Kathrine Lyn Adkison v. Jenna Giandoni, as Personal Representative for the Estate of John Giandoni

• Court: Court of Appeals of Virginia
• Decided: May 6, 2025
• Docket: 0109244
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Causey and Bernhard PUBLISHED

Argued at Fredericksburg, Virginia

KATHRINE LYN ADKISON OPINION BY v. Record No. 0109-24-4 JUDGE DAVID BERNHARD MAY 6, 2025 JENNA A. GIANDONI, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF JOHN GIANDONI

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Louise M. DiMatteo, Judge

Alexander P. Faig (Kylie M. Newsom; Moore, Christoff & Siddiqui, PLLC, on briefs), for appellant.

Ryan P. Quinn (Law Offices of Ryan Quinn, PLLC, on brief), for appellee.

This appeal presents the question of apparent first impression whether a plaintiff may

take a conditional nonsuit—that is, request to nonsuit a case in advance of a dispositive ruling, to

be granted only if that ruling proves unfavorable to the plaintiff. Kathrine Lyn Adkison1 appeals

an order of the circuit court granting a voluntary nonsuit to Jenna A. Giandoni (“Giandoni”),

personal representative of the Estate of John Giandoni. After the court found service on Adkison

defective and granted her motion to dismiss, it simultaneously granted Giandoni’s alternative

request for a nonsuit. Adkison contends the nonsuit was untimely because the matter had already

been submitted for decision on her motion to dismiss. She also argues the court erred in granting

both her dismissal motion and Giandoni’s nonsuit in a single order.

1 Kathrine is also spelled “Katherine,” and Adkison is spelled variously in the record as “Adkinson,” “Atkinson,” and “Atkison.” This Court holds that Code § 8.01-380 does not permit a conditional nonsuit. The statute

authorizes a plaintiff to take a voluntary nonsuit only before the case has been submitted to the

court for decision. Here, once the litigants chose to submit a dispositive issue for final

resolution, Giandoni’s statutory right to nonsuit was foreclosed. Accordingly, and as discussed

more fully below, this Court reverses the circuit court’s order granting Giandoni’s conditional

nonsuit and remands the matter for entry of an order dismissing the case consistent with this

opinion.

BACKGROUND

On March 13, 2020, Giandoni, as administrator for the Estate of John Giandoni, filed a

wrongful death lawsuit against Adkison and the Estate of Jitesh Patel,2 alleging the defendants

conspired to murder John Giandoni. On March 17, 2021, Giandoni requested service of process on

Adkison through the Secretary of the Commonwealth.3 In 2023, Giandoni served Adkison at the

latter’s residence in Florida. Adkison, by special appearance, moved to dismiss the claim against

her for untimely service of process under Code § 8.01-277(B).4 Adkison contended that both

service attempts occurred more than one year after the suit was initiated, and Giandoni failed to

exercise due diligence.

2 The record indicates that Patel neither appeared in the circuit court nor participated in the proceedings below. As a result, Patel is not a necessary party to this appeal. See Erie Ins. Exch. v. Jones, 301 Va. 61, 65 (2022) (holding that parties not named on appeal were not necessary when they did not participate in the proceedings below despite being named as defendants, had notice of the appeal, and “their interests on appeal are adequately represented by another litigant . . . who has the same or similar interests”). 3 See Code § 8.01-329 (permitting a party to serve a person who cannot be located despite due diligence through the Secretary of the Commonwealth of Virginia). 4 A defendant may move to dismiss by special appearance if the plaintiff failed to serve the defendant “within one year of commencement of the action against him” and “did not exercise due diligence to have timely service.” Code § 8.01-277(B). -2- Giandoni argued that the 2021 service of process through the Secretary of the

Commonwealth was timely under the Supreme Court of Virginia’s emergency orders tolling

deadlines in response to the COVID-19 pandemic. Giandoni also contended that, “[i]n the

alternative,” she was “entitled to a voluntary nonsuit” under Code § 8.01-380, if the circuit court

found that “the one-year service period was not tolled.”

During argument on the motion to dismiss, Adkison conceded that the 2021 service of

process through the Secretary of the Commonwealth was timely under the tolled deadline.

Nevertheless, Adkison argued that attempted service, even if timely, was defective because

Giandoni inaccurately identified Adkison’s last known address and failed to serve a summons on

the Secretary of the Commonwealth. Giandoni’s counsel responded he was not prepared to address

Adkison’s arguments at the hearing because they were not raised in the motion to dismiss.

Accordingly, the circuit court took the matter under advisement and requested supplemental briefs.

Neither party addressed Giandoni’s motion for nonsuit “in the alternative.”

Both parties submitted supplemental briefs. Giandoni argued the 2021 service of process on

Adkison through the Secretary of the Commonwealth was proper. At the same time, Giandoni

again asserted that she was “entitled to a voluntary nonsuit” under Code § 8.01-380 “[i]n the

alternative.”

The circuit court found that service of process was defective and agreed that it “should be

quashed” because Giandoni failed to serve a summons on the Secretary of the Commonwealth. The

circuit court also “agree[d] that [Giandoni] may exercise her voluntary nonsuit . . . notwithstanding

the evident defects” in service. The circuit court explained the Supreme Court of Virginia’s

decision in Berry v. F&S Financial Marketing, Inc., 271 Va. 329, 333 (2006), “made clear that

nonsuits under similar circumstances should be granted.”

-3- The circuit court directed the parties to draft an order consistent with its memorandum

opinion. On the drafted order, Adkison objected to the nonsuit, arguing it was not timely under the

statute. The final order stated that Adkison’s motion to dismiss was “granted” and that the action

was “dismissed without prejudice as nonsuited against the [d]efendant” under Code § 8.01-380.

Adkison appealed.

ANALYSIS

Whether the circuit court erred in granting Giandoni’s motion for a voluntary nonsuit

“presents a question of law and as such is reviewed on appeal under a de novo standard.” Transcon.

Ins. Co. v. RBMW, Inc., 262 Va. 502, 514 (2001). A plaintiff may exercise one nonsuit “as a matter

of right,” but the plaintiff must exercise this right “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.” Code § 8.01-380(A), (B) (emphasis added). It is well settled that an action is

submitted to the court for decision “even where the court has not yet ruled . . . when both parties

have ‘yielded the issues to the court for consideration and decision.’” Bio-Medical Applications of

Va., Inc. v. Coston, 272 Va. 489, 494 (2006) (quoting Atkins v. Rice, 266 Va. 328, 331 (2003)). In

Atkins, the Supreme Court of Virginia held that once both parties had submitted all briefing and

argument on a motion to dismiss for untimely service, the plaintiff lost the right to request a nonsuit.

266 Va. at 332. Thus, once a dispositive issue is submitted, the plaintiff’s statutory right to a

nonsuit is extinguished, regardless of how the request is styled or conditioned.

Adkison argues that the circuit court erred by granting Giandoni a voluntary nonsuit after

Giandoni “cho[se] to submit the action for decision” on the motion to dismiss and requested a

nonsuit only in the alternative. Adkison contends that Virginia law “does not allow a plaintiff to

brief and submit a dispositive motion to the [c]ourt for decision and at the same time request a

nonsuit if the [c]ourt finds against them.” This Court agrees.

-4- In response to Adkison’s motion to dismiss, Giandoni did not unreservedly exercise her

right to nonsuit. Instead, Giandoni invited the circuit court to rule on the merits of the motion to

dismiss and only requested the nonsuit “in the alternative” if she lost on the dispositive issue.

Under Code § 8.01-380(A), a plaintiff can exercise the right to a nonsuit before “submitt[ing

the action] to the court for decision.” Therefore, “a party will not be permitted to take a nonsuit

‘unless [doing] so . . . before the action has been submitted to the court for decision.’” Atkins, 266

Va. at 331 (emphasis added). An action is “submitted” when “the parties . . . have yielded the issues

to the court for consideration and decision.” Id.; see also Anheuser-Busch Companies v. Cantrell,

289 Va. 318, 319 (2015) (“[T]he circuit court erred in granting Cantrell’s motion for nonsuit after

the parties had completed their briefing and argument on the demurrers. Neither the parties nor the

court anticipated any further proceedings on the demurrers, which hence were committed to the

court for its ruling. Thus, the case was ‘in the hands of the trial judge for final disposition’ at the

time of Cantrell’s motion.” (internal citation omitted)); Moore v. Moore, 218 Va. 790, 795-96

(1978) (holding the yielding of the issues to the court can be accomplished “either as the result of

oral or written argument, formal notice and motion, or by tendering a jointly endorsed sketch for a

decree (or in the case of disagreement over the form, two separate drafts upon notice and motion)”).

Therefore, once argument and briefing on dispositive motions have been submitted to the trial court

for resolution, the case may no longer be nonsuited while those matters remain under advisement

“in the hands of the trial judge for final disposition.” Cantrell, 289 Va. at 319 (quoting Coston, 272

Va. at 493).5

5 This bar to nonsuit is not always permanent. If the court rules on a dispositive motion with finality—such as by making a determination of liability or nonliability—the right to a nonsuit as to that claim is ended. By contrast, if the dispositive motion is denied or its resolution leaves open the opportunity for further action (e.g., to cure a procedural deficiency), the temporary bar to nonsuit is lifted. See Bremer v. Doctor’s Bldg. Pshp., 251 Va. 74, 80 (1996) (holding that a nonsuit was not barred by Code § 8.01-380(A) because the trial court’s interpretation of a contract provision “did not resolve any issue of liability”). -5- Here, Giandoni did not unequivocally exercise her right to nonsuit. Instead, she opposed

Adkison’s motion to dismiss on the merits, while asserting in the alternative she should be allowed

to nonsuit if the court found service defective. By inviting the court to rule on the merits, Giandoni

relinquished the right to maintain a nonsuit thereafter. Code § 8.01-380(A) draws a firm line: a

plaintiff must elect either to nonsuit or to submit the matter for decision. Once briefing and

argument on a dispositive issue are concluded and the court takes the matter under advisement, the

case is no longer eligible for nonsuit. Cantrell, 289 Va. at 319.

The statute contains no exception permitting a nonsuit “in the alternative” after requesting

judgment on the merits. The statute forbids precisely what Giandoni sought: a nonsuit after having

lost the merits of the case. By asking the circuit court to grant a nonsuit as alternative relief only if

it found service defective, Giandoni “yielded the issue[] to the court for consideration and decision.”

Coston, 272 Va. at 494 (quoting Atkins, 266 Va. at 331). In doing so, she lost the right to nonsuit by

the time she chose to exercise it, i.e., when the circuit court rendered judgment.

Giandoni argues the trial court could consider both her nonsuit “in the alternative” and

Adkison’s motion to dismiss and rule simultaneously thereon based on Liddle v. Phipps, 263 Va.

391 (2002). The facts and procedural posture in Liddle, however, materially differ from those in the

instant case. In Liddle, “the trial court ordered Phipps to respond to discovery requests propounded

by Liddle and provided an escalating series of sanctions for failure to do so.” 263 Va. at 394-95.

“The trial court further ordered that if Phipps failed to completely and accurately respond to

Liddle’s discovery requests by November 2, 2000, Phipps’[s] ‘action shall be dismissed with

prejudice, which dismissal this Court finds to be an appropriate sanction in accordance with Rule

4:12 and other applicable Virginia law.’” Id. at 393. “[T]he last provision in the trial court’s order

stated, ‘and this action is continued.’” Id. at 395. Phipps failed to comply timely with the court’s

order and instead, moved for a nonsuit on November 29, 2000, which the trial court granted. Id. at

-6- 393-94. In affirming the trial court, the Supreme Court explained that “[w]hen the trial court

simultaneously considered the motion for entry of a dismissal order and the motion for entry of an

order of nonsuit, the dismissal issue had not been decided or previously submitted to the court for

decision.” Id. at 396. In this case, unlike in Liddle, the parties had submitted Adkison’s motion to

dismiss to the trial court for a final decision. Liddle is inapposite because, in that case, the trial court

merely indicated what it intended to do if Phipps failed to comply with a discovery order, but Liddle

had not actually moved for dismissal prior to Phipps’s nonsuit. Id. at 393.

Likewise, the circuit court’s reliance on Berry in granting Giandoni’s nonsuit was

misplaced. In Berry, the defendant moved to set aside a default judgment on a warrant in debt for

defective service of process. 271 Va. at 331. The general district court granted the defendant’s

motion and vacated the default judgment as “void for lack of jurisdiction.” Id. The plaintiff then

moved for a nonsuit and the defendant moved to dismiss the action, arguing that service of process

was untimely. Id. at 331-32. The general district court granted the plaintiff a nonsuit, and the

circuit court affirmed. Id. at 332. The Supreme Court affirmed the nonsuit order, explaining that “a

plaintiff has a right to a voluntary nonsuit even though proper service of process has not been made

upon the defendant.” Id. at 333.

Under the Supreme Court’s holding in Berry, a plaintiff’s failure to effect proper service on

a defendant does not, by itself, preclude the plaintiff from exercising the right to a voluntary nonsuit.

Id. Nevertheless, the plaintiff must exercise this right “before the action has been submitted to the

court for decision.” Code § 8.01-380(A).6 In Berry, the Supreme Court noted that “none of the

6 A contrary interpretation allowing every litigant to hedge their bets by asserting a conditional nonsuit when confronted with the prospect of a dispositive ruling would turn most final rulings into merely advisory ones, and undermine judicial economy and finality as promoted by Rule 1:1(b):

Unless otherwise provided by rule or statute, a judgment, order, or decree is final if it disposes of the entire matter before the court, -7- specified statutory events that would preclude a nonsuit had occurred” when the plaintiff moved for

a nonsuit. 271 Va. at 333. In particular, the defendant had not yet sought dismissal of the action

when the plaintiff moved for a nonsuit. Id. In contrast to Berry, where the plaintiff sought a nonsuit

before the defendant even raised a dismissal motion, here Giandoni litigated the dispositive issue

and only sought a nonsuit as a fallback—precisely what Code § 8.01-380 prevents. By requesting a

decision on the merits of the motion, a “specified statutory event[] that would preclude a nonsuit

had occurred,” and Giandoni could no longer exercise her right to a nonsuit. Id.; see also Coston,

272 Va. at 494; Atkins, 266 Va. at 331-32.

CONCLUSION

The circuit court erred in granting Giandoni a conditional nonsuit after the action had

been submitted for decision. This Court therefore reverses the judgment of the trial court and

remands for entry of an order dismissing the case with prejudice.7

Reversed, remanded, and final judgment.

including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court’s judgment, order, or decree.

This would also be contrary to the will of the General Assembly plainly expressed in Code § 8.01-380(A). Allowing conditional nonsuits after submission to dispositive rulings would encourage strategic delay and undercut judicial efficiency by permitting relitigation after full judicial engagement with the merits. The Supreme Court of Virginia has noted the nonsuit “is a powerful tactical weapon in the hands of the plaintiff” but subject to “several conditions to give balance to the exercise of that right.” Trout v. Commonwealth Transp. Comm’r of Va., 241 Va. 69, 73 (1991). Requiring assertion of the nonsuit before a case or claim is submitted for dispositive ruling is one of those clearly specified conditions. 7 Adkison also argues that the circuit court erred by granting her motion to dismiss and granting Giandoni a nonsuit in the same order. In reversing this order on other grounds, this Court need not address this argument, because the “doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” Heald v. Rappahannock Elec. Coop., 80 Va. App. 53, 72 n.7 (2024) (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015)). -8-