Home / Fulltext Opinions / Supreme Court of Virginia / DALLOUL, ET AL. v. AGBEY



April 17, 1998
Record No. 971416





Jane Marum Roush, Judge
PRESENT: All the Justices

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

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,

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

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
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.[1]
See Rules 5:17 and 5:18; 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

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.






[1] 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.
, 247 Va. 130, 134, 439 S.E.2d 350, 352 (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.
, 226 Va. 234, 236-37 and n.1, 307 S.E.2d 891, 892 and
n.1 (1983).