Bowman v. Concepcion ( 2012 )

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Koontz, S.J.
JACQUELINE BOWMAN
OPINION BY
v. Record No. 102144 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
March 2, 2012
NICANOR B. CONCEPCION
FROM THE CIRCUIT COURT OF WISE COUNTY
John C. Kilgore, Judge
In this appeal, we consider whether the requirement for a
plaintiff to obtain service of process on a defendant within
twelve months of filing an action, Code § 8.01-275.1 and Rule
3:5(e), was subject to extension by the circuit court for
"good cause." We further consider whether the court correctly
determined that the plaintiff's failure to obtain service on
the defendant within twelve months from the filing of the
complaint resulted from a lack of due diligence on her part.
BACKGROUND
The relevant facts of this case are not in dispute. In a
complaint timely filed on February 5, 2009 in the Circuit
Court of Wise County, Jacqueline Bowman alleged that Nicanor
B. Concepcion, M.D. committed medical malpractice during his
treatment of her beginning on October 16, 2006. Bowman
alleged that she first learned of Dr. Concepcion's failure to
diagnose and properly treat her medical condition when she
"received a second opinion from Dr. Felix E. Shepard on
February 21, 2008."
On February 5, 2010, Bowman filed a motion in the circuit
court in which she asserted that "[i]t has now been 12 months
since the complaint was filed . . . and plaintiff has not been
successful in obtaining service of process on the defendant in
this matter." Bowman asked the court to "find that she has
shown good cause for lack of service of process on the
defendant within the statutory 12 month period; that said lack
of service is not prejudicial to the defendant; and that the
court grant her an extension to serve the defendant until July
1, 2010." Following an ex parte hearing on the day the motion
was filed, the court entered an order granting the extension,
finding "that the plaintiff has shown good cause as to why the
defendant has not been served in this matter within the 12
month period provided for by statute" and allowed "an
extension of time" to July 1, 2010 in which to obtain service
upon the defendant. 1 Thereafter, Bowman obtained service of
process of the complaint on Dr. Concepcion on March 30, 2010.
1
This order was entered by Judge Joseph R. Carico. No
record of the ex parte proceeding is available; however, as
will be discussed infra, in subsequent proceedings Bowman
averred as to the nature of the argument that was presented to
the court.
2
On April 1, 2010, Dr. Concepcion filed a motion to
dismiss the complaint on the ground that Bowman had not
obtained service of process on him within twelve months of
filing the complaint and could not show that she had exercised
due diligence in attempting to obtain service on him. The
motion was supported by an affidavit in which Dr. Concepcion
averred that he had been living and working in Wise County or
the City of Norton during the period in which the complaint
had been pending, that he had been available for service of
process at his home or office except for brief intervals when
he was travelling, and that he was not aware of any effort to
serve process on him during the twelve months following the
filing of the complaint on February 5, 2009.
Dr. Concepcion filed a memorandum in support of the
motion to dismiss in which he addressed the February 5, 2010
order purporting to grant Bowman an extension of time to
obtain service of process. Dr. Concepcion contended that the
February 5, 2010 order was void because the court did not have
personal jurisdiction over him at the time it was entered. He
further contended that if this order was merely voidable,
rather than void, it nevertheless should be set aside because
the court applied the wrong standard in determining that
Bowman's failure to obtain service of process on him was
excusable. Dr. Concepcion contended that "good cause" as
3
referenced in the order was a less rigorous standard than "due
diligence," which he maintained was the correct standard under
Code § 8.01-275.1 and Rule 3:5(e).
Finally, Dr. Concepcion contended that Bowman
subsequently could not be allowed to claim that her failure to
obtain service of process on him was not the result of a lack
of due diligence because the record showed that no effort was
made to obtain service of process until after the order
granting the extension was entered. To the contrary, he
maintained that the record affirmatively showed that Bowman
"d[id] not wish to have the complaint served" when it was
filed and did not request service of process at any time
during the next twelve months.
Bowman filed a memorandum in response to Dr. Concepcion's
motion to dismiss. Therein, for the first time on the record
she asserted that the complaint had been filed "on February 5,
2009 to protect her rights and toll the running of the statute
of limitations." She further asserted that after filing the
complaint, her "counsel diligently sought after an expert to
review the medical records . . . and provide the written
certification required in a medical malpractice case" by Code
§ 8.01-20.1, without which she could not request service of
process on Dr. Concepcion. Bowman contended that in the ex
parte proceeding on February 5, 2010, her counsel represented
4
this circumstance to the circuit court as the basis for
seeking the extension of time to obtain service of process on
Dr. Concepcion, which "obviously the [c]ourt[] believed
qualified as 'Due Diligence'" as subsumed within a "good
cause" standard.
Bowman further contended that the February 5, 2010 order
was not void because it was not necessary for the court to
have personal jurisdiction over Dr. Concepcion before
extending the time to obtain service of process on him.
Finally, Bowman contended that even if the February 5, 2010
order did not validly extend the time for obtaining service of
process on Dr. Concepcion, the court nonetheless should find
that she exercised due diligence in obtaining service of
process once the expert opinion required by Code § 8.01-20.1
had been obtained. 2
Following oral argument by the parties, the circuit court
issued a memorandum opinion dated August 5, 2010. The court
first concluded that the February 5, 2010 order was "void."
The court reasoned that in entering the order, the judge "did
not address whether due diligence to obtain service as late as
2
Bowman also contended that Dr. Concepcion had made a
general appearance in the case and, thus, waived any objection
to a defect in the service of process. The circuit court
rejected this argument, and we refused Bowman's assignment of
error addressing this aspect of the court's judgment.
5
March 30, 2010, could be justified, rather the court
legislated that the time for obtaining service in this case
would not be one year as otherwise required by law." Because
"[n]o such statutory authority exists" that would permit the
court to grant such an extension, especially in an ex parte
proceeding, the court determined that Bowman could not rely
upon the order to validate her untimely service of process on
Dr. Concepcion.
The circuit court then opined that the due diligence
requirement of Code § 8.01-275.1 and Rule 3:5(e) means
"diligence to have a defendant served in a manner provided by
law. It does not mean diligence in obtaining a medical report
to satisfy the requirements of Code § 8.01-20.1." The court
expressly found that "[s]ervice upon the defendant was not
requested" within the twelve months following the filing of
the complaint "because plaintiff's counsel did not at that
time have in hand a written report as required by Code § 8.01-
20.1." Nonetheless, because Dr. Concepcion "was easily
accessible for service of process at most any time during the
one year following the filing of this suit," the court
determined that Bowman had not exercised due diligence in
having the complaint served on him.
By an order dated August 13, 2010, the circuit court
entered final judgment granting Dr. Concepcion's motion to
6
dismiss Bowman's complaint with prejudice. 3 We awarded Bowman
an appeal from this judgment limited to the following
assignments of error:
1. The trial court erred in ruling that the Order
entered on February 5, 2010, extending the period of
time to perfect service of process on defendant was
null and void.
3. The trial court erred in ruling that Plaintiff
had not exercised due diligence in this case.
DISCUSSION
We begin our analysis with the principal statutory
provisions and our Rule 3:5(e) as invoked by the particular
circumstances of this medical malpractice case. These
provisions establish the procedural framework from which the
parties make their various contentions in this appeal.
In pertinent part, Code § 8.01-20.1 provides that in any
case in which a pleading alleges an act of medical malpractice
which requires the opinion of a qualified expert witness, when
the plaintiff requests service of process upon a
defendant, or requests a defendant to accept
service of process, [that request] shall be deemed
a certification that the plaintiff has obtained
from an expert witness whom the plaintiff
reasonably believes would qualify as an expert
witness pursuant to subsection A of § 8.01-581.20 a
written opinion signed by the expert witness that,
based upon a reasonable understanding of the facts,
the defendant for whom service of process has been
3
Judge Designate Charles B. Flannagan II issued the
August 5, 2010 memorandum opinion in this case. Judge Kilgore
entered the August 13, 2010 final order.
7
requested deviated from the applicable standard of
care and the deviation was a proximate cause of the
injuries claimed.
This statute further provides that "[i]f the plaintiff did not
obtain a necessary certifying expert witness at the time the
plaintiff requested service of process on a defendant as
required under this section, the court shall impose sanctions
according to the provisions of § 8.01-271.1 and may dismiss
the case with prejudice." (Emphasis added.)
Code § 8.01-275.1 provides that "[s]ervice of process in
an action or suit within twelve months of commencement of the
action or suit against the defendant shall be timely as to
that defendant. Service of process on a defendant more than
twelve months after the suit or action was commenced shall be
timely upon a finding by the court that the plaintiff
exercised due diligence to have timely service made on the
defendant."
Rule 3:5(e) provides that "[n]o order, judgment or decree
shall be entered against a defendant who was served with
process more than one year after institution of the action
against that defendant unless the court finds as a fact that
the plaintiff exercised due diligence to have timely service
on that defendant."
In pertinent part, Code § 8.01-277(B) provides that:
8
A person, upon whom process has not been served
within one year of commencement of the action
against him, may make a special appearance, which
does not constitute a general appearance, to file a
motion to dismiss. Upon finding that the plaintiff
did not exercise due diligence to have timely
service and sustaining the motion to dismiss, the
court shall dismiss the action with prejudice. . . .
Nothing herein shall prevent the plaintiff from
filing a nonsuit under Code § 8.01-380 before the
entry of an order granting a motion to dismiss
pursuant to the provisions of this section.
(Emphasis added.)
Guided by these procedural requirements, we turn now to
Bowman's first assignment of error in which she asserts that
the circuit court erred in ruling that the February 5, 2010
order purporting to extend the twelve-month period of time
from the filing of the complaint on February 5, 2009 to July
1, 2010 to obtain service of process on Dr. Concepcion was
void. On appeal, the parties essentially repeat the
assertions made in the circuit court.
The thrust of Bowman's assertion regarding the validity
of the February 5, 2010 order is that she had made a good
faith attempt to comply with the requirement of Code § 8.01-
20.1 before requesting service of process on Dr. Concepcion
and this order resulted in no prejudice to him and merely
removed the application of the twelve month requirements of
both Code § 8.01-275.1 and Rule 3:5(e) for timely service of
process on Dr. Concepcion. The thrust of Dr. Concepcion's
9
assertions on this issue is that the February 5, 2010 order
was void because the court lacked personal jurisdiction over
him and he was prejudiced because absent an extension of time
to obtain service of process on him within the time
requirements of Code § 8.01-275.1 and Rule 3:5(e), he would
have been entitled to a dismissal of Bowman's complaint
against him.
There is no dispute in this case that the alleged acts of
malpractice occurred within the geographical jurisdiction of
the circuit court and that Bowman's complaint was timely filed
in that court. Moreover, it is clear that the court upon the
filing of the complaint had subject matter jurisdiction over
the case. Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d
753, 755 (1990). While it is true that absent service of
process of the complaint upon Dr. Concepcion the court lacked
personal jurisdiction over him, the February 5, 2010 order was
not void but rather at best voidable. Both Code § 8.01-275.1
and Rule 3:5(e) expressly permit, after service of process,
the court to find that service of process beyond the
prescripted time period of twelve months may be allowed if the
plaintiff can demonstrate "due diligence" in attempting to
obtain service of process on the defendant. See Gilpin v.
Joyce, 257 Va. 579, 582-83, 515 S.E.2d 124, 126 (1999); see
also Code § 8.01-335(D)(providing that a case "wherein process
10
has not been served within one year" will not be struck from
the docket if the plaintiff can show "that due diligence has
been exercised to have service timely effected on the
defendant.")
We agree with the circuit court that no statutory
authority exists that would permit a court to grant
prospectively an extension of time beyond one year from
commencement of an action for service of process on a
defendant. However, this observation by the circuit court
misses the point in this case. In the February 5, 2010 order,
the court did not specifically address whether the plaintiff
had exercised due diligence to obtain service of process of
the complaint on Dr. Concepcion and there was no pending
motion to dismiss filed by him pursuant to Code § 8.01-277(B)
raising the due diligence issue. Thus, the case remained on
the court's docket and was subject to the filing of a motion
to dismiss by the defendant at a later time. In this
procedural posture of the case the February 5, 2010 order
purported to grant an extension of time for obtaining service
of process on the defendant without a proper determination of
the due diligence issue. Therefore, the order was erroneous
and simply did not resolve the present contentions of the
parties. Indeed, both parties conceded during oral argument
of this appeal that even if the February 5, 2010 order was
11
properly set aside, Bowman could still prevail in this appeal
if the circuit court erred in finding, pursuant to Dr.
Concepcion's motion to dismiss, that she failed to demonstrate
due diligence in attempting to obtain timely service of
process of her complaint on Dr. Concepcion. For these
reasons, we hold that even though the circuit court erred in
ruling that the February 5, 2010 order was void, it did not
err in setting aside the February 5, 2010 order and requiring
Bowman to demonstrate that she exercised due diligence in
attempting to obtain service of process on Dr. Concepcion.
Accordingly, we now turn to Bowman's other assignment of
error asserting that the circuit court erred in finding that
she had not shown due diligence in her efforts to obtain
timely service of process of her complaint on Dr. Concepcion.
Unlike the procedural posture of the case at the time of the
entry of the February 5, 2010 order, the issue of due
diligence was before the circuit court pursuant to Dr.
Concepcion's April 1, 2010 motion to dismiss following service
of process on him on March 30, 2010.
Bowman contends that, as applied by the circuit court in
this case, there is a conflict between Code § 8.01-20.1 and
Code § 8.01-275.1. Bowman maintains that the conflict arises
because under the circuit court's interpretation of these
statutes a plaintiff may not serve a defendant in a medical
12
malpractice action without the necessary expert opinion
required by Code § 8.01-20.1, but is nonetheless required to
obtain service of process on the defendant within twelve
months of filing the action as required by Code § 8.01-275.1,
even if the plaintiff has not yet obtained the expert opinion.
Bowman contends that to harmonize these two statutes, we must
conclude that the due diligence requirement of Code § 8.01-
275.1 can be satisfied if the plaintiff in a medical
malpractice action demonstrates due diligence in the effort to
obtain the Code § 8.01-20.1 expert opinion. Bowman does not
dispute that she readily could have obtained service of
process on Dr. Concepcion without any hindrance by him at
almost any time during the twelve months following the filing
of her complaint. She relies solely on her unsuccessful
efforts to obtain the Code § 8.01-20.1 opinion during that
time as the basis for asserting that she exercised due
diligence in attempting service on Dr. Concepcion. 4
"[W]e construe statutes as a consistent and harmonious
whole to give effect to the overall statutory scheme." Ott v.
Monroe, 282 Va. 403, 407, 719 S.E.2d 309, 311 (2011) (citing
4
The circuit court did not make an express finding as to
whether Bowman's counsel's efforts to obtain the Code § 8.01-
20.1 opinion were sufficiently diligent. For purposes of our
analysis, we will assume, without deciding, that the failure
to obtain the expert statement was not for lack of an
appropriate effort on counsel's part.
13
Virginia Electric & Power Co. v. Board of County Supervisors,
226 Va. 382, 388, 309 S.E.2d 308, 311 (1983)). Thus, we will
construe statutes that address the same general subject "so as
to avoid repugnance and conflict between them and, if
possible, to give force and effect to each of them." City of
Lynchburg v. English Constr. Co., 277 Va. 574, 584, 675 S.E.2d
197, 202 (2009); see also Evans v. Evans, 280 Va. 76, 84-85,
695 S.E.2d 173, 177 (2010); Sexton v. Cornett, 271 Va. 251,
257, 623 S.E.2d 898, 901 (2006)
The purpose and intent of Code § 8.01-275.1, and its
procedural complement in Rule 3:5(e), "is to provide for
timely prosecution of lawsuits and to avoid abuse of the
judicial system." Gilbreath v. Brewster, 250 Va. 436, 441,
463 S.E.2d 836, 838 (1995). Code § 8.01-20.1 serves a similar
purpose specifically for medical malpractice actions, in that
it seeks to avoid delay in the prosecution of an action which
requires the plaintiff to provide expert testimony concerning
the standard of care, as well as to interdict the prosecution
of frivolous suits where no expert can be found to support the
plaintiff's contention.
There is no conflict in the complementary purposes of
these statutes in that each expedites the prosecution of
actions while discouraging abuse of the judicial system.
These purposes would not be served if, as Bowman urges, Code
14
§ 8.01-20.1 were applied effectively to toll the application
of Code § 8.01-275.1. If a plaintiff could avoid the
operation of the latter statute by showing that the delay in
having the defendant served with process resulted solely from
the inability to meet the requirements of the former despite a
diligent but unsuccessful effort to find an expert willing to
support the plaintiff's claim, the time for obtaining service
on a defendant in a medical malpractice action might be
extended indefinitely.
Moreover, we are of opinion that the effort expended by
the plaintiff to obtain the Code § 8.01-20.1 expert opinion
does not constitute part of the due diligence effort to obtain
service of process on the defendant expressly required under
Code § 8.01-275.1. Otherwise, a plaintiff would have a
virtually unlimited time to acquire the Code § 8.01-20.1
opinion as long as the effort to obtain it was being pursued
with "due diligence," a standard that does not appear in that
statute. We do not believe that the legislature could have
intended such a result, which effectively defeats the purposes
of both Code § 8.01-20.1 and § 8.01-275.1, as statutes
" 'should never be construed in a way that leads to absurd
results.' " Bank of the Commonwealth v. Hudspeth, 282 Va.
216, 221, 714 S.E.2d 566, 569 (2011) (quoting Meeks v.
Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007)).
15
As we have already noted, Bowman does not contend that
there would have been any hindrance on her effort to have
process served upon Dr. Concepcion during the twelve months
following the filing of her complaint had she attempted it,
but only that she did not request service on him because she
had not yet satisfied the requirement of Code § 8.01-20.1. In
that circumstance, she was not without a procedural remedy to
resolve her asserted dilemma. Rather, as permitted by Code
§ 8.01-277(B), she could have taken a nonsuit as a matter of
right pursuant to Code § 8.01-380 and refiled her complaint in
accord with the provisions of Code § 8.01-229(E)(3).
Accordingly, we hold that the circuit court did not err in
finding that Bowman had not shown that she exercised due
diligence in seeking to obtain service of process upon Dr.
Concepcion within twelve months of the filing of her
complaint.
CONCLUSION
For these reasons, we will affirm the judgment of the
circuit court dismissing the complaint with prejudice for
Bowman's failure to obtain service of process on Dr.
Concepcion within twelve months after filing her complaint.
Affirmed.
JUSTICE POWELL, concurring.
16
I agree with the majority's conclusion that a plaintiff's
attempts to find an expert to render an opinion under Code
§ 8.01-20.1 do not establish due diligence to satisfy the
requirements of Code § 8.01-275.1. I also agree with the
ultimate holding of the case. I respectfully disagree,
however, with that portion of the majority's discussion
suggesting that the February 5, 2010, order was not void, and
I would affirm the judgment based, in part, on the fact that
the extension of time order was null and void ab initio.
The majority states that
[w]e agree with the circuit court that no
statutory authority exists that would permit a
court to grant an extension of time beyond one
year from commencement of an action for service
of process on a defendant. However, this
observation by the circuit court misses the
point in this case.
In my opinion, this is the point in this case. Code § 8.01-
275.1 states:
Service of process in an action or suit within
twelve months of commencement of the action or
suit against a defendant shall be timely as to
that defendant. Service of process on a
defendant more than twelve months after the
suit or action was commenced shall be timely
upon a finding by the court that the plaintiff
exercised due diligence to have timely service
made on the defendant.
Clearly, the time limit for serving process under Code § 8.01-
275.1 is purely statutory. Therefore, any authority the
17
circuit court had to extend the time period must, of
necessity, derive from the statute. As the majority correctly
states, no such statutory authority exists.
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." 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."
Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001)
(citations and footnote omitted). Therefore, the February 5,
2010, order is void because a circuit court lacks the
authority to extend the time in which the plaintiff must serve
the defendant, as opposed to later finding upon consideration
of defendant's motion to dismiss that the plaintiff exercised
due diligence even though service of process was not
accomplished within one year.
Therefore, I concur in the disposition of the judgment
below, but I would stress that under our precedent the circuit
18
court was correct in ruling that the February 5, 2010, order
was void.
19