Present: All the Justices 

CLARENCE C. GILBREATH, ET AL. 

v. Record No. 950178 OPINION BY JUSTICE ELIZABETH B. LACY 

 November 3, 1995 

PAMELA J. BREWSTER, ET AL. 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Paul F. Sheridan, Judge 

 The primary issue in this appeal is whether the dismissal 

of an action pursuant to Supreme Court Rule 3:3 for lack of 

timely service is with or without prejudice. 

 The relevant facts are undisputed. On July 11, 1991, a 

traffic accident occurred involving two vehicles, one driven by 

Pamela J. Brewster and the other driven by Clarence C. 

Gilbreath, an employee of Wells Cargo, Inc. On July 9, 1993, 

Brewster and Victoria Ann Brann, a passenger in the Brewster 

vehicle, filed separate motions for judgment against Gilbreath 

and Wells Cargo alleging that Gilbreath's negligence caused the 

accident and seeking recovery for personal injuries allegedly 

sustained in the accident. Service was obtained on both 

defendants approximately 13 months after the actions were 

filed. 

 Gilbreath and Wells Cargo (collectively "Gilbreath") filed 

responsive pleadings, asserted a counterclaim for property 

damage in the action filed by Brewster, and asserted a thirdparty claim for contribution against Brewster in the action 

filed by Brann. In addition, Gilbreath filed motions to 

dismiss in both cases for failure to effect service within one 

year after commencement of the action pursuant to Rule 3:3. 
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 The trial court heard the two actions together. At the 

hearing on the motions to dismiss, Brewster and Brann requested 

nonsuits. The trial court determined that Brewster and Brann 

had not exercised due diligence in trying to effect service, 

but granted their motions for nonsuits. Gilbreath filed a 

motion for reconsideration, arguing that Brewster and Brann 

were not entitled to nonsuits as a matter of right under Code 

§ 8.01-380 because Gilbreath's counterclaim and third-party 

claim could not be independently adjudicated. The trial court 

agreed and vacated the nonsuit orders. The trial court then 

granted Gilbreath's motions to dismiss pursuant to Rule 3:3 and 

entered orders dismissing the actions without prejudice. 

 Gilbreath appealed the judgments, asserting that dismissal 

of an action pursuant to Rule 3:3 should be with prejudice. 

Brewster and Brann assigned cross-error asserting that they 

were entitled to nonsuit their actions and the trial court 

erred in vacating its orders granting the nonsuits. The cases 

were consolidated for appeal. 

 Rule 3:3 

 Rule 3:3 provides in pertinent part: 

 No judgment shall be entered against a defendant 

who was served with process more than one year after 

the commencement of the action against him unless the 

court finds as a fact that the plaintiff exercised 

due diligence to have timely service on him. 

We have not previously addressed whether this Rule requires 

that dismissal be with prejudice when service on the defendant 
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is not perfected within one year and the trial court finds a 

lack of due diligence by the plaintiff.1

 Brewster and Brann 

(collectively "Brewster") argue that the dismissal under Rule 

3:3 must be without prejudice for two reasons: (1) the 

dismissal is not based on the merits of the claim; and (2) a 

dismissal with prejudice would conflict with Code § 8.01-

229(E)(1), and therefore, the statute must prevail. Clark v. 

Butler Aviation, 238 Va. 506, 511, 385 S.E.2d 847, 850 (1989). 

 These arguments are not well taken, however. 

 First, contrary to Brewster's assertion, not all 

dismissals terminating a cause of action without determining 

the merits are dismissals without prejudice. A dismissal based 

on a plea in bar, such as a plea of sovereign immunity, is a 

dismissal with prejudice. In these circumstances, the ability 

of a plaintiff to pursue a claim against the defendant is 

finally determined, although not on the merits of the 

plaintiff's claim against the defendant. Therefore, a 

 

 1In Dennis v. Jones, 240 Va. 12, 393 S.E.2d 390 (1990), we 

held that the plaintiff did not exercise due diligence in his 

attempts to secure service on the defendant and that the 

defendant was not served within the one year period. While we 

directed that the dismissal under Rule 3:3 be with prejudice, 

id. at 20, 393 S.E.2d at 394, the nature of the dismissal, the 

issue in this case, was not an issue in Dennis. 

 Similarly, in Strickland v. Simpkins, 221 Va. 730, 273 

S.E.2d 539 (1981), the plaintiff asserted that a dismissal under 

Rule 3:3 was without prejudice and qualified for the tolling 

provisions of the then recently enacted Code § 8.01-229(E)(1). 

The court did not address the issue because it concluded that 

Code § 8.01-229(E)(1) did not apply under the circumstances of 

that case. 
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dismissal under Rule 3:3 is not precluded from being a 

dismissal with prejudice even though the merits of the 

plaintiff's claim were not determined. 

 We also reject Brewster's second premise, that a dismissal 

with prejudice conflicts with Code § 8.01-229(E)(1). That Code 

section contains tolling provisions which allow an action, 

previously terminated "without determining the merits," to 

avoid a second dismissal based on a plea of the statute of 

limitations. The statute applies, however, only when the claim 

can be refiled following a dismissal. It is the nature of the 

prior dismissal which determines whether the action remains 

viable. 

 A dismissal with prejudice generally is "as conclusive of 

the rights of the parties as if the suit had been prosecuted to 

a final disposition adverse to the plaintiff," and it not only 

terminates the particular action, "but also the right of action 

upon which it is based." Virginia Concrete Co. v. Board of 

Supervisors, 197 Va. 821, 825, 91 S.E.2d 415, 418 (1956). See

also Reed v. Liverman, 250 Va. 97, 100, 458 S.E.2d 446, 447 

(1995). For example, as discussed above, a dismissal with 

prejudice on the basis of a plea in bar, is conclusive as to 

the rights of those parties, even though the substantive claim 

of the plaintiff has not been litigated on the merits. Thus, 

for purposes of Code § 8.01-229(E)(1), a dismissal with 
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prejudice is a determination on the merits.2

 The claim in that 

situation is no longer viable and the plaintiff does not have a 

right to the tolling provisions of Code § 8.01-229(E)(1). A 

dismissal with prejudice affects only the viability of the 

claim, its ability to be litigated on the merits. Therefore, a 

dismissal with prejudice does not conflict with Code § 8.01-

229(E)(1). 

Clark v. Butler, relied on by Brewster, does not affect 

the above analysis. Clark involved the interplay between Rule 

3:3 and the nonsuit statutes. That statutory scheme is 

significantly different from the single statute under 

consideration here. In Clark, failure to comply with Rule 3:3 

was raised in the first action, but a nonsuit was requested and 

granted. The claim was refiled and the Rule 3:3 violation in 

the first action was again asserted as a basis for dismissal. 

238 Va. at 508, 385 S.E.2d at 847. This Court held that a 

violation of Rule 3:3 in the original action could not be used 

to bar prosecution of the refiled action and, therefore, no 

conflict existed between the Rule and the statutes in issue. 

Id. at 511-12, 385 S.E.2d at 849-50. Nothing in the holding of 

Clark suggests that a conflict would exist between a case 

terminated with prejudice, although not resolved on the merits, 

 

 2A dismissal with prejudice may not always operate as a res

judicata bar to a subsequent action, Virginia Concrete, 197 Va. 

at 825, 91 S.E.2d at 418, but these exceptions are not relevant 

in this case. 
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and Code § 8.01-229(E)(1). 

 Having determined that the arguments presented by Brewster 

do not require that a dismissal under Rule 3:3 be without 

prejudice, we turn to our original consideration -- whether a 

dismissal under Rule 3:3 is with or without prejudice. 

 The Rule itself is silent; however, to allow dismissal 

without prejudice renders the Rule ineffective. The purpose of 

Rule 3:3 is to provide for timely prosecution of lawsuits and 

to avoid abuse of the judicial system. If a dismissal under 

the Rule were without prejudice, a litigant could repeatedly 

file an action without serious attempt to serve the defendant. 

 This practice clearly would be an abuse of the system. To 

sanction this abuse would be particularly offensive because 

dismissal under the Rule requires a determination that the 

plaintiff did not use due diligence in attempting to secure 

service on the defendant. A dismissal without prejudice under 

these circumstances would condone the plaintiff's lack of 

diligent prosecution. 

 Furthermore, if dismissal under Rule 3:3 were without 

prejudice, the tolling provisions of Code § 8.01-229(E)(1) 

could be invoked, allowing repeated filings which effectively 

nullify the statute of limitations and potentially allow 

harassment of the defendant. See W. Hamilton Bryson, Handbook 

on Virginia Civil Procedure, at 99-100 (2d ed. 1989); Leigh B. 

Middleditch, Jr. & Kent Sinclair, Virginia Civil Procedure
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§ 7.12, at 375-79 (2d ed. 1992). If a plaintiff who has 

suffered a dismissal for failure to comply with Rule 3:3 

retains the right to refile the cause of action against the 

previously unserved defendant, both the purpose of Rule 3:3 and 

the statute of limitations are undermined. 

 Accordingly, we conclude that a dismissal under Rule 3:3 

is a dismissal with prejudice and the trial court erred in 

dismissing Brewster's and Brann's actions without prejudice.3

 CROSS-ERROR 

 Code § 8.01-380 gives a plaintiff a statutory right to one 

nonsuit even if a counterclaim or third-party claim is pending, 

if those claims can be independently adjudicated. Brewster 

asserts that Gilbreath's counterclaim was in effect a "nullity" 

and that the third-party claim could be independently litigated 

and, therefore, the trial court erred in vacating its orders 

granting nonsuits in the personal injury actions. We disagree. 

 Rule 3:8 allows a defendant to plead as a counterclaim any 

claim, regardless of whether it relates to the original 

transaction and irrespective of the amount claimed. Although 

the amount of the counterclaim here was only $50, an amount 

which, in an independent suit, would place the claim 

 3We note that in 1994, the General Assembly enacted Code 

§ 8.01-275.1, which codifies the one year service provision of 

Rule 3:3. This Code section, like the Rule, does not address 

the effect of the dismissal. That statute is not at issue in 

this case. 
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exclusively within the general district court's jurisdiction, 

Code § 16.1-77, the counterclaim was not a nullity as argued by 

Brewster. Furthermore, resolution of this claim would require 

determination of Brewster's liability for the accident. Thus, 

Gilbreath's claim could not be independently adjudicated 

because "adjudication of one claim would be an adjudication of 

both." Lee Gardens Arlington Limited Partnership v. Arlington 

County Board, 250 Va. ___, ___ S.E.2d ___ (1995), decided 

today. 

 Finally, Brewster argues that prohibiting the nonsuit 

because of the existence of a third-party claim "works an 

absurdity" because, due to the derivative nature of a thirdparty claim, the defendant cannot be prejudiced if the 

plaintiff takes a nonsuit. This argument is directly 

contradicted by express language in Code § 8.01-380(C), which 

refers specifically to third-party claims. There is no 

question that a third-party claim is a derivative claim and as 

such it cannot be adjudicated independently. Therefore, the 

clear intent of the General Assembly was to prevent a plaintiff 

from taking a nonsuit without the defendant's consent if a 

third-party claim is pending. 

 In summary, Gilbreath's counterclaim was not a nullity and 

could not be independently adjudicated. Similarly, the thirdparty claim could not be independently adjudicated. In the 

absence of Gilbreath's consent to a nonsuit, the trial court 
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did not err in vacating its orders of nonsuit. 

 Accordingly, we will affirm those portions of the trial 

court's orders vacating its previous orders granting nonsuits. 

 We will reverse those portions of the trial court's orders 

dismissing Brewster's and Brann's personal injury actions 

without prejudice and enter judgment dismissing the actions 

with prejudice. 

 Affirmed in part,

reversed in part,

and final judgment.