In the case of Doctor's Building Partnership v. Bremer, the Virginia Supreme Court addressed an appeal regarding the trial court's decision to grant a nonsuit while a statutory plea under Code 8.01-422 was pending. The Doctors sought payment enforcement for a deferred purchase money note tied to a 1983 commercial property sale, while Bremer, a defendant and general partner, countered with allegations of breach of warranty related to building code compliance. Bremer's statutory plea was termed a "claim for recoupment," which Doctors did not contest in their appeal.
Before the scheduled trial, Bremer nonsuited his counterclaims. The trial court determined that an addendum to the purchase agreement did not nullify the warranties. On the trial day, Doctors' motion for nonsuit was granted, prompting Bremer's appeal on the grounds that the nonsuit violated Code 8.01-380 due to his pending plea and the case's submission for decision. Bremer argued that allowing the nonsuit would unfairly advantage the plaintiff, contravening common-law principles.
The court reviewed the legislative history of the nonsuit statute, noting that Code 8.01-380 prohibits a nonsuit after a case is submitted for decision unless consent is given from the opposing party with a counterclaim, which was not obtained. Ultimately, the court affirmed the trial court's order, concluding that the nonsuit was appropriately granted under the applicable statutes.
In 1977, Virginia's Code 8-241 was recodified as Code 8.01-422, which is the basis for Bremer's statutory plea. Bremer argues that the recodification and amendments to the previous codes did not enact substantive changes and that the insertion of "counterclaim" was merely a change in terminology. He claims his statutory plea, considered a "counterclaim," should be protected from nonsuit under Code 8.01-380(C), similar to protections for former "pleas and accounts." However, a review of the legislative history reveals that Bremer’s premise is incorrect, as substantive changes were indeed made between the former codes. The Virginia Code Commission identified obsolete statutes following the 1950 Code's enactment and noted that procedural rules had changed, particularly with the introduction of Rule 3:8, which defined counterclaims broadly and excluded equitable relief claims previously allowed under Code 8-241. The Commission recommended amendments to align the new rule with the former code, suggesting the retention of certain equitable defenses. Ultimately, the General Assembly amended Code 8-241 to reflect these changes, retaining equitable pleas while altering the title to emphasize this new scope. Additionally, the amendments to Code 8-244 were based on the Commission's report, applying limitations on nonsuits specifically to counterclaims and cross claims. Bremer's assertion that the use of "counterclaim" was merely nominal is incorrect; it was intentionally included to align with the newly defined counterclaims in Rule 3:8.
A statutory plea filed under Code 8.01-422 is not classified as a counterclaim per Code 8.01-380(C). Consequently, the conditions for a nonsuit under subsection C do not apply. Bremer argues that the nonsuit was prohibited by Code 8.01-380(A) because the court had addressed issues related to the warranties in the purchase agreement before the nonsuit motion. However, this court ruling did not resolve liability and is comparable to other trial rulings that do not constitute submitting the action for decision under Code 8.01-380(A). Bremer previously asserted that his claim was not a counterclaim, supporting the conclusion that the nonsuit did not violate Code 8.01-380(A).
Moreover, Bremer contends that the trial court erred in granting the nonsuit as it could prejudice the defendant's rights. However, any prejudice, such as preventing the defendant from pursuing claims, does not bar defenses raised in response to a motion for judgment, which can be reasserted if the motion is refiled. Common law considerations regarding prejudice have been incorporated into Code 8.01-380(C), which prohibits a nonsuit if a counterclaim or related claim is pending. Since the Doctors' motion for a nonsuit occurred before the matter was submitted to the court, and no counterclaim or similar claims were pending, Doctors were entitled to a nonsuit as a matter of right under Code 8.01-380. Consequently, the court affirms the trial court's order.
