COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia
ALVIN W. CROOM AND
BONNIE C. CROOM
MEMORANDUM OPINION * BY
v. Record No. 2134-00-1 JUDGE RICHARD S. BRAY
APRIL 3, 2001
KATHLEEN C. BYRUM AND
RANDY L. BYRUM
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
McClanahan Ingles (Martin, Ingles & Ingles,
Ltd., on briefs), for appellants.
Lois N. Manes; Mark W. Byrum, Jr. (The Byrum
Law Offices, P.C., on brief) for appellees.
Alvin W. Croom and Bonnie C. Croom (appellants) appeal an
order of the trial court awarding attorney's fees to Kathleen C.
Byrum and Randy L. Byrum (appellees), following appellants'
nonsuit of the subject proceedings. Appellants contend the trial
court was without authority to award such relief. We agree and
reverse the disputed order.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On August 7, 1998, appellants filed a "Notice And Motion To
Amend Visitation" in the York County Juvenile and Domestic
Relations District Court (J&D court), requesting increased
visitation with their grandchildren and an order directing
Kathleen C. Byrum and "her live-in male companion" to "undergo
psychiatric, parenting and substance abuse evaluations."
Appellees responded, with a "Joint Brief in Opposition" that
included a motion for "reasonable attorneys fees and costs . . .
incurred" incident to the proceedings. Following two "conference
call[s]" with the parties and counsel, the J&D court denied
appellants' motion and ordered the "matter removed from [the]
docket," without addressing appellees' request for fees and costs.
On October 1, 1999, appellants appealed to the trial court.
Thereafter, on October 28, 1999, appellees renewed the motion in
the J&D court for attorney's fees, and appellants moved to quash,
challenging the continuing jurisdiction of the J&D court to
entertain the issue.
Subsequent proceedings in the circuit court, originally
scheduled for May 22, 2000, were rescheduled for July 18, 2000.
On July 14, 2000, upon motion of appellants, the trial court
entered an order nonsuiting "the appeal." 1 Thereafter, on July
21, 2000, appellees lodged a "Renewal Of Joint Motion For Award Of
Attorney Fees" with the trial court. Following a related hearing
1
Appellees do not challenge the order of nonsuit.
- 2 -
on August 4, 2000, the court awarded appellees "attorney's fees
and costs in this matter" of $8,000, specifically noting that the
relief was not "any type of sanction relative to the nonsuit" but
resulted from a finding that appellants had "used the courts
inappropriately and . . . [were] proponents of an unnecessary
litigation." This appeal followed.
Code § 8.01-380 provides a party "an absolute right to one
nonsuit" of an "action," subject to certain limitations
inapplicable to the instant cause. Nash v. Jenell, 227 Va. 230,
237, 315 S.E.2d 825, 829 (1984). The "'action'" contemplated by
Code § 8.01-380 "refers to the action then pending before the
court, namely the . . . claims remaining in a case at the time
the nonsuit request is made." Dalloul v. Agbey, 255 Va. 511,
514, 499 S.E.2d 279, 281 (1998). "The right to . . . a nonsuit
on the eve of trial, notwithstanding a defendant's loss of time
and expense incurred in preparation, . . . is a powerful
tactical weapon in the hands of a plaintiff." Trout v.
Commonwealth Transp. Comm'r, 241 Va. 69, 73, 400 S.E.2d 172, 174
(1991). Accordingly, Code § 8.01-380(B) expressly provides that
"[o]nly one nonsuit may be taken to a cause of action . . ., as
a matter of right." Should the court thereafter permit
"additional nonsuits," the court "may assess costs and
reasonable attorney's fees against the nonsuiting party." Code
§ 8.01-380(B).
- 3 -
Thus, the order of nonsuit entered by the trial court on
July 14, 2000, the first in the instant cause, was in accordance
with appellants' exercise of a statutory right to terminate the
proceedings, despite attendant costs and inconvenience to
appellees. Clearly, under the circumstances, the court was
without authority to then impose such expenses upon appellants.
Moreover, the procedural vehicle indispensable to the relief,
appellants' pending "action" in the trial court, had been
absolutely terminated prior to entry of the putative award.
We, therefore, reverse the order awarding appellants
attorney's fees and costs incurred attendant to the subject
proceedings.
Reversed and final.
- 4 -