Singh v. Mooney

Present: All the Justices

RAM SINGH, M.D., ET AL.

v. Record No. 000636 OPINION BY JUSTICE ELIZABETH B. LACY

January 12, 2001

NATHANIEL MOONEY

FROM THE CIRCUIT COURT OF WISE COUNTY

J. Robert Stump, Judge

In this case, we determine whether an order entered in

violation of Rule 1:13 is void ab initio or merely voidable.

Nathanial Mooney filed a medical malpractice action

against Ram Singh, M.D., Sanyogta Singh (collectively

"Singh"), Volunteer Healthcare Systems, Inc. d/b/a Dickenson

County Medical Center, and Sabry Radawi, M.D., 1 in March of

1995. By order entered October 2, 1998, Mooney was directed

to make his expert witness available for deposition by October

20, 1998. The October 2 order also stated that if Mooney did

not comply with the order, his action would be "subject to

dismissal."

Mooney failed to comply with the October 2 order, and, on

October 21, Singh filed a motion to dismiss. Copies of this

motion and proposed order were sent to Mooney along with a

cover letter. In that letter, Singh requested the trial court

to enter the dismissal order if it did "not receive any

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Volunteer Healthcare Systems, Inc. d/b/a Dickenson

County Medical Center, and Sabry Radawi, M.D., were nonsuited

on September 24, 1996.

objections from counsel for the plaintiff within ten days of

the date of this letter." Two days later, on October 23, the

trial court entered the proposed order dismissing Mooney's

action with prejudice.

On September 24, 1999, Mooney filed a motion to vacate

the October 23, 1998 order, asserting it was void because it

did not comply with Rule 1:13. Mooney also filed a motion for

nonsuit.

The trial court agreed with Mooney and held that

" 'reasonable notice of the time and place of presenting such

drafts . . .' of the final order was not properly given" to

Mooney's counsel as required by Rule 1:13. The trial court

"in its discretion" declared the October 23, 1998 order "void

ab initio" and granted Mooney's motion to vacate the order.

The trial court also granted Mooney's motion for a nonsuit and

dismissed the original action without prejudice. We awarded

Singh an appeal.

On appeal, Singh presents the following single assignment

of error:

The trial court had no authority to vacate the final

order and grant a nonsuit of this action on January

7, 2000, because the trial court lost jurisdiction

of this action twenty-one days after the entry of

the final order on October 23, 1998.

Resolution of this issue requires consideration of whether an

order entered in violation of Rule 1:13 is void ab initio or

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merely voidable. If it is the former, it can be challenged at

any time; if the latter, it is not subject to collateral

attack and is subject to the limitations of Rule 1:1. Parrish

v. Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 145 (1995).

While some of this Court's prior cases have referred to a

final order which did not comply with Rule 1:13 or its

predecessor as "void," we have never directly addressed

whether such failure renders the final order void ab initio or

merely voidable. For the reasons that follow, we conclude

that the failure to comply with Rule 1:13 renders an order

voidable, not void ab initio.

The distinction between an action of the court that is

void ab initio rather than merely voidable is that the former

involves the underlying authority of a court to act on a

matter whereas the latter involves actions taken by a court

which are in error. An order is void ab initio if entered by

a court in the absence of jurisdiction of the subject matter

or over the parties, if the character of the order is such

that the court had no power to render it, or if the mode of

procedure used by the court was one that the court could "not

lawfully adopt." Evans v. Smyth-Wythe Airport Comm'n, 255 Va.

69, 73, 495 S.E.2d 825, 828 (1998)(quoting Anthony v. Kasey,

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83 Va. 338, 340, 5 S.E. 176, 177 (1887)). 2 The lack of

jurisdiction to enter an order under any of these

circumstances renders the order a complete nullity and it may

be "impeached directly or collaterally by all persons,

anywhere, at any time, or in any manner." Barnes v. Am.

Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925).

Consequently, Rule 1:1 limiting the jurisdiction of a court to

twenty-one days after the entry of the final order does not

apply to an order which is void ab initio.

In contrast, an order is merely voidable if it contains

reversible error made by the trial court. Such orders may be

set aside by motion filed in compliance with Rule 1:1 or

provisions relating to the review of final orders. See, e.g.,

Code § 8.01-623 (bill of review); Code § 8.01-428 (relief from

judgments).

Keeping these principles in mind, we now turn to Rule

1:13. That Rule provides:

Drafts of orders and decrees shall be endorsed by

counsel of record, or reasonable notice of the time

and place of presenting such drafts together with

copies thereof shall be served by delivering . . .

to all counsel of record who have not endorsed them.

Compliance with this rule . . . may be modified or

dispensed with by the court in its discretion.

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A judgment obtained by extrinsic or collateral fraud is

also void ab initio. Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d

756, 758 (1987).

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The Rule on its face allows a trial court, in its discretion,

to dispense with the requirements of notice and endorsement.

Such dispensation by the court need not appear on the face of

the order. Napert v. Napert, 261 Va. ___, ___ S.E.2d ___

(2001), No. 000562, decided today; Smith v. Stanaway, 242 Va.

286, 288-89, 410 S.E.2d 610, 611-12 (1991); Rosillo v.

Winters, 235 Va. 268, 272-73, 367 S.E.2d 717, 719 (1988).

Thus, in this context, a claim that an order does not comply

with Rule 1:13 is a claim that the trial court abused its

discretion in dispensing with the requirements of the Rule

when it entered the order in question. Abuse of discretion

analysis involves a question of court error; it is not a

question of the jurisdiction or authority of the court to

enter the order.

Review of our prior cases considering Rule 1:13 and its

predecessor supports the proposition that the failure to

comply with Rule 1:13 is a question of trial court error, not

of jurisdiction. Our cases consistently apply an abuse of

discretion standard in reviewing the action of the trial

court. Fredericksburg Constr. Co. v. J.W. Wyne Excavating,

Inc., 260 Va. 137, 147, 530 S.E.2d 148, 154 (2000)(entry of

final order without endorsement of counsel not an abuse of

discretion); Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d

90, 93-94 (1996)(exercising discretion to dispense with

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counsel's endorsement proper); Smith v. Stanaway, supra

(dispensing with notice and endorsement requirements not abuse

of discretion); Rosillo v. Winters, supra (dispensing with

notice requirement abuse of discretion); Iliff v. Richards,

221 Va. 644, 649, 272 S.E.2d 645, 648 (1980)(in exercise of

discretion, court should have required notice); Cofer v.

Cofer, 205 Va. 834, 837, 140 S.E.2d 663, 665 (1965)(court

should not have dispensed with requirements of rule).

An additional case which addressed Rule 1:13, State

Highway Comm'r v. Easley, 215 Va. 197, 207 S.E.2d 870 (1974),

is also consistent with our treatment of the failure to comply

with the Rule as a matter of court error, and not court

jurisdiction. In Easley, we held that a challenge to

compliance with Rule 1:13 could only be raised by the party

whose rights were prejudiced by such alleged failure. Id. at

202, 207 S.E.2d at 874. Yet, as stated above, an order which

is void ab initio can be challenged "by all persons, anywhere,

at any time, or in any manner." Barnes, 144 Va. at 705, 130

S.E. at 906.

While challenges to compliance with Rule 1:13 have

consistently been reviewed by applying an abuse of discretion

standard, references regarding the result of such an abuse of

discretion have not been consistent. For example, in Iliff,

the Court concluded that the "failure on the part of the trial

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court [to require notice under Rule 1:13] was an abuse of

discretion amounting to reversible error" and then went on to

conduct a harmless error analysis. 221 Va. at 649, 272 S.E.2d

at 648. Yet, in Rosillo, after concluding that the trial

court abused its discretion in dispensing with the

requirements of the Rule, the Court stated that the order

entered "was void, thus nullifying all subsequent proceedings

in the suit." 235 Va. at 273, 367 S.E.2d at 719. And in

Cofer, the Court stated that the order, entered without

notice, was "void" and that "a void decree or order is a

nullity and may on proper application be vacated at any time."

205 Va. at 837, 140 S.E.2d at 665-66.

In the absence of further clarification, the statement in

Rosillo declaring the order "void" does not indicate whether

the order was void ab initio or merely voidable. Thus,

Rosillo is not directly at odds with the statements made in

Iliff. However, the statements in Cofer declaring the order

"void" and referring to a "void decree" as a nullity and

subject to attack at any time cannot be reconciled with the

reversible error and harmless error analysis applied in Iliff.

Notwithstanding this inconsistency, we conclude that our

prior cases and the principles that underlie the distinction

between orders which are void ab initio and those merely

voidable are consistent with the conclusion that an order

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entered in violation of Rule 1:13 is voidable, not void ab

initio. To the extent Cofer stands for the proposition that

an order entered in violation of Rule 1:13 is void ab initio,

it is overruled.

In light of this conclusion, the trial court in this case

did not have jurisdiction to vacate the October 23, 1998 order

because more than twenty-one days had passed. Rule 1:1.

Similarly the trial court was without jurisdiction to enter an

order of nonsuit. Accordingly, we will reverse the judgment

of the trial court and reinstate the October 23, 1998 order

dismissing the action with prejudice.

Reversed and final judgment.

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