PRESENT: All the Justices 

NIZAR M. DALLOUL, ET AL. 

v. Record No. 971416 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 April 17, 1998 

JEAN Y. AGBEY 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jane Marum Roush, Judge 

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, 

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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 

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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 

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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.* See Rules 5:17 and 5:18; 

 *

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. Caudill, 247 Va. 130, 134, 439 S.E.2d 350, 352 

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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 (1964). 

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.

 

(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. Ogden, 226 Va. 234, 236-

37 and n.1, 307 S.E.2d 891, 892 and n.1 (1983). 

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