PRESENT: All the Justices
CECILA RENE LIDDLE
OPINION BY
v. Record No. 010614 JUSTICE DONALD W. LEMONS
March 1, 2002
JOHN REX PHIPPS
FROM THE CIRCUIT COURT OF CARROLL COUNTY
Duane E. Mink, Judge
In this appeal, we consider whether an order of nonsuit
under Code § 8.01-380(A) was proper.
I. Facts and Proceedings Below
On May 2, 2000, John Rex Phipps (“Phipps”) filed a personal
injury action against Cecila Rene Liddle (“Liddle”). Liddle
timely filed her grounds of defense and on May 19, 2000, Liddle
served interrogatories on Phipps. Phipps did not respond to
Liddle’s interrogatories, despite inquiries by Liddle in June,
July, and August 2000. On August 11, 2000, Liddle filed a
motion to compel discovery.
At a telephone hearing on August 23, 2000, the trial court
orally granted Liddle’s motion to compel and ordered that Phipps
completely and accurately respond to Liddle’s discovery requests
by October 2, 2000, or pay a sanction of $250. The trial court
further ordered that if Phipps failed to completely and
accurately respond to Liddle’s discovery requests by November 2,
2000, Phipps’ “action shall be dismissed with prejudice, which
dismissal this Court finds to be an appropriate sanction in
accordance with Rule 4:12 and other applicable Virginia law.” 1
Phipps failed to respond to Liddle’s discovery request by
either the October or November deadlines established in the
order. Liddle prepared a proposed final order dismissing the
case with prejudice and presented the order to Phipps for
endorsement.
On November 29, 2000, Phipps filed a motion for nonsuit.
At a hearing on December 4, where Phipps appeared in person and
Liddle participated by telephone, the court heard argument on
both Liddle’s proposed final order dismissing the case with
prejudice and Phipps’ motion for a nonsuit. During the hearing,
Liddle argued that because Phipps failed to respond to the
discovery requests, the case should be dismissed with prejudice
in accordance with the trial court’s order of October 5, 2000.
Liddle further maintained that Phipps’ motion for nonsuit came
too late because the action “had ‘been submitted to the Court
for decision’ within the meaning of [Code § 8.01-380].”
Phipps’ counsel stated that Phipps is elderly and unable to
drive, that he and his wife live in South Carolina where his
wife is under treatment in a health care facility, and that
their daughter, the only person who could drive them to
1
The trial court entered an order on October 5, 2000
memorializing the August ruling.
2
Virginia, was in a car accident sometime after November 2, 2000.
Phipps’ counsel stated that he contacted Phipps “on several
occasions to have him return to Carroll County” in order to
prepare the discovery responses, but Phipps had not yet
returned. Phipps’ counsel maintained that the motion for
nonsuit was not untimely, that Phipps had not previously taken a
nonsuit in this action, and that he had an absolute right to a
nonsuit under Code § 8.01-380.
The trial court found that “[Phipps] ha[d] not served . . .
responses to [Liddle’s] discovery requests,” but the trial court
held “that [Phipps’] motion for nonsuit [was] not too late under
§ 8.01-380 or the decisions of the Supreme Court of Virginia
interpreting that statute, and consequently, that [Phipps’]
motion for nonsuit should be granted.” Additionally, the trial
court ordered that Phipps pay Liddle the sum of $250 as a
discovery sanction. Liddle appeals the ruling of the trial
court granting Phipps a nonsuit.
II. Analysis
On appeal, Liddle argues that the trial court’s October 5,
2000 order “constituted an adjudication that this case should be
and would be dismissed with prejudice” if Phipps did not respond
to the discovery requests by November 2, 2000. Liddle maintains
that the matter of dismissal had been submitted to the circuit
court for decision and had been decided. Accordingly, Liddle
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argues, Phipps’ November 29, 2000 motion for nonsuit was
untimely under Code § 8.01-380. 2
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 proceedings, 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.
As we have previously held, a matter that has been decided most
assuredly has been “submitted to the court” under the terms of
the statute. Khanna v. Dominion Bank, 237 Va. 242, 245, 377
S.E.2d 378, 380 (1989). However, when further submissions from
the parties are contemplated, a matter has not been finally
yielded for decision or finally determined.
In the context of this discovery dispute, the trial court
ordered Phipps to respond to discovery requests propounded by
Liddle and provided an escalating series of sanctions for
failure to do so. The trial court’s order provided, in part,
that, “if the plaintiff fails to respond completely and
accurately to the defendant’s discovery requests by October 2,
2000, the plaintiff shall pay to the defendant the sum of
$250.00 which payment this Court finds to be an appropriate
sanction in accordance with Rule 4:12 and other applicable
Virginia law.” Clearly, a failure to respond at all would be
2
Phipps did not submit a brief in this appeal.
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sanctionable, as would a response that was not complete and
accurate. The order, by its very terms, contemplated that
further consideration by the trial court regarding compliance
may be necessary before the sanction could be imposed.
Similarly, the trial court’s discovery order contemplated a
second level of sanction by directing that, “if the plaintiff
fails to respond completely and accurately to the defendant’s
discovery requests by November 2, 2000, the plaintiff’s action
shall be dismissed with prejudice, which dismissal this Court
finds to be an appropriate sanction in accordance with Rule 4:12
and other applicable Virginia law.” As with the first level of
sanctions, the provision for dismissal also contemplated further
consideration by the trial court to potentially evaluate the
completeness and accuracy of Phipps’ responses prior to
imposition of a dismissal order as a sanction. Additionally,
the last provision in the trial court’s order stated, “[a]nd
this action is continued.”
The express language of the discovery order and the
subsequent conduct of counsel and the trial court confirm that
further consideration by the trial court was contemplated by the
discovery order. On this record, it is clear that the issue of
dismissal had not been decided by the discovery order.
Nonetheless, the question remains, was the issue “submitted
to the court for decision?” In Transcontinental Ins. Co. v.
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RBMW, Inc., 262 Va. 502, 514, 551 S.E.2d 313, 319 (2001), we
held that “when construing the nonsuit statute, . . . for an
action to be ‘submitted to the court,’ it is ‘necessary for the
parties, by counsel, to have both yielded the issues to the
court for consideration and decision.’” (Citing Moore v. Moore,
218 Va. 790, 795, 240 S.E.2d 535, 538 (1978)). In City of
Hopewell v. Cogar, 237 Va. 264, 377 S.E.2d 385 (1989), we held
that there was no submission of the issue when the trial court
permitted the litigants to file additional memoranda in support
of their positions on a motion for summary judgment, and the
plaintiff took a nonsuit prior to the date upon which such
memoranda were due. Id. at 267, 377 S.E.2d at 387. Similarly,
in the case before the Court, the express terms of the discovery
order and the conduct of the parties reveal that additional
consideration by the trial court was anticipated before the
matter of dismissal would be decided. We hold that the issue of
dismissal was not decided by the discovery order and was not
submitted to the trial court within the meaning of Code § 8.01-
380(A).
Citing The Berean Law Group v. Cox, 259 Va. 622, 528 S.E.2d
108 (2000), Liddle argues that the discovery order became a
final order upon the occurrence of Phipps’ failure to respond to
discovery on November 2, 2000 and that an order of nonsuit could
not be entered more than 21 days after November 2, 2000. In
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Berean the trial court had ordered that a demurrer be sustained
and further that “plaintiff’s action against [the defendants]
shall STAND DISMISSED unless on or before [a subsequent date
certain], the plaintiff shall file an Amended Motion for
Judgment which is sufficient in law.” Id. at 624, 528 S.E.2d at
110. The plaintiff did not act within the time specified, and
on a date more than 21 days after the time specified in the
order, the trial court granted plaintiff’s motion for a nonsuit.
Id. at 625, 528 S.E.2d at 110.
We reversed the trial court’s entry of nonsuit and entered
final judgment for the defendants, holding: “[A]n order that
sustains a demurrer and dismisses the case if the plaintiff
fails to amend his motion for judgment within a specified time
becomes a final order upon the plaintiff’s failure to file an
amended motion within the specified time.” Id. at 626, 528
S.E.2d at 111. An order sustaining a demurrer and dismissing a
case is a final order, whereas the discovery order in this case
was not. We have recently restated that discovery orders are
not final orders. America Online, Inc. v. Anonymous Publicly
Traded Co., 261 Va. 350, 358, 542 S.E.2d 377, 381 (2001).
Because the discovery order was not final, it was not subject to
the limitations upon modification contained in Rule 1:1.
Additionally, as we have noted above, the discovery order did
not decide the issue of dismissal.
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When the trial court simultaneously considered the motion
for entry of a dismissal order and the motion for entry of an
order of nonsuit, the dismissal issue had not been decided or
previously submitted to the court for decision. Because the
discovery order was not subject to the limitations of Rule 1:1,
the trial court had the power to reconsider its provisions.
Clearly, the trial court did so when it entered the nonsuit
order rather than the dismissal order. The trial court did not
err in doing so.
Accordingly, we will affirm the judgment of the trial
court.
Affirmed.
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