
    CIRCUIT COURT OF PRINCE WILLIAM COUNTY
    Chatman v. Nowell’s Auto and Truck Repair
    September 11, 1995
    Case No. (Law) 35097
   By Judge Frank A. Hoss, Jr.

The issue before the Court in this case is whether a Plaintiff, who filed his cause of action in the General District Court, nonsuited that action, refiled same in the General District Court, proceeded to trial, appealed the results of that trial, and then, at the trial of the appeal in the Circuit Court, moved for a nonsuit, has available to him such a nonsuit as a matter of right. After considering the briefs filed by the parties, I am of the opinion that he does not have an additional nonsuit of right.

As both parties point out, there is no Virginia case directly on point. However, I believe there is authority in Virginia for the proposition that, in instances of appeal or removal of cases from the District Court to the Circuit Court, the case is a continuation of the original case. See Waller v. Anthony, 16 Va. Cir. 132 (1989) citing Hoffman v. Stuart, 188 Va. 785 (1949). It is this “continuation of the original case” theory (see Bryson, Handbook on Virginia Civil Procedure (2d ed. 1989) 86-89) that I believe overrides any notion that the de novo aspect of the trial in the Circuit Court would enable the Plaintiff to get two nonsuits as a matter of right in the same case.

Accordingly, I will exercise the discretion afforded me by § 8.01~380(B) of the Code of Virginia and permit the Plaintiff to nonsuit this matter only upon paying $700 in attorney’s fees for defense counsel’s preparation for and attending the scheduled trial in the Circuit Court. Otherwise, this matter will be dismissed with prejudice for failure of the Plaintiff to proceed with his evidence in this matter. The Plaintiff shall determine which option he wishes to pursue, prepare an Order, circulate same for endorsement, and submit it to the Court for entry.  