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Gilbreath v. Brewster11/3/1995
OPINION BY JUSTICE ELIZABETH B. LACY
The primary issue in this appeal is whether the dismissal of an action pursuant to Supreme Court Rule 3:3 for lack of timely service is with or without prejudice.
The relevant facts are undisputed. On July 11, 1991, a traffic accident occurred involving two vehicles, one driven by Pamela J. Brewster and the other driven by Clarence C. Gilbreath, an employee of Wells Cargo, Inc. On July 9, 1993, Brewster and Victoria Ann Brann, a passenger in the Brewster vehicle, filed separate motions for judgment against Gilbreath and Wells Cargo alleging that Gilbreath's negligence caused the accident and seeking recovery for personal injuries allegedly sustained in the accident. Service was obtained on both defendants approximately 13 months after the actions were filed.
Gilbreath and Wells Cargo (collectively "Gilbreath") filed responsive pleadings, asserted a counterclaim for property damage in the action filed by Brewster, and asserted a third-party claim for contribution against Brewster in the action filed by Brann. In addition, Gilbreath filed motions to dismiss in both cases for failure to effect service within one year after commencement of the action pursuant to Rule 3:3.
The trial court heard the two actions together. At the hearing on the motions to dismiss, Brewster and Brann requested nonsuits. The trial court determined that Brewster and Brann had not exercised due diligence in trying to effect service, but granted their motions for nonsuits. Gilbreath filed a motion for reconsideration, arguing that Brewster and Brann were not entitled to nonsuits as a matter of right under Code § 8.01-380 because Gilbreath's counterclaim and third-party claim could not be independently
adjudicated. The trial court agreed and vacated the nonsuit orders. The trial court then granted Gilbreath's motions to dismiss pursuant to Rule 3:3 and entered orders dismissing the actions without prejudice.
Gilbreath appealed the judgments, asserting that dismissal of an action pursuant to Rule 3:3 should be with prejudice. Brewster and Brann assigned cross-error asserting that they were entitled to nonsuit their actions and the trial court erred in vacating its orders granting the nonsuits. The cases were consolidated for appeal.
Rule 3:3
Rule 3:3 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.
We have not previously addressed whether this Rule requires that dismissal be with prejudice when service on the defendant is not perfected within one year and the trial court finds a lack of due diligence by the plaintiff. Brewster and Brann (collectively "Brewster") argue that the dismissal under Rule 3:3 must be without prejudice for two reasons: (1) the dismissal is not based on the merits of the claim; and (2) a dismissal with prejudice would conflict with Code § 8.01-229(E)(1), and therefore, the statute must prevail. Clark v. Butler Aviation, 238 Va. 506, 511, 385 S.E.2d 847, 850 (1989). These arguments are not well taken, however.
First, contrary to Brewster's asserti
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