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FREDERICKSBURG CONSTRUCTION CO. v. J.W. WYNE EXCAVATING



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FREDERICKSBURG CONSTRUCTION CO.

v.

J.W. WYNE EXCAVATING


June 9, 2000

Record No. 992259

FREDERICKSBURG CONSTRUCTION COMPANY, INC.

v.

J.W. WYNE EXCAVATING, INC.

From the Circuit Court of Spotsylvania County

J. Peyton Farmer, Judge

Present: All the Justices


OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

In this appeal we consider whether the trial court properly
denied a motion to vacate a judgment that a defendant contended
was void because the judgment had been entered without proper
notice.

BACKGROUND

On January 19, 1994, Fredericksburg Construction Company, Inc.
(Fredericksburg), filed a motion for judgment against J.W. Wyne
Excavating, Inc. (Wyne), alleging breach of contract for failure
to complete certain subcontracting work and seeking damages of
$21,419.72.[1] On February 28, 1994, Wyne
filed a demurrer, grounds of defense, and a counterclaim
asserting that Fredericksburg was indebted to Wyne for completed
work under the subcontracts in the amount of $108,038.07. On
March 22, 1994, Fredericksburg filed a response to the demurrer
and its grounds of defense to the counterclaim alleging payment
of the claimed debt.

On May 19, 1994, the trial court sustained Wyne’s
demurrer to the motion for judgment. Fredericksburg was given
leave to file an amended motion for judgment and amended grounds
of defense to Wyne’s counterclaim. Thereafter,
Fredericksburg filed an amended grounds of defense, but did not
file an amended motion for judgment.

On September 1, 1994, the trial court, for reasons not
reflected in the record, entered an order permitting Wyne to file
a motion for judgment restating the claims of its original
counterclaim and permitting Fredericksburg to respond to that
pleading. Wyne complied by filing a motion for judgment on
September 9, 1994. On September 27, 1994, Fredericksburg filed
its grounds of defense and asserted a counterclaim against Wyne.[2] Thus, while still within the
framework of the original litigation, the roles of the parties
had essentially been reversed.

During these proceedings, the law firm of Arent, Fox, Kintner,
Plotkin & Kahn (Arent Fox) represented Fredericksburg and the
firm name was signed to the pleadings. In accordance with Rule
1:5, the pleadings were signed by Brian D. Sullivan, an associate
attorney of Arent Fox. In addition, R. Steven Holt, a partner of
this firm, was listed as counsel of record on several pleadings.

On April 12, 1996, Arent Fox, by R. Steven Holt, filed a
motion to withdraw as counsel alleging that Fredericksburg
"has failed substantially to fulfill obligations to Arent
Fox regarding its services." The motion further stated that
Fredericksburg had agreed to Arent Fox’s withdrawal from
this case. The motion was signed "By: Brian D. Sullivan for
. . . R.S. Holt, a partner." The motion was served
on Bill Barnes, Fredericksburg’s president, and on counsel
for Wyne.

On April 15, 1996, the trial court entered an order stating:

Brian D. Sullivan, counsel for Fredericksburg Construction
Company, Inc., requested that he be allowed to withdraw as
counsel of record.

It is ordered that motion to withdraw as counsel be granted
and further that Brian D. Sullivan, VSB #35268 be and is hereby
granted leave to withdraw his appearance as counsel for
[Fredericksburg] in the action.

Bill Barnes endorsed this order as did counsel for Wyne.

On January 13, 1997, Wyne filed a praecipe seeking a hearing
on January 20, 1997, in order to set a trial date. The
certificate of service reflects that the praecipe was served on
Barnes by mail at "P.O. Box 172, Lorton, Virginia,"
which was one of the addresses listed in Fredericksburg’s
original motion for judgment. January 20, 1997 was a legal
holiday and, accordingly, the trial court was not open on that
day. Court records for January 21, 1997, indicate that the case
was called on the term day docket and was passed over. No
indication of an appearance by either party at that hearing is
found in the record.

On January 27, 1997, Wyne filed another praecipe for a hearing
to set a trial date on April 21, 1997, which was again served on
Barnes by mail at the Lorton post office box address. Counsel for
Wyne appeared on the hearing date and a trial date of September
25, 1997 was set. A letter from Wyne’s counsel notifying
Fredericksburg of the trial date was sent to Barnes at the Lorton
post office box address and also at 7000 E. Newington Road,
Lorton, Virginia, which was the street address given as its place
of business in Fredericksburg’s original motion for
judgment.[3]

On September 25, 1997, Wyne appeared for trial. No appearance
for Fredericksburg, either by a principal or by counsel, was made
at trial. A final order dated October 7, 1997, recites that Wyne
"presented evidence sufficient for a finding by the Court
that Fredericksburg Construction Company, Inc. was duly indebted
to J.W. Wyne Excavating, Inc. in the amount of . . .
$85,068.62." The order further recites that there was no
evidence presented on Fredericksburg’s counterclaim.
Accordingly, the trial court entered judgment for Wyne, awarded
it $85,068.62, and dismissed the counterclaim with prejudice.
Finally, the order recites, in apparent contemplation of Rule
1:13, that because "[t]he Court announced its ruling as
contained herein in open court. . . endorsement of this Order by
the parties is not required."

On November 20, 1998, Fredericksburg, appearing with new
counsel, filed a motion to vacate the October 7, 1997 judgment,
asserting for several reasons that this judgment was void.[4] In a supporting memorandum,
Fredericksburg asserted that the April 15, 1996 order granted
only Brian D. Sullivan leave to withdraw and did not relieve Holt
or Arent Fox of a continuing duty to represent Fredericksburg.
Thus, Fredericksburg contended that on January 20, 1997, Joseph
M. Sullivan, Frederickburg’s new counsel, appeared on behalf
of Fredericksburg "because Mr. Holt was unavailable."[5]

Fredericksburg further maintained that it never received from
Wyne the subsequent notice of the new hearing date or the letter
containing notice of the trial date. In addition, Fredericksburg
contended that the service of these two notices had been
defective because Arent Fox was its counsel of record and those
notices had not been served on Arent Fox in accordance with the
provisions of Code ? 8.01-314. Fredericksburg further
contended that, assuming it was not represented by counsel,
service by first class mail on a principal of the corporation was
insufficient under the provisions of Code ? 8.01-299.
Finally, Fredericksburg asserted that under the circumstances of
this case the entry of the final order without endorsement was an
abuse of the discretion afforded to the trial court under Rule
1:13.

Wyne responded by brief asserting that the record clearly
indicated that the trial court’s order granting the motion
to withdraw applied to Arent Fox and to all its members and
associates. Wyne further asserted that service by mail on a
principal of a corporation appearing pro se was proper
under Code ? 8.01-319. Fredericksburg filed a reply brief
asserting that Wyne’s reliance on Code ? 8.01-319 was
misplaced because a corporation could not appear pro se in
a circuit court.

On March 12, 1999, the parties appeared for a hearing on
Frederickburg’s motion to vacate the judgment. At that
hearing, the parties’ arguments conformed to the positions
outlined above. Referring to the effect of the April 15, 1996
order, the trial court stated that "[i]t certainly was the
intent of the Court . . . because the Court found at
that time — and the Court finds here again today — that
[Fredericksburg] was not represented by Arent Fox." The
trial court further found that Fredericksburg "had all of
the notice that it was entitled to," and because
Fredericksburg was without counsel there was no requirement for
any endorsement on the final order. On June 23, 1999, the trial
court entered an order denying Fredericksburg’s motion. We
awarded Fredericksburg this appeal.

DISCUSSION

On appeal, the parties essentially repeat the contentions made
before the trial court. We will address those contentions in
turn. Fredericksburg first contends that "[n]o written order
in the Record grants leave to withdraw by Mr. Holt, or Arent
Fox." This is so, Fredericksburg maintains, because
"[w]hile [the] Motion filed by Arent Fox may have well
intended to withdraw the firm and both Mr. Holt and Mr. [Brian
D.] Sullivan, the Order entered by the Court only granted leave
to withdraw to Brian Sullivan."[6]

"It is the firmly established law of this Commonwealth
that a trial court speaks only through its written orders." Davis
v. Mullins
, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). We
further acknowledge, as has the Court of Appeals of Virginia, the
general principle that trial courts have the authority to
interpret their own orders. See Rusty’s Welding
Service, Inc. v. Gibson
, 29 Va. App. 119, 129, 510 S.E.2d
255, 260 (1999). "Furthermore, when construing a lower
court’s order, a reviewing court should give deference to
the interpretation adopted by the lower court." Id.
at 129, 510 S.E.2d at 260.

Here in its summation, the trial court made clear that its
April 15, 1996 order was intended to relieve Arent Fox from its
responsibility as counsel for Fredericksburg. That interpretation
of this order is supported by the record. There is no dispute,
nor can there be, that the order was entered pursuant to the
motion to permit Arent Fox to withdraw as counsel. The motion
clearly requests that "the law firm" of Arent Fox be
permitted to withdraw as counsel for Fredericksburg. It is the
order granting that motion that admittedly is not artfully drawn.
However, whatever the effect of the language in the final
sentence of the order expressly permitting Brian D. Sullivan
"to withdraw his appearance as counsel for [Fredericksburg] in the action," the first clause of that sentence addresses
the motion of Arent Fox to withdraw.[7] Accordingly, we will not
disturb the trial court’s interpretation of this order on
appeal.

We turn now to Fredericksburg’s contention that even if
it became unrepresented as a result of the April 15, 1996 order,
the manner of service of the notice of the January 27, 1997
praecipe and the subsequent notice of the trial date were
ineffective because the service was not in accord with the
provisions of Code ? 8.01-299. As previously noted, Wyne
contends that when Fredericksburg became unrepresented following
the entry of the April 15, 1996 order, it was thereafter subject
to the provisions of Code ? 8.01-319(A). We agree with
Wyne.

In addressing Fredericksburg’s contention with regard to
the applicability of Code ? 8.01-299 following the
withdrawal of its counsel, the procedural posture of the case is
signficant. Although Fredericksburg initially invoked the
jurisdiction of the trial court by filing its motion for judgment
against Wyne, thereafter, as we have previously noted, the roles
of the parties became reversed. By leave of the trial court, Wyne
filed a motion for judgment against Fredericksburg on September
9, 1994, and Fredericksburg filed its grounds of defense and
counterclaim on September 27, 1994. At that point the parties
were properly before the trial court and subject to its
jurisdiction to direct further proceedings in the matter,
including the method by which reasonable notice was to be given
for those proceedings where the manner of providing that notice
is not otherwise specified by statute or rule.

The further proceedings critical to our consideration here are
the January 27, 1997 praecipe and the setting of the September
25, 1997 trial date. There is no dispute that this trial court
employs the praecipe system for the orderly management of its
docket as permitted by Rule 1:15. That rule, however, does not
prescribe the manner in which the praecipe is to be served on a
domestic corporation that has become unrepresented by counsel, as
in the present case. See also Rule 1:12. Nevertheless, we
disagree with Fredericksburg’s contention that Code
? 8.01-299 then becomes applicable and prescribes the
manner in which notice must be given.

Although the term "process" is deemed to include
"notice," Code ? 8.01-285, we are of opinion that
Code ? 8.01-299, which provides for how process
"may" be served on a domestic corporation, is not
applicable in the procedural context under consideration here.
The thrust of Code ? 8.01-299 concerns the initial
service of process on a domestic corporation rather than interim
service of notice for subsequent hearings and other proceedings,
such as the filing of a praecipe, after the parties are properly
before the court. See Frey v. Jefferson Homebuilders,
Inc.
, 251 Va. 375, 380, 467 S.E.2d 788, 790 (1996)(holding
Code ? 8.01-299 does not provide the exclusive manner in
which a domestic corporation may be served with process).

In contrast, Code ? 8.01-319(A), which governs the
manner for giving interim notice following institution of an
action in certain circumstances, provides, in pertinent part,
that:

[a] party, who appears pro se in an action, shall file with
the clerk of the court in which the action is pending a written
statement of his place of residence and mailing address, and
shall inform the clerk in writing of any changes of residence and
mailing address during the pendency of the action. The clerk and
all parties to the action may rely on the last written statement
filed as aforesaid. The court in which the action is pending may
dispense with such notice for failure of the party to file the
statement herein provided for or may require notice to be given
in such manner as the court may determine.

The failure of a party who is unrepresented to provide an
address sufficient to ensure such notice may prevent a case from
proceeding in an orderly manner. See Byrum v. Lowe
& Gordon, Ltd.
, 225 Va. 362, 363-64, 302 S.E.2d 46, 47
(1983). Accordingly, an unrepresented litigant who wishes to be
informed of the proceedings must either keep the court advised of
where service may be accomplished or retain counsel upon whom
service may be had. See Eddine v. Eddine, 12 Va.
App. 760, 764, 406 S.E.2d 914, 917 (1991). We see no reason why
this rule should not apply to corporations as well as natural
persons. We also agree with the Court of Appeals’ holding in
Eddine that the application of Code ? 8.01-319 is
not limited to those cases initiated by publication. Id.
at 764 n.2, 406 S.E.2d at 917 n.2.

At the time Fredericksburg became unrepresented, the Lorton
street address had been listed as its place of business and the
Lorton post office box address was also given as its mailing
address in its initial pleading. Because there was no statement
filed pursuant to Code ? 8.01-319 at the time
Fredericksburg became unrepresented or thereafter, Wyne was
entitled to rely upon the addresses given by Fredericksburg in
its pleadings as being accurate until such time as Fredericksburg
filed such a statement or entered an appearance with new counsel.
Cf. Soliman v. Soliman, 12 Va. App. 234, 240, 402
S.E.2d 922, 926-27 (1991)(holding that giving address in
pleadings is sufficient to satisfy requirement of
? 8.01-319(A)). In the absence of such a statement being
filed, the manner of service of notice rested with the discretion
of the trial court. The trial court found that the notice given
to Fredericksburg was reasonable and adequate, and we find no
abuse of the trial court’s discretion in that determination.

Finally, Fredericksburg contends that the trial court’s
order awarding judgment to Wyne is void because the trial court
abused its discretion in entering that order without endorsement
of counsel pursuant to Rule 1:13. We disagree.

As applicable at the time of these proceedings, Rule 1:13
provided, in pertinent part, as follows:

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 or mailing 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.

This rule is designed to protect parties who are without
notice of a proceeding. State Hwy. Comm’r v. Easley,
215 Va. 197, 201, 207 S.E.2d 870, 873 (1974). "However, the
mere fact that an order may have been entered without endorsement
of counsel of record does not automatically render it void. The
last sentence of Rule 1:13 authorizes the trial court in its
discretion to modify or dispense with the requirement of
endorsement of counsel." Davis, 251 Va. at 147, 666
S.E.2d at 93.

Here, the trial court properly found that Fredericksburg was
not represented by counsel at the time the final order was
entered. Moreover, the record supports the trial court’s
finding that Fredericksburg had failed to appear for trial after
due notice. In such circumstances, entry of a final order without
endorsement by an unrepresented party does not constitute an
abuse of the trial court’s discretion under Rule 1:13.

CONCLUSION

For these reasons, we hold that the trial court did not err in
this case and will affirm the judgment of the trial court denying
the motion to vacate the judgment and quash garnishments.

Affirmed.

FOOTNOTES:

[1] In the caption of the motion
for judgment, Fredericksburg listed its address as "P.O. Box
172, Lorton, Virginia" and in the text of that motion
Fredericksburg listed its address as "7000 E. Newington
Road, Lorton, Virginia." The significance of these addresses
will become apparent later in this opinion.

[2] On November 3, 1994, the trial
court stayed further proceedings until the conclusion of a
federal court proceeding arising out of the same acts and
transactions in which Wyne was pursuing a claim against an
indemnitor and Fredericksburg had sought to intervene. Wyne
subsequently dismissed its federal claim.

[3] Wyne subsequently contended
that both addresses were utilized at the direction of the trial
court.

[4] Fredericksburg also sought to
quash garnishments that had been issued on the judgment and to
obtain all funds held by the court pursuant to those
garnishments.

[5] Fredericksburg conceded at the
hearing in the trial court on its motion that Joseph M. Sullivan
is not associated with Arent Fox and did not appear on its
behalf. Rather, Fredericksburg retained him after Holt declined
to resume the representation. Moreover, as indicated above, the
record does not reflect an appearance by either party on January
20, 1997, a legal holiday, or on the day following when the case
was actually called on the trial court’s term day docket.

[6] In support of its argument on
this issue in the trial court, Fredericksburg procured an
affidavit from Holt in which he states that "[a]s [he] read[s] the Order entered on April 15, 1996 . . . only Brian
Sullivan was removed as counsel for [Fredericksburg]."
Fredericksburg further asserted in argument to the trial court
that Sullivan had withdrawn from the case because he was leaving
Arent Fox and "moved to Georgia or Florida to practice
law." Neither of these statements is relevant to our
interpretation of the trial court’s April 15, 1996 order.

[7] Assuming that we were to accept
Frederickburg’s assertion that Brian D. Sullivan was
terminating his employment with Arent Fox at the time this order
was entered, it would be self-evident that the second clause of
the final sentence was added to make clear that Sullivan would
not continue his representation of Fredericksburg after he left
the firm.

 

 

 

 

 

 

 

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