Rose v. Jaques

• Citation: 597 S.E.2d 64,268 Va. 137
• Decision Date: 10 June 2004
• Docket Number: Record No. 032014.
• Parties: Howard Wilson ROSE, et al. v. Anne-Marie Wesen JAQUES.
• Court: Supreme Court of Virginia

597 S.E.2d 64

268 Va. 137

Howard Wilson ROSE, et al. v. Anne-Marie Wesen JAQUES.

Record No. 032014.

Supreme Court of Virginia.

June 10, 2004.

John Charles Thomas, McLean (M. Christine Klein; Christopher E. Gatewood, Richmond; Andrew A. Protogyrou; Richard B. Baker; Hunton & Williams; Protogyrou & Rigney, Norfolk, on briefs), for appellants.

Edwar E. Scher, Richmond (Stephen M. Smith; Thorsen & Scher, on brief), for appellee.

Amici Curiae: The Virginia Trial Lawyers Association (Thomas J. Curcio, Alexandria; Roger T. Creager; Dunn, Curcio & Keating; Marks & Harrison), in support of appellee.

Present: All the Justices.

OPINION BY Justice AGEE.

In this personal injury case arising out of a motor vehicle accident, the appellants, Howard W. Rose and Stow Mills, Inc. (collectively, "Stow Mills"), assign multiple errors to the trial court's judgment confirming a jury award of $7.5 million to the appellee, Anne-Marie Wesen Jaques. Jaques asserts one assignment of cross-error regarding the trial court's granting leave to appeal under Code § 8.01-428(C).

I. BACKGROUND AND PROCEEDINGS BELOW

On the night of December 29, 1996, Jaques was driving eastward in the far right lane on Interstate 64 near the Hampton Coliseum. To Jaques' right was a guardrail and no emergency stopping lane.

Rose was driving a tractor-trailer for his employer, Stow Mills, Inc., in the far left lane. Rose moved his tractor-trailer into the center lane behind Jaques' car in the right lane. A short time later, Rose's tractor and part of the trailer moved ahead of Jaques' car with the remainder of the trailer abreast of her car. Without signaling an intent to do so, Rose moved the tractor-trailer into Jaques' lane of travel. The side of the rear wheels of the trailer collided with Jaques' vehicle and "bounced" it between the tractor-trailer and the guardrail several times before the car came to rest near an off-ramp where the guardrail ended. Rose later pled guilty in the City of Hampton General District Court to making an improper lane change.

Jaques filed a motion for judgment in the Circuit Court of the City of Hampton against Stow Mills for injuries Jaques claimed she received in the accident. At trial, the jury returned a verdict for Jaques in the amount of $7.5 million and an order was entered by the trial court awarding that amount to Jaques. We awarded Stow Mills an appeal from the trial court's judgment on the assignments of error discussed below as well as Jaques' assignment of cross-error. For the reasons stated below, the judgment of the trial court will be affirmed.

II. Analysis

A. Jaques' Assignment of Cross-Error

Jaques' assignment of cross-error stems from a convoluted course of events concerning the date of the final order in this case. We begin our analysis here because if Jaques prevails on this issue, Stowe Mills' appeal is not timely and the trial court's judgment would be affirmed without further review.

On March 24, 2003, the jury returned its verdict for Jaques in the amount of $7.5 million. After the jury was dismissed, the following colloquy ensued between Stow Mills' counsel and the trial court:

MR. PROTOGYROU: Judge, if we could, we would like to preserve our post-trial motions at this time and set a date in the future...

THE COURT: ... So if we don't hear anything from you in 21 days, Mr. Protogyrou, we will assume that no motion is to be made.

On April 11, 2003, within the 21-day period, Stow Mills moved for judgment non obstante veredicto, a new trial and remittitur. A hearing on these motions was scheduled for May 30, 2003.

Nothing further appears in the written record of the trial court before May 2, 2003. On that day, a Friday, counsel for Stow Mills received an envelope from the clerk of court, postmarked May 1, 2003, which contained a copy of a one-page order, signed by the trial court and dated March 24, 2003 (the "March 24th order"). This order recited the trial events of that date, including the verdict of the jury, and concluded with the following paragraph.

It is therefore considered by the Court that the plaintiff, Ann-Marie Wesen Jaques, recover from the defendants, Howard Wilson Rose and Stow Mills, Inc., the sum of seven million five hundred thousand dollars, the damages by the jury in its verdict fixed, until paid, and her costs by her about her prosecution in this behalf expended. Entered this 24th day of March, 2003.

The March 24th order bears no date stamp or other indicia of receipt by the clerk of the court and bears no endorsements by counsel or reference to Rule 1:13. While the March 24th order does not recite on its face that it is a final order, the parties do not contest that it is the trial court's final order by its terms.¹

The following Tuesday, May 6, 2003, Stow Mills filed a motion requesting the entry of an order pursuant to Code § 8.01-428(C) preserving its right to appeal and requested a hearing prior to May 23, 2003, the sixtieth day after the March 24th order. Stow Mills averred that the trial court was without jurisdiction to modify or suspend the March 24th order under Rule 1:1 and further contended that its right to appeal had expired under Rule 5:9 on April 23, 2003: all prior to any notification of the entry of the March 24th order.

The next day, May 7, 2003, the trial court wrote counsel for both parties stating, inter alia:

It is the intention of the court to protect all parties' right of appeal in this case and should I have made a mistake post trial, I will correct that mistake. The clerk further informs me that the trial orders in this case were actually entered on April 15, 2003.

On May 19, 2003, the trial court heard argument on Stow Mills' motion to which Jaques raised numerous objections. Jaques contended that since the trial court had represented the March 24th order was actually signed on April 15, 2003, Rule 1:1 required the later date be deemed the date of entry regardless of what the written order indicated on its face.² Further, Jaques argued that the trial court had the authority to change the date on the March 24th order to April 15 as a clerical mistake cognizable under Code § 8.01-428(B).³

In the alternative, Jaques averred that Stow Mills did not meet the statutory criteria for relief under Code § 8.01-428(C) because: (1) Stow Mills had notice at least by the May 7th letter that the trial court "entered" the order on April 15th, so it then had until May 15th to file a notice of appeal, but affirmatively chose not to do so, (2) Stow Mills failed to exercise due diligence to learn of the entry of the trial court's order before May 2nd, and (3) since Stow Mills had notice before May 15th of the entry of the order on April 15th, it had not been denied all opportunity to timely note an appeal.⁴

Jaques' counsel proffered to the court that he "was able to learn on April 15, through a telephone conversation with the clerk's office, that there was an order entered as of that date." The record does not disclose with whom Jaques' counsel spoke or the location of the order at that time. Jaques contends that Stow Mills should not be deemed to have exercised due diligence for purposes of Code § 8.01-428(C) if she was able to learn of the order's entry and Stow Mills failed to do so.

Stow Mills responded that the trial court was bound by the March 24th date because that date had not been altered pursuant to Rule 1:1 within 21 days. Further, Stow Mills argued that the trial court had no authority to change the date on the March 24th order to April 15, or any other date, because changing the date of a final order is not a "clerical error" cognizable under Code § 8.01-428(B), when the issue before the court involves lack of notice that affects a party's right to appeal. To hold otherwise, Stow Mills argued, would nullify Rule 1:1, ignore the General Assembly's intent as expressed in subsection C of Code § 8.01-428 and would lead to chaos in the judicial system. Stow Mills contended that its appeal rights had expired under the March 24th order on April 23rd, prior to any notice, and that relief was appropriate under Code § 8.01-428(C).

Stow Mills proffered that it had intermittently checked the trial court's web site and found no computer record reflecting that the March 24th order had been entered. Stow Mills' counsel also proffered, without contradiction, a representation from the deputy clerk of court who handled the March 24th order, that it had not been received in the clerk's office until "sometime ... the week of April the 28th."

At the conclusion of the hearing, the trial court stated:

I am satisfied that the lack of notice to counsel as to the entry of the order dated March 24th, 2003 did not result from a failure to exercise due diligence on the part of the defendant... and that the defendants were denied an opportunity to appeal.

The trial court then entered an order on May 19, 2003 (the "May 19th order"), granting the parties the right to file a notice of appeal from the March 24th order pursuant to Code § 8.01-428(C). Stow Mills filed its notice of appeal the next day.

Since the General Assembly amended Code § 8.01-428 in 1993 to add subsection C, we have not had occasion to address its application.⁵ The Court of Appeals of Virginia did review this subsection in Zhou v. Zhou, 38 Va.App. 126, 562 S.E.2d 336 (2002), examining the interplay between subsections B and C, and concluded: "the authority and procedure to extend the filing deadline, where lack of notice is the issue, is provided only under Subsection C." Id. at 136, 562 S.E.2d at 339.

It is not necessary in the present appeal to resolve the question whether there may be instances where the date of an order may be corrected under Code § 8.01-428(B). Since the trial court speaks only through its written orders, McMillion v. Dryvit Sys., Inc., 262 Va. 463, 469, 552 S.E.2d 364, 367 (2001), and — on its face — the order Stow Mills received on May 2 indicated entry on March 24th,...