Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Process. For more information on process see the pages on Wikipedia.  

Process-Statutes

See Va. Code § 1.237 as to definition of process.

See Va. Code § 8.01-275.1 that service within one year is timely.

See Va. Code § 8.01-277, which states that court may strike proof of service or allow amendment of return of process but cannot dismiss action on motion to quash.

See Va. Code § 8.01-277 as to motions to quash which may be filed prior to or with any pleading on merits.

See Va. Code § 8.01-288 indicating that process which has reached person to whom it is directed shall be sufficient although not served or accepted as provided in this chapter.

See Va. Code § 8.01-315 indicating that notice of service is to be mailed to defendant when service accepted by another.

See Va. Code § 16-1-89 as to subpoenas duces tecum in general district court.

See Va. Code §§ 38.2-801 through 38.2-804 as to service of process on insurance company not authorized to do business in this state.

See Va. Code § 55-218.1 indicating that nonresident property owners owning four or more units shall designate resident agent. No nonresident property owner may maintain suit in this state concerning such property unless such designation has been filed.

Process-Cases

2012 Bowman v. Concepcion, 283 Va. 552, 722 S.E.2d 260.
Statutes and rule requiring service of process within one year cannot be overridden by trial court without finding that plaintiff has exercised due diligence as to service. In this medical malpractice case, Claimant did not serve defendant within one year of filing because plaintiff did not have required expert witness statement. Plaintiff could have non-suited prior to dismissal. In this case, dismissal with prejudice was proper.

2006 Lyren v. Ohr, 271 Va. 155, 623 S.E.2d 883.
Plaintiff served defendant with process more than one year after the filing of suit. Defendant thereafter filed a pleading to the merits. In doing so, the defendant waived any objection under Rule 3:3. Having filed a general appearance, defendant waives all questions concerning the service of process and therefore, it was improper for the trial court to dismiss the action under Rule 3:3.

2004 Lifestar Response of Md., Inc. v. Vegosen, 267 Va. 720, 594 S.E.2d 589.
The plaintiff served defendant with motion for judgment but not with notice of Motion for Judgment. Service is defective and default judgment is set aside. Va. Code § 8.08-288 does not save this deficiency from being fatal as to the default judgment. This code section is designed to cure defects in the manner in which process is served. It cannot cure defects in the process itself.

2002 O’Connell v. Bean, 263 Va. 176, 556 S.E.2d 741.
Legal malpractice action. Service against attorney was accomplished through Secretary of the Commonwealth but affidavit of service was not properly completed, and that affidavit failed to contain last known address of defendant. Therefore, service was defective and default judgment is vacated.

1990 Dennis v. Jones, 240 Va. 12, 393 S.E.2d 390.
Defendant served through D.M.V. while still resident of Virginia. Affidavit of nonresidency and due diligence filed by plaintiff’s counsel was not factually supported. Process had not been in the hands of sheriff for 21 days as called for in Va. Code § 8.01-316(1)(c). Attempt to serve through D.M.V. ineffective. Jurisdiction not obtained and default therefore set aside.

1989 Khatchi v. Landmark Restaurant Assoc., 237 Va. 139, 375 S.E.2d 743.
Defendant is Virginia corporation. Service attempted on registered agent and returned “not found.” Plaintiff then served Secretary of Commonwealth by filing “due diligence” affidavit. Affidavit did not track language of Va. Code § 8.01-329; therefore service defective. Since this statute allows constructive service it must be strictly followed. If there had been personal service. then irregularity would not defeat court’s jurisdiction.

1969 Nelson v. Vaughan, 210 Va. 1, 168 S.E.2d 126.
Failure to have process served within one year of filing motion for judgment is ground for dismissal.

1963 Spiegelman v. Birch, 204 Va. 96, 129 S.E.2d 119.
Service at defendant’s usual place of abode was held adequate even though defendant had temporarily vacated premises.

1943 Ives v. Commonwealth, 182 Va. 17, 27 S.E.2d 906.
Personal service of notice is not necessary to validity of proceeding in rem.