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 Orders. For more information about orders of the Court see the pages on Wikipedia.

Orders-Cases

2013 Cashion v. Smith, 286 Va. 327, 749 S.E. 2d 526.
Signing an Order as “WE ASK FOR THIS” where objection has otherwise properly been preserved on the record does not constitute waiver of the objection.

2010 Johnson v. Hart, 279 Va. 617, 692 S.E.2d 239.
An attorney who wins on summary judgment and signs the Order as seen and consented to does not thereby waive objections to previously rulings made by the Trial Court to which appropriate objection had been made.

2008 Hicks v. Mellis, 275 Va. 213, 657 S.E.2d 142.
In April 1993, plaintiff filed suit on behalf of her three year old son. In July 1995, Plaintiff non-suited. In October 1999, plaintiff filed a second suit. In January 2003, the Circuit Court entered an order of discontinuance pursuant to Va. Code § 8.01-335(B). In November 2003, plaintiff filed motion to reinstate, which was granted. On May 25, 2004, that second suit was non-suited. On that same day plaintiff filed a third motion for judgment. The issue on appeal is whether or not the reinstatement was appropriate given the fact that defendant was not given notice of it. The court held that orders of reinstatement simply voidable because of statutory noncompliance as opposed to void ab inito. An order is void ab initio if the court did not have jurisdiction to render the order or if the Court employed an unlawful mode of procedure in entering the order. In this case, the court simply made a mistake in not giving notice to the defendant which simply makes the order voidable. As such, the plea of the statute of limitations was properly denied.

2004 Brake v. Payne, 268 Va. 92, 597 S.E.2d 59.
Court entered order nunc pro tunc in this non-suit action. That was an error. Purpose of nunc pro tunc orders is to make the record speak the truth but not to relate something that had not been spoken even though it is something that should have been spoken. Nunc pro tunc orders are to correct mistakes of the clerk or other court officials or to settle defects or omissions in the record so as to make the record show what actually took place.

2002 Liddle v. Phipps, 263 Va. 391, 559 S.E.2d 690.
Personal injury action where plaintiff sought to take non-suit after discovery order had been entered directing plaintiff to comply with discovery or otherwise suffer the sanction of dismissal. Issue was whether plaintiff could still obtain non-suit during pendency of that order. Under terms of order, additional consideration by trial court was anticipated before issue of dismissal would be decided and therefore, the matter had not been completely submitted for decision or finally determined for purposes of non-suit statute and therefore, non-suit was appropriate. This discovery order was not a final order and therefore, 21-day rule did not apply.

2001 Singh v. Mooney, 261 Va. 49, 541 S.E.2d 549.
Trial court improperly granted plaintiff’s motion to vacate order dismissing medical malpractice action on grounds that reasonable notice of presenting drafts of final order was not properly given in violation of Rule 1:13. Supreme court, overruling Cofer v. Cofer, 205 Va. 834, 140 S.E.2d 663 (1965), held that orders entered in violation of Rule 1:13 is voidable and not void ab initio and therefore, 21-day rule applies.

2000 Berean Law Group, P.C. v. Cox, 259 Va. 622, 528 S.E.2d 108.
Trial court entered order granting demurrer and indicated that action stands dismissed unless on or before September 17, 1998, plaintiff files an amended motion for judgment which is sufficient in law. Trial court thereafter extended that date but no order was entered. When plaintiffs filed amended motion for judgment in accordance with their recollection of court’s ruling, the defendants objected. Court thereafter granted a motion for non-suit. Since the previous order was final order and more than 21 days had passed, court had lost jurisdiction.

2000 Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 539 S.E.2d 426.
Within order bifurcating trial, counsel signed the order as “objected to for reasons noted in open court” but failed to provide transcript or authorized statement of facts setting forth basis for ruling and therefore, this is not considered on appeal.

1999 Wagner v. Shird, 257 Va. 584, 514 S.E.2d 613.
Suspending order entered suspending final order for 30 days. After expiration of 30-day suspending order, court entered order of remittitur. At that point, court no longer retained jurisdiction and remittitur could not be entered. Circuit court speaks only through its written orders and orders speak as of day entered. Even though parties may have agreed to further extension of suspension, parties cannot confer subject matter jurisdiction upon court by agreement.

1992 Metro Mach. Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632.
Order denying motion for summary judgment became appealable when action was dismissed for other reason.

1988 Shenandoah Pub’g House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253.
Order sealing file in wrongful death action was overturned as too broad. Discovery information may be sealed but trial court erred in sealing judicial records in this case.

1985 Hechler Chevrolet, Inc. v. General Motors Corp., 230 Va. 396, 337 S.E.2d 744.
Motions to reconsider orders are not favored.

1985 Ambiance Assocs. v. Kilby, 230 Va. 60, 334 S.E.2d 556.
Trial court set aside verdict and ordered case returned to docket for trial on all issues. When case came back for re-trial, defendant admitted liability. Trial court then reinstated verdict of $20,000 for plaintiff. This was error as there was no verdict to reinstate since it had been rendered void.

1977 Godfrey v. Williams, 217 Va. 845, 234 S.E.2d 301.
Error for court on twenty-first day after entry of judgment to enter ex parte order extending 21-day period which related to time for modifying and vacating judgments. Trial court lacked authority for subsequent order vacating judgment and judgment entered on subsequent trial was void.

1956 Harvey v. Telephone Co., 198 Va. 213, 93 S.E.2d 309.
Filing of motion to amend order within 21 days does not toll running of 21 days.

1952 McDowell v. Dye, 193 Va. 390, 69 S.E.2d 459.
Discussion of difference between rendition of judgment and entry of judgment. Orders may not be entered nunc pro tunc if rights of any party will be adversely affected.

1951 Spicer v. Spicer, 192 Va. 105, 63 S.E.2d 773.
Order may not be entered nunc pro tunc if rights of any party will thereby be affected adversely. Normally order shall not be effective until written order is entered.

1949 Murden v. Wilbert, 189 Va. 358, 53 S.E.2d 42.
Agreed order of dismissal cannot be set aside unless by agreement.

1943 Robertson v. Commonwealth, 181 Va. 520, 25 S.E.2d 352.
Court has power to punish for contempt of order whether order be in writing or oral. If court lacks jurisdiction, then order is void.