Notice sent to wrong address leads to void ab initio dismissal order

A trial court erroneously dismissed a medical malpractice complaint with prejudice after it mailed notice to the wrong address for the plaintiff’s attorney, which was returned to the court as undeliverable before the noticed hearing, the Court of Appeals of Virginia has held.

The plaintiff’s attorney did not appear at the court’s term day but claimed that the trial court’s failure to use the address listed on the pleadings was not reasonably calculated to give notice and therefore violated due process. The trial court refused to vacate the dismissal.

Writing for the panel, Judge Junius P. Fulton III (a Supreme Court of Virginia justice as of Jan. 1) said in a Dec. 30, 2025, opinion that the trial court erred in concluding that it lacked jurisdiction to revisit its void ab initio dismissal order, which may be challenged at any time.

“We find that the docket control procedure of sua sponte issuing a term day notice to an address not contained in the pleadings or case record, when combined with actual evidence that no notice was received, constitutes an unlawful procedure exceeding the trial court’s authority under Code § 8.01-4,” the judge held.

Joined by Judges Clifford L. Athey Jr. and Lisa M. Lorish, Fulton reversed and remanded the dismissal of Perez v. Laboratory Corporation of America (VLW 026-7-004).

Counsel for the parties did not respond to requests for comment.

Undeliverable notice

After Agustin Perez sued Labcorp for medical malpractice, the trial court sua sponte scheduled a term day hearing and mailed notices to counsel using addresses from the court’s proprietary system, rather than from the pleadings.

Perez’s counsel never received the notice; the court sent it to an old address for a law firm that no longer existed and had never appeared in Perez’s case. The notice was returned as undeliverable before the term day.

Only Labcorp appeared at term day, so the court dismissed the case with prejudice. Perez’s counsel never received the order and only learned of the dismissal after contacting Labcorp to set the case for trial.

The trial court then denied Perez’s motion to set aside its dismissal order. This appeal followed.

Collins

Looking to Collins v. Shepherd, Fulton said an “order is void ab initio, rather than merely voidable, if ‘the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt.’”

“An order that is void ab initio is a ‘complete nullity’ that may be ‘impeached directly or collaterally by all persons, anywhere, at any time, or in any manner,’” the judge explained.

And Fulton cited that in Hannah v. Commonwealth, the Supreme Court of Virginia found that a void ab initio judgment is “‘so affected by a fundamental infirmity that it is no judgment at all.’”

Perez contended that the dismissal of his malpractice case was void ab initio because the court did not send notice to any of the addresses he provided on the pleadings in this case and therefore the term day notice was not reasonably calculated to ensure that he received notice.

“To satisfy due process, the mode of procedure must be reasonably calculated to notify counsel of record and provide a reasonable opportunity to be heard,” Fulton said, adding that “the mode of procedure must be one that the court might ‘lawfully adopt’; so, it cannot conflict with the Rules of Court and Code of Virginia.”

“Collins highlighted the limitations on powers of trial courts to establish local rules and procedures under Code § 8.01-4, which permits docket control procedures, but only if they do not ‘abridge the substantive rights of the parties nor deprive any party the opportunity to present its position as to the merits of a case solely due to the unfamiliarity of counsel of record with any such docket control procedures,’” Fulton
pointed out.

Va. Code § 8.01-4 states that no civil matter shall be dismissed with prejudice for failure to comply with any rule created under this section.

Additionally, the Supreme Court in Shapiro v. Younkin quoted Collins to hold that the authority delegated under Code § 8.01-4 “‘must be carefully exercised,’ so local rules do not ‘deprive any party from having a case heard on the merits.’”

“The General Assembly has mandated that local rules may not determine case outcomes,” Fulton noted.

Unlawful procedure

Pursuant to its local docket control protocol, the trial court sua sponte issued a term day notice to an address that was neither on Perez’s pleadings nor provided in connection with this case.

Perez claimed he would have received any notices the trial court directed to counsel’s address in the pleadings. Rather than use the address in the pleadings, the trial court sent the term day notice to an address unconnected with this case without clarifying the source of that address.

“Compounding the impropriety, the trial court proceeded to dismiss the case with prejudice despite the return of the term day notice as undeliverable before the hearing,” Fulton said. He found no evidence that the trial court took any other step to alert Perez before dismissal.

The panel found the docket control procedure of sua sponte issuing a term day notice to an address not contained in the pleadings or case record, when combined with actual evidence that no notice was received, constituted an unlawful procedure exceeding the trial court’s authority.

“As in Collins, the trial court’s procedure of sending a term day notice to an address not of record constituted an unlawful mode of procedure, resulting in a sua sponte dismissal on a basis unrelated to the merits of Perez’s claims,” the judge wrote.

Accordingly, the dismissal order was void ab initio and challengeable at any time.

Compounded error

Fulton pointed out three ways the trial court’s local procedure violated Code § 8.01-4, the first being that “it deprived Perez of a trial on the merits due to his counsel’s unfamiliarity with the local procedure of pulling addresses from unrelated, concluded matters rather than the case pleadings or the record.”

The local practice also undermined the purposes of Code § 8.01-271.1 and Rule 1:12, which respectively require signature blocks with case-specific contact information and service of pleadings to each counsel of record.

“Perez’s signature block provided the court with his proper address of record, and he had no reason to know that the trial court’s proprietary system would issue notice to an address not of record from an unrelated 2014 case,” Fulton opined.

And the judge found that “sending notice to the erroneous address from an unrelated case that was over ten years old was not reasonably calculated to provide Perez with notice and an opportunity to be heard, as required by due process.”

“Compounding its error, the trial court had ample reason to know that its notice was ineffective, given the returned undelivered postal notice filed with the court,” Fulton wrote. “However, the trial court still proceeded to an unfavored procedural dismissal without any further notice to Perez.”

Having found that the trial court’s term day notice was not reasonably calculated to reach Perez, the panel held that “its ‘mode of procedure’ was one that the court ‘might not lawfully adopt.’”

The panel rejected Labcorp’s reliance on Singh v. Mooney to argue that a dismissal order which failed to comply with Rule 1:13 would be void, not void ab initio, so the trial court lacked jurisdiction to vacate it.

“Unlike in Singh, the central issue here is not an abuse of the trial court’s discretion under Rule 1:13; the issue is whether the trial court could employ a local docket control practice to dismiss a case with prejudice on grounds unrelated to the merits of the case,” Fulton said.