Dalloul v. Agbey, Record No. 971416.

• Decision Date: 17 April 1998
• Docket Number: Record No. 971416.
• Citation: 499 S.E.2d 279,255 Va. 511
• Parties: Nizar M. DALLOUL, et al. v. Jean Y. AGBEY.
• Court: Virginia Supreme Court

499 S.E.2d 279

255 Va. 511

Nizar M. DALLOUL, et al. v. Jean Y. AGBEY.

Record No. 971416.

Supreme Court of Virginia.

April 17, 1998.

J. Andrew Keyes, Arlington (John C. Shipley, Jr., Key Biscayne, FL; Charles B. Wayne, Alexandria; Donald F. Luke, New York, NY; Melissa Francis; Williams & Connolly; Schwalb, Donnenfeld, Bray & Silbert; Rogers & Wells, Washington, DC, on briefs), for appellants.

Benjamin G. Chew (Read M. McCaffrey, Washington, DC; Stephen S. Anderson, Jr., Colorado Springs, CO; William V. Alexander, McLean; Patton Boggs; Alexander & Associates, McLean, on brief), for appellee.

Present: All the Justices.

KEENAN, Justice.

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, 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 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 claims and parties have been dismissed with prejudice or otherwise eliminated from ...