Lyren v. Ohr, Record No. 050768.

Citation623 S.E.2d 883
Decision Date13 January 2006
Docket NumberRecord No. 050768.
PartiesMarilyn LYREN v. Christopher OHR, et al.
CourtSupreme Court of Virginia

Page 883

623 S.E.2d 883
Marilyn LYREN
Christopher OHR, et al.
Record No. 050768.
Supreme Court of Virginia.
January 13, 2006.

Alan S. Toppelberg, Washington, DC (Andrew S. Kasmer, Greenbelt, MD; Alan S. Toppelberg & Associates, on brief), Washington, DC, for appellant.

August W. Steinhilber, III (Julia B. Judkins; Brault, Palmer, Grove, White & Steinhilber, Trichilo, Bancroft, McGavin, Horvath & Judkins, on brief), Fairfax, for appellees.

Present: All the Justices.


The issue in this appeal concerns whether a defendant, who was served with process more than one year after commencement of an action and did not take advantage of that defect in service of process by filing a motion in accordance with Code § 8.01-277, can raise the bar against judgment in Rule 3:3(c) after having entered a general appearance by filing a pleading to the merits. Because a general appearance waives all questions concerning service of process, we will reverse the judgment of the circuit court granting a motion to dismiss under Rule 3:3(c).


The appellant, Marilyn Lyren, filed a motion for judgment against Christopher Ohr on December 27, 2002, seeking damages for personal injuries she allegedly sustained as a result of an automobile accident. Process was not issued until December 2003. Ohr filed an "Answer and Grounds of Defense" on January 14, 2004.

Before filing his grounds of defense, Ohr's attorney contacted Lyren's attorney to confirm that proper service of process had been made upon Ohr. On several occasions between January 2004 and August 28, 2004, Lyren's attorney represented to Ohr's attorney that Ohr had been timely and properly

Page 884

served in person with the motion for judgment and that either a proof of service or an affidavit of service had been filed with the circuit court. However, no proof of service or affidavit of service was filed in the circuit court until August 25, 2004, in response to Ohr's motion to quash service of process, which he filed on August 6, 2004. At that time, Lyren filed an affidavit from a private process server stating that he had served Ohr personally at Ohr's home sometime before December 25, 2003 (he could not remember the exact date), and that he had filed the proof of service in the circuit court clerk's office during the first week of January 2004. The circuit court denied Ohr's motion to quash service of process.

Ohr subsequently filed a motion to dismiss the case with prejudice under the provisions of Rule 3:3(c). He asserted that a judgment could not be entered against him because he had been served with process more than one year after commencement of the action.2 After hearing testimony from the private process server and Ohr, the circuit court found that service of process on Ohr occurred on January 7, 2004, more than one year after commencement of this action, and that Lyren presented no evidence that she had exercised due diligence in attempting to serve Ohr on or before December 27, 2003. Thus, the circuit court granted Ohr's motion and dismissed the case with prejudice pursuant to the provisions of Rule 3:3(c). Lyren appeals from the circuit court's judgment.


The sole issue on appeal is whether the circuit court erred in granting Ohr's motion to dismiss under Rule 3:3(c). In relevant part, subsection (c) of Rule 3:3 states:

No judgment shall be entered against a defendant who was served with process more than one year after the commencement of the action against him unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on him.

Lyren argues that Ohr's filing a pleading to the merits constituted a general appearance and thus waived any defect in service of process. Citing the provisions of Code § 8.01-277, Lyren contends that, in order to challenge the defect in the service of process in this case, namely her failure to serve Ohr with process within one year of commencement of the action, Ohr would have been required to raise the...

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9 cases
  • U.S. v. Stein, S1 05 Crim. 0888(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 26 June 2006
    ...of the court whether he intended to do so or not.") (citation and internal quotation marks omitted); Lyren v. Ohr, 271 Va. 155, 158-59, 623 S.E.2d 883, 884-85 (2006) (appearance for any purpose other than objecting to the jurisdiction is general appearance even if denominated "special"); Ma......
  • Ghameshlouy v. Com., Record No. 1882-07-1.
    • United States
    • Court of Appeals of Virginia
    • 5 May 2009
    ...the person on the court." Nixon v. Rowland, 192 Va. 47, 50, 63 S.E.2d 757, 759 (1951). (Emphasis added). See also Lyren v. Ohr, 271 Va. 155, 158-59, 623 S.E.2d 883, 884 (2006); Clem v. Given's Ex'r, 106 Va. 145, 147, 55 S.E. 567, 568 On December 17, 2007, the Commonwealth's Attorney of the ......
  • McCulley v. Brooks & Co. General Contractors, Inc.
    • United States
    • Supreme Court of Virginia
    • 19 July 2018 the service of process by voluntarily submitting to the court’s jurisdiction over him. See, e.g. , Lyren v. Ohr , 271 Va. 155, 159, 623 S.E.2d 883, 885 (2006) ("A general appearance ‘is a waiver of process, equivalent to personal service of process, and confers jurisdiction of the person......
  • Zedan v. Westheim
    • United States
    • Court of Appeals of Virginia
    • 7 August 2012
    ...that filing an answer constitutes a general appearance that subjects a litigant to the jurisdiction of the court. Lyren v. Ohr, 271 Va. 155, 159, 623 S.E.2d 883, 885 (2006). As to father's contention that the court lost jurisdiction over him due to the failure of notice, we find no authorit......
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