Simon v. Forer
| Decision Date | 17 April 2003 |
| Docket Number | Record No. 021627. |
| Citation | 578 S.E.2d 792,265 Va. 483 |
| Court | Virginia Supreme Court |
| Parties | Edith SIMON, v. Leslie Elliot FORER, M.D., et al. |
Wayne M. Mansulla (Ashcraft & Gerel, on brief), Washington, DC, for appellant.
Richard L. Nagle; Adam W. Smith (James P. Vann; Vicki L. Layman; Crews & Hancock, Fairfax; McCandlish & Lillard, on briefs), for appellees.
Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and CARRICO, S.J.
OPINION BY Justice CYNTHIA D. KINSER.
In this appeal, we decide whether a statute of limitations is tolled upon commencement of a nonsuited action when the plaintiff does not renew the action within six months from the date of the nonsuit order. The circuit court concluded that the recommenced action was barred because it was filed outside both the original two-year statute of limitations and the six-month period following entry of the nonsuit order. Finding no error, we will affirm the circuit court's judgment.
On June 18, 1999, Edith M. Simon filed a motion for judgment for medical malpractice against Leslie Elliot Forer, M.D., Michael Bruce Robins, M.D., Potomac Hospital Corporation of Prince William, and Potomac Radiology and Imaging Associates, Inc. (collectively "the defendants"). Simon alleged that the defendants did not "comply with the applicable standard(s) of care" and were negligent by failing to interpret accurately mammogram screenings performed in March 1997 and to make a timely diagnosis of breast cancer based on those mammograms. On July 18, 2000, the trial court granted Simon's motion for a nonsuit pursuant to Code § 8.01-380.
Approximately nine months after entry of the nonsuit order, on April 16, 2001, Simon re-filed her motion for judgment against the same defendants.1 In response, the defendants filed, among other things, pleas in bar, asserting that Simon's cause of action was barred by the applicable two-year statute of limitations. See Code § 8.01-243(A). The parties agree, for purposes of this appeal, that Simon's cause of action accrued either on September 14, 1998 or on September 28, 1998.
After considering the parties' memoranda and argument, the circuit court rejected Simon's argument that the two-year statute of limitations was tolled while the first action was pending. Since the second action was filed outside the original two-year limitations period and not within six months of entry of the nonsuit order as provided in Code § 8.01-229(E)(3), the court sustained the pleas in bar and dismissed the renewed action with prejudice. Simon appeals from the circuit court's judgment.
The issue on appeal is whether the applicable two-year statute of limitations was tolled upon commencement of the nonsuited action even though Simon did not renew the action within six months from the date of the nonsuit order. Resolution of this issue turns on the scope of the tolling provision in Code § 8.01-229(E)(3) and is a question of law, there being no material facts in dispute. Thus, the circuit court's judgment is subject to de novo review. See Sheets v. Castle, 263 Va. 407, 410, 559 S.E.2d 616, 618 (2002); Willard v. Moneta Bldg. Supply, Inc., 262 Va. 473, 477, 551 S.E.2d 596, 597 (2001).
In pertinent part, Code § 8.01-229(E) states:
E. Dismissal, abatement, or nonsuit.
On appeal, Simon argues that the circuit court erred by not applying the plain language of Code § 8.01-229(E)(3), which provides that, when a plaintiff suffers a voluntary nonsuit, the applicable statute of limitations is "tolled by the commencement of the nonsuited action." Relying on this language, Simon contends that the two-year statute of limitations was tolled while the first motion for judgment was pending and that the circuit court's decision negated the tolling provision in Code § 8.01-229(E)(3).
Continuing, Simon acknowledges that the opening clause of Code § 8.01-229(E)(1) makes the provisions of subsection(E)(3) controlling in determining the options for re-filing a nonsuited action. However, Simon asserts that nothing in subsection (E)(3) states that a plaintiff must re-file a nonsuited action within six months of the date of the nonsuit order and that subsection (E)(3) does not contain a method of calculating the amount of time remaining in the "original period of limitation." For these reasons, Simon contends that "the reader must then go back to the language of ... Code § 8.01-229(E)(1) for instructions on what to do with the time remaining on the tolled statute of limitations...." She states that "[t]his step is necessary because the computation for tolled time remaining in the original statute of limitations is not provided for by ... Code § 8.01-229(E)(3)."
Applying her interpretation of Code §§ 8.01-229(E)(1) and 229(E)(3), Simon contends that the two-year statute of limitations was tolled during the 13 months that the first motion for judgment was pending before entry of the nonsuit order. Since nine months of the two years had expired when Simon first filed her action, she asserts that she had 15 months remaining on the original statute of limitations in which to renew the nonsuited action. We do not agree with Simon's position.
Initially, it is important to point out that this case does not implicate the tolling provision set forth in Code § 8.01-229(E)(1). Under that subsection, a statute of limitations is tolled when an action, commenced within the prescribed limitation period, is later dismissed or abates without determining the merits. The time during which the action was pending is not included as part of the period within which the action could have been brought, and the action may be re-filed "within the remaining period." Code § 8.01-229(E)(1). However, the initial clause of subsection (E)(1) specifically precludes the applicability of that tolling provision to an action that is nonsuited. In the event of a nonsuit, the provisions of subsection (E)(3) govern the determination of the time period during which a nonsuited action may be recommenced.
Subsection (E)(3) provides that, when a plaintiff suffers a nonsuit, that plaintiff, unlike a plaintiff coming within the scope of subsection (E)(1), has three possible time periods in which to renew the nonsuited action: (1) within six months of the date of the nonsuit order; (2) within the "original period of limitation;" or (3) within the period provided in subsection (B)(1).2 Code § 8.01-229(E)(3). A plaintiff may utilize whichever of these periods is longest. Id. The question we must answer is whether an "original period of limitation" is tolled upon commencement of a nonsuited action. We conclude that it is not.
In Code § 8.01-229(E)(3), the General Assembly provided that an applicable statute of limitations shall be tolled upon commencement of a nonsuited action. But, the General Assembly did not include the language used in subsection (E)(1), stating that "the time such action is pending shall not be computed as part of the period within which such action may be brought." Code § 8.01-229(E)(1). That particular language delineates the period of time during which a statute of limitations is tolled under subsection (E)(1), i.e., while an action is pending.
Since subsection (E)(3) does not contain comparable language, Simon contends that we should refer to the provisions in subsection (E)(1) to determine the amount of time remaining on the two-year "original period of limitation" after entry of the nonsuit order. However, we find nothing in subsection (E)(3) indicating that reference to subsection (E)(1) is permissible when an action is nonsuited. To the contrary, the opening clause of subsection (E)(1) expressly excludes the applicability of the tolling provision contained therein to an action that is nonsuited. But if we adopted Simon's position that the "original period of limitation" was tolled upon commencement of the nonsuited action even though she did not renew that action within six months of the date of the nonsuit order, we would necessarily have to refer to subsection (E)(1) in order to ascertain the duration of the tolling. Otherwise,...
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