PRESENT: All the Justices 

MICHAEL HICKS, A MINOR, WHO SUES 

BY HIS MOTHER AND NEXT FRIEND, 

DARLENE A. HICKS 

v. Record No. 070344 OPINION BY 

 JUSTICE BARBARA MILANO KEENAN 

 February 29, 2008 

PETER MELLIS, M.D. 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 In this appeal, we consider the effect of an order 

reinstating a medical malpractice action under Code § 8.01-

335(B) that was entered without notice to the defendant. The 

issue arose when the plaintiff obtained a nonsuit of the 

reinstated action and filed a new motion for judgment, which 

was the first pleading in either of these actions that was 

served on the defendant. The judgment order on appeal before 

us is the circuit court’s final order dismissing the new 

motion for judgment on the ground that the action was barred 

by the statute of limitations because the reinstatement order 

in the prior action “was improvidently allowed.” 

 The nature of this case requires a description of the 

dates of the parties’ relevant filings. In April 1993, 

Darlene A. Hicks (Hicks) filed a motion for judgment in the 

Circuit Court of the City of Richmond on behalf of her threeyear-old son Michael D. Hicks (Michael), who was born on 

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October 21, 1989. In her motion, Hicks asserted claims of 

medical malpractice against the Medical College of Virginia 

Hospitals, the Commonwealth of Virginia, and “unnamed health 

care providers” for treatment her son had received on December 

11, 1990. In July 1995, Hicks sought a nonsuit of the case, 

which the circuit court granted. 

 In October 1999, Hicks filed in the circuit court a 

second motion for judgment, alleging the same claims of 

medical malpractice and naming as defendants the Medical 

College of Virginia Hospitals, the Commonwealth of Virginia, 

Peter Mellis, M.D. (Dr. Mellis), Gayle S. Smith, M.D., and 

other hospital employees. None of these defendants was served 

with the second motion for judgment or other process in the 

case. After more than three years with no further filings or 

proceedings in the case, in January 2003, the circuit court 

entered an order under Code § 8.01-335(B) discontinuing and 

striking the case from the docket. 

 In November 2003, Hicks filed a timely motion to 

reinstate the case pursuant to Code § 8.01-335(B). The 

circuit court, after observing that none of the defendants had 

been served with process, entered an order of reinstatement 

returning the case to the court’s docket. In January 2004, 

Hicks filed a motion for nonsuit, which the circuit court 

granted by order dated May 25, 2004. 

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 On the same day, Hicks filed a third motion for judgment 

naming Dr. Mellis as the sole defendant. In this pleading, 

Hicks alleged that Dr. Mellis had provided Michael with 

negligent medical treatment in December 1990, and had caused 

Michael to suffer severe injuries. Hicks served Dr. Mellis 

with a copy of this third motion for judgment on May 23, 2005, 

which was the first notice Dr. Mellis had received regarding 

Hicks’ claim. 

 Dr. Mellis filed grounds of defense and a special plea of 

the statute of limitations. On November 21, 2006, the circuit 

court sustained Dr. Mellis’ special plea of the statute of 

limitations and dismissed the case with prejudice. 

 In its letter opinion, the circuit court concluded that 

“reinstatement [of the case] was improvidently allowed” 

because Code § 8.01-335(B) required that the parties in 

interest be notified prior to reinstating a case that had been 

stricken from the docket, and Dr. Mellis had not received such 

notice. Thus, the circuit court concluded that the case 

remained stricken from the docket, that the second nonsuit was 

of “no effect,” and that the third motion for judgment was 

barred by the statute of limitations under Code § 8.01-243.1. 

Hicks appeals. 

 Hicks argues that the circuit court erred in sustaining 

Dr. Mellis’ plea of the statute of limitations, because the 

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notice provision of Code § 8.01-335(B) is not a mandatory 

requirement for entry of a reinstatement order. Hicks asserts 

that although the circuit court may have erred in its 

application of the statute by entering the order in the 

absence of notice to Dr. Mellis, the order was merely 

voidable, rather than void ab initio, and could not be 

challenged more than 21 days after the nonsuit was granted in 

the reinstated case. Thus, Hicks contends that because the 

final order of nonsuit entered on May 25, 2004 was not 

appealed or timely challenged within 21 days of its entry, as 

required by Rule 1:1, the reinstatement order remained in 

effect and the present motion for judgment was timely filed. 

 In response, Dr. Mellis observes that the order 

discontinuing the malpractice action was a final order 

striking the case from the court’s docket and that, in the 

absence of a valid reinstatement order, the case remained 

stricken. Dr. Mellis cites our decision in Janvier v. 

Arminio, 272 Va. 353, 634 S.E.2d 754 (2006), and argues that 

the circuit court lacked jurisdiction to enter the nonsuit 

order “by virtue of a procedurally defective reinstatement.” 

As a consequence, Dr. Mellis maintains, the circuit court 

correctly held that the statute of limitations applicable to 

Hicks’ injuries had expired, barring the present malpractice 

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action. We disagree with the conclusion advanced by Dr. 

Mellis. 

 Although the procedural history of this case is somewhat 

complex, the appeal involves a pure question of law, which 

requires us to employ an analysis involving both statutory 

interpretation and our prior decisions. We begin by 

considering the language of Code § 8.01-335(B) under an 

established principle of statutory construction. 

 Courts are bound by the plain meaning of statutory 

language. Young v. Commonwealth, 273 Va. 528, 533, 643 S.E.2d 

491, 493 (2007); Alliance to Save the Mattaponi v. 

Commonwealth, 270 Va. 423, 439, 621 S.E.2d 78, 86-87 (2005); 

Horner v. Department of Mental Health, 268 Va. 187, 192, 597 

S.E.2d 202, 204 (2004). Therefore, if the language of a 

statute is unambiguous, courts may not interpret the language 

in a way that effectively holds that the General Assembly did 

not mean what it actually expressed. Young, 273 Va. at 533, 

643 S.E.2d at 493; Alcoy v. Valley Nursing Homes, Inc., 272 

Va. 37, 41, 630 S.E.2d 301, 303 (2006); Alliance to Save the 

Mattaponi, 270 Va. at 439, 621 S.E.2d at 87. 

 The language of Code § 8.01-335(B) is plain. This 

provision states that: 

 Any court in which is pending a case wherein for more 

than three years there has been no order or proceeding, 

except to continue it, may, in its discretion, order it 

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to be struck from its docket and the action shall be 

thereby discontinued. The court may dismiss cases under 

this subsection without any notice to the parties. The 

clerk shall provide the parties with a copy of the final 

order discontinuing or dismissing the case. Any case 

discontinued or dismissed under the provisions of this 

subsection may be reinstated, on motion, after notice to 

the parties in interest, if known, or their counsel of 

record within one year from the date of such order but 

not after. 

Code § 8.01-335(B). 

 Under this statutory language, a circuit court may enter 

an order reinstating a discontinued case only after notice is 

given to known parties in interest. The parties do not 

dispute that Dr. Mellis was a known party in interest to the 

discontinued action. Therefore, the circuit court entered the 

reinstatement order contrary to the notice provision set forth 

in Code § 8.01-335(B). 

 Because the reinstatement order was entered improperly, 

we now must consider the effect of that order on the present 

litigation. We focus on the question whether the absence of 

notice to Dr. Mellis rendered the court’s reinstatement order 

void ab initio and subject to collateral attack in the present 

malpractice action. 

 We begin by reviewing the familiar distinction between 

orders that are void ab initio and those that are merely 

voidable. An order is void ab initio if the court did not 

have the jurisdiction to render the order, or if the court 

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employed an unlawful mode of procedure in entering the order. 

Collins v. Shepherd, 274 Va. 390, 402, 649 S.E.2d 672, 678 

(2007); Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 

551 (2001); Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 

73, 495 S.E.2d 825, 828 (1998); Lapidus v. Lapidus, 226 Va. 

575, 579, 311 S.E.2d 786, 788 (1984). Because an order that 

is void ab initio is a complete nullity, the order may be 

challenged directly or collaterally “by all persons, anywhere, 

at any time, or in any manner.” Collins, 274 Va. at 402, 649 

S.E.2d at 678 (quoting Singh, 261 Va. at 52, 541 S.E.2d at 

551); accord Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 

73, 75 (2001); Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d 

141, 145 (1995). 

 In contrast, an order is voidable if its issuance was 

reversible error but was within the court’s jurisdiction to 

enter. Singh, 261 Va. at 51-52, 541 S.E.2d at 551; see

Parrish, 250 Va. at 521, 464 S.E.2d at 145. A court has 

jurisdiction to err, as well as to correctly decide the issues 

presented in a case, and the remedy to correct an error by a 

trial court is to appeal the court’s decision upon entry of a 

final order, not to collaterally attack the erroneous decision 

in a separate action. See Singh, 261 Va. at 52-53, 541 S.E.2d 

at 551-52; Parrish, 250 Va. at 521-22, 464 S.E.2d at 145-46; 

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Farant Inv. Corp. v. Francis, 138 Va. 417, 436, 122 S.E. 141, 

147 (1924). 

 A challenge to an order based on a trial court’s 

misapplication of a statute generally raises a question of 

court error, not a question of the court’s jurisdiction. 

Parrish, 250 Va. at 521, 464 S.E.2d at 145. Our review of 

Code § 8.01-335(B) in the present case demonstrates that the 

circuit court had jurisdiction to enter the reinstatement 

order but misapplied the statute. 

 We first observe that the statute permits a circuit court 

to enter a reinstatement order without prior notice to anyone 

when the circuit court has determined that there are no known 

interested parties or counsel of record. See Code § 8.01-

335(B). Thus, prior notice is not a jurisdictional 

requirement for entry of a reinstatement order under the 

statute. 

 Instead, Code § 8.01-335(B) provides that a circuit court 

may reinstate a discontinued action after notice to “the 

parties in interest, if known, or their counsel of record.” 

Id. Significantly, the statute does not direct that notice be 

given only to named defendants or their counsel of record, but 

leaves for the circuit court’s determination the issue whether 

there are known parties who have an interest in the 

litigation. 

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 This determination required by the statute will rest on 

the facts and circumstances of a particular case. The 

potentially broad scope of the inquiry may require that the 

circuit court decide both issues of fact and of law in 

reaching a conclusion. Such determinations are core functions 

of our courts in the exercise of their jurisdiction. 

 The fact that Dr. Mellis easily could be identified as a 

person of interest in this case did not change the nature of 

the legal determination that the circuit court was required to 

make under the statute. Thus, the circuit court’s failure to 

apply the statute properly did not affect the court’s 

jurisdiction to enter the reinstatement order. 

 Likewise, the circuit court’s reinstatement order was not 

void ab initio on the ground that the court employed an 

unlawful mode of procedure. See Collins, 274 Va. at 402-03, 

649 S.E.2d at 678; Evans, 255 Va. at 73, 495 S.E.2d at 828. 

Code § 8.01-335(B) required that the circuit court decide 

whether there were known interested parties entitled to notice 

before reinstating the case and, thus, the circuit court 

lawfully could have made this determination and still have 

reached the wrong result. Because the misapplication of the 

statute in the present case occurred in the circuit court’s 

lawful exercise of its jurisdiction, the reinstatement order 

was merely voidable, rather than void ab initio and, thus, was 

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not subject to collateral attack in the present action. See

Singh, 261 Va. at 51-52, 541 S.E.2d at 551; Parrish, 250 Va. 

at 521, 464 S.E.2d at 145. 

 Our conclusion is not affected by our holding in Janvier 

v. Arminio, 272 Va. 353, 634 S.E.2d 754. There, we held that 

an order granting a second nonsuit, in the absence of notice 

to the defendant, was not void ab initio because entry of the 

order was within the court’s discretion under former Code 

§ 8.01-380(B).1 272 Va. at 367, 634 S.E.2d at 761-62. Unlike 

the proceedings in Janvier, the present case involves a legal 

determination that the circuit court was required to make in 

deciding what parties were entitled to notice before entry of 

an order of reinstatement. Thus, the holding in Janvier is 

inapposite, because that holding was based on a circuit 

court’s lawful exercise of its discretion in the absence of a 

statutory notice requirement. Nevertheless, as our holding in 

Janvier illustrates, a collateral challenge to an order must 

be resolved based on a determination whether the issuing court 

 1

 Code § 8.01-380(B) was amended in 2007 to require that a 

defendant be given notice of a plaintiff’s request for a 

second or subsequent nonsuit. That subsection presently 

provides in relevant part: “Only one nonsuit may be taken to a 

cause of action or against the same party to the proceeding, 

as a matter of right, although the court may allow additional 

nonsuits upon reasonable notice to counsel of record for all 

defendants and upon a reasonable attempt to notify any party 

not represented by counsel, or counsel may stipulate to 

additional nonsuits.” Code § 8.01-380(B).

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had jurisdiction to enter the order in question, not whether 

the court erred or abused its discretion in entering the 

order. See id. at 367, 634 S.E.2d at 761; see also Parrish, 

250 Va. at 521, 464 S.E.2d at 146. 

 Finally, we are aware that because Dr. Mellis was not 

served in the nonsuited action, and had no other notice of 

those proceedings, he did not know that the May 25, 2004 order 

of nonsuit had been entered and could have been appealed. 

This problem, however, cannot be considered in this collateral 

action but may raise a question for the General Assembly’s 

consideration in future revisions to Code § 8.01-335(B). 

Accordingly, we hold that the circuit court erred in 

sustaining Dr. Mellis’ plea of the statute of limitations and 

in dismissing Hicks’ motion for judgment on that basis.2 

 For these reasons, we will reverse the circuit court’s 

judgment and remand the case for further proceedings 

consistent with the principles expressed in this opinion. 

Reversed and remanded. 

 2 We do not consider Dr. Mellis’ procedural due process 

argument because he has not raised this issue on cross-error 

before this Court. See Rule 5:18(b).