Morrison v. Bestler

Decision Date12 January 1990
Docket NumberNo. 880177,880177
Citation387 S.E.2d 753,239 Va. 166
CourtVirginia Supreme Court
PartiesDorothy T. MORRISON v. James Michael BESTLER, M.D., et al. Record

C. Richard Cranwell (Patrick S. Shiel, Cranwell, Flora & Moore, on briefs), for appellant.

Susan Waddell Spangler (George W. Wooten, Fox, Wooten & Hart, on brief), for appellees.

Present: CARRICO, C.J., COMPTON, STEPHENSON, RUSSELL, WHITING and LACY, JJ., and POFF, Senior Justice.

LACY, Justice.

In this medical malpractice case, we determine whether failure to comply with the provisions of Code § 8.01-581.2, which state that no action "shall be brought within ninety days" after notice of malpractice claim, deprives the trial court of jurisdiction over the instant claim.

On March 10, 1982, James Michael Bestler, M.D., performed cosmetic surgery on Dorothy T. Morrison. On March 9, 1984, Morrison filed a motion for judgment against Dr. Bestler and James Michael Bestler, M.D., Inc. (Bestler), seeking damages for medical malpractice which allegedly occurred during the surgery. The following day, March 10, 1984, Morrison served Bestler with the notice of malpractice claim required by Code § 8.01-581.2. Bestler filed a demurrer and motion to dismiss claiming that Morrison's suit was prohibited because she had "violated Va.Code § 8.01-581.2 by filing a motion for judgment within the ninety day period following a notice of malpractice claim."

Prior to any ruling on Bestler's demurrer and motion, Morrison requested a voluntary nonsuit. On November 16, 1984, the trial court entered an order of nonsuit pursuant to Code § 8.01-380. On the same day, Morrison filed her second motion for judgment against Bestler based on the same malpractice claim.

In response to the second suit, Bestler filed a plea of the statute of limitations arguing that the 120-day extension of the statute of limitations afforded by Code § 8.01-581.9 expired on July 8, 1984, and therefore, Morrison's second suit was untimely. Furthermore, Bestler maintained that Morrison's failure to comply with the filing provisions of Code § 8.01-581.2 deprived the trial court of subject matter jurisdiction in the first suit, thereby making the order of nonsuit entered in that suit null and void. A void order, Bestler argued, cannot be utilized to invoke application of the filing extensions authorized by Code § 8.01-229(E)(3).

The trial court held that, because the filing of the first motion for judgment was prohibited until 90 days after the notice of claim, it did not have "actual active jurisdiction over the first case, and the plaintiff's filing of that suit was null and void." Reasoning that an order of nonsuit entered in a suit "prohibited in the first instance" should not operate to extend the statute of limitations under the nonsuit statute, the court granted Bestler's plea and entered an order dismissing Morrison's motion for judgment. We granted Morrison an appeal on February 8, 1989.

Morrison contends that, although the 90-day waiting period is a mandatory procedural requirement, it is not jurisdictional. She relies on the rationale we adopted in considering the notice requirement in negligence suits filed against municipalities, City of South Norfolk v. Dail, 187 Va. 495, 47 S.E.2d 405 (1948), as well as cases in other jurisdictions interpreting similar notice provisions for the filing of medical malpractice suits. Schepps v. Presbyterian Hospital of Dallas, 652 S.W.2d 934 (Tex.1983); Givertz v. Maine Medical Center, 459 A.2d 548 (Me.1983); Dougherty v. Oliviero, 427 A.2d 487 (Me.1981); Foil v. Ballinger, 601 P.2d 144 (Utah 1979).

Bestler, on the other hand, maintains that we have previously addressed this question and held that a court has no jurisdiction over a motion for judgment filed before the expiration of 90 days after giving notice of the malpractice claim. Edwards v. City of Portsmouth, 237 Va. 167, 375 S.E.2d 747 (1989); Horn v. Abernathy, 231 Va. 228, 343 S.E.2d 318 (1986); Baker v. Zirkle, 226 Va. 7, 307 S.E.2d 234 (1983).

Before reviewing the cases relied on by Bestler, we must clarify the manner in which the term "jurisdiction" is used. A court may lack the requisite "jurisdiction" to proceed to an adjudication on the merits for a variety of reasons.

The term jurisdiction embraces several concepts including subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a party or if the proceeding is in rem seizure of a res; and "the other conditions of fact must exist which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree." Farant Investment Corp. v. Francis, 138 Va. 417, 427-28, 122 S.E. 141, 144 (1924).

While these elements are necessary to enable a court to proceed to a valid judgment, there is a significant difference between subject matter jurisdiction and the other "jurisdictional" elements. Subject matter jurisdiction alone cannot be waived or conferred on the court by agreement of the parties. Lucas v. Biller, 204 Va. 309, 313, 130 S.E.2d 582, 585 (1963). A defect in subject matter jurisdiction cannot be cured by reissuance of process, passage of time, or pleading amendment. While a court always has jurisdiction to determine whether it has subject matter jurisdiction, a judgment on the merits made without subject matter jurisdiction is null and void. Barnes v. American Fert. Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925). Likewise, any subsequent proceeding based on such a defective judgment is void or a nullity. Ferry Co. v. Commonwealth, 196 Va. 428, 432, 83 S.E.2d 782, 784 (1954).

Even more significant, the lack of subject matter jurisdiction can be raised at any time in the proceedings, even for the first time on appeal by the court sua sponte. Thacker v. Hubard, 122 Va. 379, 386, 94 S.E. 929, 930 (1918). In contrast, defects in the other jurisdictional elements generally will be considered waived unless raised in the pleadings filed with the trial court and properly preserved on appeal. Rule 5:25.

One consequence of the non-waivable nature of the requirement of subject matter jurisdiction is that attempts are sometimes made to mischaracterize other serious procedural errors as defects in subject matter jurisdiction to gain an opportunity for review of matters not otherwise preserved. See Restatement (Second) of Judgments, § 11 (1980).

In this case, if the 90-day waiting period for filing the motion for judgment goes to the issue of the court's subject matter jurisdiction, as claimed by Bestler, the trial court did not have, and could never have, the ability to enter a valid judgment. If, as Morrison claims, the requirement is procedural in nature, the court could not have proceeded to final judgment on the merits at that time, but was not deprived of its fundamental jurisdiction. With this distinction in mind, we turn to an analysis of our prior statements on the jurisdictional nature of the filing requirements of Code § 8.01-581.2.

Bestler points to a single sentence in Baker v. Zirkle, in which we stated that under Code § 8.01-581.2, a plaintiff "is absolutely forbidden from filing an action until ninety days after notification to the health care provider...." 226 Va. at 13, 307 S.E.2d at 236. But Baker did not involve the premature filing of a motion for judgment alleging medical malpractice. In fact, the motion for judgment in that case was filed almost 14 months after the notice of claim was given. Rather, the issue was whether (1) the tolling provisions of Code § 8.01-581.9 operated to interrupt the running of the limitations period, beginning with the filing of the notice of claim and resuming 60 days after the issuance of the review panel opinion, or whether (2) the tolling occurs only if the limitation period expired during the 60-day period following the panel decision. The jurisdictional nature of the Code § 8.01-581.2 filing requirements was not at issue, was not addressed by the court or the parties, and was not decided in Baker.

Similarly, Horn v. Abernathy did not involve the filing of a motion for judgment prior to expiration of the 90-day notice period. There, the issues were whether the hospital's request for a medical malpractice review panel was timely filed with the Chief Justice of the Supreme Court, whether the Executive Secretary of the Court had the authority to deny the request, and other claims involving estoppel and due process. We began our discussion in that case by reviewing the requirements of the medical malpractice statutes. We stated that "a claimant has no right to bring such an action unless he gives the health care provider written notice of his claim." 231 Va. at 231, 343 S.E.2d at 320. As it was in Baker, Bestler's reliance on this single sentence in Horn is misplaced. Horn simply does not address or resolve the issue presented in the instant case.

Finally, Bestler relies on Edwards v. City of Portsmouth in support of his position. In that case, the notice of the malpractice claim was filed only three days prior to the filing of the motion for judgment. The trial court granted the city's motion to dismiss on its plea of sovereign immunity and granted the hospital's special plea of "lack of jurisdiction on the ground that the suit was filed in violation of the Medical Malpractice Act ... in that it was filed within ninety days of the filing of the notice of claim of malpractice." 237 Va. at 170, 375 S.E.2d at 749.

The plaintiff argued that the Act did not apply to the hospital's ambulance services and, therefore, the notice requirement was inapplicable. We held, however, that the Act focused on the health care provider. Thus, by definition the Act applied to a licensed hospital and...

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