Shepelak v. Pascuzzi

The defendants’ pleas of the statute of limitations are granted. By letter of her counsel of December 16, 1986, plaintiff forwarded to the court clerk a proposed nonsuit order relative to the motion for judgment she filed December 30, 1985. No formal nonsuit motion was filed. The suit had been filed on the last day of the limitations period allowed for it by statute.

Virginia Code Section 8.01-380(B) gives a plaintiff the absolute right to suffer one nonsuit; however, the litigation subject of a nonsuit motion is not terminated until the trial court enters an appropriate order granting the motion. Nash v. Jewell, 227 Va. 230 (1984) at page 237. Rule 3:3 permitted the plaintiff one year after December 30, 1985, in which to secure service upon the defendants. The action was not terminated until entry on January 7, 1987, of the nonsuit order. Service not having been obtained within the requisite period, and no showing having been made by the plaintiff of an exercise of due diligence to have effected timely service upon *286the defendants, her cause of action became time barred. The January 7, 1987, nonsuit order and the savings provision of Code Section 8.01-229(D)(3) could not resurrect it.