Super Fresh Food Markets of Virginia, Inc. v. Ruffin

Present: All the Justices

SUPER FRESH FOOD MARKETS

OF VIRGINIA, INC., ET AL.

OPINION BY

v. Record No. 011230 JUSTICE LAWRENCE L. KOONTZ, JR.

April 19, 2002

RACQUEL RUFFIN

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY

John J. McGrath, Jr., Judge

This appeal involves our consideration of the requirements

of Rule 1:1 to extend the time within which a final judgment

remains under the control of the trial court. In addressing

those requirements, we take the opportunity to resolve any

difference in interpretation that may exist among the trial

bench and bar regarding what is required under this rule to

forestall the finality of a judgment entered by a trial court.

BACKGROUND

Because we are concerned with the procedural posture of

this case as a result of the application of Rule 1:1 and Rule

5:9, a detailed recitation of the facts related to the merits of

the action brought in the trial court is not necessary.

Accordingly, the following summary will suffice.

On July 14, 1998, Racquel Ruffin filed a motion for

judgment in the trial court against Super Fresh Food Markets of

Virginia, Inc. and two of its employees (collectively, Super

Fresh). 1 Ruffin alleged that while she was a customer in a Super

Fresh store in Harrisonburg she was falsely accused of having

shoplifted merchandise and was subjected to a pat-down search

without probable cause. Contending that Super Fresh had acted

without justification, Ruffin sought $150,000 in compensatory

damages and $350,000 in punitive damages.

Super Fresh filed its grounds of defense to Ruffin’s motion

for judgment on September 11, 1998. Super Fresh asserted that

it was immune from civil liability under Code § 18.2-105, which

provides that a merchant who has probable cause to believe that

a person has shoplifted or committed willful concealment of

goods or merchandise may detain and search the person.

Following the resolution of various motions, a jury trial was

held in the trial court on April 21, 2000.

The jury returned its verdict for Ruffin, awarding her

$10,000 in compensatory damages and $60,000 in punitive damages.

Super Fresh made an oral motion to set aside the jury’s verdict

as contrary to the law and the evidence. Thereafter, as

permitted by the trial court, Super Fresh filed a memorandum in

support of its motion and therein requested the trial court to

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The motion for judgment was initially filed in the Circuit

Court of Albemarle County and subsequently transferred to the

Circuit Court of Rockingham County pursuant to Super Fresh’s

motion to transfer venue.

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order remittitur or a new trial if its motion to set aside the

verdict was denied. In a responding memorandum, Ruffin

requested that the trial court “enter judgment based on the

verdict rendered by the jury.”

On August 23, 2000, the trial court entered an “Opinion and

Order” in which it declined to order remittitur as requested by

Super Fresh and “enter[ed] judgment consistent with that

returned by the jury.” On August 31, 2000, Super Fresh filed a

motion seeking reconsideration of the August 23, 2000 order,

contending that the trial court had failed to address Super

Fresh’s assertion that Code § 18.2-105 provided it with

immunity. Super Fresh further contended that oral argument on

the motion had been scheduled for October 11, 2000 and requested

that the court enter an order “retaining jurisdiction of this

action” until the motion for reconsideration was ruled upon.

Ruffin opposed the motion for reconsideration, contending that

the August 23, 2000 order “entering judgment in this case . . .

should be allowed to stand.” On September 12, 2000, the trial

court entered an order stating that “this court shall retain

jurisdiction over this action until such time as this court may

consider and rule on” Super Fresh’s motion for reconsideration.

On October 20, 2000, without receiving additional oral

argument, the trial court advised counsel by letter that it

would deny Super Fresh’s motion for reconsideration and directed

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Ruffin’s counsel to prepare an order to that effect. 2 On March

26, 2001, the trial court entered an order, styled as a “Final

Order,” overruling Super Fresh’s motion for reconsideration and

entering judgment for Ruffin. On April 21, 2001, Super Fresh

filed a notice of appeal “from the final judgment entered by

[the trial court] on March 26, 2001.”

On May 31, 2001, Super Fresh filed a petition for appeal in

this Court. On June 21, 2001, Ruffin filed a brief in

opposition to Super Fresh’s petition for appeal. In addition,

Ruffin filed a motion to dismiss asserting that this Court

lacked jurisdiction to consider Super Fresh’s appeal because

Super Fresh had not filed a timely notice of appeal in accord

with Rule 5:9. Ruffin contended that the August 23, 2000 order

was a final judgment order and that the September 12, 2000 order

had not modified, vacated, or suspended the prior order in

accord with Rule 1:1.

Super Fresh filed a brief responding to Ruffin’s motion to

dismiss on July 2, 2001. Distinguishing Lyle v. Ekleberry, 209

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On November 16, 2000, Super Fresh filed a notice of appeal

“from the final judgment entered by [the trial court] in this

action.” The clerk of the trial court forwarded the trial

record to this Court in accord with the requirements of Rule

5:13(a). On March 13, 2001, the Clerk of this Court returned

the record to the trial court “because no petition for appeal

has been filed and the time allowed by law within which to do so

has expired.”

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Va. 349, 350-51, 164 S.E.2d 586, 587 (1968), Super Fresh

contended that the September 12, 2000 order suspended the

judgment entered August 23, 2000 because the order expressly

stated that the trial court was retaining jurisdiction. We

awarded Super Fresh an appeal and directed the parties to

address the issue raised in Ruffin’s motion to dismiss on brief

and in oral argument.

DISCUSSION

As previously noted, the premise of Ruffin’s motion to

dismiss is that Super Fresh failed to file a timely notice of

appeal pursuant to the provisions of Rule 5:9. In pertinent

part, Rule 5:9 provides that “[n]o appeal shall be allowed

unless, within 30 days after the entry of final judgment . . .

counsel for the appellant files with the clerk of the trial

court a notice of appeal.” To determine the timeliness of a

notice of appeal from a final judgment, obviously it is first

necessary to determine the date of the action of the trial court

that constitutes the final judgment.

In general terms, a final judgment is one which disposes of

the entire action and leaves nothing to be done except the

ministerial superintendence of execution of the judgment.

Daniels v. Truck & Equipment Corp., 205 Va. 579, 585, 139 S.E.2d

31, 35 (1964). However, under Rule 1:1, “final judgments . . .

remain under the control of the trial court and subject to be

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modified, vacated, or suspended for twenty-one days after the

date of entry, and no longer.”

The running of the twenty-one day time period prescribed by

Rule 1:1 may be interrupted only by the entry, within the

twenty-one day time period, of an order modifying, vacating, or

suspending the final judgment order. Berean Law Group, P.C. v.

Cox, 259 Va. 622, 626, 528 S.E.2d 108, 111 (2000); accord Wagner

v. Shird, 257 Va. 584, 587, 514 S.E.2d 613, 614-15 (1999).

Neither the filing of post-trial or post-judgment motions, nor

the trial court’s taking such motions under consideration, nor

the pendency of such motions on the twenty-first day after final

judgment, is sufficient to toll or extend the running of the

twenty-one day time period of Rule 1:1. In re Commonwealth,

Department of Corrections, 222 Va. 454, 464, 281 S.E.2d 857, 863

(1981) (holding that a trial court taking a motion to set aside

under advisement “did not ‘modify, vacate, or suspend’ the

judgment[]”).

Rule 1:1 facially contemplates the existence of a final

judgment that a court subsequently seeks to modify, vacate, or

suspend. The rule is not applicable prior to the entry of a

final judgment, and the twenty-one day time period contained in

the rule does not delay the finality of a judgment. Thus, when

a trial court enters an order, or decree, in which a judgment is

rendered for a party, unless that order expressly provides that

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the court retains jurisdiction to reconsider the judgment or to

address other matters still pending in the action before it, the

order renders a final judgment and the twenty-one day time

period prescribed by Rule 1:1 begins to run.

The distinction to be drawn between an order that renders

judgment and retains jurisdiction and an order that renders

judgment but does not retain jurisdiction for purposes of when

the twenty-one day time period under Rule 1:1 commences to run

is demonstrated in Concerned Taxpayers v. County of Brunswick,

249 Va. 320, 455 S.E.2d 712 (1995). In that case, the trial

court entered an order on January 3, 1994 dismissing a bill of

complaint. However, that order expressly stated that the trial

court “would reconsider the Concerned Taxpayer’s request to file

an amended bill of complaint” and also “granted [certain

respondents] leave to file ‘additional submissions and a Notice

of Hearing upon their Motion for Sanctions within twenty-one

(21) days after entry of this Order.’ ” Id. at 331-32, 455

S.E.2d at 718.

On February 10, 1994, the trial court entered an order

denying the motion for leave to file an amended bill of

complaint. That order further stated that the trial court

“would ‘retain jurisdiction’ over the . . . request for

sanctions.” Id. at 332, 455 S.E.2d at 718. On March 31, 1994,

“the trial court entered its last order in the case, in which it

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granted . . . the motion for sanctions and entered judgment

against Concerned Taxpayers . . . for legal expenses incurred in

defending the claim.” Id., 455 S.E.2d at 718-19.

On appeal, Concerned Taxpayers challenged the award of

sanctions on the ground that the respondents had failed to give

notice of a hearing on their motion for sanctions within twenty-

one days of the January 3, 1994 order. Citing Bibber v.

McCreary, 194 Va. 394, 397, 73 S.E.2d 382, 384 (1952), Concerned

Taxpayers contended that when the respondents failed to fully

comply with the January 3, 1994 order, that order became a final

order, and the trial court’s jurisdiction expired on January 24,

1994. Concerned Taxpayers, 249 Va. at 332, 455 S.E.2d at 719.

Rejecting this argument, we explained that “the trial court

expressly reserved jurisdiction . . . in the two orders that

preceded the final order entered March 31, 1994.” Id. at 332-

33, 455 S.E.2d at 719. In other words, the orders entered

January 3, 1994 and February 10, 1994 were not final orders and,

thus, were not subject to the twenty-one day time period of Rule

1:1. By using the term “retain jurisdiction” in the February

10, 1994 order, the trial court was not attempting to interrupt

the twenty-one day time period of Rule 1:1. Rather, it was

expressly indicating that the order was not rendering a final

judgment. The “final judgment” in Concerned Taxpayers was

rendered by the March 31, 1994 order, and the twenty-one day

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time period of Rule 1:1, and concurrently the thirty day time

period of Rule 5:9, commenced only upon the entry of that order.

In the present case, by contrast, the August 23, 2000 order

clearly rendered a final judgment at the time of its entry, and

the record establishes that the trial court and the parties

treated it as doing so. Accordingly, upon entry of that order,

the trial court’s jurisdiction over the case extended only to

September 13, 2000, the twenty-first day after the entry of the

order, unless a subsequent order modified, vacated, or suspended

the judgment on or before that date.

In Lyle v. Ekleberry, the case cited by Super Fresh in the

present appeal, we held that a letter from counsel requesting

that the trial court vacate a final judgment was insufficient to

toll the running of the twenty-one day time period of Rule 1:1

because “[a]n order of the court was necessary” to achieve that

end. 209 Va. at 350-51, 164 S.E.2d at 587. Super Fresh

contends that because the September 12, 2000 order was entered

in response to its motion for reconsideration, “[t]he trial

court here took the necessary step of entering an Order

memorializing its . . . intent to retain jurisdiction over the

cause.”

Super Fresh misconstrues Lyle. To interrupt the running of

the twenty-one day time period of Rule 1:1, it is not sufficient

that the trial court enter an order acknowledging the filing of

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a post-trial or post-judgment motion within twenty-one days

following the entry of a final judgment. Rather, the rule

requires that the trial court enter an order that expressly

modifies, vacates, or suspends the judgment. In the absence of

such an express order, the twenty-one day time period is not

interrupted, and the case will no longer be under the control of

the trial court when the original twenty-one day time period has

run. See Godfrey v. Williams, 217 Va. 845, 845-46, 234 S.E.2d

301, 301-02 (1977).

The September 12, 2000 order in the present case stated

that the trial court would “retain jurisdiction over this action

. . . [to] consider and rule on” Super Fresh’s motion for

reconsideration. Unlike the context in which the phrase “retain

jurisdiction” was used by the trial court in Concerned

Taxpayers, it is evident that the trial court here was not

forestalling the commencement of the twenty-one day time period

of Rule 1:1 but, rather, it was attempting to interrupt the

twenty-one day time period of Rule 1:1 that had begun on August

23, 2000 when final judgment had been entered. In doing so,

that order clearly did not vacate, modify, or suspend that

judgment. The sole purpose of the September 12, 2000 order was

to permit the trial court to take under advisement the motion

for reconsideration filed after the entry of the final judgment.

Such an action by the trial court does not toll or extend the

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running of the twenty-one day time period of Rule 1:1. See In

re Commonwealth, Department of Corrections, supra.

Accordingly, we hold that the language of the September 12,

2000 order purporting to extend the period of the trial court’s

jurisdiction beyond the post-judgment twenty-one day time period

of Rule 1:1 was ineffective because that order did not modify,

vacate, or suspend the final judgment rendered by the August 23,

2000 order. The trial court’s subsequent actions were void for

want of jurisdiction, and the time for filing a notice of appeal

was thirty days from the date of the entry of the August 23,

2000 order. Rule 5:9. Super Fresh’s notices of appeal were

filed well beyond that time frame and, thus, this Court lacks

jurisdiction to consider any appeal from the judgment rendered

in the August 23, 2000 order. School Board of City of Lynchburg

v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d

319, 323 (1989); Vaughn v. Vaughn, 215 Va. 328, 329, 210 S.E.2d

140, 142 (1974).

Having resolved this particular appeal, we take this

opportunity to emphasize that the provisions of Rule 1:1 are

mandatory in order to assure the certainty and stability that

the finality of judgments brings. Once a final judgment has

been entered and the twenty-one day time period of Rule 1:1 has

expired, the trial court is thereafter without jurisdiction in

the case. Thus, only an order within the twenty-one day time

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period that clearly and expressly modifies, vacates, or suspends

the final judgment will interrupt or extend the running of that

time period so as to permit the trial court to retain

jurisdiction in the case. See Davis v. Mullins, 251 Va. 141,

150, 466 S.E.2d 90, 94 (1996). Finally, we also stress that a

judgment which has been properly vacated or suspended under Rule

1:1 does not become a final judgment thereafter without a

subsequent order confirming it as originally entered or as

modified.

CONCLUSION

For these reasons, we hold that the order awarding an

appeal to Super Fresh was improvidently granted and,

accordingly, that order will be vacated and the appeal

dismissed.

Dismissed.

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