PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Stephenson, S.J.
WILLIAMSBURG PEKING CORPORATION
OPINION BY
v. Record No. 042265 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
September 16, 2005
XIANCHIN KONG
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
In this appeal, Williamsburg Peking Corporation (Peking)
contends that the trial court erred in granting the plaintiff's
motion for a nonsuit. Specifically, Peking complains that the
trial court "failed to consider and rule upon [its] pending
motion for sanctions against [the plaintiff] at the time the
nonsuit order was granted and/or before the nonsuit order became
final under Rule 1:1 . . . and/or to limit the nonsuit order to
permit it to do so, thereby precluding [its] claim under [Code]
§ 8.01-271.1."
I
On February 13, 2003, Xianchin Kong, a pro se plaintiff,
filed a lawsuit against Peking, alleging that Peking had
improperly terminated her employment as a waitress at Peking's
restaurant because she had made safety complaints under various
federal and state laws. Thereafter, Kong filed numerous
discovery requests and motions. Peking contended that these
filings were "inordinately voluminous" and "redundant" and filed
a motion for sanctions under Code § 8.01-271.1. When Kong was
confronted with the motion for sanctions, she retained counsel
and moved for a nonsuit. Over Peking's objections, the trial
court granted the nonsuit and refused to consider the pending
motion for sanctions, concluding that it no longer had
jurisdiction over the motion for sanctions.
II
For purposes of this appeal, we will consider as true the
allegations set forth in Peking's motion for sanctions. Kong,
approximately one year after instituting her suit, filed her
first set of interrogatories, which exceeded the limits of Rule
4:8(g). During the following 45-day period, Kong served Peking
with requests for production of documents, requests for
admissions, and three additional sets of interrogatories, all to
which Peking responded in good faith. According to Peking,
however,
the discovery process was made unduly burdensome,
excessively expensive, overly annoying, unnecessarily
repetitive, and unreasonably cumbersome by virtue of
the filing within a forty-five (45) day period of a
total of eight sets of redundant discovery requests,
coupled with four, 3-7 page letters indiscriminately
objecting to virtually every answer [Peking] made to
[Kong's] discovery requests. This abuse of the
discovery process required the detailed preparation,
review, research, authentication, and filing of
responses that caused [Peking] to incur inordinate
expenditures of its own time and resources, as well as
the expense required for its attorney to respond.
Due to the burdens imposed by Kong's discovery filings,
Peking filed a motion for a protective order. Following a
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hearing on Peking's motion, the trial court found that the
pleadings and other documents filed on behalf of Kong had been
prepared by another who "was not a lawyer and was not licensed
to practice law in the Commonwealth." The trial court further
found that "the pleadings and other documents filed by [Kong]
were tainted or poisoned with the unlawful practice of law."
Peking alleged that the illegal conduct, and Kong's
complicity therein,
has required [Peking] to incur over $15,000.00 in
attorneys fees and expenses in defending and
responding to the pleadings and discovery requests in
this lawsuit, and has further diverted the valuable
time and resources of [Peking] and its employees in
responding to the inordinately voluminous and
inappropriate requests and filings in this groundless
lawsuit.
Consequently, by its motion for sanctions, Peking sought an
award against Kong and the preparer of the pleadings and
documents, jointly and severally, of $16,383.75 in attorney's
fees and $186.98 in out-of-pocket expenses. Peking also sought
$10,000 in additional sanctions to deter such conduct in the
future.
III
We perceive the issue in this appeal to be two-fold:
First, whether the nonsuit order is subject to the provisions of
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Rule 1:1∗ and, second, whether the nonsuit order precluded the
trial court from considering the pending motion for sanctions.
In the present case, the trial court had scheduled Peking's
motion for sanctions for a hearing on July 9, 2004. Immediately
upon the trial court's convening of the July 9 hearing, Kong
moved for a nonsuit. The trial court granted the motion, and,
when counsel for Peking stated that he "assume[d] that the
motion for sanctions remain[ed] for consideration," the trial
court ruled that it no longer had jurisdiction over the motion
for sanctions. The order granting the nonsuit was entered on
the same day.
We first consider whether the nonsuit order is subject to
the provisions of Rule 1:1. This inquiry is answered by our
recent decision in James v. James, 263 Va. 474, 562 S.E.2d 133
(2002). In James, we noted that a nonsuit order "is
sufficiently imbued with the attributes of finality to satisfy
the requirements of Rule 1:1." Therefore, we opined that, "from
its very nature, an order granting a nonsuit should be subject
to the provisions of Rule 1:1." Id. at 481, 562 S.E.2d at 137.
Thus, the nonsuit order in the present case, like all final
∗
Rule 1:1 provides, in pertinent part, that "[a]ll final
judgments, orders, and decrees . . . 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."
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judgments, remained under the control and jurisdiction of the
trial court for 21 days after the date of entry.
We next consider whether the nonsuit order precluded the
trial court from considering the previously pending motion for
sanctions. Code § 8.01-380 gives a plaintiff an absolute right
to one nonsuit. Upon the entry of a nonsuit order, "the case
becomes 'concluded as to all claims and parties,' and 'nothing
remain[s] to be done.' " Id., quoting Dalloul v. Agbey, 255 Va.
511, 515, 499 S.E.2d 279, 282 (1998).
In the present case, the trial court ruled that, because
the nonsuit order was final as to all claims and parties, the
court was without jurisdiction to rule upon the pending motion
for sanctions. We do not agree.
A motion for sanctions is an application made to a court
for the imposition of a penalty for alleged misconduct of a
party or lawyer or for alleged abuse of the system. The motion
has no bearing on the facts giving rise to a right to seek
judicial remedy. Thus, the entry of a nonsuit order does not
conclude a case as to any pending motion for sanctions.
Additionally, the trial court's ruling undermines the
public policy expressed by the General Assembly in Code § 8.01-
271.1. In enacting that Code section, the General Assembly
sought to prevent a litigant from filing pleadings and other
papers that are "interposed for any improper purpose, such as to
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harass or to cause . . . needless increase in the cost of
litigation." Manifestly, the General Assembly never intended
that a nonsuit order could exonerate a litigant's misconduct.
We agree with Peking's assertion that, "[i]f, upon grant of a
nonsuit, jurisdiction over pending sanctions motions were to
evaporate, litigants would be left to abuse of process without
remedy, effectively nullifying the purposes of the statute."
IV
We conclude, therefore, that where, as here, a motion for
sanctions pursuant to Code § 8.01-271.1 is pending when a
plaintiff moves for a first nonsuit, the trial court is
empowered to consider the sanctions motion either before the
entry of the nonsuit order or within 21 days after the entry of
the nonsuit order. In failing to consider the pending motion
for sanctions in the present case, the trial court erred.
Therefore, we will reverse the trial court's ruling, set aside
and vacate the nonsuit order, and remand the case to the trial
court with directions that it consider and decide the motion for
sanctions and thereafter enter an order granting Kong's motion
for a nonsuit.
Reversed and remanded.
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