Janvier v. Arminio

• Decision Date: 15 September 2006
• Docket Number: Record No. 052231.
• Citation: 634 S.E.2d 754
• Parties: Bethanie JANVIER v. Gary ARMINIO, D.P.M., et al.
• Court: Virginia Supreme Court

634 S.E.2d 754

Bethanie JANVIER v. Gary ARMINIO, D.P.M., et al.

Record No. 052231.

Supreme Court of Virginia.

September 15, 2006.

Steven M. Garver (Deborah E. Mayer, Garver Law Offices, on briefs), Reston, for appellant.

Paul D. Krause (Robin B. Jaffe, Heather Austin Jones, Wilson, Elser, Moskowitz, Edelman & Dicker, on brief), McLean, for appellees.

Present: All the Justices.

OPINION BY Justice LAWRENCE L. KOONTZ, JR.

In this appeal, which arises from a medical malpractice action, the principal issue to be resolved is whether an order granting the plaintiff a second nonsuit without prejudice, pursuant to Code § 8.01-380(B), is void ab initio in the absence of notice to the named defendants when the named defendants in the suit have not yet been served with the plaintiff's motion for judgment. The merits of the underlying malpractice claim are not at issue, and the procedural facts necessary to our resolution of this appeal are not in dispute.

BACKGROUND

As will become apparent, this case involves protracted litigation spanning a period of some five years with no resolution of the merits of the plaintiff's asserted claim. Although several familiar statutes and rules of this Court are implicated by the procedural facts of the case that have been addressed by this Court in a number of our prior decisions, we have not addressed previously the specific issue presented here with regard to the application of Code § 8.01-380 as currently enacted. Nevertheless, for reasons that will also become apparent, we take this opportunity initially to observe that the prospect of similar cases in the future resulting from a series of nonsuits is not speculative. Both future plaintiffs and defendants might well benefit should the General Assembly amend Code § 8.01-380 by providing a requirement for notice or the exercise of due diligence to give notice to a defendant when a plaintiff seeks a second or subsequent nonsuit.

The several statutes and rules of this Court implicated in this case impose, in combination critical limitations upon the plaintiff's right to maintain a civil action such as the present one. Accordingly, we begin our analysis with a brief recitation, in pertinent part, of those statutes and rules in order to bring the procedural facts into appropriate focus.

Code § 8.01-243(A) provides a two-year limitations period "after the cause of action accrues" in actions for medical malpractice. Once timely filed, the plaintiff may nonsuit the action pursuant to Code § 8.01-380 under specific circumstances and limitations. Code § 8.01-380(A) provides that "[a] party shall not be allowed to suffer a nonsuit . . . 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." Code § 8.01-380(B) further provides that "[o]nly one nonsuit may be taken . . . as a matter of right, although the court may allow additional nonsuits or counsel may stipulate to additional nonsuits." When the plaintiff properly suffers a nonsuit, Code § 8.01-229(E)(3) provides that "the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation . . ., whichever period is longer."

In addition to these statutory provisions, the procedural facts of this case implicate consideration of the applicability of Code § 8.01-275.1, which provides that "[s]ervice of process . . . within twelve months of commencement of the action or suit against a defendant shall be timely as to that defendant." This statute further provides that 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."

Finally, turning to the rules of this Court implicated in this case, Rule 3:5(e)¹ 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 . . . unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on that defendant." Rule 1:1 provides that "[a]ll final . . . orders . . . 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."

On May 21, 2001, Bethanie Janvier filed a motion for judgment in the Circuit Court of Fairfax County ("trial court") against Gary Arminio, D.P.M. and Burke Foot and Ankle Center, P.C. (collectively, "Arminio"), alleging medical malpractice arising from Dr. Arminio's treatment of Janvier while acting within the scope of his employment.² The last date Janvier received treatment from Arminio was November 14, 1999. Code § 8.01-243(A); see Justice v. Natvig, 238 Va. 178, 180, 381 S.E.2d 8, 9 (1989).

Janvier did not seek to obtain service of process on Arminio within one year of filing her motion for judgment. Code § 8.01-275.1. In order to avoid dismissal of the case under Rule 3:5(e), Janvier filed a motion for entry of a voluntary nonsuit. Janvier did not provide Arminio with notice of her intent to seek the nonsuit. On June 3, 2002, the trial court entered an order of nonsuit ("first nonsuit"). Code § 8.01-380(B).

On October 7, 2002, Janvier recommenced her medical malpractice action against Arminio by filing a second motion for judgment making substantially the same allegations as in the first suit. Code § 8.01-229(E)(3). Once again, Janvier did not seek to obtain service of process on Arminio within one year.

On December 4, 2003, without providing Arminio notice of intent to do so, Janvier's counsel appeared before a judge of the trial court in chambers and requested that the case be nonsuited. Janvier's counsel presented the judge with a draft order of nonsuit, which the judge entered on that day ("second nonsuit"). Code § 8.01-380(B). The order prepared by Janvier's counsel did not indicate that the nonsuit was a subsequent nonsuit.

On May 27, 2004, Janvier filed a third motion for judgment making the same allegations against Arminio as those made in her prior two suits. Code § 8.01-229(E)(3). On August 8, 2004, Arminio was served with the third motion for judgment. On August 30, 2004, Arminio, unaware of the two prior nonsuited actions that had preceded the May 27, 2004 motion for judgment, filed a plea in bar contending that Janvier's third motion for judgment was barred by the two-year statute of limitations in Code § 8.01-243(A).

During the pendency of Arminio's plea in bar, the parties engaged in extended discovery proceedings. As germane to this appeal, Arminio ultimately succeeded in deposing Janvier's counsel concerning the proceedings and circumstances that led to the granting of the second nonsuit. In that deposition, Janvier's counsel stated that in making the oral motion for nonsuit he had advised the trial judge that he was requesting a second nonsuit. Janvier's counsel further stated that the judge had asked whether the order of nonsuit required the endorsement of opposing counsel, and Janvier's counsel had replied that he believed endorsement was unnecessary because Arminio had not been served with the motion for judgment.³

The parties then filed memoranda addressing the issue of whether the second nonsuit order had been properly obtained pursuant to Code § 8.01-380 and, therefore, whether Code § 8.01-229(E)(3) provided an extension of the limitations period for filing the third motion for judgment. Initially, Arminio contended that the second nonsuit order should not be given effect because it was obtained by actual or constructive fraud on the court. Alternatively, Arminio contended that the second nonsuit order should not be given effect because the named defendants were not given notice of Janvier's intent to seek the order or provided an opportunity to be heard before its entry. Arminio contended that the lack of notice rendered the trial court without jurisdiction to enter a second nonsuit order because to do so would result from "a mode of procedure . . . the court could `not lawfully adopt.'" Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001) (quoting Evans v. Smyth-Wythe Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)).

Janvier responded that there had been no fraud or deception perpetrated on the trial court in obtaining the second nonsuit order. She further contended that no provision in Code § 8.01-380 requires notice to an unserved defendant of a motion for a second nonsuit. Finally, Janvier maintained that the second nonsuit order was a final judgment and was not subject to collateral attack in a subsequent proceeding.

In an opinion letter dated June 22, 2005, the trial court addressed the issues raised by Arminio's plea in bar to the May 27, 2004 motion for judgment. The trial court first concluded that "there [was] no clear evidence of fraud" in Janvier's obtaining the second nonsuit order. Thus, despite the order not specifically stating that a second nonsuit was being granted or that the nonsuit was without prejudice, the trial court concluded that it could not "treat the [second nonsuit] as void for having been procured by fraud."

The trial court next addressed Arminio's contention that the court lacked jurisdiction to enter the second nonsuit order in the absence of notice to Arminio. The trial court acknowledged that Code § 8.01-380 "is silent as to whether all parties must be noticed when a plaintiff requests a nonsuit, regardless of whether it is the first or an additional nonsuit." Citing Waterman v. Halverson, 261 Va. 203, 208, 540 S.E.2d 867, 869 (2001) and McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d 759, 762 (19...