Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Agee, JJ., and Lacy, S.J.1

LARRY R. COLLINS 

 OPINION BY 

v. Record No. 061728 JUSTICE LAWRENCE L. KOONTZ, JR. 

 September 14, 2007 

FAYE M. SHEPHERD 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John C. Morrison, Jr., Judge 

 This appeal principally concerns an order entered sua 

sponte by the circuit court dismissing with prejudice a civil 

action for personal injuries pursuant to a local rule adopted 

by that court that provides for the dismissal of cases not 

served on the defendant within one year of filing. We 

consider two issues: (1) whether the local rule is valid and, 

therefore, the circuit court was within its authority to 

dismiss the case pursuant to that rule, and (2) what is the 

effect, if any, of the failure to challenge that dismissal 

order until after the expiration of the twenty-one day 

limitation period in Rule 1:1. 

BACKGROUND 

 The parties do not dispute that the local rule at issue 

is Local Rule 2(F)(3) which is contained in the Civil Case 

 

1

 Justice Lacy participated in the hearing and decision of 

this case prior to the effective date of her retirement on 
2

Management Administrative Plan originally adopted by the 

Circuit Court of the City of Norfolk on October 8, 1998. The 

plan has as its purpose the laudable goal of “concluding all 

civil cases, except by leave of court and in suits for 

divorce, within twelve months of filing.” In an apparent 

effort to achieve that goal, Local Rule 2(F)(3) provides that 

“[i]f any civil action is not served within the time provided 

by Supreme Court Rule [3:5(e)], the Clerk shall prepare a 

notice of dismissal and send such notice to counsel for the 

plaintiff.”2

 The application of Local Rule 2(F)(3) became implicated 

in the following procedural context. On September 7, 2004, 

Larry R. Collins filed a motion for judgment in the Circuit 

Court of the City of Norfolk against Faye M. Shepherd for 

personal injuries allegedly resulting from the negligent 

operation of her motor vehicle. Collins did not serve 

Shepherd with process. On September 15, 2005, the circuit 

 

August 16, 2007. 

2

 During the proceedings in the circuit court, the local 

rule referenced former Rule 3:3(c). Effective January 1, 

2006, our Rules of Court were reorganized and Rule 3:3(c) 

became Rule 3:5(e). The provisions of former Rule 3:3(c) are 

nearly identical to the provisions of Rule 3:5(e) and the 

circuit court’s Local Rule 2(F)(3) has been revised to 

reference Rule 3:5(e). Accordingly, we will refer to the 

current rule in this opinion. 
3

court, in accord with its local rule, mailed to Collins’ 

attorney a “Notice of Dismissal” stating that the circuit 

court “on Friday, October 7, 2005 at 9:00 a.m. . . . pursuant 

to Supreme Court Rule [3:5(e)] and Nelson v. Vaughan, 210 Va. 

1 [, 168 S.E.2d 126] (1969), will dismiss this case because 

[Shepherd] has not been served with process within one year 

after the filing of the . . . Motion for Judgment . . . unless 

the [c]ourt finds that [Collins] has exercised due diligence 

to have timely service on [Shepherd].” 

 Collins did not appear on or before the October 7, 2005 

date designated in the notice of dismissal. On October 20, 

2005, the circuit court entered an order dismissing Collins’ 

action against Shepherd with prejudice. The dismissal order 

provided that Collins, “having failed to show that due 

diligence was exercised to have timely service upon 

[Shepherd], . . . this case [is] dismissed with prejudice in 

accordance with Supreme Court Rule [3:5(e)] and Nelson v. 

Vaughan, 210 Va. 1 [, 168 S.E.2d 126] (1969).” The dismissal 

order also provided that endorsement by counsel was waived 

pursuant to Rule 1:13. 

 
4

 Collins subsequently filed a motion on March 9, 2006 

requesting that the circuit court vacate the dismissal order 

and restore his case to the court’s docket. Collins did not 

give Shepherd notice regarding this motion. By an order dated 

March 16, 2006, the circuit court vacated its prior dismissal 

order and reinstated Collins’ case on the court’s docket.3 On 

the same day, the circuit court by separate order granted 

Collins’ motion to nonsuit the case. 

 The record does not demonstrate how Shepherd became aware 

of the March 16, 2006 order.4

 However, Shepherd filed a motion 

on March 27, 2006 requesting that the circuit court reconsider 

its decision to enter the March 16, 2006 dismissal order. 

 

3

 The March 16, 2006 order provided that the circuit court 

was reinstating the case “in the interest of justice, in that 

it appears that a clerical error and/or a fraud on the court 

occurred.” This ruling was apparently in response to 

assertions made by Collins’ counsel that a disloyal employee 

of his office had deliberately withheld or destroyed the 

notice of dismissal and the dismissal order that were mailed 

by the circuit court. Collins’ counsel relied, in part, upon 

the provisions set forth in Code § 8.01-428. However, it is 

clear that Collins’ argument under Code § 8.01-428 did not 

form the basis of the circuit court’s ultimate ruling in this 

case that gave rise to this appeal. Therefore, we will not 

address the applicability, if any, of Code § 8.01-428 in this 

case. 

4

 On brief, Shepherd states that Collins filed a “second 

but identical complaint” and “immediately served the new 

complaint upon [Shepherd]” following the entry of the March 

16, 2006 order granting Collins a nonsuit of the original 
5

Shepherd asserted that Collins’ motion to vacate the October 

20, 2005 dismissal order was barred under Rule 1:1 for failure 

to challenge that order within twenty-one days of its entry 

and, therefore, that the circuit court was without authority 

to enter the March 16, 2006 order. Accordingly, Shepherd 

requested that the circuit court vacate the March 16, 2006 

order. 

 The circuit court held a hearing on April 3, 2006 on 

Shepherd’s motion for reconsideration. At the hearing, 

Collins contended that, under the procedural posture of the 

case at the time, the circuit court did not have the authority 

to enter the October 20, 2005 dismissal order and, therefore, 

the order was void ab initio. The circuit court took the 

matter under advisement. 

 In a letter brief to the circuit court, Shepherd 

contended that even if entry of the October 20, 2005 dismissal 

order was error, such error rendered that order voidable 

rather than void ab initio. Accordingly, Shepherd maintained 

that the dismissal order was subject to Rule 1:1 and Collins 

was barred from challenging the order more than 21 days after 

its entry. Furthermore, Shepherd contended that the circuit 

 

action. For purposes of our resolution of this appeal, we 
6

court should have the authority to dismiss cases that have not 

been served within a year of filing so that dockets will not 

“become unduly burdened with pending cases which have not been 

served but which the [c]ourt may not manage in any manner.” 

 Responding by letter brief, Collins contended that the 

sua sponte dismissal order was void ab initio because “the 

character of the order is such that the court had no power to 

render it” and “the mode of procedure used by the court was 

one that the court could not lawfully adopt.” Therefore, 

Collins asserted that his challenge to the order was not 

subject to the 21 day time limitation of Rule 1:1. Collins 

also contended that the authority the circuit court cited in 

the dismissal order, Rule 3:5(e) and Nelson, authorize 

dismissal of a suit only after process has been served on the 

defendant more than one year after filing and only after the 

defendant files a motion to dismiss, neither of which occurred 

in this case. Collins further contended that circuit courts 

are authorized by statute to clear inactive cases from their 

dockets through the mechanism prescribed in Code § 8.01-335. 

Finally, Collins contended that the circuit court’s Local Rule 

2(F)(3) was invalid under Code § 8.01-4 because it abridged 

 

will accept that assertion as accurate. 
7

Collins’ substantive right to nonsuit the action prior to 

service of process on Shepherd. 

 In order to consider the issues presented, the circuit 

court entered an order on April 6, 2006 vacating its prior 

order granting Collins a nonsuit. Subsequently, the circuit 

court issued a letter opinion in which it rejected Collins’ 

assertions that the October 20, 2005 dismissal order was void 

ab initio. The circuit court stated that the procedure used 

to dismiss Collins’ case was a “docket control procedure” 

created to deal with “moribund” cases where no service has 

been made within a year and the plaintiff has failed to 

exercise due diligence to effectuate service. The circuit 

court concluded that its docket control procedure was not 

inconsistent with the provisions of Code § 8.01-4 authorizing 

circuit courts to adopt such docket control procedures so long 

as they do not “abridge the substantive rights of the 

parties.” Addressing Collins’ contention that his case 

remained viable after one year because he still had a right to 

nonsuit and refile, the circuit court noted that Collins had 

the opportunity to exercise his right to nonsuit up until the 

return date on the notice of dismissal. The circuit court 

acknowledged that Code § 8.01-335 provided a mechanism for 

clearing its docket of inactive cases, but found that 

mechanism inadequate to prevent the “indefinite tolling of the 
8

statute of limitations and harassment of the defendant,” which 

was an abuse that Rule 3:5(e) was designed to prevent. The 

circuit court explained that the local rule was intended to 

prevent such abuse while at the same time giving the plaintiff 

the “opportunity to protect his substantive rights.” 

 Accordingly, the circuit court ruled that the October 20, 

2005 dismissal order was valid. Collins filed a motion for 

reconsideration. By order entered May 26, 2006, the circuit 

court ruled that the dismissal order was not void ab initio, 

denied Collins’ motions to vacate the dismissal order and for 

reconsideration, and dismissed Collins’ September 7, 2004 

suit. This appeal followed. 

DISCUSSION 

 In three assignments of error, Collins principally 

asserts that the circuit court’s October 20, 2005 dismissal 

order was void ab initio because it was entered pursuant to an 

invalid local rule. According to Collins, the local rule is 

invalid because it abridges his substantive right to take a 

nonsuit and refile his case, conflicts with the procedures for 

discontinuance set forth in Code § 8.01-335, and permits 

dismissal of a case that was never served on the defendant in 

contravention of Rule 3:5(e), which he asserts applies only 

where the defendant is served with process outside of the oneyear period. Shepherd assigns cross-error on two grounds: 
9

(1) that the dismissal order was a final order and all orders 

entered subsequent to it were void, and (2) this Court is 

without jurisdiction over this appeal because Collins did not 

appeal the dismissal order, which was entered on October 20, 

2005, until June 16, 2006. Because the assignments of error 

and cross-error raise solely questions of law, we will apply a 

de novo standard of review. Janvier v. Arminio, 272 Va. 353, 

363, 634 S.E.2d 754, 759 (2006). 

 Similar to Rule 3:5(e), the local rule at issue targets 

cases not served within a year of filing. Rule 3:5(e) 

provides that “[n]o order, judgment or decree shall be entered 

against a defendant who was served with process more than one 

year after the institution of the action against that 

defendant unless the court finds as a fact that the plaintiff 

exercised due diligence to have timely service on that 

defendant.” However, unlike the local rule, Rule 3:5(e) does 

not expressly contemplate dismissal of cases not served within 

a year, although such cases are potentially subject to 

dismissal under Rule 3:5(e) upon motion by the defendant. See

Gilbreath v. Brewster, 250 Va. 436, 440, 463 S.E.2d 836, 837 

(1995). 

 Despite the local rule’s reference to Rule 3:5(e), the 

critical question raised in this appeal is whether the circuit 

court had the authority to adopt a local rule that essentially 
10

translates Rule 3:5(e) into a mode of procedure for the court 

dismissing unserved cases sua sponte.5 Collins asserts that 

the circuit court did not have such authority because the 

local rule violates the provisions of Code § 8.01-4. Code 

§ 8.01-4 provides that: 

 The district courts and circuit courts may, 

from time to time, prescribe rules for their 

respective districts and circuits. Such rules shall 

be limited to those rules necessary to promote 

proper order and decorum and the efficient and safe 

use of courthouse facilities and clerks’ offices. 

 

5

 The linchpin of the analysis in the dissenting opinion 

in this case upon which rests the ultimate conclusion that the 

circuit court’s erroneous October 20, 2005 dismissal order was 

merely voidable and not void ab initio is the initial 

conclusion that the circuit court did not enter that order 

pursuant to its Local Rule 2(F)(3) but, rather, pursuant to 

our Rule 3:5(e). It reaches that conclusion by applying the 

settled principle that a court speaks only through its written 

orders. 

In this case, however, the parties do not dispute that 

the authority upon which the circuit court dismissed Collins’ 

action was the circuit court’s Local Rule 2(F)(3). This is 

supported by the record before us in this appeal. Indeed, the 

circuit court in its opinion letter of April 19, 2006, which 

it subsequently incorporated into its May 26, 2006 order 

holding that the October 20, 2005 dismissal order was not 

void, leaves no room for dispute that the circuit court 

entered the dismissal order in reliance upon the “docket 

control procedure this court has adopted.” The docket control 

procedure adopted by the circuit court is Local Rule 2(F)(3) 

and obviously not our Rule 3:5(e). Additionally, if there 

could be any remaining doubt, the circuit court explained in 

some detail in its opinion letter its concern with our 

decision in Gilpin v. Joyce, 257 Va. 579, 515 S.E.2d 124 

(1999), which addressed the application of Rule 3:3(c), now 

Rule 3:5(e), and, thus, why it was relying upon its docket 

control procedure instead. 
11

No rule of any such court shall be prescribed or 

enforced which is inconsistent with this statute or 

any other statutory provision, or the Rules of 

Supreme Court or contrary to the decided cases, or 

which has the effect of abridging substantive rights 

of persons before such court. Any rule of court 

which violates the provisions of this section shall 

be invalid. 

 The courts may prescribe certain docket control 

procedures which shall 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. 

 Collins contends that the local rule is invalid because 

it abridged his substantive right to proceed with his lawsuit, 

noting that even after failing to serve Shepherd with process 

within one year of filing his civil action, he retained the 

right to take a nonsuit under Code § 8.01-380 and subsequently 

recommence the action against Shepherd. Collins also asserts 

that the local rule is invalid because it conflicts with the 

provisions governing the discontinuance of cases set forth in 

Code § 8.01-335. We agree with Collins.6

 

6

 Collins’ assignments of error also raise the issue of 

whether Rule 3:5(e) only applies when the defendant is served 

with process more than one year after filing, and here 

Shepherd was never served. Our decision in Gilpin resolves 

this issue. 257 Va. at 582, 515 S.E.2d at 126 (“[T]his rule 

applies only where there has been service of process.”). 
12

 Code § 8.01-4 delegates to circuit courts the authority 

to establish rules regarding the management of their courts 

and the cases handled therein. Clearly, however, Code § 8.01-

4 denotes that such authority must be carefully exercised so 

that local rules do not encroach upon statutes, Rules of 

Court, or case law. To this end, Code § 8.01-4 expressly 

states that local rules must not “abridge the substantive 

rights of the parties” or deprive any party from having a case 

heard on the merits, reflecting the General Assembly’s 

intention that local rules govern the administration, but not 

become the determining factor in the ultimate outcome, of 

cases. 

 Here, by operation of a procedure effectuated solely by 

its local rule, the circuit court dismissed Collins’ case with 

prejudice without the case being heard on the merits. In the 

absence of this local rule, Collins would have retained the 

right to take a nonsuit and refile his civil action beyond the 

one-year limitation period established by the local rule. See

Code § 8.01-380; Berry v. F&S Fin. Mktg., 271 Va. 329, 332-33, 

626 S.E.2d 821, 823 (2006) (citing Waterman v. Halverson, 261 

Va. 203, 208, 540 S.E.2d 867, 869 (2001); McManama v. Plunk, 

250 Va. 27, 32, 458 S.E.2d 759, 762 (1995)). The dismissal 

under a local rule of a case that the plaintiff would 

otherwise be able to pursue under the Code, case law, and 
13

Rules of Court exceeds the authority delegated to circuit 

courts under Code § 8.01-4. 

 The tension between this particular local rule and the 

Code is further demonstrated by a comparison of this rule to 

Code § 8.01-335, which governs circuit courts’ authority to 

discontinue inactive cases. Code § 8.01-335 provides, in 

relevant part, that: 

A. [A]ny court in which is pending an action, 

wherein for more than two 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. However, no case shall be 

discontinued if either party requests that it be 

continued. The court shall thereafter enter a 

pretrial order pursuant to Rule 4:13 controlling 

the subsequent course of the case to ensure a 

timely resolution of that case. If the court 

thereafter finds that the case has not been 

timely prosecuted pursuant to its pretrial order, 

it may strike the case from its docket. The 

clerk of the court shall notify the parties in 

interest if known, or their counsel of record at 

his last known address, at least fifteen days 

before the entry of such order of discontinuance 

so that all parties may have an opportunity to be 

heard on it. Any case discontinued 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. 

B. 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 
14

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. 

Under Code § 8.01-335(A), the earliest point at which the 

circuit court may discontinue a pending case is after two 

years of inactivity, and even then discontinuance may be 

ordered only if neither party requests a continuance or the 

parties fail to abide by a schedule set by the court following 

a continuance.7

 A case must be inactive for three years before 

 

7

 After the trial court’s disposition in this case, and 

after the briefing in this appeal was completed, the General 

Assembly has added a new subsection (D) to Code § 8.01-335, 

effective July 1, 2007, which provides: 

Any court in which is pending a case wherein process 

has not been served within one year of the 

commencement of the case may, in its discretion, 

order it to be struck from the docket, and the 

action shall thereby be discontinued. The clerk of 

the court shall notify the plaintiff or his counsel 

of record at his last known address at least 30 days 

before the entry of an order of discontinuance so 

that the plaintiff may have an opportunity to show 

that service has been timely effected on the 

defendant or that due diligence has been exercised 

to have service timely effected on the defendant. 

Upon finding that service has been timely effected 

or that due diligence has been exercised to have 

service timely effected, the court shall maintain 

the action on the docket and, if service has not 

been timely effected but due diligence to effect 
15

a circuit court may dismiss a case sua sponte under Code 

§ 8.01-335(B). Additionally, Code § 8.01-335 provides the 

parties to a discontinued case the opportunity to reinstate 

the case within one year of the discontinuance. 

 In comparison to Code § 8.01-335, Local Rule 2(F)(3) 

would drastically expand the circuit court’s authority to 

dismiss an inactive case by permitting dismissal, sua sponte, 

after one year rather than after two or three years. 

Furthermore, unlike Code § 8.01-335 the local rule does not 

provide an opportunity for revival of a discontinued case, 

thus the local rule totally ignores the statutory distinction 

between a discontinuance and a dismissal with prejudice. As 

Code § 8.01-4 expressly provides, “[n]o rule . . . shall be 

prescribed or enforced which is inconsistent with . . . any 

. . . statutory provision.” Here, the inconsistency between 

 

service has been exercised, shall require the 

plaintiff to attempt service in any manner permitted 

under Chapter 8 (§ 8.01-285 et seq.) of this title. 

Nothing herein shall prevent the plaintiff from 

filing a nonsuit under § 8.01-380 before the entry 

of a discontinuance order pursuant to the provisions 

of this subsection. Nothing in this subsection 

shall apply to asbestos litigation. 

We express no opinion about the validity of the subject local 

rule of court in light of this amendment to the statute. 
16

Local Rule 2(F)(3) and Code § 8.01-335 is palpable and beyond 

debate. 

 For these reasons, the circuit court did not have the 

authority under Code § 8.01-4 to adopt a local rule permitting 

the sua sponte dismissal with prejudice of cases not served 

within a year of the filing date. Accordingly, we hold that 

Local Rule 2(F)(3), which purports to authorize the circuit to 

do so, is invalid. Thus, the circuit court’s entry of the 

October 20, 2005 dismissal order based on that local rule was 

in error. 

 We turn now to address the effect, if any, of Collins’ 

failure to challenge the October 20, 2005 dismissal order 

until after the twenty-one day period set forth in Rule 1:1. 

Under Rule 1:1, “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.” Collins took no action regarding the October 20, 

2005 order until March 10, 2006, well beyond the twenty-one 

day period. 

 Collins contends that the circuit court entered the 

dismissal order pursuant to a “mode of procedure the court 

could not lawfully adopt,” making the dismissal order void ab 

initio and, thus, not subject to the limitation period of Rule 
17

1:1. Shepherd responds that even if the circuit court’s entry 

of the dismissal order was in error, such error merely 

rendered the order voidable, not void ab initio. Therefore, 

Shepherd argues that the dismissal order was subject to Rule 

1:1. Again, we agree with Collins. 

 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.” See 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); Watkins v. Watkins, 220 

Va. 1051, 1054, 265 S.E.2d 750, 753 (1980); Barnes v. American 

Fertilizer Co., 144 Va. 692, 706, 130 S.E. 902, 906 (1925); 

Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887). 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.” Singh v. Mooney, 

261 Va. 48, 52, 541 S.E.2d 549, 551 (2001). 

 In this case, the procedure utilized by the circuit court 

to enter the dismissal order was done pursuant to a local rule 

that, under Code § 8.01-4, the circuit court was not 

authorized to adopt. As such, the “mode of procedure” 

utilized by the circuit court was one that it could “not 
18

lawfully adopt.” Accordingly, the dismissal order was void ab 

initio and subject to challenge at any time.8

CONCLUSION 

 For the foregoing reasons, we hold that the circuit court 

erred in entering the October 20, 2005 order dismissing 

Collins’ lawsuit against Shepherd, and that the dismissal 

order was void ab initio. We further hold that Collins was 

entitled to the nonsuit granted by the circuit court’s March 

16, 2006 order and, accordingly, the April 6, 2006 order 

vacating that order was entered in error and upon remand 

Collins’ subsequent action against Shepherd is to be restored 

if necessary to the circuit court’s active docket. We will 

reverse the judgment of the circuit court and remand the case 

for further proceedings in accordance with the principles 

stated herein. 

Reversed and remanded. 

JUSTICE KINSER, with whom JUSTICE AGEE and SENIOR JUSTICE LACY 

join, concurring in part and dissenting in part. 

 I concur in the portion of the majority opinion holding 

that the circuit court’s entry of the October 20, 2005 

dismissal order was in error. However, the majority also 

 

8

 In light of our resolution of these issues, we need not 

address any remaining issues raised in Shepherd’s assignments 
19

concludes that the dismissal order was void ab initio. I 

respectfully disagree. The dismissal order was not void ab 

initio because it involved an action by the circuit court that 

was in error rather than an action concerning the underlying 

authority of the circuit court to act on a matter. See Singh 

v. Mooney, 261 Va. 48, 51, 541 S.E.2d 549, 551 (2001). 

The majority focuses on the Circuit Court of the City of 

Norfolk Local Rule 2(F)(3) and states that the “critical 

question raised in this appeal is whether the circuit court 

had the authority to adopt a local rule that essentially 

translates Rule 3:5(e) into a mode of procedure for the court 

dismissing unserved cases sua sponte.” By its terms, that 

local rule only authorizes the clerk of the circuit court to 

send a notice of dismissal to a plaintiff’s counsel advising 

that, because the plaintiff’s civil action has not been served 

within one year after commencement of the action, it will be 

dismissed unless the plaintiff has exercised due diligence to 

serve process. 

While the local rule at issue was the impetus for the 

notice of dismissal being sent to counsel for the plaintiff, 

 

of cross-error. 
20

Larry R. Collins,9 it was not the authority upon which the 

circuit court relied to enter the October 20, 2005 order 

dismissing the action filed by Collins against Faye M. 

Shepherd. Instead, the court stated in the dismissal order 

that “[Collins] having failed to show that due diligence was 

exercised to have timely service upon [Shepherd], and it 

seeming proper to the [c]ourt to do so, it is ORDERED that 

this case be dismissed with prejudice in accordance with 

Supreme Court Rule [3:5(e)] and Nelson v. Vaughan, 210 Va. 1[, 

168 S.E.2d 126] (1969).”10 (Emphasis added.) Thus, contrary 

to the majority’s conclusion, the circuit court did not 

dismiss Collins’ action “by operation of a procedure 

effectuated solely by its local rule.” Speaking through the 

plain terms of its written order, the circuit court, instead, 

applied this Court’s Rule 3:5(e) and our decision in Nelson to 

 

9

 The notice of dismissal sent to Collins’ counsel stated 

that, pursuant to the predecessor of current Rule 3:5(e) and 

Nelson v. Vaughan, 210 Va. 1, 168 S.E.2d 126 (1969), the 

circuit court would dismiss the action because Shepherd had 

not been served with process within one year unless the court 

found that Collins had exercised due diligence to serve 

process. 

10 In Nelson, the trial court dismissed an action because 

of a “long delay” in serving process on the defendant. 210 

Va. at 1-2, 168 S.E.2d at 127. We reversed the trial court’s 

judgment because process had been served within one year after 

the filing of the motion for judgment. Id.
21

dismiss the action.11 See Conyers v. Martial Arts World, 273 

Va. 96, 103, 639 S.E.2d 174, 177 (2007) (“[A] court speaks 

only through its written orders.”); Rose v. Jaques, 268 Va. 

137, 147, 597 S.E.2d 64, 70 (2004) (same); Upper Occoquan 

Sewage Auth. v. Blake Constr. Co., 266 Va. 582, 588, 587 

S.E.2d 721, 724 (2003) (same). 

 There is no question that the circuit court erred in 

dismissing Collins’ action because the court misconstrued the 

provisions of Rule 3:5(e). As we explained in Gilpin v. 

Joyce, 257 Va. 579, 515 S.E.2d 124 (1999), only a defendant 

who has been served with process more than one year after 

commencement of an action can invoke the provisions of Rule 

 

11 In a letter opinion incorporated by reference in its 

May 26, 2006 order denying Collins’ motion to vacate the 

dismissal order, the circuit court referenced a “docket 

control procedure” that, in its view, was designed to allow a 

defendant “to have a stale claim against him dismissed.” The 

docket control procedure reflected in Local Rule 2(F)(3) 

provided the circuit court with a method to identify what it 

regarded as stale claims, but it was not the basis of the 

circuit court’s dismissal order. See Berean Law Group, P.C. 

v. Cox, 259 Va. 622, 627, 528 S.E.2d 108, 111 (2000) (holding 

that an oral ruling of a court cannot nullify its written 

order); Wagner v. Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 

(1999) (holding that an agreement of parties extending stay 

cannot change terms of court’s written order). 

I also disagree with the majority’s assertion that the 

local rule abrogated Collins’ right to take a nonsuit. After 

the circuit court issued the notice of dismissal, nothing 

precluded Collins’ from taking a nonsuit pursuant to Code 
22

3:5(e) in order to obtain a dismissal of the action with 

prejudice. Id. at 583, 515 S.E.2d at 126; see also Gilbreath 

v. Brewster, 250 Va. 436, 442, 463 S.E.2d 836, 838 (1995) 

(“[A] dismissal under Rule [3:5(e)] is a dismissal with 

prejudice.”). When the circuit court dismissed the action, 

Collins had not served Shepherd with process, nor had Shepherd 

filed any pleading invoking the provisions of Rule 3:5(e). 

 Collins’ argument that the circuit court’s dismissal 

order was void ab initio is similar to the argument we 

rejected in Singh. There, the trial court entered an order 

that did not comply with the provisions of Rule 1:13. 161 Va. 

at 51, 541 S.E.2d at 551. The issue before us was whether the 

order was “void ab initio or merely voidable.” Id. at 50, 541 

S.E.2d at 550. We held that “a claim that an order does not 

comply with Rule 1:13 is a claim that the trial court abused 

its discretion in dispensing with the requirements of the Rule 

when it entered the order.” Id. at 52, 541 S.E.2d at 552. 

Such a claim “involves a question of court error; it is not a 

question of the jurisdiction or authority of the court to 

enter the order.” Id. at 52, 541 S.E.2d at 552. 

 

§ 8.01-380. Indeed, the circuit court acknowledged this fact 

in its letter opinion. 
23

Likewise, in the case before us, the circuit court’s 

failure to adhere to the provisions of Rule 3:5(e) when it 

dismissed Collins’ action raises a question of error by the 

court. See Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d 

141, 145 (1995) (“The validity of a judgment based upon a 

challenge to the application of a statute raises a question of 

trial error, and not a question of jurisdiction.”). “[I]f the 

inferior court has jurisdiction of the subject matter of the 

controversy, and the parties are before it, . . . a mistaken 

exercise of that jurisdiction does not render its judgment 

void.” County School Bd. v. Snead, 198 Va. 100, 107, 92 

S.E.2d 497, 503 (1956). An order containing reversible error, 

such as the dismissal order at issue, “is merely voidable 

[and] may be set aside by motion filed in compliance with Rule 

1:1 or provisions relating to the review of final orders” such 

as Code § 8.01-428. Singh, 261 Va. at 52, 541 S.E.2d at 551. 

A trial court has the power to dismiss an action pending 

before it. That it does so for the wrong reason does not 

render its dismissal order void ab initio. An order is void 

ab initio only “if entered by a court in the absence of 

jurisdiction of the subject matter or over the parties, if the 

character of the order is such that the court had no power to 

render it, . . . if the mode of procedure used by the court 

was one that the court could ‘not lawfully adopt,’ ” id. at 
24

51-52, 541 S.E.2d at 551 (quoting Evans v. Smyth-Wythe Airport 

Comm’n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)), or if the 

order was obtained by extrinsic or collateral fraud. Rook v. 

Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987). 

Nevertheless, the majority concludes that the circuit 

court employed a “mode of procedure” that it could “not 

lawfully adopt” and that the dismissal order was therefore 

void ab initio. That “mode of procedure,” according to the 

majority, was “the procedure utilized by the circuit court to 

enter the dismissal order . . . pursuant to a local rule that, 

under Code § 8.01-4, the circuit court was not authorized to 

adopt.” As I previously explained, the local rule authorized 

only the issuance of a notice of dismissal. And, the circuit 

court relied on Rule 3:5(e), not the local rule, as the 

authority for its dismissal order. Moreover, the few cases 

cited by the majority in which this Court has addressed 

whether an order was void ab initio because 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” are inapposite. 

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

 Three of those cases involved issues that arose in the 

context of divorce proceedings and addressed the validity of 

orders awarding certain types of relief that were not 
25

authorized by statute. In Barnes v. The American Fertilizer 

Co., 144 Va. 692, 130 S.E. 902 (1925), we stated that, without 

specific statutory authority, a circuit court “has no power to 

transfer to the wife any specific portion of her husband’s 

real estate as alimony,” and that the character of such an 

order doing so would not be such as the court had the power to 

render. Id. at 709, 130 S.E. at 907. We concluded, however, 

that the order at issue there was “within the limits of the 

court’s jurisdiction, and did not constitute an attempt on the 

part of the court to transfer to [the wife] title to her 

husband’s real estate as alimony.” Id. at 714, 130 S.E. at 

908. Similarly, in Watkins v. Watkins, 220 Va. 1051, 265 

S.E.2d 750 (1980), the issue before us was whether “the trial 

court, as a part of the maintenance and support provisions of 

the final decree, [had] jurisdiction to enjoin the husband 

from disposing of his shares of stock in two family-owned 

corporations.” Id. at 1051-52, 265 S.E.2d at 751. We 

concluded that “the court lacked the statutory power to 

lawfully adopt the remedy in question.” Id. at 1055, 265 

S.E.2d at 753. Finally, in Lapidus v. Lapidus, 226 Va. 575, 

311 S.E.2d 786 (1984), the trial court directed the husband in 

a divorce proceeding “to contract for life insurance as a part 

of spousal support for his wife.” Id. at 577, 311 S.E.2d at 

787. Again, we found that “[n]othing in the divorce statutes 
26

empowered the court to take the action it took.” Id. at 579, 

311 S.E.2d at 788. 

In Anthony v. Kasey, 83 Va. 338, 5 S.E. 176 (1887), a 

surety attacked the validity of a personal judgment previously 

entered against him on the basis that the trial court lacked 

jurisdiction to render the decree. Id. at 339-40, 5 S.E. at 

177. We affirmed the trial court’s judgment that the decree 

was null and void because the surety was not a party to the 

original suit and “the procedure by rule to bring [him] in and 

subject [him] for liability as suret[y] on the bond of the 

receiver . . . was against every sound principle of 

jurisprudence and without any recognized precedent.” Id. at 

341, 5 S.E. at 178. 

The remaining case cited by the majority, Evans v. SmythWythe Airport Commission, involved an order that restricted an 

airport commission’s power of eminent domain. 255 Va. at 70, 

495 S.E.2d at 826. We held that the order was “void ab initio

because the circuit court did not have the power to render a 

judgment which permitted a governmental entity to relinquish 

the power or right of eminent domain.” Id. at 74, 495 S.E.2d 

at 828. Neither this case nor the other cases discussed 

support the majority’s position that the local rule, which the 
27

majority declares invalid,12 is tantamount to a “mode of 

procedure” that the circuit court could not lawfully adopt, 

thereby rendering its dismissal order void ab initio. 

The circumstances in which a court employs a “mode of 

procedure” that it could not lawfully adopt or renders a 

judgment the character of which was beyond its power to render 

is perhaps best illustrated by this passage from Windsor v. 

McVeigh, 93 U.S. 274 (1876): 

All courts, even the highest, are more or less 

limited in their jurisdiction: they are limited to 

particular classes of actions, such as civil or 

criminal; or to particular modes of administering 

relief, such as legal or equitable; or to 

transactions of a special character, such as arise 

on navigable waters, or relate to the testamentary 

disposition of estates; or to the use of particular 

process in the enforcement of their judgments. 

Though the court may possess jurisdiction of a 

cause, of the subject-matter, and of the parties, it 

is still limited in its modes of procedure, and in 

the extent and character of its judgments. It must 

act judicially in all things, and cannot then 

transcend the power conferred by the law. If, for 

instance, the action be upon a money demand, the 

court, notwithstanding its complete jurisdiction 

over the subject and parties, has no power to pass 

judgment of imprisonment in the penitentiary upon 

the defendant. If the action be for a libel or 

personal tort, the court cannot order in the case a 

specific performance of a contract. If the action be 

for the possession of real property, the court is 

powerless to admit in the case the probate of a 

 

12 In my view, it is not necessary to decide whether Local 

Rule 2(F)(3) is invalid because the circuit court based its 

dismissal order on Rule 3:5(e), not the local rule. 
28

will. . . . The judgments mentioned, given in the 

cases supposed, would not be merely erroneous: they 

would be absolutely void; because the court in 

rendering them would transcend the limits of its 

authority in those cases. 

Id. at 282 (citation omitted). Surely, it cannot be said that 

a trial court “transcends the limits of its authority” when it 

dismisses an action properly before it, even when it does so 

erroneously, or when, according to the majority, it does so 

based on an invalid local rule. 

Today’s decision will allow litigants to mount collateral 

attacks on final judgments whenever a local rule, or even a 

Rule of this Court, is subsequently invalidated. In other 

words, litigants will be able to circumvent the mandate of 

Rule 1:1 that “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.” (Emphasis added.) For these reasons, I respectfully 

concur in part and dissent in part, and would affirm the 

judgment of the circuit court.