Present: All the Justices 

EMILY KATHERINE JAMES, BY MOTHER 

AND NEXT FRIEND, JOY L. DUNCAN, ET AL. 

 OPINION BY 

v. Record No. 011448 CHIEF JUSTICE HARRY L. CARRICO 

 April 19, 2002 

DOUGLAS WILLIAM JAMES 

FROM THE CIRCUIT COURT OF POWHATAN COUNTY 

Thomas V. Warren, Judge 

 This appeal involves issues resulting from the entry of two 

nonsuit orders and the subsequent imposition of contempt 

penalties and monetary sanctions, including the dismissal with 

prejudice of the two motions for judgment ostensibly nonsuited. 

The motions for judgment were filed May 4, 1999, one on behalf 

of Emily Katherine James and the other on behalf of Mary 

Elizabeth James, infants then aged twelve and nine years, 

respectively, by their mother and next friend, Joy L. Duncan 

(Duncan). The motions for judgment sought damages for emotional 

and physical injuries allegedly inflicted upon the infants by 

their father, Douglas William James (James).1 James filed 

grounds of defense denying liability for the infants' alleged 

injuries. 

 1

 The record shows that Duncan and James were married June 

28, 1986, and that they were divorced by final decree entered 

August 23, 1994. The decree affirmed, ratified, and 

incorporated a written agreement entered into between Duncan and 

James which provided that Duncan "shall have custody of the 

infant children born of the marriage." 
 On March 1, 2000, James filed motions for an independent 

medical examination of the infants. On May 22, 2000, the trial 

court entered orders requiring that the infants submit to 

examination by two doctors named in the orders "on dates to be 

determined . . . within 6 weeks after the last date of school 

classes." The orders also provided that Duncan, "as next 

friend, shall deliver the infant plaintiff[s] to the examiner on 

the date and time ordered herein." 

 On June 9, 2000, James' counsel notified Duncan's counsel 

by letter of the available dates for the independent 

examination. In addition, numerous telephone calls were made to 

Duncan's counsel requesting that the infants be produced for the 

independent examination. Duncan's counsel failed to respond. 

 On July 28, 2000, James filed in each case a motion to 

sanction Duncan pursuant to Rule 4:12(b)(2) for her failure to 

obey the trial court's orders of May 22, 2000, requiring the 

independent examination of the infants.2 James also gave Duncan 

notice that the motions for sanctions would be heard on November 

6, 2000. 

 On October 30, 2000, acting pro se following the withdrawal 

of her counsel, Duncan filed motions to nonsuit both cases. On 

 2

 Rule 4:12(b)(2) provides that the court in which an action 

is pending may make such orders as are just in regard to the 

failure of a party to obey an order to provide or permit 

2
October 31, 2000, the trial court entered an order in each case 

noting Duncan's motion for nonsuit and ordering that "this 

action stand dismissed without prejudice." 

 On November 3, 2000, Duncan sent James' counsel a note 

stating she would be unable to attend the hearing on November 6 

and asking for a rescheduled date because her son had a medical 

appointment at a hospital. On November 6, counsel for James 

appeared for the hearing, but Duncan did not. The trial judge 

noted that Duncan had requested a continuance because of her 

son's illness, but, without granting or denying the motion for 

continuance, proceeded with the hearing in Duncan's absence. 

 The trial judge asked counsel for James "[w]here [he] 

want[ed] to go [that day]." Noting that "we are within the 21-

day period from [the court's] entry of the [nonsuit orders]," 

counsel replied that he "would ask [the court to] enter an order 

requiring [Duncan] to show cause why she's not in contempt of 

[the court's] two orders [requiring independent examination of 

the infants]." 

 Later on in the discussion, James' counsel asked the court 

to "set [the nonsuit orders] aside pending a hearing on the 

matter." At one point, the trial judge stated that he would 

"set aside the order[s] of nonsuit and continue to hold that in 

 

discovery. Five categories of permissible sanctions are 

provided. 

3
abeyance until all the matters are heard." Immediately, 

however, James' counsel stated that if, within the 21-day period 

following entry of the nonsuit orders, he obtained an order 

requiring Duncan to show cause why she should not be held in 

contempt, the court would not "really need to set aside the 

nonsuit"; counsel "won't really care about that." The trial 

judge instructed counsel to "get [him] the order right away." 

 On November 8, 2000, within the 21-day period following 

entry of the nonsuit orders, the trial court entered two orders 

with respect to the November 6 hearing. The nonsuit orders were 

not mentioned in either of the November 8 orders. Rather, the 

November 8 orders merely required Duncan to appear on December 

21, 2000, to show cause why she should not be held in contempt 

and further provided as follows: 

 4. This matter is continued on the Court's docket to 

the 21[st] day of December, 2000, at 9:30 a.m. at Powhatan 

Courthouse. 

 5. This matter continues on the docket. 

 On December 21, 2000, Duncan appeared with counsel, and the 

trial court conducted a hearing on the rule to show cause issued 

against Duncan in each case. On January 25, 2001, the court 

entered an order finding Duncan in contempt and taking under 

advisement the imposition of punishment and sanctions until each 

party filed a chronology of events. Following receipt of the 

chronologies, on April 4, 2001, the court entered a final order 

4
in each case sentencing Duncan to pay a fine of $1,000.00 and to 

serve 30 days in jail, with the jail sentence suspended on 

condition that she be of good behavior and pay to James' counsel 

the sum of $20,000.00 in attorney's fees.3 The court also 

dismissed with prejudice the motion for judgment filed in each 

case. We awarded Duncan this appeal. 

 At this point, the Court finds itself faced with an 

anomaly. Duncan asks the Court to reverse the trial court's 

finding that she is in contempt for failure to obey orders 

requiring her to produce other persons for independent medical 

examination. Rule 4:12(b)(2)(D) permits a court to treat a 

failure to obey a discovery order as contempt, "except an order 

to submit to a physical or mental examination," and Rule 

4:12(b)(2)(E) precludes a court from treating a failure "to 

produce another for examination" as contempt. Yet, Duncan cited 

neither rule in the trial court, cited only Rule 4:12(b)(2)(D) 

in her petition for appeal to this Court, and cited neither rule 

in the brief she filed here. Hence, she has waived the right to 

rely on either rule. Rule 5:25. 

 Nevertheless, Duncan questions whether the trial court had 

jurisdiction to consider her alleged violations of the discovery 

 3

 The order entered in one of the cases stated that "the 

jail sentence, the fine and the attorney's fees herein are not 

cumulative to those ORDERED in the [other] case, . . . but shall 

run concurrently." 

5
rules after the expiration of the twenty-one day period 

following entry of the orders of nonsuit.4 We resolve this 

question by focusing upon the nonsuit orders and the provisions 

of the nonsuit statute, Code § 8.01-380, and Rule 1:1. At the 

time the nonsuit orders were entered, Code § 8.01-380 provided 

as follows: 

 A. 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. . . . 

 B. Only one nonsuit may be taken to a cause of action 

or against the same party to the 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 attorney's fees against the nonsuiting 

party. 

 C. A party shall not be allowed to nonsuit a cause of 

action, without the consent of the adverse party who has 

filed a counterclaim, cross claim or third-party claim 

which arises out of the same transaction or occurrence as 

the claim of the party desiring to nonsuit unless the 

counterclaim, cross claim, or third-party claim can remain 

pending for independent adjudication by the court.[5] 

 4

 James argues on brief that Duncan did not properly 

preserve the question of jurisdiction. He charges Duncan has 

changed the language of an assignment of error and has raised 

issues before this Court not encompassed in either her 

assignments of error or her petition for appeal. Our 

examination discovers none of these defects, and we reject 

James' argument. 

5

 A 2001 amendment added to Code § 8.01-380 a new subsection 

C and redesignated former subsection C as subsection D. The new 

subsection provides for the assessment against the nonsuiting 

party of certain fees and costs incurred by the opposing party 

6
 Rule 1:1 provides in pertinent part that "[a]ll final 

judgments, orders, and decrees, irrespective of terms of court, 

shall remain under the control of the trial court and subject to 

be modified, vacated, or suspended for twenty-one days after the 

date of entry, and no longer." 

 We have not previously considered whether a nonsuit order 

is a final judgment, order, or decree for purposes of Rule 1:1. 

In several cases, however, we have said that a nonsuit order is 

not a final judgment for appeal purposes unless a dispute exists 

whether the trial court properly granted the motion for nonsuit. 

Swann v. Marks, 252 Va. 181, 184-85, 476 S.E.2d 170, 172 (1996); 

McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d 759, 761 (1995); 

Mallory v. Taylor, 90 Va. 348, 349, 18 S.E. 438, 439 (1893); see

Wells v. Lorcom House Condo. Council, 237 Va. 247, 251, 377 

S.E.2d 381, 383 (1989). 

 Here, no dispute exists whether the trial court properly 

granted the motions for nonsuit filed by Duncan, so the nonsuit 

orders would not qualify as final judgments for appeal purposes. 

However, it does not necessarily follow that the nonsuit orders 

are also disqualified as final judgments for purposes of Rule 

1:1. 

 

if notice to take a nonsuit of right is given to the opposing 

party within five days of trial. 2001 Va. Acts ch. 825. 

7
 Generally speaking, a final order for purposes of Rule 1:1 

"is one which disposes of the whole subject, gives all the 

relief contemplated, provides with reasonable completeness for 

giving effect to the sentence, and leaves nothing to be done in 

the cause save to superintend ministerially the execution of the 

order." Daniels v. Truck & Equipment Corp., 205 Va. 579, 585, 

139 S.E.2d 31, 35 (1964) (citations and inner quotation marks 

omitted). 

 We are of opinion that, from its very nature, an order 

granting a nonsuit should be subject to the provisions of Rule 

1:1, with or without the existence of a dispute over the 

propriety of granting the nonsuit. A plaintiff has an absolute 

right under Code § 8.01-380 to one nonsuit. Nash v. Jewell, 227 

Va. 230, 237, 315 S.E.2d 825, 829 (1984). "The election is his 

and if he 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."6 Id. Furthermore, when 

a court enters a nonsuit order, the case becomes "concluded as 

to all claims and parties," and "nothing remain[s] to be done." 

Dalloul v. Agbey, 255 Va. 511, 515, 499 S.E.2d 279, 282 (1998). 

Hence, the concept of nonsuit is sufficiently imbued with the 

attributes of finality to satisfy the requirements of Rule 1:1. 

 6

 None of the limitations imposed by Code § 8.01-380 is 

applicable to the present case. 

8
 Absent some badge of finality, a nonsuit order would be 

left hanging in the balance, with unintended results. As noted 

in Wells, supra, the nonsuit statute contains a number of 

limitations on a party's absolute right to take a voluntary 

nonsuit, and if a nonsuit is allowed in violation of those 

limitations, appellate review must be available to correct the 

error. 237 Va. at 251, 377 S.E.2d at 383. The same 

considerations apply to Rule 1:1. If such a violation occurs, a 

trial court should have the opportunity provided by Rule 1:1 to 

correct the error. 

 Here, as noted previously, each of the trial court's orders 

of November 8, 2000, although entered within the 21-day period 

following entry of the nonsuit orders, merely required Duncan to 

appear on December 21, 2000, to show cause why she should not be 

held in contempt and then provided that the matter was continued 

on the trial court's docket. The November 8 orders were 

completely ineffective to vacate or suspend the nonsuit orders 

within the intendment of Rule 1:1. "The running of time under 

[Rule 1:1] may be interrupted only by the entry, within the 21-

day period after final judgment, of an order suspending or 

vacating the final order." Berean Law Group, P.C. v. Cox, 259 

Va. 622, 626, 528 S.E.2d 108, 111 (2000) (quoting School Bd. of 

the City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 

550, 556, 379 S.E.2d 319, 323 (1989)); see also Super Fresh Food 

9
Markets of Virginia, Inc. v. Ruffin, No. 011230, slip op. at 11 

(April 19, 2002) (order entered after entry of final judgment 

but within twenty-one days and stating trial court "shall retain 

jurisdiction" over action until it ruled on motion for 

reconsideration held ineffective to extend period of trial 

court's jurisdiction because order did not modify, vacate, or 

suspend final judgment).7

 Duncan maintains that once the 21-day period expired 

without the entry of orders suspending or vacating the nonsuit 

orders, the trial court lost jurisdiction to take the actions 

that followed and each action was a mere nullity. James argues 

on the other hand that the trial court retained jurisdiction 

after entry of the nonsuit orders for consideration of pending 

motions and enforcement of its prior orders by contempt.8

 We have not found any decision directly on point involving 

the question whether a trial court retains post-nonsuit 

jurisdiction to consider pending motions and enforcement of its 

prior orders. We have found several decisions involving the 

 7

 We also said in Super Fresh that an order which both 

renders judgment and "retains jurisdiction to reconsider the 

judgment or to address other matters still pending," is not a 

final order under Rule 1:1 and does not commence the running of 

the 21-day period. Slip Op. at 7-8 (distinguishing Concerned 

Taxpayers v. County of Brunswick, 249 Va. 320, 455 S.E.2d 712 

(1995)). 

8

 Code § 18.2-456, related to "[c]ases in which courts and 

judges may punish summarily for contempt," is not at issue in 

this case. 

10
interplay between the 21-day rule and orders imposing sanctions 

that we consider highly persuasive, if not well-nigh conclusive. 

 With respect to James' argument concerning pending motions, 

we assume he refers to his motions for sanctions, which were 

pending on the twenty-first day following entry of the nonsuit 

orders. However, we have said that "[n]either the filing of 

post-trial or post-judgment motions, nor the 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." Berean Law Group, 259 Va. at 626, 528 S.E.2d at 111 

(emphasis added). 

 With respect to James' argument concerning the trial 

court's retention of jurisdiction to enforce its prior 

orders, we assume James refers to the orders requiring 

Duncan to produce the infants for independent medical 

examination. However, in Murray v. Hadid, 238 Va. 722, 385 

S.E.2d 898 (1989), final judgment was entered on May 4, 

1988, and the trial court heard the appellant's motion for 

sanctions on May 26, 1988, more than twenty-one days after 

entry of final judgment. The trial court denied the motion 

for sanctions. We approved the denial, stating that "after 

twenty-one days elapsed [following entry of final 

11
judgment], the trial court no longer had jurisdiction over 

the matter." Id. at 733, 385 S.E.2d at 905. 

 Similarly, in Smith v. Stanaway, 242 Va. 286, 410 

S.E.2d 610 (1991), final judgment was entered in favor of 

the defendant on September 18, 1990. Within twenty-one 

days, on September 25, 1990, the defendant filed a motion 

for sanctions, and on October 24, 1990, well past the 

twenty-one day period, the trial court awarded sanctions. 

We reversed, stating as follows: 

 [T]he September 18 order was final [and this] 

means that the trial court was without jurisdiction to 

enter the October 24 order of sanctions. Rule 1:1 

provides that final judgments remain under the control 

of the trial court for only 21 days unless modified, 

vacated, or suspended during that time. . . . 

 Consequently, we will annul the award of 

sanctions and dismiss the appeal as improvidently 

awarded. 

Id. at 289-90, 410 S.E.2d at 612. 

 We agree with Duncan that once the twenty-one day 

period expired in this case without the entry of orders 

vacating or suspending the nonsuit orders, each action of 

the trial court taken thereafter was a nullity. See Davis 

v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996) 

(after expiration of 21-day period following entry of final 

judgment, trial court was divested of jurisdiction and each 

12
action taken thereafter to alter or vacate final order was 

a nullity). 

 But, James argues, this view of the matter overlooks 

this Court's decision in Eddens v. Eddens, 188 Va. 511, 50 

S.E.2d 397 (1948). There, James says, we recognized the 

inherent power of a court to punish a party in a contempt 

proceeding for a willful refusal to obey a lawful decree 

despite the fact that the decree had become final. Id. at 

521, 50 S.E.2d at 402. 

Eddens is inapposite because it involved an entirely 

different legal and factual setting. The case involved the use 

in a divorce case of a rule requiring a husband to show cause 

why he should not be held in contempt for his failure to pay an 

outstanding obligation for court costs and attorney's fees 

awarded the wife in the final decree of divorce entered ten 

years previously. We said this late use of the trial court's 

inherent power was proper because the rule to show cause was 

"ancillary to and in support of the divorce suit and its 

decrees." Id.

 Here, once the nonsuit orders became final upon expiration 

of the 21-day period, there was nothing to which a rule to show 

cause could be ancillary or of which it could be supportive. At 

that point, no outstanding obligation existed, the motions for 

judgment brought on behalf of the infants had been dismissed, 

13
the orders for independent medical examination had been 

superseded, the cases had been "concluded as to all claims and 

parties," and "nothing remained to be done." Dalloul, 255 Va. at 

515, 499 S.E.2d at 282. 

 Because the trial court lost jurisdiction to take the 

actions that followed the expiration of the 21-day period after 

entry of the nonsuit orders, we will reverse the judgment 

appealed from, reinstate the nonsuit orders, and enter final 

judgment in favor of Duncan. 

Reversed and final judgment. 

14