Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
and Keenan, JJ., and Whiting, Senior Justice
JAMES BREMER, ET AL.
v. Record No. 950730 OPINION BY JUSTICE ELIZABETH B. LACY
January 12, 1996
DOCTOR'S BUILDING PARTNERSHIP
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
In this appeal, we consider whether the trial court erred
in granting a nonsuit when a defendant's plea filed pursuant to
Code § 8.01-422 was pending.
Doctor's Building Partnership (Doctors) filed a motion for
judgment against James Bremer, Lewis F. Shrensky, and Jose
Rodrigues, general partners of Castle Way Partnership
(collectively, Bremer). Doctors sought to enforce payment of a
deferred purchase money note executed in connection with the
1983 sale of a commercial office building. Bremer filed an
"answer," counterclaims, and a plea under Code § 8.01-422.
Both the statutory plea and one of the counterclaims were based
on an allegation that Doctors breached express warranties
contained in the purchase agreement that the office building
conformed to the requirements set out in the applicable state
and county building codes. 1
Bremer labeled his statutory plea as a "claim for
recoupment." Doctors did not appeal the trial court's holding
that Bremer's statutory "claim for recoupment" was within the
pleas authorized by Code § 8.01-422. Therefore, that issue,
whether a plea of recoupment based on a breach of warranty
claim is cognizable under Code § 8.01-422, is not before us for
review.
1
Trial was set for October 31, 1994. Prior to the trial
date, Bremer nonsuited the counterclaims and, after an ore
tenus hearing, the trial court ruled that, although the
purchase agreement had been modified by a subsequent addendum,
the modification did not displace the warranties and they
remained in effect. On the day of the trial, the trial court
granted Doctors' motion for nonsuit.
Bremer filed an appeal asserting that the trial court's
nonsuit order violated the provisions of Code § 8.01-380
because his statutory plea was pending and because the case had
been submitted for decision. Bremer also contended that, even
if Code § 8.01-380 was not violated, the trial court's action
was contrary to "extra-statutory common-law principles which
prohibit a plaintiff from taking a nonsuit if, by so doing, it
allows the plaintiff an advantage, and serves to prejudice or
oppress the defendant, or deprives the defendant of any just
defense." We awarded Bremer an appeal and, because we conclude
that the trial court properly applied Code § 8.01-380, we will
affirm the order of the trial court.
I.
Consideration of Bremer's contention that Code § 8.01-
380(C) precluded a nonsuit because of his pending statutory
plea requires a review of the legislative history of the
nonsuit statute and of the provision upon which Bremer's
statutory plea is based, Code § 8.01-422. In the 1977
2
recodification of Title 8, the Code sections dealing with
nonsuits were consolidated in Code § 8.01-380 of new Title
8.01. Report of the Virginia Code Commission to the Governor
and the General Assembly of Virginia, House Document No. 14, at
243 (1977). Code § 8.01-380 provides in pertinent part:
A. A party shall not be allowed to suffer a nonsuit as
to any cause of action or claim . . . unless he does so
. . . before the action has been submitted to the court
for decision. . . .
B. Only one nonsuit may be taken . . . as a matter
of right . . . .
C. A party shall not be allowed to nonsuit a cause
of action, without the consent of the adverse party who
has filed a counterclaim, cross claim or third-party claim
. . . unless the counterclaim, cross claim, or third-party
claim can remain pending for independent adjudication by
the court.
Subsection C is based on former Code § 8-244 which prohibited a
nonsuit if a defendant had filed a counterclaim and did not
consent to the nonsuit. Acts 1954, ch. 611 at 785. Prior to
1954, Code § 8-244 did not refer to a counterclaim, but
prohibited a nonsuit without the consent of the defendant if
the defendant had filed a "plea or account under [Chapter 14 of
Title 8]." Code § 8-244 (1950). Former Code § 8-241 was
within Chapter 14 of Title 8, and, thus, pleas filed thereunder
were protected from nonsuit. In 1977, Code § 8-241 was
recodified as Code § 8.01-422, the source of Bremer's statutory
plea. Acts 1977, ch. 617 at 1125.
The premise underlying Bremer's position is his assertion
that the amendments to and recodification of former Code §§ 8-
241 and -244 made no substantive changes and that the
3
insertions of the word "counterclaim" in those sections were
changes in nomenclature only. Based on this premise, Bremer
asserts that his statutory plea is entitled to protection
against nonsuit as a "counterclaim" in Code § 8.01-380(C) in
the same manner that former "plea[s] and account[s]" under
Chapter 14 of Title 8 were protected by former Code § 8-244.
Thus, Bremer concludes that because his statutory plea is a
"counterclaim" which cannot "remain pending for independent
adjudication," the trial court erred in granting a nonsuit.
Our review of the legislative history of these sections
shows, however, that Bremer's premise is flawed. Substantive
changes were made to both former Code §§ 8-241 and -244 based
on the distinctions between counterclaims and pleas filed under
former Code § 8-241. Following the enactment of the 1950 Code,
the General Assembly instructed the Virginia Code Commission to
identify statutes dealing with court practice and procedure
which had been rendered obsolete by the new Code. In its
report, the Commission noted that certain procedural statutes
had also been rendered obsolete by new Rules of Court effective
contemporaneously with the 1950 Code. Repeal of Obsolete
Procedural Statutes, A Report of the Virginia Code Commission
to the Governor and the General Assembly of Virginia, House
Document No. 16 (1954)(hereinafter, House Document No. 16).
Consequently, the Commission's recommendations included changes
needed as a result of both the 1950 Code and Rules of Court.
4
One of the areas identified by the Commission for
legislative action was precipitated by the adoption of Rule
3:8, which, for the first time, identified a counterclaim as a
specific form of pleading. New Rule 3:8 defined a counterclaim
broadly by covering various types of relief a defendant could
seek from the plaintiff which could be resolved in the same
litigation. 2 Counterclaims were limited, however, to actions
at law. Thus, as the Commission explained, the new rule
encompassed many of the pleas formerly authorized by Code § 8-
241 but did not include pleas seeking equitable relief in the
form of damages which were allowed by the statute. To make
Rule 3:8 coextensive with former Code § 8-241, the Commission
recommended that Rule 3:8 be amended to include "any matter
which would entitle [a defendant] to relief in equity in the
nature of damages." House Document No. 16, at 24. If the Rule
was not changed, however, the Commission recommended that only
2
The new Rule 3:8 provided:
Within twenty-one days after service on him of the
notice of motion for judgment, a defendant may, at his
option, plead as a counterclaim any cause of action at law
for a money judgment in personam that he has against the
plaintiff or all plaintiffs jointly, whether or not it
grows out of any transaction mentioned in the notice of
motion for judgment, whether or not it is for liquidated
damages, whether it is in tort or contract, and whether or
not the amount demanded in the counterclaim is greater
than the amount demanded in the notice of motion for
judgment. The court in its discretion may order a
separate trial of any cause of action asserted in a
counterclaim.
There have been no further changes to this rule.
5
"so much of § 8-241 as relates to equitable defenses" be
retained. Id.
Rule 3:8 was not amended and, following the Commission's
recommendation, the General Assembly amended Code § 8-241 to
eliminate a number of the pleas formerly authorized under that
section but now embraced as counterclaims under Rule 3:8. 3
Pleas seeking relief in equity remained in the statute as
amended. The Commission also recommended that the title of the
section be changed from "Special pleas of set-off" to "Special
plea of equitable defenses," further highlighting the altered
scope of Code § 8-241. House Document No. 16, at 24. This
change was reflected in the 1977 recodification. Acts 1977,
Prior to 1954 former Code § 8-241 provided in pertinent
part:
In any action on a contract, the defendant may file a
plea, alleging any such failure in the consideration
of the contract, or fraud in its procurement, or any
such breach of any warranty to him of the title or
the soundness of personal property, . . . or any
other such matter as would entitle him either to
recover damages at law from the plaintiff, or the
person under whom the plaintiff claims, or to relief
in equity, in whole or in part, against the
obligation of the contract; or, if the contract be by
deed, alleging any such matter arising under the
contract, existing before its execution, or any such
mistake therein, or in the execution thereof, or any
such other matter as would entitle him to such relief
in equity; and in either case alleging the amount to
which he is entitled by reason of the matters
contained in the plea.
Code § 8-241 (1950)(emphasis added). The italicized language
was deleted by the 1954 amendments to this section. Acts 1954,
ch. 617 at 788.
6
ch. 617 at 1125 (Code § 8.01-422 entitled "Pleading equitable
defenses").
The General Assembly also amended former Code § 8-244 as a
result of the Code Commission's report. The Commission
proposed a new Rule 3:9.2 which continued the limitations on
nonsuits contained in former Code § 8-244, but applied them to
counterclaims and cross claims only. 4 House Document No. 16,
at 25. The proposed Rule 3:9.2 was not adopted, however, but
the General Assembly, following the Commission's
recommendation, replaced the existing language of Code § 8-244
with the language proposed for the rule. Acts 1954, ch. 611 at
785.
Contrary to Bremer's assertion, the 1954 amendments were
substantive amendments. The word "counterclaim" in the newly
enacted Code § 8-244 was not simply a change in nomenclature
but was deliberately chosen to refer to Rule 3:8 counterclaims
4
Rule 3:9.2 as proposed by the Commission provided as
follows:
A defendant who pleads a counterclaim or cross-claim
shall be deemed to have brought an action at the time
he files such pleading, provided that if the subject
matter of the counterclaim arises out of the same
transaction or occurrence upon which the plaintiff's
claim is based, the statute of limitations with
respect to such counterclaim shall be tolled by the
commencement of the plaintiff's action. In such case
the plaintiff shall not, after the counterclaim is
filed, dismiss his case without the defendant's
consent.
House Document No. 16, at 25.
7
only. The General Assembly, after consideration of the
Commission's report, enacted the 1954 amendments with full
knowledge and intent that counterclaims referenced in Code § 8-
244 did not include pleas filed under Code § 8-241.
Based on this review of legislative history, we hold that
a statutory plea filed pursuant to Code § 8.01-422, successor
to Code § 8-241, is not a counterclaim as that term is used in
Code § 8.01-380(C), successor to Code § 8-244. Therefore, the
conditions attaching to a nonsuit under subsection C of Code
§ 8.01-380 do not apply to this case. 5
II.
Bremer next contends that the nonsuit was barred under
Code § 8.01-380(A) because the matter had been submitted to the
court for decision prior to the motion for nonsuit. Bremer
bases his contention on the trial court's determination that
the warranties contained in the purchase agreement survived the
subsequent amendment to the agreement. This ruling, however,
did not resolve any issue of liability. It is no different
from numerous rulings made by trial courts in the course of the
trial which impact the conduct of the trial, but do not involve
submitting "the action . . . to the court for decision" under
We also note that earlier in this litigation Bremer
successfully argued that his claim was not a counterclaim. See
City of Hopewell v. Cogar, in which this Court stated that a
litigant cannot "say that what they identified as an
affirmative defense actually was a counterclaim." 237 Va. 264,
269, 377 S.E.2d 385, 388 (1989).
8
Code § 8.01-380(A). Accordingly, the order granting a nonsuit
did not violate Code § 8.01-380(A) because the matter had not
been submitted to the court for decision.
III.
Finally, Bremer contends that the trial court erred in
granting the nonsuit, even if there was no violation of Code
§ 8.01-380, because under principles of common law a plaintiff
is not entitled to a nonsuit if the rights of the defendant
would be prejudiced by the dismissal of the action. See, e.g.,
Kemper v. Calhoun, 111 Va. 428, 430-31, 69 S.E. 358, 359
(1910). The prejudice resulting from the dismissal was the
inability of the defendant to pursue his claims against the
plaintiff. Defenses asserted in response to a motion for
judgment, such as Bremer's filed under Code § 8.01-422 seeking
affirmative relief, are not barred or otherwise lost. They may
be reasserted if the motion for judgment is subsequently
refiled. Furthermore, the common law considerations of
prejudice were codified in Code § 8.01-380(C) by prohibiting a
nonsuit if a pending counterclaim, cross claim, or third-party
claim could not be independently adjudicated. Therefore, a
plaintiff is entitled to one nonsuit as a matter of right if
the provisions of Code § 8.01-380 are met without further
analysis of prejudice to the defendant. Gilbreath v. Brewster,
250 Va. 436, 463 S.E.2d 836 (1995); Clark v. Butler Aviation,
238 Va. 506, 511, 385 S.E.2d 847, 849 (1989); Nash v. Jewell,
9
227 Va. 230, 237, 315 S.E.2d 825, 829 (1984).
In summary, Doctors' motion for a nonsuit was made before
the matter was submitted to the court for decision. No
counterclaim, cross claim, or third-party claim was pending.
Therefore, Doctors was entitled to a nonsuit as a matter of
right. Code § 8.01-380. Accordingly, we will affirm the order
of the trial court.
Affirmed.
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