Edwards v. Bertha's Beauty & Barber Salon, Ltd.

35 Va. Cir. 367, 1995 Va. Cir. LEXIS 1143

• Court: Alexandria County Circuit Court
• Decided: January 13, 1995
• Docket: Case No. (Law) CL940610
• Status: Published

Opinion

By Judge Donald H. Kent

This case came before the Court upon the defendant’s motion to reconsider the denial of his plea in bar.

The original Motion for Judgment filed on July 20, 1992, alleges that the plaintiff suffered personal injury on October 3, 1991. On May 28,

1993, an order was entered in CL920626 on the motion of the plaintiff, in which the case was “dismissed without prejudice.” The dismissal order was endorsed by all counsel and made no reference to “nonsuit” or Code § 8.01-380.

The Motion for Judgment in the pending case was filed on August 4, 1994.

The first issue to be determined by the Court is whether the dismissal order of May 28,1993, was an order of nonsuit as provided in § 8.01-380 of the Code. There are many instances in which cases are dismissed without prejudice by the Court when there has not been a hearing on the merits. The right to a dismissal under § 8.01-380 is absolute, and neither the Court nor opposing counsel can prevent the plaintiff from doing so. However, the Court finds that the plaintiff on his own motion does not have a right to a dismissal without prejudice and an additional right to a nonsuit in the same cause of action. In other words, the Court finds that the order of May 28, 1993, is a nonsuit under § 8.01-380 of the Code, even though not expressly stated in the order.

The second issue is whether the claim of the plaintiff is time-barred under § 8.01-229 of the Code. The Court finds that the new action was not brought within six months of the nonsuit nor within the original period of limitation (two years from the date of the injury); therefore, the claim is time-barred.