Present: All the Justices
SHANA J. SHUTLER
OPINION BY
v. Record No. 051852 JUSTICE LAWRENCE L. KOONTZ, JR.
June 8, 2006
AUGUSTA HEALTH CARE FOR WOMEN, P.L.C.
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Humes J. Franklin, Jr., Judge
In this appeal, we consider whether the trial court erred
in granting an employer’s motion for summary judgment in a
medical negligence action. Specifically, we consider whether
the dismissal “with prejudice” of claims against a physician
barred claims against his employer, when the claims were wholly
based on the alleged negligence of the physician.
BACKGROUND
The material facts are undisputed. During the relevant
time period, Augusta Health Care for Women, P.L.C. (“Augusta
Health Care”) was a professional limited liability company that
provided obstetric and gynecological medical services to
patients. Augusta Health Care was owned and operated by two
licensed physicians, one of whom was Mark P. Brooks, M.D.
On April 8, 2003, Shana J. Shutler filed a motion for
judgment, jointly and severally, against Dr. Brooks and Augusta
Health Care. Shutler alleged therein that Dr. Brooks
administered medical treatment to Shutler in a negligent manner,
causing her serious and permanent injury. Shutler further
alleged that Dr. Brooks was acting as an agent and employee of
Augusta Health Care and within the scope of his employment
during his treatment of her. Accordingly, Shutler asserted a
vicarious liability claim against Augusta Health Care for Dr.
Brooks’ negligence. Dr. Brooks and Augusta Health Care filed a
joint grounds of defense, denying any negligent conduct.
On the day before the matter was scheduled for trial,
Shutler filed a motion to dismiss Dr. Brooks as a party
defendant “with prejudice to the refiling of any action against
[Dr. Brooks] individually.” The motion also stated that the
“matter will proceed forward against the co-defendant, [Augusta
Health Care], who is vicariously liable for any negligence of
[Dr. Brooks].”1
The trial court granted Shutler’s motion the following day
and immediately entered an order dismissing Dr. Brooks as a
defendant. The order provided that the dismissal was “with
prejudice to [Shutler] to refile any actions against [Dr.
Brooks] based upon the allegations pending herein.” Regarding
Shutler’s claims against Augusta Health Care, the order further
provided that “[t]his matter shall proceed forward against the
1
At that time, it was stipulated that Dr. Brooks was no
longer “an employee, agent, or principal” of Augusta Health
Care.
2
defendant [Augusta Health Care] based upon the allegations
pending herein.” Counsel for the defendants endorsed the order
without objection.2
On the same day the trial court entered the order
dismissing Dr. Brooks as a defendant, Augusta Health Care filed
a motion for summary judgment pursuant to what is now Rule 3:20.
In the motion, Augusta Health Care asserted that the dismissal
“with prejudice” operated as a determination on the merits that
Dr. Brooks was not liable to Shutler for the negligent conduct
alleged in her motion for judgment. Relying principally upon
Roughton Pontiac Corp. v. Alston, 236 Va. 152, 156, 372 S.E.2d
147, 149 (1988), Augusta Health Care maintained that a verdict
for an employee exonerates the employer as a matter of law when
the two are sued together and the employer’s liability is solely
dependent on the employee’s conduct. Augusta Health Care
further maintained that the rule stated in Roughton applies with
equal force when a claim against an employee is dismissed “with
prejudice” as when the employee is exonerated by a verdict.
Additionally, Augusta Health Care asserted that since there was
an adjudication on the merits of Dr. Brooks’ liability, res
2
Brooks and Augusta Health Care were represented by the
same attorneys.
3
judicata applied to bar Shutler’s claim against Augusta Health
Care.
Shutler responded to the motion for summary judgment by
asserting that the order dismissing Dr. Brooks “by its plain
terms clearly intends and directs that the matter would proceed
towards trial against Augusta [Health Care].” Shutler contended
that when Augusta Health Care signed the order without
objection, it “waived any challenge, including any res judicata-
based challenge, that the Order of dismissal somehow precludes
the plaintiff from proceeding to trial against Augusta [Health
Care].” Shutler further contended that the order dismissing Dr.
Brooks was not res judicata because it was not a judgment “on
the merits.” Finally, Shutler maintained that the rule stated
in Roughton did not apply because no verdict had been rendered
in Dr. Brooks’ favor.
In a letter opinion dated April 11, 2005, the trial court
concluded that Augusta Health Care was entitled to summary
judgment. The trial court reasoned, among other things, that
“[w]hile Roughton was decided upon a jury verdict, this [c]ourt
can perceive no reason why Roughton should be limited to
situations solely in which a jury has returned a verdict
exonerating the [servant].” Noting that the parties did not
dispute that Augusta Health Care’s liability was “solely
derivative” of Dr. Brooks’ conduct under the circumstances of
4
this case, the trial court determined that the dismissal of Dr.
Brooks “with prejudice” rendered Augusta Health Care not liable
as a matter of law.3
By order entered on June 2, 2005, incorporating the prior
opinion letter, the trial court granted the motion for summary
judgment and entered final judgment in favor of Augusta Health
Care. This appeal followed.
DISCUSSION
A motion for summary judgment should be granted only when
no material facts are genuinely in dispute and, based on those
facts, the moving party is entitled to judgment as a matter of
law. Rule 3:20; see Brown v. Sparks, 262 Va. 567, 571, 554
S.E.2d 449, 451 (2001); Slone v. General Motors Corp., 249 Va.
520, 522, 457 S.E.2d 51, 52 (1995). In this case, the material
facts pertaining to Augusta Health Care’s motion for summary
judgment are undisputed. The motion was based solely on
questions of law regarding the effect of the dismissal of the
claim against Dr. Brooks “with prejudice” on Shutler’s claim
against Augusta Health Care. Under well-established principles,
3
The trial court expressly declined to rule on the
application of res judicata and any other related issues in this
case, because it concluded that under Roughton, Dr. Brooks’
dismissal “with prejudice” rendered Augusta Health Care not
liable as a matter of law. Accordingly, we need not address
those issues.
5
we review these questions of law de novo. See Westgate at
Williamsburg Condominium Ass’n v. Philip Richardson Co., 270 Va.
566, 574, 621 S.E.2d 114, 118 (2005); Simon v. Forer, 265 Va.
483, 487, 578 S.E.2d 792, 794 (2003).
We begin by addressing Shutler’s contention that the terms
of the order dismissing Dr. Brooks with prejudice expressly
preserved her right to pursue her claim against Augusta Health
Care as alleged in her motion for judgment. Shutler maintains
that by failing to object to the order, Augusta Health Care
became bound by the terms of the order and waived the ability to
assert that Dr. Brooks’ dismissal “with prejudice” had any
preclusive effect on her claim against Augusta Health Care.
In examining the terms of the order, we note that the
language pertaining to Shutler’s ability to proceed with her
claims against Dr. Brooks and Augusta Health Care, respectively,
is clear and unequivocal. The order plainly states that
Shutler’s claim against Dr. Brooks was dismissed “with
prejudice” to her ability to refile further claims against Dr.
Brooks based on the allegations in her motion for judgment. In
equally straightforward terms, the order authorized Shutler to
“proceed forward against [Augusta Health Care] based upon the
allegations pending herein.”
The trial court viewed the provision dismissing Dr. Brooks
“with prejudice” as the equivalent of a verdict or other binding
6
determination on the merits that Dr. Brooks was not liable to
Shutler for his alleged negligent conduct. Consequently, the
trial court applied the well-established rule that “where a
master and servant are sued together in tort, and the master’s
liability, if any, is solely dependent on the servant’s conduct,
a verdict for the servant necessarily exonerates the master.”
Roughton, 236 Va. at 156, 372 S.E.2d at 149; see Whitfield v.
Whittaker Memorial Hospital, 210 Va. 176, 183, 169 S.E.2d 563,
568 (1969); Monumental Motor Tours v. Eaton, 184 Va. 311, 314-
15, 35 S.E.2d 105, 106 (1945); Barnes v. Ashworth, 154 Va. 218,
229-30, 153 S.E. 711, 713-14 (1930). Thus, despite the express
provision in the order preserving Shutler’s ability to “proceed
forward” with her claim against Augusta Health Care, the trial
court determined that the provision dismissing Dr. Brooks “with
prejudice” precluded Shutler from further litigating the issues
related to Dr. Brooks’ allegedly negligent conduct.
We agree with the trial court that, as a general rule, a
dismissal of a defendant or claim “with prejudice” constitutes
“an adjudication on the merits, and final disposition, barring
the right to bring or maintain an action on the same claim or
cause.” Reed v. Liverman, 250 Va. 97, 99, 458 S.E.2d 446, 447
(1995). Furthermore, a dismissal with prejudice generally “is
as conclusive of the rights of the parties as if the suit had
been prosecuted to a final disposition adverse to the
7
plaintiff.” Id.; see also Virginia Concrete Co. v. Board of
Supervisors, 197 Va. 821, 825, 91 S.E.2d 415, 418 (1956).
However, a dismissal “with prejudice” does not always
constitute an adjudication on the merits or operate as a bar to
a subsequent action. Rather, we have stated that the effect of
the words “with prejudice” must “be considered in light of the
circumstances in which they are used.” Reed, 250 Va. at 100,
458 S.E.2d at 447; see also Gilbreath v. Brewster, 250 Va. 436,
440, n.2, 463 S.E.2d 836, 838 n.2 (1995). In Virginia Concrete,
for example, we held that when an attorney lacked his client’s
authorization to consent to the dismissal of claims “with
prejudice,” the trial court was correct in treating the
dismissal as without prejudice. 197 Va. at 825, 91 S.E.2d at
418.
Here, we need not look beyond the language of the trial
court’s order to determine the meaning and effect of the words
“with prejudice” under the circumstances of this case. The
order addresses the claims against Dr. Brooks and Augusta Health
Care in separate provisions, one of which clearly indicates that
further action against Dr. Brooks was precluded while the other,
with equal clarity, provides that the claim against Augusta
Health Care would proceed. Nowhere in the order does it state
that Dr. Brooks’ dismissal “with prejudice” would have any
effect on Shutler’s claim against Augusta Health Care.
8
Moreover, the order plainly states that Shutler is entitled
to proceed against Augusta Health Care “based on the allegations
pending herein.” Those allegations in the motion for judgment,
while perhaps not artfully drafted, were various negligent acts
by Dr. Brooks for which Augusta Health Care concedes it could be
held vicariously liable. The motion for judgment did not
contain allegations of independent negligent acts by Augusta
Health Care. Rather, as pled, Shutler’s entire case depended on
her proof of Dr. Brooks’ negligent acts. Under these
circumstances, the order’s dismissal of Dr. Brooks “with
prejudice” does not equate to an adjudication on the merits so
as to preclude or limit Shutler’s ability to litigate the
matters she alleged in her motion for judgment, including issues
related to Dr. Brooks’ allegedly negligent conduct, in pursuing
her claims against Augusta Health Care. Accordingly, we hold
that, consistent with the express terms of the order, the
dismissal of Dr. Brooks “with prejudice” does not have any
preclusive effect on Shutler’s ability to pursue her claims
against Augusta Health Care.
CONCLUSION
For the foregoing reasons, we hold that the trial court
erred in granting Augusta Health Care’s motion for summary
judgment. Accordingly, we will reverse the trial court’s
judgment in favor of Augusta Health Care and remand the case for
9
further proceedings in accordance with the principles stated
herein.
Reversed and remanded.
JUSTICE KINSER, with whom JUSTICE AGEE joins, dissenting.
Because I conclude the circuit court correctly granted the
motion for summary judgment filed by Augusta Health Care for
Women, P.L.C. (Augusta Health Care), I respectfully dissent from
the majority opinion. As the circuit court noted, the dismissal
of the servant, Mark P. Brooks, M.D., with prejudice was a
finding that Dr. Brooks was not liable, thereby rendering his
master, Augusta Health Care, also not liable as a matter of law.
“[W]here master and servant are sued together in tort, and the
master’s liability, if any, is solely dependent on the servant’s
conduct, a verdict for the servant necessarily exonerates the
master.” Roughton Pontiac Corp. v. Alston, 236 Va. 152, 156,
372 S.E.2d 147, 149 (1988); see also Santen v. Tuthill, 265 Va.
492, 499, 578 S.E.2d 788, 792 (2003); Rakes v. Fulcher, 210 Va.
542, 549, 172 S.E.2d 751, 757 (1970).
Based on the pleadings in this case, it is not disputed
that, at the time of the alleged negligence, Dr. Brooks and
Augusta Health Care were engaged in a master and servant
relationship. The motion for judgment filed by Shana J. Shutler
alleged only acts of negligence by Dr. Brooks. She asserted no
independent acts of negligence by Augusta Health Care. Thus,
10
her claim against Augusta Health Care was predicated solely upon
its vicarious liability for Dr. Brooks’ alleged negligence.
Consequently, if the order dismissing Dr. Brooks “with
prejudice” was tantamount to a verdict in favor of Dr. Brooks,
then the order likewise exonerated Augusta Health Care.
This Court has consistently followed the general rule that
the dismissal of a claim “with prejudice” constitutes “an
adjudication on the merits, and final disposition, barring the
right to bring or maintain an action on the same claim or
cause.” Reed v. Liverman, 250 Va. 97, 99, 458 S.E.2d 446, 447
(1995). In Reed, the Court explained that “as 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.”
Id. at 100, 458 S.E.2d at 447; see also Dalloul v. Agbey, 255
Va. 511, 514, 499 S.E.2d 279, 281 (1998). Therefore, when the
circuit court entered an order dismissing Dr. Brooks from the
action “with prejudice to the plaintiff to refile any actions
against [Dr. Brooks] based upon the allegations pending herein,”
the dismissal had the same effect as a verdict in Dr. Brooks’
favor. Since Augusta Health Care’s negligence was solely
dependant on Dr. Brooks’ conduct, Augusta Health Care, in my
view, was also exonerated based upon well-settled Virginia law
11
governing the master and servant relationship. See Roughton,
236 Va. at 156, 372 S.E.2d at 149.
The majority, however, relies upon the proposition that the
words “with prejudice” must “be considered in light of the
circumstances in which they are used,” Reed, 250 Va. at 100, 458
S.E.2d at 447, and cites to this Court’s decision in Virginia
Concrete Co. v. Board of Supervisors, 197 Va. 821, 829, 91
S.E.2d 415, 421 (1956), as an example of when a dismissal “with
prejudice” was not conclusive against a plaintiff. In Virginia
Concrete, an attorney dismissed an injunction suit “with
prejudice” without his client’s consent. Id. at 825, 91 S.E.2d
at 418. Relying on the principle that an attorney cannot
dismiss a case on its merits without his client’s consent, we
held that “[i]n the absence of express authority from [the
client] the consent of [the client’s] attorneys did not bind it
or deprive [the client] of a right to have the ‘with prejudice’
feature of the decree set aside.” Id. at 829, 91 S.E.2d at 421.
Stated differently, we did not hold that the dismissal “with
prejudice” meant anything other than a final and complete
adjudication of the matter at issue in the suit but, instead,
decided that the client could set aside that portion of the
decree because the dismissal with prejudice was entered without
the client’s consent.
12
The majority also cites to this Court’s decisions in Reed
and Gilbreath v. Brewster, 250 Va. 436, 463 S.E.2d 836 (1995).
In both cases, we reiterated the proposition that the words
“with prejudice” should “be considered in light of the
circumstances in which they are used,” Reed, 250 Va. at 100, 458
S.E.2d at 447, but in neither Gilbreath nor Reed did we apply
the exception. Instead, the Court followed the general rule
that a dismissal “ ‘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.” Reed, 250 Va. at 100, 458 S.E.2d at 447; see also
Gilbreath, 250 Va. 440, 463 S.E.2d at 837.
Notably, Shutler, like the plaintiff in Reed, drafted the
order at issue and included the language “with prejudice.” We
stated in Reed that, “[w]hile [the plaintiff’s] purposeful
actions in seeking dismissal of his action with prejudice may
have been ill-advised and the consequences of his actions
unintended, there is no justification in [the] record to support
[the] contention that the phrase ‘with prejudice’ was
erroneously or inadvertently chosen.” 250 Va. at 100, 458
S.E.2d at 447. The same can be said with regard to Shutler’s
decision to include the words “with prejudice.”
I recognize that the majority does not dispute the well-
established law regarding the meaning and effect of the words
13
“with prejudice.” Instead, the majority concludes that, under
the circumstances of this case, i.e., the language of the
circuit court’s order, those words do not have their usual
significance. The relevant language, that the “matter shall
proceed forward against the defendant Augusta Health Care . . .
based upon the allegations pending herein,” did not, however,
limit Augusta Health Care’s ability and right to move for
summary judgment or to assert other well-taken dispositive
motions. Under the majority’s interpretation of the language in
the circuit court’s order, Shutler was guaranteed that she could
litigate her claim against Augusta Health Care to the point of
it being decided by a jury. Whether Augusta Health Care
asserted its motion for summary judgment immediately following
the entry of the order dismissing Dr. Brooks “with prejudice,”
as it did here, or later in the proceedings, the fact remains
that Shutler’s claim against Augusta Health Care did proceed,
albeit for only a short time, in accordance with the order.
For these reasons, I conclude the circuit court did not err
in granting Augusta Health Care’s motion for summary judgment.
Thus, I respectfully dissent and would affirm the circuit
court’s judgment.
14