Present: All the Justices
ANNA LAMBERT, ADMINISTRATRIX AND
PERSONAL REPRESENTATIVE OF THE
ESTATE OF JERRY LEE LAMBERT, DECEASED
v. Record No. 060935 OPINION BY JUSTICE ELIZABETH B. LACY
March 2, 2007
MUHAMMAD R. JAVED, M.D., ET AL.
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Michael L. Moore, Judge
In this appeal we consider whether the trial court
correctly dismissed the motion for judgment because of a prior
final order dismissing the same cause of action with prejudice
based on a plea to the statute of limitations.
On April 22, 2001, Jerry Lee Lambert was injured after
falling from an all-terrain vehicle. Mr. Lambert was admitted
to Clinch Valley Medical Center (Clinch Valley) and treated by
Doctors Muhammad R. Javed and Shireen A. Brohi. Mr. Lambert
was subsequently transferred to Johnston Memorial Hospital,
where he underwent surgery. Mr. Lambert continued to
experience problems after he was discharged, and was examined
by Dr. Javed, although this time at the offices of the Merit
Medical Group. Mr. Lambert was then readmitted to Clinch
Valley, where he was again treated by Doctors Javed and Brohi,
and also by Dr. Mario Stefanini. Mr. Lambert remained at
Clinch Valley for several days, and died on May 8, 2001.
On April 18, 2003, Anna Lambert (Lambert), as
Administratrix and Personal Representative of the Estate of
Jerry Lee Lambert, instituted a lawsuit in Buchanan County
against various doctors who treated Mr. Lambert, the Merit
Medical Group, and Clinch Valley (Case 1).* In this action,
Lambert brought wrongful death and breach of warranty claims
related to Mr. Lambert's death.
On August 22, 2003, while Case 1 was still pending,
Lambert filed a second action in Buchanan County against the
parties named in Case 1, adding as defendants Dr. Radoslav S.
Nicholas and Diana F. Taylor, R.T. (Case 2). Like Case 1,
Case 2 pled wrongful death and breach of warranty claims, and
an additional claim for negligent hiring and supervision.
On June 8, 2004, while both Case 1 and Case 2 were
pending, Lambert took a voluntary nonsuit of Case 1 pursuant
to Code § 8.01-380. Then, on November 29, 2004, Lambert filed
a motion for judgment in the Circuit Court of Russell County,
pursuant to the tolling provisions of Code § 8.01-229(E)(3)
(Case 3). Case 3 did not include Merit Medical Group as a
defendant, but was otherwise identical to Case 1.
*
The following parties were named as defendants in Case
1: Doctors Javed, Brohi, and Stefanini, the entities doing
business as the Merit Medical Group, and HCA – The Healthcare
Company and Galen-Med, Inc., both doing business as Clinch
Valley Medical Center.
2
While Case 3 was pending, the defendants in Case 2 filed
pleas of the statute of limitations and Lambert moved for a
nonsuit. Following briefing and argument of counsel, the
court, in a letter opinion, stated that Lambert was entitled
to a nonsuit but, because Case 2 was barred by the statute of
limitations, the court could not consider the nonsuit request
further. The court then entered an order dismissing Case 2
with prejudice. Lambert objected to the court's failure to
grant a nonsuit but did not appeal that order.
Following the dismissal with prejudice of Case 2, the
defendants filed pleas of res judicata in Case 3, arguing that
the dismissal order in Case 2 adjudicated Lambert's claim
against them and, therefore, Case 3 was barred. The trial
court sustained the defendants' pleas, and dismissed Case 3
with prejudice. We awarded Lambert an appeal.
DISCUSSION
"[A]s a general proposition a judgment of dismissal which
expressly provides that it is 'with prejudice' operates as res
judicata and is as conclusive of the rights of the parties as
if the suit had been prosecuted to a final disposition adverse
to the plaintiff." Virginia Concrete Co. v. Board of
Supervisors, 197 Va. 821, 825, 91 S.E.2d 415, 418
(1956)(citing E.H. Schopflocher, Annotation, Provision that
Judgment is "Without Prejudice" or "With Prejudice" as
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Affecting its Operation as Res Judicata, 149 A.L.R. 553-63
(1944)). A dismissal with prejudice extinguishes the
viability of the plaintiff's claim against the dismissed
party, even though the dismissal may not be based on an
adjudication of the merits of the cause of action. Hughes v.
Doe, 273 Va. 45, ___, ___ S.E.2d ___ , ___(2007); Gilbreath v.
Brewster, 250 Va. 436, 440, 463 S.E.2d 836, 837 (1995).
Accordingly, when the order in Case 2 dismissing Lambert's
wrongful death claim against the defendants with prejudice
became final, that claim was extinguished. Moreover, in a
wrongful death action, the limitations period is a substantive
element of that claim. Riddett v. Virginia Electric and Power
Co., 255 Va. 23, 28, 495 S.E.2d 819, 821-22 (1998). Thus, the
dismissal with prejudice of Case 2 on the basis of the statute
of limitations was an adjudication on a substantive element of
the cause of action, thereby directly supporting the doctrine
of res judicata.
Nevertheless, Lambert argues that the dismissal order in
Case 2 should not be afforded a preclusive effect in this case
because to do so would elevate the policy of res judicata over
the legislative policy assuring a litigant a right to a
nonsuit and the accompanying right to refile the suit under
the tolling provisions. Code §§ 8.01-380, -229(E)(3). We
reject this argument.
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The conflict in policies suggested by Lambert does not
exist. The policy underlying the nonsuit and tolling
provisions simply allows a plaintiff to avoid forfeiture of
his ability to have his claim heard provided he meets certain
time limitations in refiling his previously nonsuited action.
Indeed, Lambert received the benefit of this policy when she
timely filed Case 3. The policy underlying both the res
judicata doctrine and a dismissal with prejudice is that when
a plaintiff's claim against a defendant has been resolved
adversely to the plaintiff, whether on the merits or because
of another bar to recovery such as sovereign immunity or the
statue of limitations, the plaintiff is not allowed to subject
the defendant to repetitive litigation on the same, previously
resolved claim. See Bates v. Devers, 214 Va. 667, 670, 202
S.E.2d 917, 920 (1974)("[R]es judicata rests upon
considerations of public policy which favor certainty in the
establishment of legal relations, demand an end to litigation,
and seek to prevent the harassment of parties.") (citations
omitted). Accordingly, these policies are not in conflict and
their application, although ultimately unfavorable to Lambert
in this case, was appropriate here.
For the above reasons we will affirm the judgment of the
trial court.
Affirmed.
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JUSTICE KOONTZ, with whom JUSTICE LEMONS joins, dissenting.
I respectfully dissent. In the particular procedural
background from which this appeal arises, the application of
the bar of res judicata by the trial court and the majority
here effectively defeats the pertinent statutory scheme that
provides a right to a nonsuit under Code § 8.01-380 and in
combination with the related statutes ensures the resolution
of an underlying claim on its merits.
The majority accurately recites the procedural background
of this case and the details of the various allegations in the
actions filed by Anna Lambert (Lambert), as Administratrix and
Personal Representative of the Estate of Jerry Lee Lambert,
against the appellees. I will not extend the length of this
opinion unnecessarily by repeating these aspects of the case
here. It suffices to note that each of the actions in
question were wrongful death actions brought under Code
§ 8.01-50 and may be appropriately designated and referenced,
as the majority has done, as Case 1, Case 2, and Case 3.
Jerry Lee Lambert died on May 8, 2001, and thereafter, on
April 18, 2003, Lambert timely filed Case 1 in the Circuit
Court of Buchanan County. See Code § 8.01-244(B) (wrongful
death action under Code § 8.01-50 shall be brought by personal
representative within two years of death of injured person).
Pursuant to Code § 8.01-380, Lambert suffered a voluntary
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nonsuit of Case 1 on June 8, 2004. Subsequently, on November
29, 2004, she filed Case 3 in the Circuit Court of Russell
County. See Code § 8.01-229(E)(3) (plaintiff may recommence
action within six months of entry of nonsuit order).
Beyond question, Case 3 was timely filed and properly
before the Circuit Court of Russell County pending a
resolution on its merits. See Code § 8.01-244(B)(if plaintiff
suffers nonsuit of a Code § 8.01-50 action, provisions of Code
§ 8.01-229(E)(3) shall apply to nonsuited action). There is
no ambiguity in the statutory scheme embodied in these
statutes. In combination, these statutes permitted Lambert to
timely file Case 3 on November 29, 2004 – more than two years
after the May 8, 2001 death of Jerry Lee Lambert – because
that time limitation contained in Code § 8.01-244(B) was
tolled during the pendency of Case 1 and effectively extended
by Code § 8.01-229(E)(3) upon the filing of Case 3 within six
months of the entry of the nonsuit order in Case 1.
However, on August 22, 2003, Lambert filed Case 2 in the
Circuit Court of Buchanan County.∗ Case 2 was not timely filed
because August 22, 2003 was more than two years from the date
∗
As the majority indicates, the principal difference
between the wrongful death claim alleged in Case 2 and that
alleged in Case 1 and Case 3 was the addition of several
defendants against whom Lambert asserted a wrongful death
claim. These additional defendants are not parties in this
appeal.
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of Jerry Lee Lambert’s death on May 8, 2001. Accordingly, on
May 5, 2005, the court properly entered an order, consistent
with its letter opinion, which provided that “this action is
dismissed with prejudice as barred by the statute of
limitations [contained in Code § 8.01-244(B)].” In this
procedural context, the continuing viability of Case 3 was not
an issue under consideration or addressed by this order. Case
3 was subsequently challenged as barred by the dismissal of
Case 2 “with prejudice” under pleas of res judicata.
I do not disagree with the majority’s recitation of the
general principles regarding the usual preclusive effect of a
dismissal “with prejudice” and the resulting invocation of the
doctrine of res judicata. I disagree with the majority’s
application of these principles in this case to support the
conclusion that the dismissal of Case 2 “with prejudice” based
on the expiration of the time limitations in Code § 8.01-
244(B) was a final judgment on the merits of Lambert’s
wrongful death claim and, therefore, extinguished Lambert’s
cause of action so as to bar Case 3 under principles of res
judicata.
In the abstract, it is a time-honored proposition that a
procedural dismissal such as a dismissal on statute of
limitations grounds may constitute an adjudication on the
merits of an underlying claim so as to extinguish a cause of
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action. However, we have recognized that a dismissal “with
prejudice” is not always an adjudication on the merits of the
case. Shutler v. Augusta Health Care for Women, P.L.C., 272
Va. 87, 93, 630 S.E.2d 313, 316 (2006); Reed v. Liverman, 250
Va. 97, 100, 458 S.E.2d 446, 447 (1995). Instead, the words
“with prejudice” in a court order must be considered in light
of the circumstances in which they are used. Accordingly,
depending on the circumstances, a dismissal “with prejudice”
based on the statute of limitations may not equate to an
adjudication on the merits of the underlying cause of action.
In the present case, the Circuit Court of Buchanan County
explained in its opinion letter the circumstances pertinent to
the dismissal “with prejudice” language in its order regarding
Case 2. The court stated specifically that Case 2 was barred
by the statute of limitations contained in Code § 8.01-244(B)
because Case 2 was filed more than two years after the death
of the injured person. The court entered this order on May 5,
2005, long after Case 3 had been recommenced on November 29,
2004 in the Circuit Court of Russell County as permitted by
the applicable statutory scheme. Under these circumstances,
in my view, it strains reason to conclude that the court in
dismissing Case 2 “with prejudice” intended to do anything
more than adjudicate that Case 2 was time barred and,
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therefore, was not adjudicating the merits of the underlying
cause of action.
When the order in Case 2 is considered in this light, it
was not an adjudication on the merits of Lambert’s wrongful
death claim. Accordingly, it is clear under the applicable
statutory scheme permitting Lambert to nonsuit Case 1 and
recommence Case 3, that res judicata is not applicable so as
to bar Case 3. For these reasons, I would reverse the
judgment of the Circuit Court of Russell County and permit
Case 3 to go forward to a determination on its merits.
JUSTICE KINSER, with whom JUSTICE AGEE joins, concurring.
I agree with the majority opinion except in one aspect.
The majority states, “A dismissal with prejudice extinguishes
the viability of the plaintiff’s claim against the dismissed
party, even though the dismissal may not be based on an
adjudication of the merits of the cause of action.” In my
view, a dismissal with prejudice not only extinguishes the
viability of a plaintiff’s claim but also is “generally as
conclusive of the parties’ rights as if the action had been
tried on the merits with a final disposition adverse to the
plaintiff.” Dalloul v. Agbey, 255 Va. 511, 514, 499 S.E.2d
279, 281 (1998) (emphasis added); Hughes v. Doe, 273 Va. 45,
50, ___ S.E.2d ___, ___ (2007) (Kinser, J., dissenting).
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For this reason, I respectfully concur.
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