93-94 (1996)(exercising discretion to dispense with counsel's endorsement proper); Smith v. Stanaway, supra (dispensing with notice and endorsement requirements not abuse of discretion); Rosillo v. Winters, supra (dispensing with notice requirement abuse of discretion); Riff v. Richards, 221 Va. 644, 649, 272 S.E.2d 645, 648 (1980)(in exercise of discretion, court should have required notice); Cofer v. Cofer, 205 Va. 834, 837, 140 S.E.2d 663, 665 (1965)(court should not have dispensed with requirements of rule).

An additional case which addressed Rule 1:13, State Highway Comm'r v. Easley, 215 Va. 197, 207 S.E.2d 870 (1974), is also consistent with our treatment of the failure to comply with the Rule as a matter of court error, and not court jurisdiction. In Easley, we held that a challenge to compliance with Rule 1:13 could only be raised by the party...