PRESENT: All the Justices
NIZAR M. DALLOUL, ET AL.
v. Record No. 971416 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 17, 1998
JEAN Y. AGBEY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
In this appeal, we determine whether a plaintiff may take a
nonsuit of claims and parties that have been dismissed with
prejudice or otherwise eliminated from the case before the
nonsuit order is entered.
In June 1996, Jean Y. Agbey filed a seven-count second
amended motion for judgment against Nizar M. Dalloul, Rafiq
Hariri, and five corporations, Hariri Interests, Inc., Hariri
Holdings, Inc., International Technologies Integration, Inc.,
Services Development Corporation, and Caron Corporation. Count
I of the motion for judgment sought damages from Dalloul for
breach of contract. Count II alleged that Dalloul and Hariri
breached a partnership agreement. Count III alleged breach of
fiduciary duties against Dalloul and Hariri. Count IV
(“Conspiracy to Violate, and Induce Violation of, Contractual
Obligations”), Count V (“Statutory Civil Conspiracy”), and Count
VII (“Duress”) alleged tortious conduct by all seven defendants,
while Count VI (“Tortious Interference with Contract”) made
allegations against all defendants except Dalloul.
The trial court dismissed Count VII, holding that Virginia
does not recognize a cause of action for “duress.” Shortly
thereafter, the trial court dismissed with prejudice Counts III
through VI on the ground that those claims were time barred.
Thus, only Counts I and II, involving Hariri and Dalloul,
remained.
About four months later, Agbey requested the trial court to
enter an order of nonsuit pursuant to Code § 8.01-380. Although
the defendants requested that the court limit the scope of the
nonsuit to Counts I and II, the court entered an order which did
not contain such a limitation. The order entered by the trial
court stated, in relevant part, “[I]t is hereby: ORDERED that
the nonsuit of Plaintiff be, and hereby is, entered.” Dalloul,
Hariri, Hariri Interests, Inc., and Hariri Holdings, Inc.
(collectively, Dalloul) appeal from this order.
Code § 8.01-380(A), at issue in this appeal, provides in
relevant 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.
Dalloul argues that, under the language of Code § 8.01-380, a
plaintiff may not use a nonsuit to revive claims or to reinstate
claims against parties previously dismissed from the case,
2
because these claims are no longer part of the “proceeding”
contemplated by the statute. Dalloul contends that, in
dismissing Counts III through VII, the trial court conclusively
determined the rights of the parties regarding these claims
which constituted a final disposition adverse to Agbey. Thus,
Dalloul asserts that the dismissed parties and claims are no
longer subject to Agbey’s right to take a nonsuit.
In response, Agbey contends that his right to take a
nonsuit is “virtually absolute” and is restricted only by the
express limitations set forth in Code § 8.01-380, which Agbey
contends are not implicated here. In support of this argument,
Agbey relies on Winchester Homes, Inc. v. Osmose Wood
Preserving, Inc., 37 F.3d 1053 (4th Cir. 1994). There, the
federal court of appeals concluded that Code § 8.01-380 permits
a plaintiff to suffer a nonsuit of an action as originally
filed, even though some of the claims asserted have been
dismissed with prejudice prior to entry of the nonsuit order.
37 F.3d at 1058. We disagree with Agbey’s argument and the
decision in Winchester Homes.
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. Manifestly, once a
trial court has decided a particular claim, that portion of the
3
action has been “submitted to the court for decision” and the
plaintiff may no longer suffer a nonsuit of that claim as a
matter of right. See Khanna v. Dominion Bank, 237 Va. 242, 245,
377 S.E.2d 378, 380 (1989). Therefore, when the trial court has
reached a final determination in a proceeding regarding any
claims or parties to claims, those claims and parties are
excluded by operation of law from any nonsuit request. See
Bremer v. Doctor’s Bldg. Partnership, 251 Va. 74, 80, 465 S.E.2d
787, 791 (1996).
As used in Code § 8.01-380(A), the term “the action” refers
to the action then pending before the court, namely, the counts
or claims remaining in a case at the time the nonsuit request is
made. Claims that have been dismissed with prejudice are not
part of a pending action, because a dismissal with prejudice 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. Gilbreath v. Brewster, 250 Va. 436, 440, 463
S.E.2d 836, 837 (1995); Reed v. Liverman, 250 Va. 97, 100, 458
S.E.2d 446, 447 (1995); Virginia Concrete Co. v. Board of
Supervisors, 197 Va. 821, 825, 91 S.E.2d 415, 418 (1956). Thus,
we hold that, under the language of Code § 8.01-380(A), “the
action” subject to a plaintiff’s nonsuit request is comprised of
the claims and parties remaining in the case after any other
4
claims and parties have been dismissed with prejudice or
otherwise eliminated from the case.
Here, when the trial court dismissed with prejudice Counts
III through VI, the respective defendants obtained a final
disposition of those counts that was adverse to Agbey and was
res judicata as to those claims. See Reed, 250 Va. at 100, 458
S.E.2d at 447. Although the order dismissing Count VII did not
state that the “duress” claim was dismissed with prejudice, the
trial court’s ruling that Virginia does not recognize such a
cause of action eliminated the “duress” claim from the pending
action. Thus, when Agbey requested the nonsuit, Counts I and II
were the only claims remaining in the action.
We disagree with Agbey’s contention that this result
precludes any right of appeal from the dismissed counts. When
the trial court entered the nonsuit order, the case became
concluded as to all claims and parties. Therefore, since
nothing remained to be done in the case, Agbey was entitled to
appeal from the orders dismissing Counts III through VII, either
by assigning cross-error to Dalloul’s petition for appeal or by
filing a separate petition for appeal. * See Rules 5:17 and 5:18;
*
We also note that an order which is final as to some, but
not all, parties may in some circumstances be appealed before
the case is concluded as to all defendants, under the
“severable” interest rule set forth in Wells v. Whitaker, 207
Va. 616, 628-29, 151 S.E.2d 422, 432-33 (1966). See also
Leggett v. Caudill, 247 Va. 130, 134, 439 S.E.2d 350, 352
5
Leggett v. Caudill, 247 Va. 130, 133, 439 S.E.2d 350, 351
(1994); Daniels v. Truck & Equip. Corp., 205 Va. 579, 585, 139
S.E.2d 31, 35 (1964).
We also find no merit in Agbey’s claim that a different
result is required by our decision in Spotsylvania County School
Board v. Seaboard Sur. Co., 243 Va. 202, 415 S.E.2d 120 (1992).
Our ruling there did not address the permissible scope of a
nonsuit order. Instead, we addressed a situation in which the
trial court entered a nonsuit of certain claims after a demurrer
to those claims was overruled and a motion for summary judgment
was denied. We held that those issues raised on demurrer and
motion for summary judgment were rendered moot by the nonsuit
and could not be raised on appeal. 243 Va. at 220, 415 S.E.2d
at 130. Thus, Spotsylvania is inapposite because the claims at
issue in that case were not dismissed with prejudice.
For these reasons, we will reverse the trial court’s
judgment and remand the case for entry of an order of nonsuit
limited to Counts I and II of the second amended motion for
judgment.
Reversed and remanded.
(1994). In such instances, the order may be appealed either at
the time of its entry or when the trial court enters a final
order disposing of the remainder of the case. See Code
§ 8.01-670(A)(3); see e.g., Hinchey v. Ogden, 226 Va. 234, 236-
37 and n.1, 307 S.E.2d 891, 892 and n.1 (1983).
6