Collins v. Shepherd

• Decision Date: 14 September 2007
• Docket Number: Record No. 061728.
• Citation: 649 S.E.2d 672
• Parties: Larry R. COLLINS v. Faye M. SHEPHERD.
• Court: Virginia Supreme Court

649 S.E.2d 672

Larry R. COLLINS v. Faye M. SHEPHERD.

Record No. 061728.

Supreme Court of Virginia.

September 14, 2007.

John Norris (James P. St. Clair; Kent K. Stanley; Norris & St. Clair, on brief), Virginia Beach, for appellant.

Allen W. Beasley (Darlene P. Bradberry, Breeden, Salb, Beasley & DuVall, on brief), Norfolk, for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and LACY, Senior Justice.¹

OPINION BY Justice LAWRENCE L. KOONTZ, JR.

This appeal principally concerns an order entered sua sponte by the circuit court dismissing with prejudice a civil action for personal injuries pursuant to a local rule adopted by that court that provides for the dismissal of cases not served on the defendant within one year of filing. We consider two issues: (1) whether the local rule is valid and, therefore, the circuit court was within its authority to dismiss the case pursuant to that rule, and (2) what is the effect, if any, of the failure to challenge that dismissal order until after the expiration of the twenty-one day limitation period in Rule 1:1.

BACKGROUND

The parties do not dispute that the local rule at issue is Local Rule 2(F)(3) which is contained in the Civil Case Management Administrative Plan originally adopted by the Circuit Court of the City of Norfolk on October 8, 1998. The plan has as its purpose the laudable goal of "concluding all civil cases, except by leave of court and in suits for divorce, within twelve months of filing." In an apparent effort to achieve that goal, Local Rule 2(F)(3) provides that "[i]f any civil action is not served within the time provided by Supreme Court Rule [3:5(e)], the Clerk shall prepare a notice of dismissal and send such notice to counsel for the plaintiff."²

The application of Local Rule 2(F)(3) became implicated in the following procedural context. On September 7, 2004, Larry R. Collins filed a motion for judgment in the Circuit Court of the City of Norfolk against Faye M. Shepherd for personal injuries allegedly resulting from the negligent operation of her motor vehicle. Collins did not serve Shepherd with process. On September 15, 2005, the circuit court, in accord with its local rule, mailed to Collins' attorney a "Notice of Dismissal" stating that the circuit court "on Friday, October 7, 2005 at 9:00 a.m. . . . pursuant to Supreme Court Rule [3:5(e)] and Nelson v. Vaughan, 210 Va. 1 (1969), will dismiss this case because [Shepherd] has not been served with process within one year after the filing of the . . . Motion for Judgment . . . unless the [c]ourt finds that [Collins] has exercised due diligence to have timely service on [Shepherd]."

Collins did not appear on or before the October 7, 2005 date designated in the notice of dismissal. On October 20, 2005, the circuit court entered an order dismissing Collins' action against Shepherd with prejudice. The dismissal order provided that Collins, "having failed to show that due diligence was exercised to have timely service upon [Shepherd], . . . this case [is] dismissed with prejudice in accordance with Supreme Court Rule [3:5(e)] and Nelson v. Vaughan, 210 Va. 1 (1969)." The dismissal order also provided that endorsement by counsel was waived pursuant to Rule 1:13.

Collins subsequently filed a motion on March 9, 2006 requesting that the circuit court vacate the dismissal order and restore his case to the court's docket. Collins did not give Shepherd notice regarding this motion. By an order dated March 16, 2006, the circuit court vacated its prior dismissal order and reinstated Collins' case on the court's docket.³ On the same day, the circuit court by separate order granted Collins' motion to nonsuit the case.

The record does not demonstrate how Shepherd became aware of the March 16, 2006 order.⁴ However, Shepherd filed a motion on March 27, 2006 requesting that the circuit court reconsider its decision to enter the March 16, 2006 dismissal order. Shepherd asserted that Collins' motion to vacate the October 20, 2005 dismissal order was barred under Rule 1:1 for failure to challenge that order within twenty-one days of its entry and, therefore, that the circuit court was without authority to enter the March 16, 2006 order. Accordingly, Shepherd requested that the circuit court vacate the March 16, 2006 order.

The circuit court held a hearing on April 3, 2006 on Shepherd's motion for reconsideration. At the hearing, Collins contended that, under the procedural posture of the case at the time, the circuit court did not have the authority to enter the October 20, 2005 dismissal order and, therefore, the order was void ab initio. The circuit court took the matter under advisement.

In a letter brief to the circuit court, Shepherd contended that even if entry of the October 20, 2005 dismissal order was error, such error rendered that order voidable rather than void ab initio. Accordingly, Shepherd maintained that the dismissal order was subject to Rule 1:1 and Collins was barred from challenging the order more than 21 days after its entry. Furthermore, Shepherd contended that the circuit court should have the authority to dismiss cases that have not been served within a year of filing so that dockets will not "become unduly burdened with pending cases which have not been served but which the [c]ourt may not manage in any manner."

Responding by letter brief, Collins contended that the sua sponte dismissal order was void ab initio because "the character of the order is such that the court had no power to render it" and "the mode of procedure used by the court was one that the court could not lawfully adopt." Therefore, Collins asserted that his challenge to the order was not subject to the 21 day time limitation of Rule 1:1. Collins also contended that the authority the circuit court cited in the dismissal order, Rule 3:5(e) and Nelson, authorize dismissal of a suit only after process has been served on the defendant more than one year after filing and only after the defendant files a motion to dismiss, neither of which occurred in this case. Collins further contended that circuit courts are authorized by statute to clear inactive cases from their dockets through the mechanism prescribed in Code § 8.01-335. Finally, Collins contended that the circuit court's Local Rule 2(F)(3) was invalid under Code § 8.01-4 because it abridged Collins' substantive right to nonsuit the action prior to service of process on Shepherd.

In order to consider the issues presented, the circuit court entered an order on April 6, 2006 vacating its prior order granting Collins a nonsuit. Subsequently, the circuit court issued a letter opinion in which it rejected Collins' assertions that the October 20, 2005 dismissal order was void ab initio. The circuit court stated that the procedure used to dismiss Collins' case was a "docket control procedure" created to deal with "moribund" cases where no service has been made within a year and the plaintiff has failed to exercise due diligence to effectuate service. The circuit court concluded that its docket control procedure was not inconsistent with the provisions of Code § 8.01-4 authorizing circuit courts to adopt such docket control procedures so long as they do not "abridge the substantive rights of the parties." Addressing Collins' contention that his case remained viable after one year because he still had a right to nonsuit and refile, the circuit court noted that Collins had the opportunity to exercise his right to nonsuit up until the return date on the notice of dismissal. The circuit court acknowledged that Code § 8.01-335 provided a mechanism for clearing its docket of inactive cases, but found that mechanism inadequate to prevent the "indefinite tolling of the statute of limitations and harassment of the defendant," which was an abuse that Rule 3:5(e) was designed to prevent. The circuit court explained that the local rule was intended to prevent such abuse while at the same time giving the plaintiff the "opportunity to protect his substantive rights."

Accordingly, the circuit court ruled that the October 20, 2005 dismissal order was valid. Collins filed a motion for reconsideration. By order entered May 26, 2006, the circuit court ruled that the dismissal order was not void ab initio, denied Collins' motions to vacate the dismissal order and for reconsideration, and dismissed Collins' September 7, 2004 suit. This appeal followed.

DISCUSSION

In three assignments of error, Collins principally asserts that the circuit court's October 20, 2005 dismissal order was void ab initio because it was entered pursuant to an invalid local rule. According to Collins, the local rule is invalid because it abridges his substantive right to take a nonsuit and refile his case, conflicts with the procedures for discontinuance set forth in Code § 8.01-335, and permits dismissal of a case that was never served on the defendant in contravention of Rule 3:5(e), which he asserts applies only where the defendant is served with process outside of the one-year period. Shepherd assigns cross-error on two grounds: (1) that the dismissal order was a final order and all orders entered subsequent to it were void, and (2) this Court is without jurisdiction over this appeal because Collins did not appeal the dismissal order, which was entered on October 20, 2005, until June 16, 2006. Because the assignments of error and cross-error raise solely questions of law, we will apply a de novo standard of review. Janvier v. Arminio, 272 Va. 353, 363, 634 S.E.2d 754, 759 (2006).

Similar to Rule 3:5(e), the local rule at issue targets cases not served within a year of filing. Rule 3:5(e) provides that "[n]o order, judgment or decree shall be entered against a defendant who was served with process more than one year after the institution of the action against that defendant unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on...