The case involves Adel S. Kebaish, M.D., an orthopedic/spine surgeon, who entered into a Professional Services Agreement with INOVA Fairfax Hospital, allowing both parties to terminate the agreement with ninety days' notice. After INOVA Fairfax Hospital terminated the agreement in November 2009, Dr. Kebaish filed a nine-count complaint in the Circuit Court of Fairfax County in June 2010 against various defendants, including INOVA Health Care Services and several medical professionals, alleging defamation, breach of contract, tortious interference, conspiracy, wrongful termination, and unjust enrichment, and seeking $35 million in damages.
The case was subsequently removed to federal court due to the involvement of defendants Paik and Shawen, who were identified as U.S. Army officers acting within their employment scope. Dr. Kebaish then filed an amended complaint in federal court, omitting Paik and Shawen, but retaining the same nine counts plus an additional count for negligent retention, before voluntarily dismissing the case in September 2010 without prejudice. The appeal addresses whether the Fairfax County Circuit Court erred in allowing Dr. Kebaish to take a nonsuit as a matter of right, based on the determination that his prior federal dismissal did not constitute a nonsuit under Virginia law.
Dr. Kebaish filed a complaint against INOVA in the Circuit Court of Fairfax County in October 2010. INOVA responded with a demurrer, which was partially sustained and partially overruled in December 2010. In January 2011, Dr. Kebaish filed an amended complaint, alleging six counts: defamation (Count I), breach of contract against INOVA Fairfax Hospital (Count II), tortious interference with contracts (Count III), common law conspiracy (Count IV), statutory conspiracy (Count V), and unjust enrichment against INOVA Fairfax Hospital (Count VI). He sought $35 million in compensatory and punitive damages, along with reimbursement for legal and expert fees.
During a jury trial in September 2011, Dr. Kebaish requested a nonsuit, claiming he had not previously nonsuited. INOVA objected, arguing that his voluntary dismissal in federal court equated to a nonsuit under Virginia law. The trial court overruled this objection, allowing the nonsuit. INOVA appealed, contending that the trial court erred in granting the nonsuit based on its interpretation of Virginia Code § 8.01-380(B) and its prior rulings in federal court.
The analysis section emphasizes that statutory interpretation is a question of law reviewed de novo, adhering to the unambiguous language of the statute unless it leads to absurdity. The history of Virginia's nonsuit statute, enacted in 1789 and amended in 1932, is also outlined, highlighting the conditions for taking a nonsuit and the limitations on pursuing the same cause of action in a different court thereafter.
In 1954, the statute (formerly Code 8-220) was amended to stipulate that a party cannot suffer a nonsuit after the jury has been dismissed, the case submitted to the court, or a motion to strike evidence has been granted. This amendment included the term "suit," changing the general equity rule and allowing for voluntary dismissal only before submission to the chancellor. In nonjury trials, a nonsuit or dismissal without prejudice is not permitted after the case has been submitted for decision. The Virginia General Assembly intended the term 'nonsuit' to be broadly interpreted, encompassing voluntary terminations that do not preclude future lawsuits on the same cause of action. Under Code 8.01-380(B), a plaintiff in Virginia is entitled to one nonsuit as a matter of right, which must be executed before certain procedural milestones. In contrast, federal court voluntary dismissals under Federal Rule 41(a)(1)(A)(i) can only occur before the opposing party serves an answer or motion for summary judgment. The right to a nonsuit in Virginia is seen as a significant tactical advantage for plaintiffs, despite potential disruptions to the court's schedule. Federal courts aim to limit the timing of voluntary dismissals, placing control with the trial judge. Thus, in Virginia, the right to a nonsuit is more flexible than the right to a voluntary dismissal in federal court, and Code 8.01-380 does not address the implications of a prior federal court dismissal on a plaintiff's right to a nonsuit.
Dr. Kebaish is permitted to take a nonsuit as a matter of right under Code 8.01-380, despite INOVA's argument that his prior voluntary dismissal in federal court bars this action. INOVA cites Code 8.01-229(E)(3), which states that a voluntary dismissal in federal court is treated as a nonsuit under 8.01-380, allowing for tolling of the statute of limitations. However, the language of Code 8.01-229(E)(3) only pertains to tolling and does not equate a federal voluntary dismissal with a nonsuit under Virginia law. INOVA also references the case Welding, asserting it prevents Dr. Kebaish from taking a nonsuit due to his federal dismissal. While Welding recognized that the designation of nonsuit is specific to Virginia procedures and that federal courts do not have an equivalent term, this does not resolve the issue at hand. The court concludes that the trial court correctly allowed Dr. Kebaish to take a nonsuit, affirming its judgment.
