COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, O’Brien and Athey

Argued at Fredericksburg, Virginia

MARK A.V. RACKHAM AND

 OLGA M. RACKHAM

MEMORANDUM OPINION* BY

v. Record No. 0959-22-4 JUDGE CLIFFORD L. ATHEY, JR.

JUNE 13, 2023

BASHEER/EDGEMOORE-PROPERTIES, L.L.C.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Grace Burke Carroll, Judge

Phillip B. Leiser (The Leiser Law Firm, on briefs), for appellants.

Michael J. Kalish (Walsh, Colucci, Lubeley & Walsh, P.C., on brief),

for appellee.

Mark A.V. Rackham and Olga M. Rackham (“the Rackhams”) appeal from an order 

granting Basheer/Edgemoore-Properties, L.L.C.’s (“Basheer”) plea in bar with prejudice in the 

Circuit Court of Fairfax County (“circuit court”). The Rackhams contend that the circuit court

erred by dismissing their complaint with prejudice for lack of subject matter jurisdiction. The 

Rackhams also assign error to the circuit court’s holding that the general district court judgment

from which they appealed had not been annulled when their case was nonsuited. Finding no 

error, we affirm the judgment of the circuit court.

I. BACKGROUND

In 2007, the Rackhams executed a contract with Basheer-Edgemoore-River Falls, L.L.C. 

for the construction of a new home by Basheer in Prince William County. The construction 

contract represented to the Rackhams that the wastewater disposal system “was installed 

* This opinion is not designated for publication. See Code § 17.1-413.

UNPUBLISHED
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pursuant to a valid health department permit, and . . . appear[ed] to be functioning in a 

satisfactory manner.” Subsequently, the wastewater disposal system’s grinder pump 

malfunctioned, and the Rackhams sought $25,000 in damages based on constructive fraud in a 

warrant-in-debt action they brought against Basheer in 2017.

1

 At trial, the general district court

granted Basheer’s motion to strike and dismissed the case. 

The Rackhams appealed the general district court’s dismissal to the circuit court but 

nonsuited their de novo appeal on June 27, 2018, prior to trial. Six months later on December 

27, 2018, the Rackhams filed a complaint against Basheer in the circuit court. Based upon the 

same facts, the Rackhams alleged constructive fraud, fraud in the inducement, and actual fraud, 

seeking $20,000 in compensatory damages and $29,998 in punitive damages. Basheer filed a 

plea in bar, asserting that the complaint was barred by res judicata. Following a hearing held on

June 3, 2022, the circuit court granted Basheer’s plea in bar and dismissed the case with 

prejudice on the same day. The Rackhams appealed.

II. ANALYSIS

A. Standard of Review

“[A]n issue of statutory interpretation is a pure question of law which we review de 

novo.” Davis v. Cnty. of Fairfax, 282 Va. 23, 28 (2011) (alteration in original) (quoting Conyers 

v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007)); see also Code §§ 8.01-380, 

16.1-106.

B. The circuit court did not err by dismissing the Rackhams’ case with prejudice.

On appeal, the Rackhams contend that the circuit court erred by dismissing their case 

because “the perfection of [their] appeal” annulled the judgment of the general district court. They

1 The Rackhams also sued Basheer/Edgemoore-River Falls, L.L.C. but nonsuited the 

claim before trial in general district court.
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also argue that, to the extent Robert and Bertha Robinson Family, LLC v. Allen, 295 Va. 130, 150 

(2018), addresses this issue, such discussion is “obiter dicta.” We disagree.

In April 2022, the General Assembly amended Code § 8.01-380 by adding subsection F

which states, “[u]pon the timely perfection of an appeal from a judgment of a general district 

court, pursuant to § 16.1-106, a party may suffer a nonsuit as otherwise set forth in this section, 

and such nonsuit shall annul the judgment of the general district court.” Code § 8.01-380(F). 

Since this amendment simply prescribes a method “of obtaining redress or enforcement of 

rights,” as opposed to creating “duties, rights, and obligations,” it only affects procedure. 

Montgomery v. Commonwealth, 75 Va. App. 182, 190 (2022) (quoting Shiflet v. Eller, 228 Va. 

115, 120 (1984)). Accordingly, it could potentially be given “retroactive effect.” Id. This 

principle, regarding retroactive application of new procedural statutes or amendments, is codified 

in Code § 1-239 which states:

No new act of the General Assembly shall be construed to repeal a 

former law, as to any offense committed against the former 

law . . . ; except that the proceedings thereafter held shall conform, 

so far as practicable, to the laws in force at the time of such 

proceedings; and if any penalty, forfeiture, or punishment be 

mitigated by any provision of the new act of the General 

Assembly, such provision may, with the consent of the party 

affected, be applied to any judgment pronounced after the new act 

of the General Assembly takes effect.

However, pursuant to this statute, courts are not required “to alter the legal consequences of a 

proceeding that has already taken place, but to instead look at the law at the time of the 

procedure and apply that law, no matter when the substance of any cause of action arose.” 

Montgomery, 75 Va. App. at 193. “Indeed, no Virginia case has ever held that a procedural 

amendment to a rule or statute applies to attach different legal consequences to a procedure that 

took place before the amendment.” Id.
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Here, the Rackhams nonsuited their case in circuit court on June 27, 2018. They refiled 

the current case on December 27, 2018. The General Assembly amended Code § 8.01-380 to 

include subsection F, effective immediately, on April 8, 2022. The circuit court held a hearing

on Basheer’s plea in bar and granted it on June 3, 2022. So, although Code § 8.01-380(F) is 

procedural and was enacted when the circuit court ruled on Basheer’s plea in bar, all the relevant 

proceedings took place before the General Assembly amended Code § 8.01-380. Had the 

Rackhams’ pre-trial nonsuit in circuit court taken place the day after the amendment, the nonsuit 

would have annulled the judgment of the general district court. But since “the procedural aspects 

of the case are governed by ‘the law in effect when the procedure itself takes place,’” and the 

nonsuit here took place before the amendment, the proceedings are governed by the state of the 

law on June 27, 2018. Gionis v. Commonwealth, 76 Va. App. 1, 13 (2022) (quoting 

Montgomery, 75 Va. App. at 191 n.7).

At that time, when a party appealed a judgment from general district court to circuit 

court, the general district court’s judgment was only annulled “after ‘a trial de novo had 

commenced’” in the circuit court “‘on the merits of the case.’” Allen, 295 Va. at 150 (quoting 

Commonwealth v. Diaz, 266 Va. 260, 266 (2003)). “At a trial de novo, ‘the circuit court 

disregards the judgment of the district court, hears the evidence anew and may consider new 

evidence, and makes final disposition of the case as if the case had not proceeded to judgment in 

the district court.’” Id. (quoting Diaz, 266 Va. at 266). “The ‘event’ that triggers the ‘annulment 

of the district court judgment’ is the trial de novo, not the notice of appeal.” Id. (quoting Diaz, 

266 Va. at 266).

We do not think the Supreme Court’s guidance could be much clearer. Hence, we find

Allen, which was published approximately four months before the Rackhams’ nonsuit,

controlling and therefore applicable here. Since the Rackhams nonsuited their appeal to the 
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circuit court before the commencement of trial, no trial in the circuit court ever commenced and 

the general district court’s judgment was never annulled. Since the general district court’s 

judgment was never annulled, that judgment was final and remains in effect. Thus, the circuit 

court did not err in holding that the Rackhams’ subsequent complaint in circuit court was barred 

by res judicata. Because the Rackhams’ claim is precluded, we need not reach their remaining 

assignment of error. 

III. CONCLUSION

Based on the foregoing analysis, we affirm the judgment of the circuit court. 

Affirmed.