Present: All the Justices

INOVA HEALTH CARE SERVICES,

d/b/a INOVA FAIRFAX HOSPITAL, ET AL.

v. Record No. 112070 OPINION BY JUSTICE DONALD W. LEMONS

September 14, 2012

ADEL S. KEBAISH, M.D.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Jan L. Brodie, Judge

In this appeal, we consider whether the Circuit Court of 

Fairfax County erred in allowing the plaintiff to take a 

nonsuit as a matter of right pursuant to Code § 8.01-380(B) 

based on its determination that the plaintiff's prior voluntary 

dismissal in federal court was not a nonsuit under Code § 8.01-

380. 

I. Facts and Proceedings Below

Adel S. Kebaish ("Dr. Kebaish"), a private practice 

orthopedic/spine surgeon, entered into a Professional Services 

Agreement (the "Agreement") with INOVA Fairfax Hospital to 

provide "on-call" trauma services on a "non-exclusive basis." 

Pursuant to the Agreement, both parties had the express right 

to terminate the Agreement without cause upon ninety days 

written notice. INOVA Fairfax Hospital exercised this right in 

November 2009.

In June 2010, Dr. Kebaish filed a complaint (the 

"complaint") in the Circuit Court of Fairfax County against 

INOVA Health Care Services d/b/a INOVA Fairfax Hospital; Mark 
2

M. Theiss, M.D. ("Theiss"); Robert A. Hymes, M.D. ("Hymes");

Cary C. Schwartzbach, M.D. ("Schwartzbach"); Jeffrey E. 

Schulman, M.D. ("Schulman"); Alireza S. Malekzadeh, M.D.

("Malekzadeh"); L. Reuven Pasternak, M.D. ("Pasternak");

Patrick L. Christiansen, Ph.D. ("Christiansen"); Elizabeth 

Davies, P.A. ("Davies"); Ryan D. Westbrook, P.A. ("Westbrook");

Katherine Brown, P.A.; Emily L. Cusimano, P.A. ("Cusimano");

John Paik, M.D.1; and Scott B. Shawen, M.D. ("Shawen"). 

Specifically, Dr. Kebaish's nine-count complaint alleged:

Count I – defamation and defamation per se;

Count II – breach of contract;

Count III - tortious interference with existing

 contract and/or business relationships

 and business expectancy;

Count IV – common law conspiracy;

Count V – statutory conspiracy to injure Dr.

 Kebaish in violation of Code 

 §§ 18.2-499 and -500;

Count VI – wrongful termination in violation of

 the Virginia Consumer Protection Act; 

Count VII – wrongful termination in violation of

 the Virginia Antitrust Act;

Count VIII – wrongful termination in violation of

 the Virginia Fraud Against Taxpayers 

 Act; and

Count IX – unjust enrichment.

 1 Dr. Kebaish's complaint incorrectly referred to Haines 

Paik ("Paik") as "John Paik."
3

Dr. Kebaish sought $35 million in compensatory damages as well 

as punitive damages, attorneys' fees, expert witness' fees, and 

other costs.

Paik and Shawen, both officers in the United States Army 

and named defendants in the complaint, were alleged by Dr. 

Kebaish to have acted in their respective individual capacities 

and outside the scope of their respective employments. As a 

result, the case was removed on behalf of the United States of 

America by the United States Attorney to the United States 

District Court for the Eastern District of Virginia ("federal 

court"). The United States Attorney submitted certifications

stating that Paik and Shawen were "acting within the scope of 

[their respective] office[s] or employment[s] as . . .

employee[s] of the United States of America at the time of the 

incidents out of which [Dr. Kebaish's] claims arise."

Thereafter, the federal court entered a consent order 

granting Dr. Kebaish leave to file an amended complaint 

relating back to the original filing date in the Circuit Court 

of Fairfax County. In August 2010, Dr. Kebaish filed his 

amended complaint in federal court against INOVA Health Care 

Services d/b/a INOVA Fairfax Hospital, Theiss, Hymes, 

Schwartzbach, Schulman, Malekzadeh,2 Pasternak, Christiansen, 

 2 This defendant's last name was spelled "Malekzadah" in 

the amended complaint.
4

Davies, Westbrook, Kathryn Battle,3 and Cusimano (collectively, 

"INOVA" or the "Defendants"). The amended complaint did not 

name Paik or Shawen as parties; contained the same nine counts 

alleged in the initial complaint filed in the trial court, as 

well as a new tenth count for negligent retention; and sought 

to recover the same damages as requested in the initial 

complaint.

In September 2010, Dr. Kebaish filed a "Notice of 

Voluntary Dismissal" in the federal court prior to INOVA filing 

an answer to the amended complaint. Pursuant to Federal Rule 

of Civil Procedure 41(a)(1)(A)(i) ("Federal Rule 

41(a)(1)(A)(i)"), Dr. Kebaish voluntarily dismissed his lawsuit 

without prejudice.

Dr. Kebaish then filed a complaint against INOVA in the 

Circuit Court of Fairfax County ("trial court") in October 

2010. In response, INOVA filed a demurrer, which was sustained 

in part and overruled in part in December 2010. 

Thereafter, Dr. Kebaish filed an amended complaint in the

trial court in January 2011, in which he named the same 

defendants as had been named in the amended complaint filed in 

 3 In the consent order entered by the federal court, "[t]he 

parties also agree[d] to the substitution of Kathryn Battle for 

named Defendant Katherine Brown, which corrects a misspelling 

of Ms. Battle's first name and reflects Ms. Battle's legal, 

married name."
5

the federal court in August 2010.4 Specifically, the six-count 

amended complaint alleged:5

Count I – defamation and defamation per se

 against all of the Defendants;

Count II – breach of contract against INOVA 

 Fairfax Hospital;

Count III - tortious interference with existing 

 contract and/or business 

 relationships and business expectancy 

 against all of the Defendants;

Count IV – common law conspiracy against all of 

 the Defendants;

Count V – statutory conspiracy to injure Dr. 

 Kebaish against all of the Defendants; 

 and

Count VI – unjust enrichment against INOVA 

 Fairfax Hospital.

Dr. Kebaish sought $35 million in compensatory damages as well 

as punitive damages. Additionally, he sought reimbursement of 

his attorneys' fees, expert witness' fees, and other costs.

The case proceeded to a jury trial in September 2011, and 

Dr. Kebaish informed the trial court on the second day of trial 

that he had "elected to use [his] nonsuit" because he "ha[d] 

 4 The amended complaint filed in the trial court was the 

operative complaint at the time the trial court granted Dr. 

Kebaish's motion for a voluntary nonsuit pursuant to Code 

§ 8.01-380. 5 The amended complaint did not allege wrongful termination 

under the Virginia Consumer Protection Act, the Virginia 

Antitrust Act, or the Virginia Fraud Against Taxpayers Act. 

Moreover, the amended complaint did not allege a claim for 

negligent retention.
6

not nonsuited previously." INOVA objected, arguing to the 

trial court that this Court stated in dicta in Welding, Inc. v. 

Bland County Service Authority, 261 Va. 218, 223-24, 541 S.E.2d 

909, 912 (2001), that a voluntary dismissal under Rule 

41(a)(1)(A)(i) in federal court is equivalent to a nonsuit 

under Code § 8.01-380(B). Therefore, INOVA argued, Dr. Kebaish 

had already effectively taken a nonsuit based on his voluntary 

dismissal of his action in federal court.

The trial court overruled INOVA's objection, concluding 

that neither Welding nor Code § 8.01-380 provides that a 

voluntary dismissal taken in federal court bars a future 

nonsuit in state court. Consequently, the trial court 

permitted Dr. Kebaish to take a nonsuit as a matter of right 

pursuant to Code § 8.01-380(B).

INOVA timely filed its petition for appeal, and we granted 

INOVA's appeal on the following assignment of error:

The trial court erred when it ruled that Virginia's 

nonsuit statute, Va. Code § 8.01-380(B), required it to 

grant [Dr. Kebaish's] motion for nonsuit as a matter of 

right based on its determination that Respondent's prior 

voluntary dismissal of his cause of action in federal 

court was not a nonsuit under the statute.

II. Analysis

A. Standard of Review

Well-settled principles of statutory review guide our 

analysis in this case.
7

[A]n issue of statutory interpretation is a pure 

question of law which we review de novo. When 

the language of a statute is unambiguous, we are 

bound by the plain meaning of that language. 

Furthermore, we must give effect to the 

legislature’s intention as expressed by the 

language used unless a literal interpretation of 

the language would result in a manifest 

absurdity. If a statute is subject to more than 

one interpretation, we must apply the 

interpretation that will carry out the 

legislative intent behind the statute.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 

104, 639 S.E.2d 174, 178 (2007) (citations omitted).

B. Code § 8.01-380(B)

The Virginia General Assembly enacted the first nonsuit 

statute in 1789, which applied only to actions at law tried by 

a jury. See 1789 Acts ch. 28. Section 10 of "An ACT 

concerning Jeofails and certain Proceedings in civil Cases" 

provided that "[e]very person desirous of suffering a nonsuit 

on trial, shall be barred therefrom, unless he do so before the 

jury retire from the bar." Id.

The statute remained substantially similar until it was 

amended (then codified as Code § 6256) in 1932 to provide:

A party shall not be allowed to suffer a nonsuit, unless he do so before the jury retire from 

the bar. And after a non-suit no new proceeding 

on the same cause of action shall be had in any 

court other than that in which the non-suit was 

taken, unless that court is without jurisdiction, 

or not a proper venue, or other good cause be 

shown for proceeding in another court.

1932 Acts ch. 30.
8

Thereafter, in 1954, the first sentence of the statute 

(then codified as Code § 8-220) was amended as follows:

A party shall not be allowed to suffer a nonsuit 

unless he do so before the jury retire from the 

bar or before the suit or action has been 

submitted to the court for decision or before a 

motion to strike the evidence has been sustained 

by the court.

1954 Acts ch. 333 (emphasis added).

By including the word "suit" in the 1954 amendment, "the 

General Assembly changed the existing equity general rule and 

provided for a voluntary dismissal as a matter of right only up 

to the time the suit had been 'submitted' to the chancellor for 

decision." Moore v. Moore, 218 Va. 790, 795, 240 S.E.2d 535, 

538 (1978). Accordingly, "in a nonjury trial, at law or in 

equity . . . a nonsuit or dismissal without prejudice may not 

occur as a matter of right after the 'suit or action has been 

submitted to the court for decision.' " Id. (quoting former 

Code § 8-220 (Supp. 1954)). We have previously recognized that 

the General Assembly, in adopting the 1954 amendment, "intended 

the statutory term 'nonsuit' to be used in a comprehensive 

sense (i.e., voluntary termination by the plaintiff of pending 

litigation not precluding a later lawsuit upon the same cause 

of action), whether it be a nonsuit at law or a dismissal 

without prejudice in equity." Id. at 795 n.4, 240 S.E.2d at 

538 n.4. "This same comprehensive interpretation of the term 
9

[nonsuit] has been carried forward to the new nonsuit statute." 

Id. See also Code § 8.01-380.

In Virginia, a plaintiff may take one nonsuit as a matter 

of right. Code § 8.01-380(B). Code § 8.01-380(B) states, in 

relevant part, that "[o]nly one nonsuit may be taken to a cause 

of action or against the same party to the proceeding, as a 

matter of right." This right must be exercised "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). By 

contrast, a plaintiff in federal court may take a voluntary 

dismissal as a matter of right pursuant to Federal Rule 

41(a)(1)(A)(i) "before the opposing party serves either an 

answer or a motion for summary judgment." Fed. R. Civ. P. 

41(a)(1)(A)(i).

In discussing the benefit conferred upon a plaintiff in 

taking a nonsuit as a matter of right pursuant to Code § 8.01-

380(B), we have previously stated: 

The right to take a nonsuit on the eve of 

trial, notwithstanding a defendant's loss of time 

and expense incurred in preparation, and 

notwithstanding any disruption which may result 

to the court's docket, is a powerful tactical 

weapon in the hands of a plaintiff. The General 

Assembly has provided, in Code § 8.01-380, 

several conditions to give balance to the 

exercise of that right. Nonsuit remains, 

however, distinctly a weapon in the arsenal of a 

plaintiff.
10

Trout v. Commonwealth Transp. Comm'r of Va., 241 Va. 69, 73, 

400 S.E.2d 172, 174 (1991). By contrast, in discussing the 

purpose of a voluntary dismissal, the United States Court of 

Appeals for the Third Circuit stated that: 

[w]hile it is quite true that the practice in 

many states has permitted a voluntary non-suit as 

of right at advanced stages in the litigation, 

sometimes even after submission of a case to a 

jury, we think the object of the federal rules 

was to get rid of just this situation and put 

control of the matter into the hands of the trial 

judge.

Ockert v. Union Barge Line Corp., 190 F.2d 303, 304 (3d Cir. 

1951) (emphasis added).

Although a voluntary dismissal and a nonsuit provide a 

plaintiff with a similar procedural right, the exercise of that 

right varies significantly. Compare Fed. R. Civ. P. 

41(a)(1)(A)(i), with Code § 8.01-380(B). In federal procedure, 

a voluntary dismissal as a matter of right is available only if 

exercised at the outset of the proceeding; whereas, use of a 

nonsuit under Code § 8.01-380(A) may be exercised much later in 

the proceeding – even at trial. Accordingly, the right to take 

a nonsuit pursuant to Code § 8.01-380(B) in a Virginia state 

court is much more expansive than the right to a voluntary 

dismissal pursuant to Federal Rule 41(a)(1)(A)(i) in federal 

court.
11

Code § 8.01-380 does not address what impact, if any, a 

plaintiff's prior voluntary dismissal in federal court may have 

on that plaintiff's right to take a nonsuit as a matter of 

right. INOVA contends that Dr. Kebaish is barred from taking a 

nonsuit as a matter of right pursuant to Code § 8.01-380 due to 

his prior voluntary dismissal in federal court. INOVA argues 

that Code § 8.01-229(E)(3) "calls for a [voluntary] dismissal 

in federal court to be treated as 'a voluntary nonsuit 

prescribed in § 8.01-380.' "

Code § 8.01-229(E)(3) provides that:

If a plaintiff suffers a voluntary nonsuit as 

prescribed in § 8.01-380, the statute of 

limitations with respect to such action shall be 

tolled by the commencement of the nonsuited 

action, and the plaintiff may recommence his 

action within six months from the date of the 

order entered by the court, or within the 

original period of limitation, or within the 

limitation period as provided by subdivision B 1, 

whichever period is longer. This tolling 

provision shall apply irrespective of whether the 

action is originally filed in a federal or a 

state court and recommenced in any other court, 

and shall apply to all actions irrespective of 

whether they arise under common law or statute.

Code § 8.01-229(E)(3) does not confirm or suggest that a 

voluntary dismissal taken pursuant to Federal Rule 

41(a)(1)(A)(i) is a nonsuit for purposes of Code § 8.01-380. 

Rather, the plain language of Code § 8.01-229(E)(3)

demonstrates that the reference to actions originally filed in 
12

federal court applies only to the application of the tolling 

provision. Code § 8.01-229(E)(3).

Additionally, INOVA argues that our decision in Welding

bars Dr. Kebaish from taking a nonsuit as a matter of right 

because of his prior voluntary dismissal in federal court. 

However, "[t]he term 'nonsuit' identifies a specific practice 

used in Virginia civil procedure." Welding, 261 Va. at 223-24, 

541 S.E.2d at 912. Although we previously stated that 

"[f]ederal court practice does not include a procedure labeled 

a 'nonsuit,' but does recognize procedures which are 

substantially equivalent to Virginia's nonsuit," this 

observation does not resolve the question presented here. Id.

at 224, 541 S.E.2d at 912. See also Fed. R. Civ. P. 41. A

nonsuit is only the functional equivalent to a voluntary 

dismissal to the extent that both a nonsuit and a voluntary 

dismissal provide a plaintiff with a method to voluntarily 

dismiss the suit up until a specified time in the proceeding.

III. Conclusion

We hold that the trial court did not err in finding that 

Dr. Kebaish was permitted to take a nonsuit as a matter of 

right pursuant to Code § 8.01-380(B). Accordingly, we will 

affirm the judgment of the trial court.

Affirmed.