Opinion
43829 Records Nos. 771249 and 771317.
June 8, 1979
Present: All the Justices.
Unappealed order in medical malpractice case dismissing action without prejudice unaffected by subsequent enactment of Code Sec. 8-924 (now Sec. 8.01-581.12:2); no appeal from order denying reinstatement when Trial Court lacked jurisdiction because 21 days expired from order dismissing action without prejudice and no order modifying, etc.; statute of limitations not tolled when action abates for failure to give notice under Code Sec. 8-912 (now Sec. 8.01-581.2); statute of limitations not tolled for 120 days under Code Sec. 8-919 (now Sec. 8.01-581.9) when notice under Code Sec. 8-912 (now Sec. 8.01-581.2) given after limitation period has run.
(1) Pleading and Practice — Order Dismissing Action without Prejudice — Trial Court Loses Jurisdiction when no Order Modifying, Vacating or Suspending Entered within 21 Days (Rule 1:1).
(2) Pleading and Practice — Unappealed Order Dismissing Action without Prejudice (Rule 5:6) — Unaffected by Subsequent Enactment of Code Sec. 8-924 (now Sec. 8.01-581.12:2).
(3) Pleading and Practice — Order Entered without Jurisdiction — No Appeal Lies.
(4) Limitations of Actions — Code Sec. 8-24 (now Sec. 8.01-243) not Tolled under Code Sec. 8-34 (now in expanded form Sec. 8.01-229 E) when Action Abates for Failure to Give Notice under code Sec. 8-912 (now Sec. 8.01-581.2) — No Exception by Court when None by Statute.
(5) Limitations of Actions — Notice under Code Sec. 8-912 (now Sec. 8.01-581.2) not Given until Limitation Period has Run — Statute not Tolled for 120 Days under Code Sec. 8-919 (now Sec. 8.01-581.9).
Two cases with same plaintiff and defendants consolidated for argument on appeal. Plaintiff in medical malpractice case arising 12 July 1974 filed motion for judgment for damages on 7 July 1976. No notice of claim was given by plaintiff under Code Sec. 8-912 (now Sec. 8.01-581.2) effective 1 July 1976. The Trial Court (Record No. 771249) sustained pleas in abatement by order entered 12 November 1976 and dismissed the action without prejudice on the ground notice under Code Sec. 8-912 was mandatory. There was no appeal from this order. On 25 March 1977, Code Sec. 8-924 (now Sec. 8.01-581.12:2) became effective. This section expressly excluded causes of action arising prior to 1 July 1976 from the requirements of Code Sec. 8-912. Plaintiff moved the Trial Court to reinstate her action, this motion being denied on 10 June 1977. Plaintiff appeals from this order (Record No. 771249). Plaintiff gave notice of her claim under Code Sec. 8-912 on 15 October 1976 (Record No. 771317) and on 16 November 1976 filed a new motion for judgment against the same defendants. By order entered 20 June 1977, the Trial Court sustained pleas in bar based upon the two-year statute of limitations. Plaintiff, appealing from this final order, argues that the statute of limitations was tolled as to her second action during the pendency of her first action when she filed her first motion for judgment five days before the expiration of the two-year limitation period and when that action was dismissed on 12 November 1976 filed her second motion within five days thereafter, thus, according to her argument, giving her one day before her action was barred.
1. As to Record No. 771249, the order of 12 November 1976, dismissing Mrs. Prohm's action without prejudice, remained under the control of the Trial Court and subject to modification, vacation or suspension or 21 days from the date of entry. Rule 1:1. As no order modifying, vacating or suspending the 12 November 1976 order was entered within the prescribed 21 days, the Trial Court lost jurisdiction over the action upon the expiration of that time.
2. No notice of appeal in Record No. 771249 being filed within 30 days as mandated by Rule 5:6 as a prerequisite to appeal, the ruling of the Trial Court embodied in the final order of 12 November 1976 became the uncontroverted law of the case and could not be affected by the subsequent enactment of Code Sec. 8-924.
3. The order of 10 June 1977 in Record No. 771249 denying Mrs. Prohm's motion to reinstate her action was a nullity, the Trial Court having lost jurisdiction in the matter, and there could be no appeal from this order.
4. As to Record No. 771317, the tolling of the statute of limitations was controlled by Code Sec. 8-34 (now expanded as Code Sec. 8.01-229 E). This section expressly enumerates four exceptions when the statute is tolled when a suit abates or is defeated, and abatement for failure to give prior notice under Code Sec. 8-912 (now Sec. 8.01-581.2) is not one of these. No exception will be created by the Court where none exists under the statute.
5. Notice by Mrs. Prohm not being given until 15 October 1976, at which time the two-year limitation period of Code Sec. 8-24 (now Sec. 8.01-243) had already run, the provisions of Code Sec. 8-919 (now Sec. 8.01-581.9) tolling the statute of limitations for 120 days do not apply.
Appeals from judgments of the Circuit Court of Fairfax County. Hon. James Keith, judge presiding (Record No. 771249). Hon. Arthur W. Sinclair, judge presiding (Record No. 771317).
Affirmed. (Record No. 771249). Affirmed. (Record No. 771317).
Joseph L. Duvall (George A. Judge; Duvall, Tate Bywater, Ltd., on briefs), for appellant, (Records Nos. 771249 and 771317).
Stephen L. Altman; Anthony E. Grimaldi (William J. Virgulak, Jr.; Gary A. Godard; Doherty, Sheridan, Grimaldi Shevlin; Donahue Ehrmantraut, on briefs), for appellees. (Records Nos. 771249 and 771317).
These medical malpractice cases involving the same parties were dismissed in the trial court on the pleadings. On appeal, the cases were consolidated for argument because of their interrelationship and identity of parties and counsel.
1. Record No. 771249.
On July 7, 1976, Kathryn R. Prohm filed a motion for, judgment for damages in the trial court against Dr. James E. Anderson, the Fairfax Hospital Association, and "Jane Doe", an unidentified nurse employed by the Hospital Association, for personal injuries alleged to have been negligently inflicted upon Mrs. Prohm during childbirth on July 12, 1974. Under Code Sec. 8-24 (now Sec. 8.01-243), personal injury actions are barred unless brought within two years after the cause of action shall have accrued. Anderson and the Hospital Association filed pleas in abatement; the unidentified nurse made no appearance.
In a letter opinion dated October 4, 1976, the trial court ruled that compliance with the prior notice requirement of Code Sec. 8-912 (now Sec. 8.01-581.2), which became effective July 1, 1976, was mandatory. Pursuant to that ruling, the pleas in abatement were sustained by order entered November 12, 1976, and the action was dismissed, without prejudice, on the ground that Mrs. Prohm had failed to give the required notice before filing her motion for judgment. No appeal from this order was taken.
Sec. 8-912. Notice of claim for medical malpractice required; request for review by medical malpractice review panel. — No action may be brought for malpractice against a health care provider unless the claimant notifies such health care provider in writing prior to commencing the action. The written notification shall include the time of the alleged malpractice and a reasonable description of the act or acts of malpractice. The claimant or health care provider may within sixty days of such notification file a written request for a review by a medical review panel established as provided in Sec. 8-913. The request for review shall be mailed to the Chief Justice of the Supreme Court of Virginia. No actions based on alleged malpractice shall be brought within ninety days of the notification by the claimant to the health care provider and if a panel is requested within the period of review by the medical review panel."
On March 25, 1977, Code Sec. 8.9242 (now 8.01-581.12:2), which expressly excluded causes of action arising prior to July 1, 1976, from the requirements of Code Sec. 8-912, became effective. Thereafter, Mrs. Prohm moved the trial court to reinstate her action, but, by order entered June 10, 1977, the motion was denied, and Mrs. Prohm appealed.
Sec. 8-924. Chapter not applicable to certain actions arising prior to July one, nineteen hundred seventy-six. — The provisions of this chapter shall not apply to any cause of action which arose prior to July one, nineteen hundred seventy-six, and as to which the statute of limitations had not run prior to that date, regardless of the date any suit brought thereon is filed. Notwithstanding the foregoing, in actions which accrued prior to July one, nineteen hundred seventy-six, if a claimant has filed notice under Sec. 8-912 of this chapter, his cause of action and any defense thereto shall be governed by this chapter."
[1-2-3] The trial court had no jurisdiction to take any action upon Mrs. Prohm's motion to reinstate. The order of November 12, 1976, dismissing her action without prejudice, remained under the control of the trial court and subject to modification, vacation, or suspension for only 21 days after the date of entry. Rule 1:1; Lyle and Allen v. Ehleberry, 209 Va. 349, 351, 164 S.E.2d 586, 587 (1968). As no order modifying, vacating, or suspending the November 12, 1976, order was entered within the prescribed period of 21 days, the court lost jurisdiction over the action upon the expiration of that time. See Hirschkop v. Commonwealth, 209 Va. 678, 680, 166 S.E.2d 322, 323, cert. denied, 396 U.S. 845 (1969). No notice of appeal was filed within 30 days, as mandated by Rule 5:6, as a prerequisite to appeal. Thus, the ruling of the court embodied in the final order of November 12, 1976, became the uncontroverted law of the case, and could not be affected by the subsequent enactment of Code Sec. 8-924. The order of June 10, 1977, was a nullity, and Mrs. Prohm could not appeal from it.
2. Record No. 771317.
On October 15, 1976, Mrs. Prohm gave notice of her claim pursuant to the provisions of Code Sec. 8-912, and on November 16, 1976, she filed in the trial court a new motion for judgment against the same defendants for the same injuries. Dr. Anderson and the Hospital Association filed pleadings, including pleas in bar based upon the two-year statute of limitations; "Jane Doe" again did not appear. The trial court ruled that the statute of limitations barred the second action and, by order entered June 20, 1977, sustained the pleas in bar and dismissed the action. Mrs. Prohm appealed from this final order.
Mrs. Prohm contends that the statute of limitations was tolled as to her second action during the pendency of her first action. Under this theory, the running of the statute would have been suspended when she filed her first motion for judgment on July 7, 1976, five days before the expiration of the two-year limitation period. When the action was dismissed on November 12, 1976, she filed her second motion for judgment within five days thereafter, namely, on November 16, 1976, when, by her reckoning, she had one day remaining before her cause of action was barred.
However, tolling of the statute of limitations during the pendency of an action was controlled in this case by Code Sec. 8-34 (now significantly expanded as Sec. 8.01-229 E). We have recognized only the four exceptions expressly enumerated in the statute. Jones v. Morris Plan Bank, 170 Va. 88, 91-93, 195 S.E. 525, 525-26 (1938). See Woodson v. Commonwealth Util., Inc., 209 Va. 72, 74, 161 S.E.2d 669, 670-71 (1968). None of the four exceptions applies in the present case, and we are not disposed, as counsel for Mrs. Prohm urges, to disregard Jones and Woodson and create an exception for her benefit where none exists under the statute. Therefore, we hold that the statute of limitations was not tolled as to the second action during the pendency of the first action.
Sec. 8-34. Further time given when suit abates or is defeated on ground not affecting the right to recover. — If an action or suit commenced within due time in the name of or against one or more plaintiffs or defendants abate as to one of them by the return of no inhabitant or by his or her death or marriage, or if in an action or suit commenced within due time judgment or decree for the plaintiff shall be arrested or reversed upon a ground which does not preclude a new action or suit for the same cause, or if there be occasion to bring a new action or suit by reason of the loss or destruction of any of the papers or records in a former suit or action which was in due time; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, or such arrest, or reversal of judgment or decree, or such loss or destruction, but not after."
Nor do the provisions of Code Sec. 8-919 (now Sec. 8.01-581.9) apply. The giving of notice pursuant to Code Sec. 8-912 tolls the statute of limitations for 120 days, but such notice was not given by Mrs. Prohm until October 15, 1976, at which time the statute had already run.
Sec. 8-919. Notice of claim to toll statute of limitations; when notice of claim or request for review deemed given. — The giving of notice of a claim pursuant to Sec. 8-912 shall toll the applicable statute of limitations for and including a period of one hundred twenty days following the notice to the health care provider as specified in Sec. 8-912, or sixty days following issuance of any opinion by the medical review panel, whichever is later."
Accordingly, we conclude that the trial court did not err in ruling that Mrs. Prohm's second action was barred by the statute of limitations.
For the reasons assigned, we will affirm the judgment of the trial court in each case.
Affirmed as to Record No. 771249. Affirmed as to Record No. 771317.