In Kosko case, Rule 1:1 Remains Undefeated

Appellate CourtTrial Court Without Jurisdiction More Than 21 Days After Final Order; Subsequent Order Void, SCOVA Says


By: Benjamin P. Kyber, Esq.

The Mottley Law Firm PLC

RICHMOND, Virginia - May 20, 2021 - In a decision that should surprise no one, the Supreme Court of Virginia held last Thursday that a trial court lacked juridiction under Rule 1:1 to enter a order more than 21 days after the entry of a nonsuit order.  The Court's opinion in Kosko v. Ramser extended Rule 1:1's extraordinary undefeated streak at the Court, which has now lasted for decades.

Kosko involved a medical malpractice action.  At trial, the plaintiff elected to take a nonsuit after the court excluded an expert witness.  The trial court entered a nonsuit order on September 11, 2019.  Two days later, the defendants filed a motion seeking their costs.  They did not ask the trial court to modify, vacate, or suspend the nonsuit order under Rule 1:1.  The trial court conducted a hearing on the defendant's motion on October 1, the 20th day after the nonsuit order was entered.  At that hearing, the trial court ruled that it would grant the defendant's motion and award $20,000 in costs.  The trial court then asked that defense counsel prepare the order memorializing its ruling.  Defense counsel prepared the order, and the trial court entered it on November 5 - 55 days after it entered the nonsuit order.
 
Recognizing the problem with the trial court's November 5 order, the plaintiff sprung to action.  In a single assignment of error, the plaintiff argued that the circuit court erred when it entered the November 5 order "because pursuant to Rule 1:1 it no longer had jurisdiction to do so."
 
The Supreme Court, of course, agreed.  In doing so, it cited a litany of classic opinions unquestionably dictating that Rule 1:1's remarkable streak must continue.  Among others, the Court cited James ex. rel. Duncan v. James, 263 Va. 474, 481 (2001) (a nonsuit order is a final order), Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 555, 560 (2002) (after the entry of a final order, the running of the 21-day period may only be interrupted by the entry of an order modifying, vacating, or suspending the final order), and Davis v. Mullins, 251 Va. 141, 148 (1996) (a court speaks only through its written orders).
 
In the end, the trial court's announcement that it would award costs to the defendant on the 20th day after the nonsuit order was simply not enough to overcome the mandatory requirements of Rule 1:1.  The trial court lost jurisdiction before it entered the order memorializing that ruling.  Therefore, that order was void, and the trial court's award of costs to the defendants was reversed.
 
At press time, it is unclear when Rule 1:1's next trip to the Supreme Court of Virginia will occur.  As always, however, Rule 1:1 - which continues to puzzle opponents - will enter that matchup as a heavy favorite.
Benjamin P. Kyber
Richmond Appellate Law Attorney Serving Virginia, Henrico County.
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