Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC.,
d/b/a TIDEWATER RENAL DIALYSIS CENTER
OPINION BY
v. Record No. 052317 SENIOR JUSTICE CHARLES S. RUSSELL
September 15, 2006
LISA COSTON
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Norman A. Thomas, Judge
This appeal presents the question whether a plaintiff’s
motion for a voluntary nonsuit was timely made under the terms
of Code § 8.01-380(A). The facts pertinent to the appeal are
undisputed.
Facts and Proceedings
Lisa Coston brought an action at law against Bio-Medical
Applications of Virginia, Inc., d/b/a/ Tidewater Renal
Dialysis Center, to recover damages for personal injuries she
sustained in several falls while she was a patient receiving
treatment in the defendant’s dialysis facility. The falls
were caused by defective equipment used by the defendant. The
plaintiff alleged that the defendant had failed to meet the
standard of care required of it as a health care provider.
The trial court entered a pre-trial order directing the
plaintiff to identify her expert witnesses and the plaintiff
complied, designating as her witnesses a number of physicians
and other medical staff.
The defendant, through discovery, ascertained that none
of the plaintiff’s designated expert witnesses was prepared to
testify with respect to the applicable standard of care. The
defendant then filed a motion for summary judgment, contending
that the plaintiff, having brought a medical malpractice case,
had a duty to present expert testimony that the defendant had
fallen below the applicable standard of care, that the
plaintiff had no such evidence, and that the plaintiff would
therefore be unable to present a prima facie case.
The trial court heard oral arguments on the motion for
summary judgment. At the conclusion of the plaintiff’s final
argument in opposition to the motion, the court said to
defense counsel: “Final word, Mr. Wimbish.” Defense counsel
made a brief rebuttal argument. The court then stated: “The
court finds upon consideration of the motion for summary
judgment that the plaintiff has pled a medical malpractice
action. . . . it’s just where we find ourselves in this
lawsuit, and that’s the court’s ruling. And it would indeed
. . . require expert testimony to set the standard of care to
render [an] opinion to a jury as to whether that standard of
care was breached.” (Emphasis added.)
The trial court then inquired of counsel: “With that
said, does either counsel have anything further to say, or to
request, or to move the court?” Counsel for the plaintiff
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thereupon moved for a voluntary nonsuit. Defense counsel
opposed the motion on the ground that it came too late. The
court, after a review of our decisions, decided that it had
not yet announced its ruling on the motion for summary
judgment when the nonsuit motion was made, and that the
plaintiff was therefore entitled to a nonsuit as a matter of
right. Over the defendant’s objection, the court entered an
order of nonsuit. We awarded the defendant an appeal.
Analysis
Code § 8.01-380(A) provides, in pertinent part: “A party
shall not be allowed to suffer a nonsuit as to any cause of
action or claim, or any other party to the proceeding, unless
he does so 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.” The
plain language of this section imposes a time bar for the
plaintiff’s ability to interpose a nonsuit in three
conceptually distinct situations: The first contemplates a
trial on the merits in which the plaintiff’s case has been
fully presented to the trier of fact, the plaintiff has
rested, the defendant has moved the court to strike the
plaintiff’s evidence and the court has sustained the motion;
the second contemplates a jury trial in which all parties have
rested, the court has instructed the jury, and the jury has
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retired to consider its verdict; the third contemplates a case
in which the action is in the hands of the trial judge for
final disposition, either on a dispositive motion or upon the
merits.
Formerly, the only statutory limitation on the time in
which a nonsuit could be taken was the second of these three
situations, the jury’s retirement from the bar. Code of 1919,
§ 3387; Code of 1950, § 8-220. The nonsuit statute was given
its present tripartite form in 1954 (1954 Acts, ch. 333,
amending former Code § 8-220) although in language differing
slightly from that now in force. Since that time, we have
frequently been called upon to construe its newer first and
third branches.1
It has been necessary to apply different rules for the
application of the first and third branches of the nonsuit
statute. The first branch, involving motions to strike the
1
The older second branch, the jury’s retirement from the
bar, has been a part of our law for 207 years. 1789 Acts, ch.
28. Moore v. Moore, 218 Va. 790, 793-94, 240 S.E.2d 535, 537
(1978). It has not required analysis on appeal since 1954,
perhaps because it involves a clearly discernable physical
event in the courtroom. We touched upon it in Ford Motor
Company v. Jones, 266 Va. 404, 587 S.E.2d 579 (2003), where we
held that it was inapplicable where a judgment based upon a
jury verdict had been reversed on appeal, the case had been
remanded, and was awaiting a new trial. There, we held that
although the first jury had retired from the bar, the reversal
had restored the litigants to their original rights as though
no trial had occurred. 266 Va. at 407, 587 S.E.2d at 581.
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evidence, has been discussed and applied in a series of cases2
beginning with Berryman v. Moody, 205 Va. 516, 137 S.E.2d 900
(1964). We have adhered to the rule, first announced in
Berryman, that the time bar fixed by that branch of the
nonsuit statute does not become effective until the trial
court actually sustains a motion to strike the evidence.
Thus, a nonsuit is timely if taken while the trial judge is
explaining his ruling, as long as he has not actually
sustained the motion to strike. Id. at 518-19, 137 S.E.2d at
902. Although this rule has been criticized on the ground
that it rewards interrupting the court,3 we have continued to
apply it for the reasons stated in Newton v. Veney, 220 Va.
947, 265 S.E.2d 707 (1980), where we said:
The construction we give the statute is
necessary because of the varying practices followed
by trial courts, and to avoid confusion and
uncertainty. Some judges rule on a motion to strike
without explanation or comment. Some rule and then
explicate. And some analyze the motion, summarize
and discuss the evidence, and then rule. When this
last practice is followed a plaintiff is free to
suffer a nonsuit at any time prior to a ruling by
the court.
Id. at 952, 265 S.E.2d at 711.
2
E.g. Newton v. Veney, 220 Va. 947, 265 S.E.2d 707
(1980); Homeowners Warehouse, Inc. v. Rawlins, 242 Va. xiii,
409 S.E.2d 115 (1991) (order and dissenting opinion); Hilb,
Rogal & Hamilton Co. v. DePew, 247 Va. 240, 440 S.E.2d 918
(1994).
3
Homeowners Warehouse, Inc., 242 Va. at xiii, 409 S.E.2d
at 116 (dissenting opinion).
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The Berryman rule, however, applies only to the first
branch of the nonsuit statute, when a motion to strike the
evidence is before the court. The present case arises under
the third branch, the most productive of appeals, in which the
determinative question is whether the case had been “submitted
to the court for decision” when the motion for a nonsuit was
made. E.g. Moore v. Moore, 218 Va. 790, 240 S.E.2d 535
(1978); City of Hopewell v. Cogar, 237 Va. 264, 377 S.E.2d 385
(1989); Khanna v. Dominion Bank, 237 Va. 242, 377 S.E.2d 378
(1989); Wells v. Lorcom House Condominiums’ Council, 237 Va.
247, 377 S.E.2d 381 (1989); Kelly v. Carrico, 256 Va. 282, 504
S.E.2d 368 (1998); Transcontinental v. RBMW, 262 Va. 502, 551
S.E.2d 313 (2001); Liddle v. Phipps, 263 Va. 391, 559 S.E.2d
690 (2002); Atkins v. Rice, 266 Va. 328, 585 S.E.2d 550
(2003).
When the plaintiff moved for a nonsuit in the present
case, the parties had completed their oral arguments on a
motion for summary judgment that would, if granted, have been
dispositive. The trial court had announced its ruling
explicitly: “and that’s the ruling of the court.” The
court’s subsequent invitation to counsel to make further
comment, while laudably courteous, gave them an opportunity to
note their objections for the record but did nothing to
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rescind the court’s ruling. “It would be absurd to hold that
a claimant could suffer a nonsuit as a matter of right after a
court had decided the claim. Manifestly, an action has been
‘submitted to the court for decision’ by the time the court
decides the matter.” Khanna, 237 Va. at 245, 377 S.E.2d at
380.
But even where the court has not yet ruled, under the
third branch of the nonsuit statute, the case has been
submitted to the court for decision when both parties have
“yielded the issues to the court for consideration and
decision.” Atkins, 266 Va. at 331, 585 S.E.2d at 551. The
time bar becomes effective then, and does not await the
pronouncement of the court’s ruling. For that reason, the
trial court erred in applying the Berryman rule to a situation
governed by the third branch of the nonsuit statute.
Conclusion
When the motion for nonsuit was made in the present case,
the action had already been "submitted to the court for
decision" and the motion, therefore, came too late.
Accordingly, we will reverse the judgment and remand the case
for further proceedings consistent with this opinion.
Reversed and remanded.
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