Present: All the Justices 

ANNA LAMBERT, ADMINISTRATRIX AND 

PERSONAL REPRESENTATIVE OF THE 

ESTATE OF JERRY LEE LAMBERT, DECEASED 

v. Record No. 060935 OPINION BY JUSTICE ELIZABETH B. LACY 

 March 2, 2007 

MUHAMMAD R. JAVED, M.D., ET AL. 

FROM THE CIRCUIT COURT OF RUSSELL COUNTY 

Michael L. Moore, Judge 

 In this appeal we consider whether the trial court 

correctly dismissed the motion for judgment because of a prior 

final order dismissing the same cause of action with prejudice 

based on a plea to the statute of limitations. 

On April 22, 2001, Jerry Lee Lambert was injured after 

falling from an all-terrain vehicle. Mr. Lambert was admitted 

to Clinch Valley Medical Center (Clinch Valley) and treated by 

Doctors Muhammad R. Javed and Shireen A. Brohi. Mr. Lambert 

was subsequently transferred to Johnston Memorial Hospital, 

where he underwent surgery. Mr. Lambert continued to 

experience problems after he was discharged, and was examined 

by Dr. Javed, although this time at the offices of the Merit 

Medical Group. Mr. Lambert was then readmitted to Clinch 

Valley, where he was again treated by Doctors Javed and Brohi, 

and also by Dr. Mario Stefanini. Mr. Lambert remained at 

Clinch Valley for several days, and died on May 8, 2001. 
2

On April 18, 2003, Anna Lambert (Lambert), as 

Administratrix and Personal Representative of the Estate of 

Jerry Lee Lambert, instituted a lawsuit in Buchanan County 

against various doctors who treated Mr. Lambert, the Merit 

Medical Group, and Clinch Valley (Case 1).*

 In this action, 

Lambert brought wrongful death and breach of warranty claims 

related to Mr. Lambert's death.

On August 22, 2003, while Case 1 was still pending, 

Lambert filed a second action in Buchanan County against the 

parties named in Case 1, adding as defendants Dr. Radoslav S. 

Nicholas and Diana F. Taylor, R.T. (Case 2). Like Case 1, 

Case 2 pled wrongful death and breach of warranty claims, and 

an additional claim for negligent hiring and supervision.

 On June 8, 2004, while both Case 1 and Case 2 were 

pending, Lambert took a voluntary nonsuit of Case 1 pursuant 

to Code § 8.01-380. Then, on November 29, 2004, Lambert filed 

a motion for judgment in the Circuit Court of Russell County, 

pursuant to the tolling provisions of Code § 8.01-229(E)(3) 

(Case 3). Case 3 did not include Merit Medical Group as a 

defendant, but was otherwise identical to Case 1. 

 *

 The following parties were named as defendants in Case 

1: Doctors Javed, Brohi, and Stefanini, the entities doing 

business as the Merit Medical Group, and HCA – The Healthcare 

Company and Galen-Med, Inc., both doing business as Clinch 

Valley Medical Center. 
3

 While Case 3 was pending, the defendants in Case 2 filed 

pleas of the statute of limitations and Lambert moved for a 

nonsuit. Following briefing and argument of counsel, the 

court, in a letter opinion, stated that Lambert was entitled 

to a nonsuit but, because Case 2 was barred by the statute of 

limitations, the court could not consider the nonsuit request 

further. The court then entered an order dismissing Case 2 

with prejudice. Lambert objected to the court's failure to 

grant a nonsuit but did not appeal that order.

Following the dismissal with prejudice of Case 2, the 

defendants filed pleas of res judicata in Case 3, arguing that 

the dismissal order in Case 2 adjudicated Lambert's claim 

against them and, therefore, Case 3 was barred. The trial 

court sustained the defendants' pleas, and dismissed Case 3 

with prejudice. We awarded Lambert an appeal. 

DISCUSSION 

 "[A]s a general proposition a judgment of dismissal which 

expressly provides that it is 'with prejudice' operates as res 

judicata and is as conclusive of the rights of the parties as 

if the suit had been prosecuted to a final disposition adverse 

to the plaintiff." Virginia Concrete Co. v. Board of 

Supervisors, 197 Va. 821, 825, 91 S.E.2d 415, 418 

(1956)(citing E.H. Schopflocher, Annotation, Provision that 

Judgment is "Without Prejudice" or "With Prejudice" as 
4

Affecting its Operation as Res Judicata, 149 A.L.R. 553-63 

(1944)). A dismissal with prejudice extinguishes the 

viability of the plaintiff's claim against the dismissed 

party, even though the dismissal may not be based on an 

adjudication of the merits of the cause of action. Hughes v. 

Doe, 273 Va. 45, ___, ___ S.E.2d ___ , ___(2007); Gilbreath v. 

Brewster, 250 Va. 436, 440, 463 S.E.2d 836, 837 (1995). 

Accordingly, when the order in Case 2 dismissing Lambert's 

wrongful death claim against the defendants with prejudice 

became final, that claim was extinguished. Moreover, in a 

wrongful death action, the limitations period is a substantive 

element of that claim. Riddett v. Virginia Electric and Power 

Co., 255 Va. 23, 28, 495 S.E.2d 819, 821-22 (1998). Thus, the 

dismissal with prejudice of Case 2 on the basis of the statute 

of limitations was an adjudication on a substantive element of 

the cause of action, thereby directly supporting the doctrine 

of res judicata. 

Nevertheless, Lambert argues that the dismissal order in 

Case 2 should not be afforded a preclusive effect in this case 

because to do so would elevate the policy of res judicata over 

the legislative policy assuring a litigant a right to a 

nonsuit and the accompanying right to refile the suit under 

the tolling provisions. Code §§ 8.01-380, -229(E)(3). We 

reject this argument. 
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The conflict in policies suggested by Lambert does not 

exist. The policy underlying the nonsuit and tolling 

provisions simply allows a plaintiff to avoid forfeiture of 

his ability to have his claim heard provided he meets certain 

time limitations in refiling his previously nonsuited action. 

Indeed, Lambert received the benefit of this policy when she 

timely filed Case 3. The policy underlying both the res 

judicata doctrine and a dismissal with prejudice is that when 

a plaintiff's claim against a defendant has been resolved 

adversely to the plaintiff, whether on the merits or because 

of another bar to recovery such as sovereign immunity or the 

statue of limitations, the plaintiff is not allowed to subject 

the defendant to repetitive litigation on the same, previously 

resolved claim. See Bates v. Devers, 214 Va. 667, 670, 202 

S.E.2d 917, 920 (1974)("[R]es judicata rests upon 

considerations of public policy which favor certainty in the 

establishment of legal relations, demand an end to litigation, 

and seek to prevent the harassment of parties.") (citations 

omitted). Accordingly, these policies are not in conflict and 

their application, although ultimately unfavorable to Lambert 

in this case, was appropriate here. 

For the above reasons we will affirm the judgment of the 

trial court. 

Affirmed.
6

JUSTICE KOONTZ, with whom JUSTICE LEMONS joins, dissenting. 

 I respectfully dissent. In the particular procedural 

background from which this appeal arises, the application of 

the bar of res judicata by the trial court and the majority 

here effectively defeats the pertinent statutory scheme that 

provides a right to a nonsuit under Code § 8.01-380 and in 

combination with the related statutes ensures the resolution 

of an underlying claim on its merits. 

 The majority accurately recites the procedural background 

of this case and the details of the various allegations in the 

actions filed by Anna Lambert (Lambert), as Administratrix and 

Personal Representative of the Estate of Jerry Lee Lambert, 

against the appellees. I will not extend the length of this 

opinion unnecessarily by repeating these aspects of the case 

here. It suffices to note that each of the actions in 

question were wrongful death actions brought under Code 

§ 8.01-50 and may be appropriately designated and referenced, 

as the majority has done, as Case 1, Case 2, and Case 3. 

 Jerry Lee Lambert died on May 8, 2001, and thereafter, on 

April 18, 2003, Lambert timely filed Case 1 in the Circuit 

Court of Buchanan County. See Code § 8.01-244(B) (wrongful 

death action under Code § 8.01-50 shall be brought by personal 

representative within two years of death of injured person). 

Pursuant to Code § 8.01-380, Lambert suffered a voluntary 
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nonsuit of Case 1 on June 8, 2004. Subsequently, on November 

29, 2004, she filed Case 3 in the Circuit Court of Russell 

County. See Code § 8.01-229(E)(3) (plaintiff may recommence 

action within six months of entry of nonsuit order). 

 Beyond question, Case 3 was timely filed and properly 

before the Circuit Court of Russell County pending a 

resolution on its merits. See Code § 8.01-244(B)(if plaintiff 

suffers nonsuit of a Code § 8.01-50 action, provisions of Code 

§ 8.01-229(E)(3) shall apply to nonsuited action). There is 

no ambiguity in the statutory scheme embodied in these 

statutes. In combination, these statutes permitted Lambert to 

timely file Case 3 on November 29, 2004 – more than two years 

after the May 8, 2001 death of Jerry Lee Lambert – because 

that time limitation contained in Code § 8.01-244(B) was 

tolled during the pendency of Case 1 and effectively extended 

by Code § 8.01-229(E)(3) upon the filing of Case 3 within six 

months of the entry of the nonsuit order in Case 1. 

 However, on August 22, 2003, Lambert filed Case 2 in the 

Circuit Court of Buchanan County.∗

 Case 2 was not timely filed 

because August 22, 2003 was more than two years from the date 

 ∗

 As the majority indicates, the principal difference 

between the wrongful death claim alleged in Case 2 and that 

alleged in Case 1 and Case 3 was the addition of several 

defendants against whom Lambert asserted a wrongful death 

claim. These additional defendants are not parties in this 

appeal. 
8

of Jerry Lee Lambert’s death on May 8, 2001. Accordingly, on 

May 5, 2005, the court properly entered an order, consistent 

with its letter opinion, which provided that “this action is 

dismissed with prejudice as barred by the statute of 

limitations [contained in Code § 8.01-244(B)].” In this 

procedural context, the continuing viability of Case 3 was not 

an issue under consideration or addressed by this order. Case 

3 was subsequently challenged as barred by the dismissal of 

Case 2 “with prejudice” under pleas of res judicata. 

 I do not disagree with the majority’s recitation of the 

general principles regarding the usual preclusive effect of a 

dismissal “with prejudice” and the resulting invocation of the 

doctrine of res judicata. I disagree with the majority’s 

application of these principles in this case to support the 

conclusion that the dismissal of Case 2 “with prejudice” based 

on the expiration of the time limitations in Code § 8.01-

244(B) was a final judgment on the merits of Lambert’s 

wrongful death claim and, therefore, extinguished Lambert’s 

cause of action so as to bar Case 3 under principles of res 

judicata. 

In the abstract, it is a time-honored proposition that a 

procedural dismissal such as a dismissal on statute of 

limitations grounds may constitute an adjudication on the 

merits of an underlying claim so as to extinguish a cause of 
9

action. However, we have recognized that a dismissal “with 

prejudice” is not always an adjudication on the merits of the 

case. Shutler v. Augusta Health Care for Women, P.L.C., 272 

Va. 87, 93, 630 S.E.2d 313, 316 (2006); Reed v. Liverman, 250 

Va. 97, 100, 458 S.E.2d 446, 447 (1995). Instead, the words 

“with prejudice” in a court order must be considered in light 

of the circumstances in which they are used. Accordingly, 

depending on the circumstances, a dismissal “with prejudice” 

based on the statute of limitations may not equate to an 

adjudication on the merits of the underlying cause of action. 

In the present case, the Circuit Court of Buchanan County 

explained in its opinion letter the circumstances pertinent to 

the dismissal “with prejudice” language in its order regarding 

Case 2. The court stated specifically that Case 2 was barred 

by the statute of limitations contained in Code § 8.01-244(B) 

because Case 2 was filed more than two years after the death 

of the injured person. The court entered this order on May 5, 

2005, long after Case 3 had been recommenced on November 29, 

2004 in the Circuit Court of Russell County as permitted by 

the applicable statutory scheme. Under these circumstances, 

in my view, it strains reason to conclude that the court in 

dismissing Case 2 “with prejudice” intended to do anything 

more than adjudicate that Case 2 was time barred and, 
10

therefore, was not adjudicating the merits of the underlying 

cause of action. 

 When the order in Case 2 is considered in this light, it 

was not an adjudication on the merits of Lambert’s wrongful 

death claim. Accordingly, it is clear under the applicable 

statutory scheme permitting Lambert to nonsuit Case 1 and 

recommence Case 3, that res judicata is not applicable so as 

to bar Case 3. For these reasons, I would reverse the 

judgment of the Circuit Court of Russell County and permit 

Case 3 to go forward to a determination on its merits. 

JUSTICE KINSER, with whom JUSTICE AGEE joins, concurring. 

 I agree with the majority opinion except in one aspect. 

The majority states, “A dismissal with prejudice extinguishes 

the viability of the plaintiff’s claim against the dismissed 

party, even though the dismissal may not be based on an 

adjudication of the merits of the cause of action.” In my 

view, a dismissal with prejudice not only extinguishes the 

viability of a plaintiff’s claim but also 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.” Dalloul v. Agbey, 255 Va. 511, 514, 499 S.E.2d 

279, 281 (1998) (emphasis added); Hughes v. Doe, 273 Va. 45, 

50, ___ S.E.2d ___, ___ (2007) (Kinser, J., dissenting). 
11

 For this reason, I respectfully concur.