Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, 

JJ., and Russell and Koontz, S.JJ.

BARBARA A. RUTTER, ADMINISTRATRIX 

OF THE ESTATE OF 

VIRGIL W. RUTTER, DECEASED

OPINION BY

v. Record No. 100499 CHIEF JUSTICE CYNTHIA D. KINSER

JUNE 9, 2011

OAKWOOD LIVING CENTERS 

OF VIRGINIA, INC.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Edward W. Hanson, Jr., Judge

In this appeal, we conclude that Code § 8.01-335(B), 

governing the discontinuance or dismissal of inactive cases, 

does not permit a trial court to discontinue or dismiss such a 

case with a self-executing, prospective order. As that 

conclusion renders the order appealed from not final for 

purposes of appeal, we will dismiss this appeal without 

prejudice.

RELEVANT FACTS AND PROCEEDINGS

Barbara A. Rutter (Rutter), in her capacity as 

administratrix of the estate of her deceased husband Virgil W. 

Rutter, filed a wrongful death action in July 2000 in the 

Circuit Court of the City of Virginia Beach. Rutter named as 

defendants Oakwood Living Centers of Virginia, Inc. (Oakwood), 

an assisted living facility where Virgil Rutter had lived prior 

to his death; Prism Rehab Systems, Inc. (Prism Rehab), a company 

that had contracted with Oakwood to provide physical therapy 
2

services to residents of Oakwood; Thomas P. Dixon (Dixon), the

president of Prism Rehab; and Frank Knowlton (Knowlton), an 

employee of Prism Rehab whose alleged negligence caused the 

decedent to fall and sustain a hip fracture, allegedly resulting 

in his death. Rutter claimed that Oakwood, Prism Rehab, and 

Dixon were vicariously liable for Knowlton's negligence and 

sought damages against the defendants, jointly and severally.

In September 2000, Dixon and Prism Rehab filed a notice of 

bankruptcy stay, notifying the circuit court that both Prism 

Rehab and its parent company had filed bankruptcy proceedings 

and that Rutter's action against Prism Rehab and Dixon was 

stayed pursuant to federal bankruptcy law. In response, the 

circuit court entered an order on October 4, 2000 (the 2000 

Order), stating:

[T]his action is removed from the docket of this 

[c]ourt with leave to counsel to place this 

action back on the docket of this [c]ourt upon 

resolution of the bankruptcy proceeding should 

such procedure be deemed advisable.

This action shall be ordered to be discontinued 

if after three years there has been no further 

order or proceeding under [Code] § 8.01-335(B)[.]

Following entry of this order, Rutter, however, continued 

discovery against Oakwood and in February 2001 filed a motion to 

compel Oakwood to answer interrogatories. Oakwood responded by 

filing a notice of the bankruptcy stay order. Asserting that 
3

the 2000 Order was "unclear . . . as to whether the action 

against Oakwood was also removed" from the docket, Oakwood filed 

a motion requesting the circuit court to remove Rutter's action 

against it pending resolution of the bankruptcy proceedings. In 

March 2001, Knowlton also filed a motion to stay, claiming that 

the action against him was stayed pending resolution of the

bankruptcy proceedings.

The circuit court did not rule on either motion, and the 

docket reflects no activity in the case until Rutter filed a 

motion in June 2005 to set a trial date. Rutter stated the 

bankruptcy stay was lifted in April 2002 and the action against 

the defendants thus could proceed pursuant to the circuit 

court's 2000 Order. Again, no orders or proceedings took place

until April 2009, when Oakwood filed a plea of the statute of 

limitations and/or motion to dismiss. According to Oakwood, the 

2000 Order served to discontinue Rutter's action on October 4, 

2003 pursuant to Code § 8.01-335(B) because, as of that date,

the action had been inactive for three years. Oakwood asserted 

that because the matter "abate[d]" as of October 4, 2003, Rutter 

then had two months, the balance of the statute of limitations

remaining when she originally filed her complaint, in which to 

refile her action. Alternatively, Oakwood asserted that Rutter

could have reinstated the discontinued action, pursuant to Code 
4

§ 8.01-335(B), within one year of the discontinuance in October 

2003. Oakwood argued that because Rutter had failed to employ 

either remedy, she could no longer pursue the action.

Rutter responded that the 2000 Order only removed the 

action from the circuit court's docket and did not actually

discontinue it. Rutter maintained that the language of the 2000 

Order contemplated a subsequent order being entered after three 

years of inactivity and noted that no such order had been 

entered. Rutter also contended that Code § 8.01-335(B) does not 

permit a prospective dismissal of a case, meaning the 2000 Order 

was void to the extent that it attempted to do so.

The circuit court sustained Oakwood's motion. In an order

entered on December 18, 2009 (the 2009 Order), the court stated 

that the 

case was removed from the [c]ourt's docket and 

discontinued as of October 4, 2003. Under the 

provisions of [Code] § 8.01-244 . . ., a two year 

statute of limitations applies to wrongful death 

claims, leaving two months following the 

discontinuance of the case for [Rutter] to refile her claim.

Because Rutter had not re-filed her action within that time, the 

circuit court dismissed "the Complaint against Oakwood" with 

prejudice.

Rutter appeals from the circuit court's judgment. She 

contends, inter alia, that Code § 8.01-335(B) does not permit a 
5

trial court to dismiss an action prospectively, but instead 

requires entry of an order subsequent to the period of 

inactivity. Thus, according to Rutter, the circuit court erred 

in sustaining Oakwood's plea of the statute of limitations and 

dismissing the action.

ANALYSIS

The primary question on appeal, whether the circuit court 

erred by treating the 2000 Order as a self-executing order

prospectively discontinuing Rutter's action under Code § 8.01-

335(B), requires the Court to interpret the provisions of that 

statute. Statutory interpretation is a pure question of law 

reviewed de novo on appeal. Conyers v. Martial Arts World of 

Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). In 

interpreting a statute, we must "'ascertain and give effect to 

the intention of the legislature,' which is usually self-evident

from the statutory language." Virginia Polytechnic Inst. & 

State Univ. v. Interactive Return Serv., Inc., 271 Va. 304, 309, 

626 S.E.2d 436, 438 (2006) (quoting Chase v. DaimlerChrysler 

Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003)). When a 

statute's terms are clear and unambiguous, we apply the statute 

in accordance with its plain language. HCA Health Servs. of 

Va., Inc. v. Levin, 260 Va. 215, 220, 530 S.E.2d 417, 419-20 

(2000).
6

The provisions of Code § 8.01-335(B) state:

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 to be struck from its docket 

and the action shall thereby be 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.

The statute's purpose is 

to enable trial courts to eliminate from their 

dockets cases for which there is no reasonable 

prospect of trial. In summarily dismissing such 

cases, trial courts may thus promote efficiency 

in the administration of justice by saving the 

time of court personnel which would otherwise be 

required to preserve on the courts' dockets 

actions long forgotten or abandoned by litigants 

and lawyers.

Nash v. Jewell, 227 Va. 230, 234, 315 S.E.2d 825, 827 (1984). 

As recently stated, that the "plain meaning of this statute is 

that any action in which there is no activity by the parties for 

three or more years may be removed from the court's docket, 

either by dismissal or discontinuance." Conger v. Barrett, 280 

Va. 627, 632, 702 S.E.2d 117, 119 (2010). That is, "[a] case 

must be inactive for three years before a circuit court may 
7

dismiss a case sua sponte under Code § 8.01-335(B)." Collins v. 

Shepherd, 274 Va. 390, 401, 649 S.E.2d 672, 677 (2007).

In light of the plain terms of Code § 8.01-335(B) and its 

purpose, we conclude that the circuit court erred when it held 

that the 2000 Order served to discontinue Rutter's action as of 

October 2003. The provisions of Code § 8.01-335(B) allow a 

discontinuance when, for three years or more, "there has been no 

order or proceeding." (Emphasis added.) A trial court's 

determination that there has been no order or proceeding for at 

least three years must be made contemporaneously with the entry 

of the order discontinuing or dismissing the action. This 

temporal requirement complies with the purpose of the statute: 

"to enable trial courts to eliminate from their dockets cases 

for which there is no reasonable prospect of trial." Nash, 227 

Va. at 234, 315 S.E.2d at 827 (emphasis added). A trial court 

prospectively entering a self-executing order is unable to 

determine whether there has in fact been "no order or 

proceeding" for three or more years, or whether there is a 

reasonable prospect of trial. In short, such an order would 

preclude a trial court from considering factors relevant to the 

exercise of its discretion to discontinue an action under Code 

§ 8.01-335(B).
8

That subsection also requires the clerk of the trial court 

to provide the parties with a copy of the final order 

discontinuing or dismissing the action and allows reinstatement 

of such within one year of the entry of the order. Code § 8.01-

335(B). However, in the case of a self-executing, prospective

order of discontinuance, the clerk could not provide the parties 

with "the final order discontinuing or dismissing the case."

Instead, the clerk could only provide an order that may be final 

at some point at least three years into the future. In other 

words, a party would have to determine on what date the action 

had been inactive for a period of three years for lack of an 

order or proceeding. Likewise, a party would not know when the 

one-year period for reinstatement commenced to run. Such

uncertainty and guesswork is incompatible with the language of 

Code § 8.01-335(B) and would undermine "efficiency in the 

administration of justice." See Nash, 227 Va. at 234, 315 

S.E.2d at 827.

Oakwood contends, however, that we have recognized the 

validity of a prospective, self-executing order and cites our 

decisions in Norris v. Mitchell, 255 Va. 235, 495 S.E.2d 809 

(1998), and Berean Law Grp., P.C. v. Cox, 259 Va. 622, 528 

S.E.2d 108 (2000). In both Norris and Berean Law Group, the

respective trial courts entered orders sustaining a demurrer and 
9

dismissing the action, but granted leave for the plaintiff to 

file an amended complaint by a specific date. 255 Va. at 238, 

495 S.E.2d at 811; 259 Va. at 624, 528 S.E.2d at 110. We held

that an order sustaining a demurrer but granting leave to amend 

"does not become final 'until after the time limited therein for 

the plaintiff to amend his [pleading] has expired.'" Norris, 

255 Va. at 239, 495 S.E.2d at 811 (quoting London-Virginia 

Mining Co. v. Moore, 98 Va. 256, 257, 35 S.E. 722, 723 (1900)); 

see Berean Law Grp., 259 Va. at 626, 528 S.E.2d at 111.

Applying that rationale to the present case, Oakwood argues the 

prospective discontinuance of Rutter's action similarly was 

valid and effective after three years of inactivity.

Unlike the present action, neither Norris nor Berean Law 

Group involved the application of a statute. Here, the circuit 

court's discretion to discontinue or dismiss an action for lack

of any order or proceeding for more than three years is governed 

by Code § 8.01-335(B). And, that statute does not contemplate 

entry of a self-executing, prospective order of discontinuance

prior to the period of inactivity. In addition, the orders at 

issue in Norris and Berean Law Group, containing a date certain 

and specifying the plaintiff’s required act, did not necessitate

the guesswork that would result from a prospective order of 

discontinuance under Code § 8.01-335(B).
10

In sum, we conclude that Code § 8.01-335(B) does not allow 

a trial court to enter a self-executing order prospectively 

discontinuing or dismissing an action. Instead, if a trial 

court first determines that there has been no order or 

proceeding in an action for more than three years, it then may 

discontinue or dismiss the action pursuant to Code § 8.01-

335(B). The circuit court thus erred by concluding that the 

2000 Order served to discontinue Rutter's action as of October 

2003 and by sustaining Oakwood's plea of the statute of 

limitations. The 2000 Order merely removed the action from the 

docket and, pursuant to Code § 8.01-335(B), a subsequent order 

was required to discontinue or dismiss the action. Rutter's 

action thus remained pending in the circuit court, and she was 

entitled to move to set a trial date because the bankruptcy stay 

had been lifted in 2002.

This conclusion, however, does not end our analysis. The 

peculiar circumstances of this appeal require us to address an 

additional issue sua sponte. In the 2009 Order, the circuit

court, in sustaining Oakwood's plea of the statute of the 

limitations, treated the 2000 Order as prospectively 

discontinuing the entire action, i.e., as an order that became 

final on October 4, 2003. Because the 2000 Order did not in 

fact discontinue the action and Rutter's action remained pending
11

in the circuit court, the 2000 Order never became final. That 

fact calls into question whether the 2009 Order, which is 

challenged in this appeal, was a final, appealable order. If it 

was not, this Court has no jurisdiction to hear this appeal.

In answering that question, we apply the familiar principle

that "[a] court always has jurisdiction to determine its own 

jurisdiction." Lewis v. C.J. Langenfelder & Son, Jr., Inc., 266 

Va. 513, 516, 587 S.E.2d 697, 699 (2003); United States v. 

United Mine Workers, 330 U.S. 258, 292 n.57 (1947); see, e.g., 

Jenkins v. Mehra, 281 Va. 37, 51, 704 S.E.2d 577, 585 (2011). 

This principle applies even when, as here, determining 

jurisdiction first requires analysis of the merits of an issue.

See United States v. Ruiz, 536 U.S. 622, 628 (2002) ("In order 

to make that determination [regarding its own jurisdiction], it 

was necessary for the [appellate court] to address the 

merits."); Childers v. Chesapeake & Potomac Telephone Co., 881 

F.2d 1259, 1263 (4th Cir. 1989) (federal courts may "address a 

state claim on its merits in the process of determining its own 

jurisdiction"). See generally Myers v. Hancock, 185 Va. 454, 

460, 39 S.E.2d 246, 249 (1946) (disposition on realty fixture 

issue resulted in the absence of jurisdiction); Western Union 

Telegraph Co. v. White, 113 Va. 421, 424-26, 74 S.E. 174, 176 

(1912) (analysis of the meaning of a statute on the merits 
12

required dismissal for lack of jurisdiction). With these 

principles in mind, we now turn to the question whether we have 

jurisdiction to hear this appeal.

In relevant part, Code § 8.01-670(A)(3) provides that "any 

person may present a petition for an appeal" to this Court if 

that person is aggrieved "[b]y a final judgment in any other 

civil case." See Comcast of Chesterfield Cnty., Inc. v. Board 

of Supervisors of Chesterfield Cnty., 277 Va. 293, 306, 672 

S.E.2d 870, 876 (2009) (holding that "Code § 8.01-670(A)(1) does 

not authorize appeals of interlocutory orders in those types of 

controversies enumerated in that subsection"). A final order 

"is one which disposes of the whole subject, gives all the 

relief contemplated, provides with reasonable completeness for 

giving effect to the sentence, and leaves nothing to be done in 

the cause save to superintend ministerially the execution of the 

order." James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137 

(2002) (internal quotation marks omitted). "'[I]n the absence 

of a statutory provision to the contrary, a judgment is not 

final for purposes of appeal if it is rendered with regard to 

some but not all of the parties involved in the case.'" Leggett 

v. Caudill, 247 Va. 130, 133, 439 S.E.2d 350, 351 (1994) 

(quoting Wells v. Whitaker, 207 Va. 616, 628, 151 S.E.2d 422, 

432 (1966)).
13

Rutter named four defendants in her complaint: Oakwood, 

Prism Rehab, Dixon, and Knowlton. Because the 2000 Order merely 

removed the action from the docket, and no other order was 

entered discontinuing the action or dismissing any defendant, 

all parties remained before the circuit court when it entered 

the 2009 Order. That order, sustaining Oakwood's plea of the 

statute of limitations, stated that "the Complaint against 

Oakwood is dismissed." The order adjudicated nothing with 

regard to defendants Prism Rehab, Dixon, and Knowlton. The 2009 

Order, therefore, was only "rendered with regard to some but not 

all of the parties involved in the case" and was not a final 

order for purposes of appeal. Leggett, 247 Va. at 133, 439 

S.E.2d at 351.1

Under the "severable interests" exception, however, "a 

final adjudication of a collateral matter that addresses 

separate and severable interests can be appealed [if] the appeal 

cannot affect the determination of the remaining issues in the 

case, even if the adjudication is reversed." Thompson v. Skate 

Am., Inc., 261 Va. 121, 127, 540 S.E.2d 123, 126 (2001). Thus, 

"prior to the determination of the case against all defendants,"

a party may appeal an adjudication that is final "as to a 

 1 The parties did not utilize the procedure for the appeal 

of an interlocutory order pursuant to the provisions of Code 

§ 8.01-670.1. Thus, we express no opinion whether that 

procedure would have been applicable in this instance. 
14

collateral matter, separate and distinct from the general 

subject of the litigation and affecting only particular parties 

to the controversy." Wells, 207 Va. at 628, 151 S.E.2d at 432.

See generally Rule 5:8A(a).2 In Wells, the Court held that an 

order was not a final, appealable order because if the plaintiff 

obtained "a reversal on his theory that [the dismissed 

defendant] was a joint venturer, then [that defendant] might be 

charged with liability for the same acts or omissions which are 

the basis of [the remaining defendant's] liability." Id. at 

629, 151 S.E.2d at 433. 

The 2009 Order, which was not final as to all the 

defendants, is thus only appealable if the "severable interests"

exception applies. The 2009 Order adjudicated Rutter's ability 

to proceed with the cause of action only as to Oakwood. But, 

the interests of all four defendants are joint and not 

severable. Like the situation in Leggett, Rutter's allegations 

against Oakwood, Prism Rehab, and Dixon derive from the alleged 

negligent conduct of Knowlton. See Leggett, 247 Va. at 134-35, 

439 S.E.2d at 352. Thus, the circuit court's adjudication as to 

Oakwood in the 2009 Order did not concern "a collateral matter, 

separate and distinct from the general subject of the 

litigation." Wells, 207 Va. at 628, 151 S.E.2d at 432.

 2 This rule, addressing appeals from partial final judgments 

in multi-party cases, took effect after entry of the 2009 Order.
15

CONCLUSION

In exercising jurisdiction to determine our own 

jurisdiction and thereby analyzing the merits of the issue 

presented on appeal, we conclude that Code § 8.01-335(B) does 

not allow the prospective discontinuance or dismissal of an 

action. The 2000 Order therefore merely removed Rutter's action 

from the circuit court's docket but did not discontinue or 

dismiss the action. It was not final in any respect. Further, 

because the 2009 Order only adjudicated Rutter's claim against 

Oakwood, whose interests are not severable from those of the 

other defendants, that order was not final for purposes of 

appeal. As a result, this Court has no jurisdiction over this 

appeal and the appeal, therefore, will be dismissed without 

prejudice.

Dismissed without prejudice.