Present: All the Justices 

CITY OF SUFFOLK 

 OPINION BY 

v. Record No. 082345 JUSTICE LAWRENCE L. KOONTZ, JR. 

 September 18, 2009 

LUMMIS GIN COMPANY, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

Rodham T. Delk, Jr., Judge 

 This appeal arises from a complaint filed by the City of 

Suffolk on March 9, 2006 in the Circuit Court of the City of 

Suffolk, pursuant to Code §§ 58.1-3965 et seq., seeking to 

sell a certain parcel of land located within the city in order 

to satisfy delinquent real estate tax liens on the parcel. 

The merits of the assertions in the complaint are not at issue 

in this appeal. By order entered on February 12, 2008, the 

circuit court granted the City’s motion for a nonsuit. 

Thereafter, by order entered on September 22, 2008, the 

circuit court found that the City had taken a second nonsuit, 

rather than a first nonsuit, in the matter and awarded a 

number of the defendants attorney fees and costs pursuant to 

Code § 8.01-380(B). The issues we consider are whether the 

circuit court erred in finding that the February 12, 2008 

order was for a second nonsuit and whether that order was a 

final order as contemplated by our Rule 1:1 such that the 

circuit court was without jurisdiction to award attorney fees 

and costs by the September 22, 2008 order. 
BACKGROUND 

 On September 25, 1995 the City filed a combined complaint 

in the circuit court against Western Branch Crossing LP, the 

Lummis Gin Company, and numerous other alleged property owners 

as defendants. The City sought sale of various parcels of 

land within the city in order to satisfy delinquent real 

estate tax liens on those parcels. That case was styled, City 

of Suffolk, Virginia v. Western Branch Crossing LP, Circuit 

Court Case No. CH95-285. The parcel identified as being owned 

by the Lummis Gin Company and its survivors in title is the 

same parcel involved in the current case. The City 

subsequently filed a motion for a nonsuit so “that this action 

may stand dismissed as to the defendant, Lummis Gin Co., 

without prejudice to the bringing of another action.” On May 

16, 1996, the circuit court granted the City’s motion. 

 On March 9, 2006, the City again filed a complaint in the 

circuit court seeking to satisfy all delinquent real estate 

taxes on the same parcel of land previously identified as 

being owned by the Lummis Gin Company in the 1995 complaint. 

In addition to the Lummis Gin Company and numerous individual 

defendants, the suit named Mills Staylor, Kay Simmons, Lewis 

B. Smith, David B. Smith, and William B. Smith (collectively, 

“the Baker heirs”) as defendants. Only the Baker heirs filed 

an answer to the complaint. At a February 12, 2008 hearing, 

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the City submitted a proposed order for a nonsuit to the 

circuit court. The Baker heirs contended that since the 1995 

delinquent tax case against the Lummis Gin Company resulted in 

a nonsuit, the City’s motion for a nonsuit in the instant 

matter represented a request for a second nonsuit. 

Accordingly, the Baker heirs sought an award of attorney fees 

and costs. 

 At the conclusion of the hearing, the circuit court 

articulated that it was “going to enter the nonsuit order 

[and] going to retain the case on the docket to [consider] the 

issue of fees and costs and whether this is a first voluntary 

nonsuit of right or whether it is the second nonsuit 

contemplated by [Code § 8.01-380(B)].” On that same day the 

court entered an order granting the City’s motion for a 

nonsuit without prejudice. The order further provided that 

“[t]his suit shall remain on the docket for the Court to 

determine issues concerning attorney fees, costs and expenses 

incurred by [the Baker heirs].” 

 The parties filed briefs and argued their positions 

before the circuit court on August 12, 2008. The Baker heirs 

contended that the 1995 suit and the current suit were 

duplicate causes of action. The Baker heirs stressed that the 

current suit sought recovery of “all accumulated taxes, 

penalties, interests and costs thereon.” Thus, according to 

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the Baker heirs, the City was attempting to hold the Baker 

heirs liable for the unpaid taxes in every tax year including 

the 1995 tax year and all earlier tax years. The City 

asserted that the court’s February 12, 2008 order was a final 

judgment order for purposes of Rule 1:1, and thus the court 

had lost jurisdiction over the matter twenty-one days after 

the entry of the February 12, 2008 order. Further, the City 

emphasized that pursuant to the language of the May 16, 1996 

order, the only party that the City had suffered a nonsuit 

against in the earlier case was the Lummis Gin Company and 

that the Baker heirs were not named parties in the earlier 

suit. Accordingly, the City maintained that the nonsuit 

granted by the court on February 12, 2008 was the first 

nonsuit of the case as to the Baker heirs and thus Code 

§ 8.01-380(B) would not authorize an award of attorney fees 

and costs to the Baker heirs. 

 The court entered a “Final Order” in favor of the Baker 

heirs on September 22, 2008. The order, in pertinent part, 

provided that: 

 [T]he Court finds that the [present] case is a 

second or additional nonsuit of the [prior] case 

styled City of Suffolk, Virginia v. Western Branch 

Crossing LP, . . ., and doth sustain [the Baker 

heirs’] motion and award attorney fees and cost[s] 

. . . and the Court doth deny Complaint’s request 

for a ruling pursuant to Rule 1:1 that the Court 

lacked jurisdiction to decide the matters raised in 

the request for attorney’s fees, it is therefore, 

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 ADJUDGED, ORDERED, and DECREED that the City 

of Suffolk shall pay [the Baker heirs’] attorney 

fees and cost[s] in the amount of $1,113.00. 

We awarded the City this appeal. 

DISCUSSION 

 Code § 8.01-380(B), in pertinent part, provides that: 

Only one nonsuit may be taken to a cause of action 

or against the same party to a proceeding, as a 

matter of right, although the court may allow 

additional nonsuits . . . or counsel may stipulate 

to additional nonsuits. The court, in the event 

additional nonsuits are allowed, may assess costs 

and reasonable attorneys’ fees against the 

nonsuiting party. 

We have stated that this statute grants the plaintiff “an 

absolute right to one nonsuit” and observed that if the 

plaintiff “insists upon taking the nonsuit within the 

limitations imposed by the statute, neither the trial court 

nor opposing counsel can prevent him from doing so.” Nash v. 

Jewell, 227 Va. 230, 237, 315 S.E.2d 825, 829 (1984). We have 

further observed, however, that courts act by orders and 

decrees and therefore the litigation is not terminated until 

the court enters the appropriate nonsuit order. Id.

 It is readily apparent that Code § 8.01-380(B) draws a 

clear distinction between a first nonsuit which must be 

granted as a matter of right and a second or additional 

nonsuit which permits the trial court to assess costs and 

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reasonable attorneys’ fees against the nonsuiting party. It 

is this distinction that requires this Court in the present 

case to first determine whether the nonsuit granted by the 

circuit court on February 12, 2008 was the first nonsuit as to 

the Baker heirs. 

 In this regard, the record in the present case does not 

support the Baker heirs’ assertion that they were parties to 

the prior suit as successors in title of the Lummis Gin 

Company. Moreover, assuming that they could establish an 

ownership interest in the property sought to be sold by the 

City to satisfy its delinquent tax lien in 1995, the present 

action sought recovery for delinquent taxes regarding 

different tax years. Code § 58.1-3965(A), as pertinent here, 

permits the sale of real estate to satisfy delinquent taxes 

“[w]hen any taxes on any real estate in a county, city or town 

are delinquent on December 31 following the second anniversary 

of the date on which such taxes have become due.” Thus, the 

delinquent taxes sought to be satisfied in the 1995 proceeding 

could not have been the same delinquent taxes sought to be 

satisfied in the proceeding commenced in 2006. Because the 

present action filed by the City was not the same cause of 

action filed by the City in 1995, the nonsuit granted by the 

circuit court in the prior action did not operate to 

extinguish the City’s right to take a first nonsuit in the 

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present action. Accordingly, the circuit court erred in 

determining in its September 22, 2008 order that its February 

12, 2008 order granted the City a “second or additional 

nonsuit.” It then follows that the circuit court had no 

authority to award costs and attorneys’ fees against the City 

in the exercise of its absolute right to a first nonsuit. But

see, Williamsburg Peking Corp. v. Kong, 270 Va. 350, 354, 619 

S.E.2d 100, 102 (2005) (entry of nonsuit order does not 

conclude a case as to any pending motions for sanctions 

pursuant to Code § 8.01-271.1). 

 While our holding that the City was granted a first 

nonsuit in this case resolves this appeal, we take this 

opportunity to address the finality of the February 12, 2008 

nonsuit order for purposes of Rule 1:1. 

 In Super Fresh Food Markets v. Ruffin, 263 Va. 555, 561 

S.E.2d 734 (2002), we held the following regarding the 

application of Rule 1:1: 

 [T]he provisions of Rule 1:1 are mandatory in 

order to assure the certainty and stability that 

the finality of judgments brings. Once a final 

judgment has been entered and the twenty-one day 

time period of Rule 1:1 has expired, the trial 

court is thereafter without jurisdiction in the 

case. Thus, only an order within the twenty-one 

day time period that clearly and expressly 

modifies, vacates, or suspends the final judgment 

will interrupt or extend the running of that time 

period so as to permit the trial court to retain 

jurisdiction in the case. 

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Id. at 563-64, 561 S.E.2d at 739. 

 In James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137 

(2002), we noted that “the concept of nonsuit is sufficiently 

imbued with the attributes of finality to satisfy the 

requirements of Rule 1:1.” Therefore, we opined that, “from 

its very nature, an order granting a nonsuit should be subject 

to the provisions of Rule 1:1.” Id. As pertinent to the 

present case, we held “[n]either the filing of post-trial or 

post-judgment motions, nor the trial court’s taking such 

motions under consideration, nor the pendency of such motions 

on the twenty-first day after final judgment, is sufficient to 

toll or extend the running of the 21-day period prescribed by 

Rule 1:1.” Id. at 482-83, 562 S.E.2d at 138 (quoting Berean 

Law Group, P.C. v. Cox, 259 Va. 622, 626, 528 S.E.2d 108, 111, 

(2000)). 

 Notwithstanding the circuit court’s attempt in the present 

case to preserve the issue by including the statement: “[t]his 

suit shall remain on the docket for the Court to determine 

issues concerning attorney fees, costs and expenses incurred by 

[the Baker heirs]” in the February 12, 2008 order, the court 

still only had twenty-one days to resolve the issue before the 

court lost jurisdiction. Therefore, the court was without 

jurisdiction to decide any issue in the matter twenty-one days 

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after entry of the February 12, 2008 nonsuit order. The 

court’s September 22, 2008 order awarding attorneys’ fees and 

costs to the Baker heirs was a nullity. 

CONCLUSION 

 For these reasons, we hold that the February 12, 2008 

order of the circuit court granted a first nonsuit as a matter 

of right to the City of Suffolk as to the Baker heirs. We 

further hold that the February 12, 2008 order was a final 

order as construed under Rule 1:1 and, therefore, the circuit 

court had no jurisdiction to award attorney fees and costs 

twenty-one days after entry of that order. 

 Accordingly, we will reverse the circuit court’s 

September 22, 2008 order awarding attorney fees and costs to 

the Baker heirs and enter final judgment here in favor of the 

City of Suffolk. 

Reversed and final judgment. 

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