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THE BEREAN LAW GROUP, P.C., et al. v. COX



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THE BEREAN LAW GROUP,
P.C., et al.

v.

COX


April 21, 2000

Record No. 991641

THE BEREAN LAW GROUP, P.C., ET AL.

v.

DAVIE L. COX

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK

E. Everett Bagnell, Judge

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Poff, Senior Justice


OPINION BY JUSTICE LEROY R. HASSELL, SR.

In this appeal, we consider whether the circuit
court had control over a final order when it entered a later
order permitting a plaintiff to take a voluntary nonsuit.

Plaintiff, Davie L. Cox, filed his motion for
judgment against The Berean Law Group, P.C., David T. Daulton,
Brett Lucas, Davis & Brynteson, P.C., Douglas W. Davis, Mark
D. Brynteson, and Richard L. Popp. The plaintiff alleged that the
defendants, who are either attorneys or professional
corporations, committed acts of legal negligence against him when
they represented him in a prior action against his former
employer.

The defendants filed demurrers to the
plaintiff’s motion for judgment. The circuit court ruled during a
hearing on August 25, 1998, that it would sustain the demurrers
and that the plaintiff would be permitted to file an amended
motion for judgment. The circuit court also ruled on other
motions during the hearing, including the defendants’ motion to
compel the plaintiff to produce certain documents. The plaintiff
advised the circuit court that he was required, pursuant to the
terms of a settlement agreement, to give notice to counsel for
his former employer before producing certain documents which were
the subject of the motion to compel. The circuit court granted
the defendants’ motion to compel, but permitted the plaintiff to
comply with the terms of the confidentiality provisions in the
settlement agreement.

The circuit court entered two orders on
September 24, 1998. Both orders were endorsed by counsel. One
order sustained the defendants’ demurrers and permitted the
plaintiff to file an amended motion by a certain date. This order
stated in relevant part:

"It is ORDERED that the Demurrers to the
Motion for Judgment filed on behalf of [the defendants] be, and
. . . hereby are, SUSTAINED and that plaintiff’s action
against [the defendants] shall STAND DISMISSED unless on or
before September 17, 1998, the plaintiff shall file an Amended
Motion for Judgment which is sufficient in law, leave to file
such an Amended Motion for Judgment being hereby GRANTED."

The other order, captioned "ORDER FOR
PRODUCTION AND PROTECTIVE ORDER" stated in relevant part:

"Plaintiff’s counsel having represented to
the court that [a] confidentiality agreement requires the
plaintiff to give notice to counsel [for certain parties] in the
event that production of documents subject to said agreement are
sought in a judicial proceeding, it is FURTHER ORDERED that this
order shall be, and it hereby is, SUSPENDED for thirty days
following its entry, during which thirty day period plaintiff’s
counsel shall promptly provide . . . the notice
required by the aforesaid confidentiality agreement and a copy of
this order."

Also, on September 24, 1998, counsel for
plaintiff and defendants had a telephone conference with the
circuit court. During that conference, the circuit court agreed
to extend the time in which the plaintiff would be required to
file his amended motion for judgment. The plaintiff claims that
the court ruled during this telephone conversation that he was
entitled to file an amended motion for judgment no later than
November 16, 1998. The defendants claim that the plaintiff was
required to file an amended motion for judgment no later than
October 30, 1998. The circuit court had no recollection of the
extension date. Neither counsel for plaintiff nor defendants
requested that the circuit court enter an order suspending,
modifying, or vacating the September 24, 1998 order which
sustained the demurrers.

On November 16, 1998, plaintiff delivered a
"Notice and Amended Motion for Judgment" to the clerk
of the circuit court. On December 8, 1998, the defendants filed a
"Joint Motion to Reject and to Dismiss Plaintiff’s Amended
Motion for Judgment and to Remove Action from Court’s
Docket" because more than 21 days had elapsed following the
entry of the September 24, 1998 order that sustained the
demurrers. On December 18, 1998, the plaintiff filed a motion for
a nonsuit. The defendants opposed the motion. The circuit court
considered memoranda and argument of counsel and entered an order
dated April 1999 that permitted the plaintiff to nonsuit his
action. The defendants appeal.

Rule 1:1 states in part:

"All final judgments, orders, and decrees,
irrespective of terms of court, shall remain under the control of
the trial court and subject to be modified, vacated, or suspended
for twenty-one days after the date of entry, and no
longer. . . . The date of entry of any final
judgment, order, or decree shall be the date the judgment, order,
or decree is signed by the judge."

The defendants argue that the circuit court
could not consider the plaintiff’s motion for a nonsuit because
the court lost control over the plaintiff’s action 21 days after
the entry of the September 24, 1998 order that sustained the
demurrers. Responding, the plaintiff argues that the September
24, 1998 order which granted him leave to file an amended motion
was not a final order. Continuing, the plaintiff asserts that
this order was modified, vacated, or suspended within the
intendment of Rule 1:1 by the "ORDER FOR PRODUCTION AND
PROTECTIVE ORDER." We disagree with the plaintiff.

It is the well-established law of this
Commonwealth that a circuit court speaks only through its written
orders. Austin v. Consolidation Coal Co., 256 Va.
78, 81, 501 S.E.2d 161, 162 (1998); Walton v. Commonwealth,
256 Va. 85, 94, 501 S.E.2d 134, 140, cert. denied,
525 U.S. 1046 (1998); Davis v. Mullins, 251 Va.
141, 148, 466 S.E.2d 90, 94 (1996); Town of Front Royal v.
Front Royal and Warren County Industrial Park Corp., 248
Va. 581, 586, 449 S.E.2d 794, 797 (1994); Robertson v. Superintendent
of the Wise Correctional Unit
, 248 Va. 232, 235 n.*, 445
S.E.2d 116, 117 n.* (1994). Additionally, an order of the circuit
court becomes final 21 days after its entry unless modified,
vacated, or suspended by the court during that time. Rule 1:1.

We have stated that

"[n]either the filing of post-trial or
post-judgment motions, nor the court’s taking such motions under
consideration, nor the pendency of such motions on the
twenty-first day after final judgment, is sufficient to toll or
extend the running of the 21-day period prescribed by Rule 1:1
. . . . The running of time under [Rule 1:1] may
be interrupted only by the entry, within the 21-day period after
final judgment, of an order suspending or vacating the final
order."

School Bd. v. Caudill Rowlett Scott,
Inc.
, 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989) (citations
omitted); accord Wagner v. Shird, 257 Va.
584, 587, 514 S.E.2d 613, 614-15 (1999). Moreover, an order that
sustains a demurrer and dismisses the case if the plaintiff fails
to amend his motion for judgment within a specified time becomes
a final order upon the plaintiff’s failure to file an amended
motion within the specified time. Norris v. Mitchell,
255 Va. 235, 239, 495 S.E.2d 809, 811 (1998); accord Bibber
v. McCreary, 194 Va. 394, 395, 73 S.E.2d 382, 383 (1952); London-Virginia
Mining Co.
v. Moore, 98 Va. 256, 257, 35 S.E. 722, 723
(1900).

The plaintiff, relying upon Norris,
argues that the circuit court did not lose control over the
September 24, 1998 final order and, thus, his nonsuit motion was
timely. We disagree. In Norris, the circuit court held
that a motion for judgment failed to state a cause of action, and
the court sustained the defendants’ demurrers and dismissed the
action in a written order entered June 20, 1996. This order
granted the plaintiffs leave to file an amended motion on or
before July 8, 1996. Three days before the July 8 deadline, the
plaintiffs filed a motion for a nonsuit which the court granted
in a written order entered on July 15, 1996. The order granting
the nonsuit was entered more than 21 days after the June 20
order, but less than 21 days after the July 8 deadline. Norris,
255 Va. at 238, 495 S.E.2d at 811. We held in Norris that
the circuit court’s written order that gave the plaintiffs leave
to file an amended motion for judgment could not have become
final until the July 8 deadline. Thus, the circuit court had 21
days after that time in which to modify, vacate, or suspend its
order, and the circuit court did so by entering its order of
nonsuit. Id. at 239, 495 S.E.2d at 811.

Unlike Norris, the plaintiff in this
action filed his nonsuit motion after the circuit court lost
control of the September 24, 1998 order pursuant to Rule 1:1. No
written order was entered that modified, vacated, or suspended
the circuit court’s September 24, 1998 order sustaining the
demurrers. Additionally, the express language contained in that
order states that the "plaintiff’s action against [the
defendants] shall STAND DISMISSED unless on or before September
17, 1998, the plaintiff shall file an Amended Motion for
Judgment," which the plaintiff failed to do.

It is true, as the plaintiff asserts, that the
circuit court agreed orally during a telephone conference with
all counsel to permit the plaintiff to file an amended motion for
judgment on a date later than the date specified in the September
1998 written order. However, the circuit court’s oral ruling
cannot nullify its written final order, and it was incumbent upon
the plaintiff to submit timely a written order to the circuit
court suspending, modifying, or vacating the September 24, 1998
order sustaining the demurrers.

The plaintiff argues that the "ORDER FOR
PRODUCTION AND PROTECTIVE ORDER" modified, vacated, or
suspended the September 24, 1998 order that sustained the
demurrers and granted him leave to amend. Continuing, the
plaintiff says that one of the purposes of the "ORDER FOR
PRODUCTION AND PROTECTIVE ORDER" was to permit him to obtain
certain confidential information that he needed to plead certain
facts in his amended motion for judgment. The plaintiff also
contends that the "ORDER FOR PRODUCTION AND PROTECTIVE
ORDER," when read with the order sustaining the demurrers,
creates an ambiguity, and, hence, the "ORDER FOR PRODUCTION
AND PROTECTIVE ORDER" must be viewed as granting an
extension of time in which he had to file his amended motion for
judgment. The plaintiff’s contentions are without merit. We have
reviewed both orders, and we conclude that the so-called
"ORDER FOR PRODUCTION AND PROTECTIVE ORDER" did not
vacate, modify, or suspend the circuit court’s order fixing the
time within which the plaintiff was required to file his amended
motion for judgment. Furthermore, no ambiguity exists between the
two orders.

Finding no merit in the plaintiff’s remaining
arguments, we hold that the circuit court did not have control of
the final order when it entered the written order granting the
plaintiff’s motion for a nonsuit. Accordingly, we will reverse
the order of nonsuit, and we will enter final judgment on behalf
of the defendants.

Reversed and final judgment.

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