The Virginia Business Litigation Blog
As discussed previously on this blog, plaintiffs who wish to nonsuit their claims can do so at virtually any time, subject to very limited exceptions. One such exception is that a nonsuit may not be taken as to any claim that has been submitted to the judge for a decision. Some lawyers seem to be of the mistaken belief that if a court has not formally dismissed a claim with prejudice, a nonsuit may be taken as to that claim. The Fairfax County Circuit Court issued a letter opinion a few months ago explaining that such is not the case. Nonsuits may only be taken as to active, unresolved claims that have not yet been submitted for final resolution.
In Brian Morrison v. George Mason University, the plaintiff filed a variety of claims (including whistleblower retaliation, fraud, defamation, and common law conspiracy to defame and retaliate) against a number of different defendants. Demurrers and pleas in bar followed, some of which were sustained with leave to amend, some of which were sustained without leave to amend, and at least one of which was overruled. Prior to the court-ordered deadline for filing an amended complaint, the plaintiff sought to nonsuit the entire action, including the claims that had been the subject of the demurrers and pleas. His reasoning was that the court had not formally ordered the dismissal of any claims. The court refused to allow the nonsuit as to the claims that had already been eliminated from the case.
It may seem like common sense that a plaintiff can’t nonsuit a claim that the court has already ruled to be invalid, but the court took a logical, step-by-step approach in explaining why a nonsuit would not be appropriate. It focused on the language of Va. Code ยง 8.01-380, which states that a nonsuit may not be taken after the action “has been submitted to the court for decision.”
The court interpreted this to mean that once a particular claim has been “submitted for decision,” it can no longer be nonsuited. A claim is submitted for decision once the parties have “yielded the issues” to the court for consideration and decision. (See Atkins v. Rice, 266 Va. 328, 331 (2003)). Issues are yielded when both parties have completed briefing and argument and no further proceedings are expected prior to the court 
issuing its ruling. (See Gordon v. Kiser, 296 Va. 418, 423 (2018)).
In this case, the court held, “once argument and briefing on dispositive motions was yielded to the Court for resolution, the case could not then be nonsuited pending decision on those matters.” Once the court ruled on the motions, the viability of a nonsuit depended on the ruling. If a demurrer to a claim is sustained without leave to amend, that claim is finished and can no longer be the subject of a nonsuit. This is true regardless of whether the court enters an order indicating that the claim has been “dismissed.” On the other hand, if the demurrer is sustained with leave to amend, the ruling is not “dispositive with finality” and a nonsuit would remain a viable option.
The Court went through the various counts and entered an order clarifying that the claims that it had previously disposed of pursuant to its rulings on the demurrers and pleas in bar were dismissed with prejudice and could not be nonsuited. The court allowed the plaintiff to take a nonsuit as to the remaining, unresolved claims.