Inova Health Care v. Kebaish

Present: All the Justices
INOVA HEALTH CARE SERVICES,
d/b/a INOVA FAIRFAX HOSPITAL, ET AL.
v. Record No. 112070 OPINION BY JUSTICE DONALD W. LEMONS
September 14, 2012
ADEL S. KEBAISH, M.D.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jan L. Brodie, Judge
In this appeal, we consider whether the Circuit Court of
Fairfax County erred in allowing the plaintiff to take a
nonsuit as a matter of right pursuant to Code § 8.01-380(B)
based on its determination that the plaintiff's prior voluntary
dismissal in federal court was not a nonsuit under Code § 8.01-
380.
I. Facts and Proceedings Below
Adel S. Kebaish ("Dr. Kebaish"), a private practice
orthopedic/spine surgeon, entered into a Professional Services
Agreement (the "Agreement") with INOVA Fairfax Hospital to
provide "on-call" trauma services on a "non-exclusive basis."
Pursuant to the Agreement, both parties had the express right
to terminate the Agreement without cause upon ninety days
written notice. INOVA Fairfax Hospital exercised this right in
November 2009.
In June 2010, Dr. Kebaish filed a complaint (the
"complaint") in the Circuit Court of Fairfax County against
INOVA Health Care Services d/b/a INOVA Fairfax Hospital; Mark
M. Theiss, M.D. ("Theiss"); Robert A. Hymes, M.D. ("Hymes");
Cary C. Schwartzbach, M.D. ("Schwartzbach"); Jeffrey E.
Schulman, M.D. ("Schulman"); Alireza S. Malekzadeh, M.D.
("Malekzadeh"); L. Reuven Pasternak, M.D. ("Pasternak");
Patrick L. Christiansen, Ph.D. ("Christiansen"); Elizabeth
Davies, P.A. ("Davies"); Ryan D. Westbrook, P.A. ("Westbrook");
Katherine Brown, P.A.; Emily L. Cusimano, P.A. ("Cusimano");
John Paik, M.D. 1; and Scott B. Shawen, M.D. ("Shawen").
Specifically, Dr. Kebaish's nine-count complaint alleged:
Count I – defamation and defamation per se;
Count II – breach of contract;
Count III - tortious interference with existing
contract and/or business relationships
and business expectancy;
Count IV – common law conspiracy;
Count V – statutory conspiracy to injure Dr.
Kebaish in violation of Code
§§ 18.2-499 and -500;
Count VI – wrongful termination in violation of
the Virginia Consumer Protection Act;
Count VII – wrongful termination in violation of
the Virginia Antitrust Act;
Count VIII – wrongful termination in violation of
the Virginia Fraud Against Taxpayers
Act; and
Count IX – unjust enrichment.
1
Dr. Kebaish's complaint incorrectly referred to Haines
Paik ("Paik") as "John Paik."
2
Dr. Kebaish sought $35 million in compensatory damages as well
as punitive damages, attorneys' fees, expert witness' fees, and
other costs.
Paik and Shawen, both officers in the United States Army
and named defendants in the complaint, were alleged by Dr.
Kebaish to have acted in their respective individual capacities
and outside the scope of their respective employments. As a
result, the case was removed on behalf of the United States of
America by the United States Attorney to the United States
District Court for the Eastern District of Virginia ("federal
court"). The United States Attorney submitted certifications
stating that Paik and Shawen were "acting within the scope of
[their respective] office[s] or employment[s] as . . .
employee[s] of the United States of America at the time of the
incidents out of which [Dr. Kebaish's] claims arise."
Thereafter, the federal court entered a consent order
granting Dr. Kebaish leave to file an amended complaint
relating back to the original filing date in the Circuit Court
of Fairfax County. In August 2010, Dr. Kebaish filed his
amended complaint in federal court against INOVA Health Care
Services d/b/a INOVA Fairfax Hospital, Theiss, Hymes,
Schwartzbach, Schulman, Malekzadeh, 2 Pasternak, Christiansen,
2
This defendant's last name was spelled "Malekzadah" in
the amended complaint.
3
Davies, Westbrook, Kathryn Battle, 3 and Cusimano (collectively,
"INOVA" or the "Defendants"). The amended complaint did not
name Paik or Shawen as parties; contained the same nine counts
alleged in the initial complaint filed in the trial court, as
well as a new tenth count for negligent retention; and sought
to recover the same damages as requested in the initial
complaint.
In September 2010, Dr. Kebaish filed a "Notice of
Voluntary Dismissal" in the federal court prior to INOVA filing
an answer to the amended complaint. Pursuant to Federal Rule
of Civil Procedure 41(a)(1)(A)(i) ("Federal Rule
41(a)(1)(A)(i)"), Dr. Kebaish voluntarily dismissed his lawsuit
without prejudice.
Dr. Kebaish then filed a complaint against INOVA in the
Circuit Court of Fairfax County ("trial court") in October
2010. In response, INOVA filed a demurrer, which was sustained
in part and overruled in part in December 2010.
Thereafter, Dr. Kebaish filed an amended complaint in the
trial court in January 2011, in which he named the same
defendants as had been named in the amended complaint filed in
3
In the consent order entered by the federal court, "[t]he
parties also agree[d] to the substitution of Kathryn Battle for
named Defendant Katherine Brown, which corrects a misspelling
of Ms. Battle's first name and reflects Ms. Battle's legal,
married name."
4
the federal court in August 2010. 4 Specifically, the six-count
amended complaint alleged: 5
Count I – defamation and defamation per se
against all of the Defendants;
Count II – breach of contract against INOVA
Fairfax Hospital;
Count III - tortious interference with existing
contract and/or business
relationships and business expectancy
against all of the Defendants;
Count IV – common law conspiracy against all of
the Defendants;
Count V – statutory conspiracy to injure Dr.
Kebaish against all of the Defendants;
and
Count VI – unjust enrichment against INOVA
Fairfax Hospital.
Dr. Kebaish sought $35 million in compensatory damages as well
as punitive damages. Additionally, he sought reimbursement of
his attorneys' fees, expert witness' fees, and other costs.
The case proceeded to a jury trial in September 2011, and
Dr. Kebaish informed the trial court on the second day of trial
that he had "elected to use [his] nonsuit" because he "ha[d]
4
The amended complaint filed in the trial court was the
operative complaint at the time the trial court granted Dr.
Kebaish's motion for a voluntary nonsuit pursuant to Code
§ 8.01-380.
5
The amended complaint did not allege wrongful termination
under the Virginia Consumer Protection Act, the Virginia
Antitrust Act, or the Virginia Fraud Against Taxpayers Act.
Moreover, the amended complaint did not allege a claim for
negligent retention.
5
not nonsuited previously." INOVA objected, arguing to the
trial court that this Court stated in dicta in Welding, Inc. v.
Bland County Service Authority, 261 Va. 218, 223-24, 541 S.E.2d
909, 912 (2001), that a voluntary dismissal under Rule
41(a)(1)(A)(i) in federal court is equivalent to a nonsuit
under Code § 8.01-380(B). Therefore, INOVA argued, Dr. Kebaish
had already effectively taken a nonsuit based on his voluntary
dismissal of his action in federal court.
The trial court overruled INOVA's objection, concluding
that neither Welding nor Code § 8.01-380 provides that a
voluntary dismissal taken in federal court bars a future
nonsuit in state court. Consequently, the trial court
permitted Dr. Kebaish to take a nonsuit as a matter of right
pursuant to Code § 8.01-380(B).
INOVA timely filed its petition for appeal, and we granted
INOVA's appeal on the following assignment of error:
The trial court erred when it ruled that Virginia's
nonsuit statute, Va. Code § 8.01-380(B), required it to
grant [Dr. Kebaish's] motion for nonsuit as a matter of
right based on its determination that Respondent's prior
voluntary dismissal of his cause of action in federal
court was not a nonsuit under the statute.
II. Analysis
A. Standard of Review
Well-settled principles of statutory review guide our
analysis in this case.
6
[A]n issue of statutory interpretation is a pure
question of law which we review de novo. When
the language of a statute is unambiguous, we are
bound by the plain meaning of that language.
Furthermore, we must give effect to the
legislature’s intention as expressed by the
language used unless a literal interpretation of
the language would result in a manifest
absurdity. If a statute is subject to more than
one interpretation, we must apply the
interpretation that will carry out the
legislative intent behind the statute.
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,
104, 639 S.E.2d 174, 178 (2007) (citations omitted).
B. Code § 8.01-380(B)
The Virginia General Assembly enacted the first nonsuit
statute in 1789, which applied only to actions at law tried by
a jury. See 1789 Acts ch. 28. Section 10 of "An ACT
concerning Jeofails and certain Proceedings in civil Cases"
provided that "[e]very person desirous of suffering a nonsuit
on trial, shall be barred therefrom, unless he do so before the
jury retire from the bar." Id.
The statute remained substantially similar until it was
amended (then codified as Code § 6256) in 1932 to provide:
A party shall not be allowed to suffer a non-
suit, unless he do so before the jury retire from
the bar. And after a non-suit no new proceeding
on the same cause of action shall be had in any
court other than that in which the non-suit was
taken, unless that court is without jurisdiction,
or not a proper venue, or other good cause be
shown for proceeding in another court.
1932 Acts ch. 30.
7
Thereafter, in 1954, the first sentence of the statute
(then codified as Code § 8-220) was amended as follows:
A party shall not be allowed to suffer a nonsuit
unless he do so before the jury retire from the
bar or before the suit or action has been
submitted to the court for decision or before a
motion to strike the evidence has been sustained
by the court.
1954 Acts ch. 333 (emphasis added).
By including the word "suit" in the 1954 amendment, "the
General Assembly changed the existing equity general rule and
provided for a voluntary dismissal as a matter of right only up
to the time the suit had been 'submitted' to the chancellor for
decision." Moore v. Moore, 218 Va. 790, 795, 240 S.E.2d 535,
538 (1978). Accordingly, "in a nonjury trial, at law or in
equity . . . a nonsuit or dismissal without prejudice may not
occur as a matter of right after the 'suit or action has been
submitted to the court for decision.' " Id. (quoting former
Code § 8-220 (Supp. 1954)). We have previously recognized that
the General Assembly, in adopting the 1954 amendment, "intended
the statutory term 'nonsuit' to be used in a comprehensive
sense (i.e., voluntary termination by the plaintiff of pending
litigation not precluding a later lawsuit upon the same cause
of action), whether it be a nonsuit at law or a dismissal
without prejudice in equity." Id. at 795 n.4, 240 S.E.2d at
538 n.4. "This same comprehensive interpretation of the term
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[nonsuit] has been carried forward to the new nonsuit statute."
Id. See also Code § 8.01-380.
In Virginia, a plaintiff may take one nonsuit as a matter
of right. Code § 8.01-380(B). Code § 8.01-380(B) states, in
relevant part, that "[o]nly one nonsuit may be taken to a cause
of action or against the same party to the proceeding, as a
matter of right." This right must be exercised "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." Code § 8.01-380(A). By
contrast, a plaintiff in federal court may take a voluntary
dismissal as a matter of right pursuant to Federal Rule
41(a)(1)(A)(i) "before the opposing party serves either an
answer or a motion for summary judgment." Fed. R. Civ. P.
41(a)(1)(A)(i).
In discussing the benefit conferred upon a plaintiff in
taking a nonsuit as a matter of right pursuant to Code § 8.01-
380(B), we have previously stated:
The right to take a nonsuit on the eve of
trial, notwithstanding a defendant's loss of time
and expense incurred in preparation, and
notwithstanding any disruption which may result
to the court's docket, is a powerful tactical
weapon in the hands of a plaintiff. The General
Assembly has provided, in Code § 8.01-380,
several conditions to give balance to the
exercise of that right. Nonsuit remains,
however, distinctly a weapon in the arsenal of a
plaintiff.
9
Trout v. Commonwealth Transp. Comm'r of Va., 241 Va. 69, 73,
400 S.E.2d 172, 174 (1991). By contrast, in discussing the
purpose of a voluntary dismissal, the United States Court of
Appeals for the Third Circuit stated that:
[w]hile it is quite true that the practice in
many states has permitted a voluntary non-suit as
of right at advanced stages in the litigation,
sometimes even after submission of a case to a
jury, we think the object of the federal rules
was to get rid of just this situation and put
control of the matter into the hands of the trial
judge.
Ockert v. Union Barge Line Corp., 190 F.2d 303, 304 (3d Cir.
1951) (emphasis added).
Although a voluntary dismissal and a nonsuit provide a
plaintiff with a similar procedural right, the exercise of that
right varies significantly. Compare Fed. R. Civ. P.
41(a)(1)(A)(i), with Code § 8.01-380(B). In federal procedure,
a voluntary dismissal as a matter of right is available only if
exercised at the outset of the proceeding; whereas, use of a
nonsuit under Code § 8.01-380(A) may be exercised much later in
the proceeding – even at trial. Accordingly, the right to take
a nonsuit pursuant to Code § 8.01-380(B) in a Virginia state
court is much more expansive than the right to a voluntary
dismissal pursuant to Federal Rule 41(a)(1)(A)(i) in federal
court.
10
Code § 8.01-380 does not address what impact, if any, a
plaintiff's prior voluntary dismissal in federal court may have
on that plaintiff's right to take a nonsuit as a matter of
right. INOVA contends that Dr. Kebaish is barred from taking a
nonsuit as a matter of right pursuant to Code § 8.01-380 due to
his prior voluntary dismissal in federal court. INOVA argues
that Code § 8.01-229(E)(3) "calls for a [voluntary] dismissal
in federal court to be treated as 'a voluntary nonsuit
prescribed in § 8.01-380.' "
Code § 8.01-229(E)(3) provides that:
If a plaintiff suffers a voluntary nonsuit as
prescribed in § 8.01-380, the statute of
limitations with respect to such action shall be
tolled by the commencement of the nonsuited
action, and the plaintiff may recommence his
action within six months from the date of the
order entered by the court, or within the
original period of limitation, or within the
limitation period as provided by subdivision B 1,
whichever period is longer. This tolling
provision shall apply irrespective of whether the
action is originally filed in a federal or a
state court and recommenced in any other court,
and shall apply to all actions irrespective of
whether they arise under common law or statute.
Code § 8.01-229(E)(3) does not confirm or suggest that a
voluntary dismissal taken pursuant to Federal Rule
41(a)(1)(A)(i) is a nonsuit for purposes of Code § 8.01-380.
Rather, the plain language of Code § 8.01-229(E)(3)
demonstrates that the reference to actions originally filed in
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federal court applies only to the application of the tolling
provision. Code § 8.01-229(E)(3).
Additionally, INOVA argues that our decision in Welding
bars Dr. Kebaish from taking a nonsuit as a matter of right
because of his prior voluntary dismissal in federal court.
However, "[t]he term 'nonsuit' identifies a specific practice
used in Virginia civil procedure." Welding, 261 Va. at 223-24,
541 S.E.2d at 912. Although we previously stated that
"[f]ederal court practice does not include a procedure labeled
a 'nonsuit,' but does recognize procedures which are
substantially equivalent to Virginia's nonsuit," this
observation does not resolve the question presented here. Id.
at 224, 541 S.E.2d at 912. See also Fed. R. Civ. P. 41. A
nonsuit is only the functional equivalent to a voluntary
dismissal to the extent that both a nonsuit and a voluntary
dismissal provide a plaintiff with a method to voluntarily
dismiss the suit up until a specified time in the proceeding.
III. Conclusion
We hold that the trial court did not err in finding that
Dr. Kebaish was permitted to take a nonsuit as a matter of
right pursuant to Code § 8.01-380(B). Accordingly, we will
affirm the judgment of the trial court.
Affirmed.
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