James ex rel. Duncan v. James

• Decision Date: 19 April 2002
• Docket Number: Record No. 011448.
• Citation: 263 Va. 474,562 S.E.2d 133
• Parties: Emily Katherine JAMES, By Mother and Next Friend, Joy L. DUNCAN, et al., v. Douglas William JAMES.
• Court: Virginia Supreme Court

562 S.E.2d 133

263 Va. 474

Emily Katherine JAMES, By Mother and Next Friend, Joy L. DUNCAN, et al., v. Douglas William JAMES.

Record No. 011448.

Supreme Court of Virginia.

April 19, 2002.

John A. Rockecharlie (William P. Irwin, V; Bowen, Bryant, Champlin & Carr, on brief), Richmond, for appellants.

Edward D. Barnes, Chesterfield, (Ann Brakke Campfield, Richmond; Barnes & Batzli, Chesterfield, on brief), for appellee.

Present: All the Justices.

Opinion by Chief Justice HARRY L. CARRICO.

This appeal involves issues resulting from the entry of two nonsuit orders and the subsequent imposition of contempt penalties and monetary sanctions, including the dismissal with prejudice of the two motions for judgment ostensibly nonsuited. The motions for judgment were filed May 4, 1999, one on behalf of Emily Katherine James and the other on behalf of Mary Elizabeth James, infants then aged twelve and nine years, respectively, by their mother and next friend, Joy L. Duncan (Duncan). The motions for judgment sought damages for emotional and physical injuries allegedly inflicted upon the infants by their father, Douglas William James (James).¹ James filed grounds of defense denying liability for the infants' alleged injuries.

On March 1, 2000, James filed motions for an independent medical examination of the infants. On May 22, 2000, the trial court entered orders requiring that the infants submit to examination by two doctors named in the orders "on dates to be determined . within 6 weeks after the last date of school classes." The orders also provided that Duncan, "as next friend, shall deliver the infant plaintiff[s] to the examiner on the date and time ordered herein."

On June 9, 2000, James' counsel notified Duncan's counsel by letter of the available dates for the independent examination. In addition, numerous telephone calls were made to Duncan's counsel requesting that the infants be produced for the independent examination. Duncan's counsel failed to respond.

On July 28, 2000, James filed in each case a motion to sanction Duncan pursuant to Rule 4:12(b)(2) for her failure to obey the trial court's orders of May 22, 2000, requiring the independent examination of the infants.² James also gave Duncan notice that the motions for sanctions would be heard on November 6, 2000.

On October 30, 2000, acting pro se following the withdrawal of her counsel, Duncan filed motions to nonsuit both cases. On October 31, 2000, the trial court entered an order in each case noting Duncan's motion for nonsuit and ordering that "this action stand dismissed without prejudice."

On November 3, 2000, Duncan sent James' counsel a note stating she would be unable to attend the hearing on November 6 and asking for a rescheduled date because her son had a medical appointment at a hospital. On November 6, counsel for James appeared for the hearing, but Duncan did not. The trial judge noted that Duncan had requested a continuance because of her son's illness, but, without granting or denying the motion for continuance, proceeded with the hearing in Duncan's absence.

The trial judge asked counsel for James "[w]here [he] want[ed] to go [that day]." Noting that "we are within the 21-day period from [the court's] entry of the [nonsuit orders]," counsel replied that he "would ask [the court to] enter an order requiring [Duncan] to show cause why she's not in contempt of [the court's] two orders [requiring independent examination of the infants]."

Later on in the discussion, James' counsel asked the court to "set [the nonsuit orders] aside pending a hearing on the matter." At one point, the trial judge stated that he would "set aside the order[s] of nonsuit and continue to hold that in abeyance until all the matters are heard." Immediately, however, James' counsel stated that if, within the 21-day period following entry of the nonsuit orders, he obtained an order requiring Duncan to show cause why she should not be held in contempt, the court would not "really need to set aside the nonsuit"; counsel "won't really care about that." The trial judge instructed counsel to "get [him] the order right away."

On November 8, 2000, within the 21 day period following entry of the nonsuit orders, the trial court entered two orders with respect to the November 6 hearing. The nonsuit orders were not mentioned in either of the November 8 orders. Rather, the November 8 orders merely required Duncan to appear on December 21, 2000, to show cause why she should not be held in contempt and further provided as follows:

4. This matter is continued on the Court's docket to the 21[st] day of December, 2000, at 9:30 a.m. at Powhatan Courthouse.

5. This matter continues on the docket.

On December 21, 2000, Duncan appeared with counsel, and the trial court conducted a hearing on the rule to show cause issued against Duncan in each case. On January 25, 2001, the court entered an order finding Duncan in contempt and taking under advisement the imposition of punishment and sanctions until each party filed a chronology of events. Following receipt of the chronologies, on April 4, 2001, the court entered a final order in each case sentencing Duncan to pay a fine of $1,000.00 and to serve 30 days in jail, with the jail sentence suspended on condition that she be of good behavior and pay to James' counsel the sum of $20,000.00 in attorney's fees.³ The court also dismissed with prejudice the motion for judgment filed in each case. We awarded Duncan this appeal.

At this point, the Court finds itself faced with an anomaly. Duncan asks the Court to reverse the trial court's finding that she is in contempt for failure to obey orders requiring her to produce other persons for independent medical examination. Rule 4:12(b)(2)(D) permits a court to treat a failure to obey a discovery order as contempt, "except an order to submit to a physical or mental examination," and Rule 4:12(b)(2)(E) precludes a court from treating a failure "to produce another for examination" as contempt. Yet, Duncan cited neither rule in the trial court, cited only Rule 4:12(b)(2)(D) in her petition for appeal to this Court, and cited neither rule in the brief she filed here. Hence, she has waived the right to rely on either rule. Rule 5:25.

Nevertheless, Duncan questions whether the trial court had jurisdiction to consider her alleged violations of the discovery rules after the expiration of the twenty-one day period following entry of the orders of nonsuit.⁴ We resolve this question by focusing upon the nonsuit orders and the provisions of the nonsuit statute, Code § 8.01-380, and Rule 1:1. At the time the nonsuit orders were entered, Code § 8.01-380 provided as follows:

A. A party shall not be allowed to suffer a nonsuit as to any cause of action or claim, or any other party to the proceeding, unless he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision....

B. Only one nonsuit may be taken to a cause of action or against the same party to the proceeding, as a matter of right, although the court may allow additional nonsuits or counsel may stipulate to additional nonsuits. The court, in the event additional nonsuits are allowed, may assess costs and reasonable attorney's fees against the nonsuiting party.

C. A party shall not be allowed to nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, cross claim or third-party claim which arises out of the same transaction or occurrence as the claim of the party desiring to nonsuit unless the counterclaim, cross claim, or third-party claim can remain pending for independent adjudication by the court.⁵

Rule 1:1 provides in pertinent part that "[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer." We have not previously considered whether a nonsuit order is a final judgment, order, or decree for purposes of Rule 1:1. In several cases, however, we have said that a nonsuit order is not a final judgment for appeal purposes unless a dispute exists whether the trial court properly granted the motion for nonsuit. Swann v. Marks, 252 Va. 181, 184-85, 476 S.E.2d 170, 172 (1996); McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d 759, 761 (1995); Mallory v. Taylor, 90 Va. 348, 349, 18 S.E. 438, 439 (1893); see Wells v. Lorcom House Condo. Council 237 Va. 247, 251, 377 S.E.2d 381, 383 (1989)

.

Here, no dispute exists whether the trial court properly granted the motions for nonsuit filed by Duncan, so the nonsuit orders would not qualify as final judgments for appeal purposes. However, it does not necessarily follow that the nonsuit orders are also disqualified as final judgments for purposes of Rule 1:1.

Generally speaking, a final order for purposes of Rule 1:1 "is one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order." Daniels v. Truck & Equipment Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964) (citations and inner quotation marks omitted).

We are of opinion that, from its very nature, an order granting a nonsuit should be subject to the provisions of Rule 1:1, with or without the existence of a dispute over the propriety of granting the nonsuit. A plaintiff has an absolute right under Code § 8.01-380 to one nonsuit. Nash v. Jewell, 227 Va. 230, 237, 315 S.E.2d 825, 829 (1984). "The election is his and if he insists upon taking the nonsuit within the limitations imposed by the statute, neither the trial court nor opposing counsel can prevent him from doing so."⁶ Id. Furthermore, when a court enters a nonsuit order, the case be...