Present: All the Justices
FORD MOTOR COMPANY
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
October 31, 2003
v. Record No. 030008
MARGARET JONES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane M. Roush, Judge
In this appeal, we consider whether a plaintiff may take
a voluntary nonsuit pursuant to Code § 8.01-380(A) after a
judgment that confirmed a jury verdict had been reversed, and
the case had been remanded to the circuit court for a new
trial.
Plaintiff, Margaret Jones, initially filed her motion for
judgment against Ford Motor Company (Ford) and Cherner Lincoln
Mercury-Annandale, Inc. (Cherner Lincoln Mercury). She
alleged that she and her husband purchased a 1991 Lincoln Town
Car, manufactured by Ford, from Cherner Lincoln Mercury's
predecessor in interest. Plaintiff also alleged that she was
injured when a defect in the car's cruise control system made
the car accelerate suddenly without warning, causing the car
to travel out of control and crash into a concrete stanchion.
Plaintiff dismissed her cause of action against Cherner
Lincoln Mercury. The jury considered plaintiff's claims and
returned a verdict in favor of Ford. The circuit court
entered a judgment confirming the verdict, and we granted
plaintiff an appeal.
Upon appeal, we held that the circuit court erred because
it refused to permit plaintiff to introduce certain evidence
and the court failed to properly instruct the jury. We
affirmed the judgment of the circuit court in part, reversed
in part, and remanded the case for a new trial consistent with
the views expressed in our opinion. Jones v. Ford Motor
Company, 263 Va. 237, 263-64, 559 S.E.2d 592, 606 (2002).
After this case had been remanded to the circuit court,
but prior to the start of the new trial, plaintiff requested a
nonsuit pursuant to Code § 8.01-380(A), which states in
pertinent part:
"A party shall not be allowed to suffer a
nonsuit as to any cause of action or claim, or any
other party to the proceeding, unless he does so
before a motion to strike the evidence has been
sustained or before the jury retires from the bar or
before the action has been submitted to the court
for decision."
Ford objected to plaintiff's nonsuit. The circuit court
overruled the objection and entered an order that permitted
plaintiff to nonsuit her amended motion for judgment. Ford
appeals.
Ford argues that Code § 8.01-380(A) does not permit
plaintiff to take a voluntary nonsuit because, during the
first trial, plaintiff's claims had been submitted to the jury
2
which retired and rendered a verdict. Continuing, Ford argues
that this Court's mandate that reversed and annulled the
circuit court's judgment confirming the verdict has no effect
upon the plaintiff's statutory right to take a nonsuit, and
this Court's mandate is "immaterial to the operation of the
nonsuit statute." * Responding, plaintiff contends that after
the case had been remanded for a new trial, she was entitled
to take a nonsuit pursuant to Code § 8.01-380(A) because a new
trial had not taken place and, therefore, no evidence had been
presented, and the case had not been submitted to a jury or to
a court for decision.
Code § 8.01-380 permits a plaintiff to take one nonsuit
as a matter of right. A plaintiff's right to take a nonsuit,
however, is not unlimited. Dalloul v. Agbey, 255 Va. 511,
514, 499 S.E.2d 279, 281 (1998); Bremer v. Doctor's Building
Partnership, 251 Va. 74, 81, 465 S.E.2d 787, 791 (1996); Trout
v. Commonwealth Transp. Commissioner, 241 Va. 69, 73, 400
S.E.2d 172, 174 (1991); Khanna v. Dominion Bank, 237 Va. 242,
*
Upon remand to the circuit court, plaintiff, over the
objection of defendant, was permitted to file an amended
motion for judgment that included certain claims that the
circuit court dismissed during the first trial of this case,
and those claims were not the subject of the first appeal.
Ford does not challenge with an assignment of error in this
appeal whether plaintiff can nonsuit claims that were
dismissed during the first trial and, therefore, that issue is
not before this Court.
3
245-46, 377 S.E.2d 378, 380-81 (1989). We stated in Dalloul,
255 Va. 511 at 514, 499 S.E.2d at 281:
"The language of Code § 8.01-380 allows a
plaintiff, among other things, the right to take one
nonsuit of any cause of action or claim that has not
been struck from the case or submitted to the trier
of fact for decision . . . ."
After a reversal of a circuit court's judgment and remand
for a new trial, the litigants are restored to their original
rights as though no previous trial had occurred, including the
right to dismiss or nonsuit a case. Nassif v. The Board of
Supervisors, 231 Va. 472, 480, 345 S.E.2d 520, 525 (1986). Of
course, this principle does not apply to issues which, under
the "law of the case" doctrine, are not subject to
relitigation, see Lockheed Info. Mgmt. Systems v. Maximus,
Inc., 259 Va. 92, 108, 524 S.E.2d 420, 429 (2000), or to
parties and claims already dismissed with prejudice, or
otherwise eliminated from a case, prior to a nonsuit, see
Dalloul, 255 Va. at 514, 499 S.E.2d at 281.
Even though plaintiff's claims of negligence and breach
of implied warranties against Ford had been submitted to the
jury during the first trial, we reversed the circuit court's
judgment that confirmed that verdict. Therefore, the jury's
verdict in that trial had no legal efficacy and, thus,
plaintiff's submission of her case to that jury cannot have
4
any effect upon the viability of her claims in the present
proceeding and her right to take a nonsuit.
As we held in Dalloul, Code § 8.01-380(A) permits a
plaintiff to take a voluntary nonsuit of viable claims pending
in the court at the time the nonsuit is taken. Clearly,
plaintiff took her nonsuit in this case after remand to the
circuit court so none of the statutory restrictions upon
plaintiff's right to a nonsuit existed. Plaintiff's case had
not been submitted to a jury, a motion to strike had not been
sustained, and the case had not been submitted to the circuit
court for decision. Therefore, we hold that plaintiff was
entitled to take a voluntary nonsuit, and the circuit court
did not err in granting her motion.
In view of our holding, we need not consider the
litigants' remaining arguments. We will affirm the judgment
of the circuit court.
Affirmed.
5