Present: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons, 

JJ., and Whiting, S.J. 

LAURIE F.S. WATERMAN 

v. Record No. 000260 OPINION BY 

 SENIOR JUSTICE HENRY H. WHITING 

SANDY (BUTLER) HALVERSON, ET AL. January 12, 2001 

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 In this appeal we consider whether the trial court erred 

in dismissing plaintiff's motion for judgment as untimely 

filed based on its construction of Code § 8.01-275.1. 

 Laurie F.S. Waterman filed a medical malpractice action 

against Sandy (Butler) Halverson, Michelle "Roe" McCormick, 

Riverside Hospital, Inc., Nancy Couleman, and Paul Rein in the 

Circuit Court of the City of Portsmouth (the defendants).1 

More than twelve months after the filing of this action, 

Waterman sought and was granted a nonsuit. The defendants 

were not served with process and had no notice of the nonsuit 

motion or order granting the motion. 

On October 3, 1997, less than six months after the 

nonsuit was granted but more than two years after Waterman's 

medical treatments ended, Waterman filed this action against 

the same parties in the same court and promptly had the 

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 Other named defendants, Janine Mooney, Riverside 

Regional Medical Center, and James River Anesthesia 
defendants served with process. Later, by agreement, the case 

was transferred to the Circuit Court of the City of Newport 

News. 

 The defendants filed pleas in bar asserting that the case 

should be dismissed on various theories. Following 

consideration of the parties' briefs and oral arguments on the 

defendants' pleas in bar, the trial court concluded that the 

action was barred by the statute of limitations and dismissed 

the motion for judgment with prejudice. The trial court's 

decision was based on its conclusion that Code § 8.01-275.1 

was enacted to "eliminate the problems that the Supreme Court 

addressed in Clark v. [Butler Aviation, 238 Va. 506, 385 

S.E.2d 847 (1989)]."2 Adopting a theory advanced by some of 

the defendants, the trial court construed Code § 8.01-275.1 to 

"eliminate the problems" by providing that service of process, 

if not completed within one year of the filing of an action, 

was "untimely," and, under those circumstances, the "only 

authority the Court should have is to determine if due 

diligence was exercised to have timely service effected on the 

defendants." Applying that construction of Code § 8.01-275.1 

 

Associates, Inc., were dismissed prior to entry of the trial 

court's judgment. 

2 Clark involved consideration and reconciliation of the 

provisions of Rule 3:3(c) and Code §§ 8.01-229(E)(3) and -380. 

238 Va. at 508, 385 S.E.2d at 848. 

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to this case, the trial court concluded that because there was 

no service of process within twelve months of filing in the 

original action, the jurisdiction of the court in that action 

was limited to consideration of the plaintiff's due diligence 

in effecting service and, therefore, that court had no 

jurisdiction to consider the motion for the nonsuit. 

On appeal Waterman assigns error to the trial court's 

construction of Code § 8.01-275.1. Waterman asserts that the 

statute codified Rule 3:3(c) and did not abrogate the holding 

in Clark and its progeny.3 Having reviewed the relevant 

statutes, Rule 3:3(c), and case law, we conclude that Code 

§ 8.01-275.1 did not limit the jurisdiction of the trial court 

as the trial court held and did not abrogate the principles of 

Clark and its progeny. 

Code § 8.01-275.1 provides: 

Service of process in an action or suit 

within twelve months of commencement of the 

action or suit against a defendant shall be 

timely as to that defendant. Service of 

process on a defendant more than twelve months 

after the suit or action was commenced shall be 

timely upon a finding by the court that the 

plaintiff exercised due diligence to have 

timely service made on the defendant. 

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 Although we have not specifically addressed the 

construction of the section, we have previously referred to 

Code § 8.01-275.1 as a codification of Rule 3:3. Frey v. 

Jefferson Homebuilders, Inc., 251 Va. 375, 377 n.1, 467 S.E.2d 

788, 789 n.1 (1996); Gilbreath v. Brewster, 250 Va. 436, 442 

n.3, 463 S.E.2d 836, 838 n.3 (1995). 

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Rule 3:3(c) provides in pertinent part: 

No judgment shall be entered against a 

defendant who was served with process more than 

one year after the commencement of the action 

against him unless the court finds as a fact that 

the plaintiff exercised due diligence to have 

timely service on him. 

Any variance between a rule of court and a subsequently 

enacted statute must be construed to give effect to the 

statute. Code § 8.01-3(D). However, there is no variance 

between Rule 3:3(c) and Code § 8.01-275.1. Both of these 

provisions seek to promote a policy of timely prosecution of 

law suits and to avoid abuse of the judicial system. The 

statute, but not the rule, defines timely service as one year. 

However, the rule implies that timely service means service 

within one year. Both the rule and the statute allow a 

plaintiff to establish the exercise of due diligence to 

perfect service within the one year period. Thus, in the 

absence of any conflict or variance, there is no reason to 

conclude that the enactment of the statute nullified or 

invalidated any portion of the rule. 

Similarly, there is no basis to conclude that the 

enactment of Code § 8.01-275.1 nullified or invalidated the 

cases construing Rule 3:3(c). The General Assembly is 

presumed to be aware of the decisions of this Court when 

enacting legislation. Dodson v. Potomac Mack Sales & Serv., 

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Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991). In Clark, 

decided before the enactment of Code § 8.01-275.1, we held 

that failure to comply with the one year service provision of 

the rule did not preclude a trial court from granting a 

plaintiff's motion for nonsuit and that the refiled action was 

entitled to the tolling provisions of Code § 8.01-229(E)(3). 

Rule 3:3(c) "forbade entry of any judgment against [the 

defendant] in [the original] action, and the action ended with 

entry of the order allowing a nonsuit pursuant to Code § 8.01-

380." Clark, 238 Va. at 511, 385 S.E.2d at 849. We have 

applied this holding in cases decided subsequent to the 

enactment of Clark. See, e.g., Bremer v. Doctor's Bldg.

P'ship, 251 Va. 74, 81, 465 S.E.2d 787, 791 (1996). 

In the absence of any action by the General Assembly 

addressing or altering the holding in Clark, we can only infer 

that the General Assembly did not intend to abrogate, nullify 

or otherwise invalidate the rule or case law decided pursuant 

to the rule. 

The defendants also argue that the court did not have 

jurisdiction to enter the nonsuit order because there was no 

"active" or "personal" jurisdiction over the defendants in the 

original proceeding. This contention was addressed in 

McManama v. Plunk, 250 Va. 27, 458 S.E.2d 759 (1995). In that 

case, as in this, the defendant had not been served with 

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process when the trial court granted the plaintiff's motion 

for a voluntary nonsuit pursuant to Code § 8.01-380. When the 

action was refiled, the trial court held the nonsuit order 

would be binding on the defendant only if, among other things, 

the defendant had been served with process and was "'before a 

court with jurisdiction over the defendant's person.'" Id. at 

31, 458 S.E.2d at 761. This Court reversed, stating that 

these conditions were not a prerequisite to the entry of a 

binding order of nonsuit. Id. at 32, 458 S.E.2d at 761. 

Thus, McManama stands for the proposition that a plaintiff can 

secure a valid voluntary nonsuit pursuant to Code § 8.01-380 

even though there has been no service of process on the 

defendants. 

The cases cited by some of the defendants in support of 

their position are inapposite because those cases all involve 

the authority of the court to enter a valid judgment on the 

merits. Here, as in McManama, the nonsuit order was not a 

judgment on the merits and the defendants were "not deprived 

of any . . . property interest, or prejudiced in any way" by 

the nonsuit order. Id. at 35, 458 S.E.2d at 763. 

 We have considered the other arguments put forth by 

defendants in support of the trial court's decision and find 

them without merit. Accordingly, for the reasons stated, we 

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will reverse the judgment of the trial court and remand the 

case for further proceedings. 

Reversed and remanded.

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