Present: All the Justices
ROGER LEE KELLY
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 972272 September 18, 1998
DELORES CARRICO
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Thomas D. Horne, Judge
As relevant to this appeal, Code § 8.01-380(A) provides that a
party shall not be allowed to take a voluntary nonsuit "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." In this case, we
consider whether the trial court's order granting a motion for
nonsuit on the basis that the action had not been submitted to the
court for decision is erroneous.
Delores Carrico filed a motion for judgment against Roger Lee
Kelly. Carrico, who had nonsuited a prior action against Kelly,
alleged in her motion that she was injured as a result of Kelly's
negligent operation of an automobile. Kelly filed a grounds of
defense and asserted, among other things, that Carrico was guilty
of contributory negligence. Pursuant to Rule 3:12, Kelly requested
that Carrico reply to any "new matter" contained in his grounds of
defense, including his allegations that Carrico was guilty of
contributory negligence. 1 Carrico failed to file a reply as
requested.
On the morning of trial, after the jury had been impaneled,
Kelly made a motion requesting that the trial court enter a
judgment in his favor on the pleadings. 2 Kelly asserted that he was
entitled to judgment on the pleadings because he had pled "new
matter" in his grounds of defense, which, if true, would show that
Carrico was guilty of contributory negligence and, thus, she would
be barred as a matter of law from any recovery against Kelly.
Relying upon Rule 1:4(e), Kelly argued that he had pled allegations
of fact to support his affirmative defense of contributory
negligence, and that those allegations are deemed to have been
admitted because Carrico had failed to deny them. 3
The court and counsel discussed the merits of Kelly's "motion
for judgment on the pleadings." During the discussion, the trial
judge stated that he intended to read a certain case before
deciding Kelly's motion. The following colloquy ensued:
1
Rule 3:12 states in relevant part: "If a plea, motion or
affirmative defense sets up new matter and contains words expressly
requesting a reply, the adverse party shall within twenty-one days
file a reply admitting or denying such new matter."
2
This Court's Rules do not recognize "judgment on the
pleadings." However, Carrico did not object to Kelly's use of this
procedural device.
3
Rule 1:4(e) states in relevant part: "An allegation of fact
in a pleading that is not denied by the adverse party's pleading,
when the adverse party is required by these Rules to file such
pleading, is deemed to be admitted. An allegation in a pleading
2
"[CARRICO'S COUNSEL]: Your Honor, I mean, this is a
horrible injustice for this young lady. I would ask the
Court to give me a second nonsuit then. I mean, I do not
see why —
"THE COURT: That is a different issue.
. . . .
"THE COURT: We have not gotten to that point. My
inclination is — What is your position as far as a second
nonsuit? I assume that is objected to.
"[KELLY'S COUNSEL]: Well, we would, of course,
object. But I understand that this is coming up this
morning —
"THE COURT: I will tell you that — I will take a
look at the case. I will give you a second nonsuit in
the case — and I will tell you that on the front end —
before I would throw this case out. I agree with you.
"But the rules are the rules. And, quite frankly,
if we do not have any reply, the issues are not
necessarily joined in the case.
"Let me take a look at the case. . . . If you would
just give me one moment to read this case and just
confirm what I believe to be the case."
The court then took a recess. At the conclusion of the
recess, Carrico's counsel asked for permission to amend her
pleadings. The trial court did not rule on Carrico's request to
amend. The court did, however, sustain Carrico's motion for a
second nonsuit. Kelly appeals.
Kelly, relying principally upon Wells v. Lorcom House
Condominiums' Council of Co-Owners, 237 Va. 247, 377 S.E.2d 381
(1989), argues that the trial court erred by sustaining Carrico's
motion for a nonsuit because the action had been submitted to the
court for decision. We disagree with Kelly.
that the party does not know whether a fact exists shall be treated
as a denial that the fact exists."
3
In Wells, the plaintiffs filed an amended motion for judgment
against certain defendants, alleging that they were responsible for
property damage to a building. The defendants denied the material
allegations of the amended motion for judgment and also filed a
plea in bar, demurrer, and "motion to dismiss." On June 20, 1985,
the litigants appeared before the trial court and argued the
motions raised by the various pleadings. On November 7, 1985,
counsel for plaintiffs submitted a letter to the trial court,
stating that the court had taken the various motions and demurrer
"under advisement" and requesting that the court inform him when
its "ruling may be expected." On March 19, 1986, plaintiffs filed
a notice and draft order for a voluntary nonsuit, according to the
provisions of Code § 8.01-380. The trial court granted the nonsuit
over the defendants' objection and dismissed the action without
prejudice. Id. at 250, 377 S.E.2d at 382-83.
We held that under the facts and circumstances in Wells, the
plaintiffs' request for a nonsuit was not timely because the
nonsuit motion was made after the action had been submitted to the
court for a decision within the meaning of the nonsuit statute. We
stated:
"Among the matters upon which the parties had joined
issue and which were argued to the trial court on June
20, 1985 were: defendants' demurrer attacking the legal
sufficiency of the amended motion for judgment;
defendants' plea in bar based on various statutes of
limitations; and defendants' motion to dismiss. Any one
of those pleadings were case dispositive if the court
4
ruled in favor of the defendants. Moreover, the record
is clear that no one, neither the trial judge nor the
attorneys, contemplated that any further action, such as
briefing, was necessary in order to enable the court to
decide the issues. Indeed, counsel for the plaintiffs
recognized this fact because he wrote the trial judge in
November inquiring 'when your ruling may be expected.'
"Consequently, we hold under these circumstances
that the action had been 'submitted to the court for
decision,' the request for nonsuit came too late, and the
trial court erred in granting the request." Id. at 252,
377 S.E.2d at 384.
The facts in this record are distinguishable from the facts of
record in Wells. Carrico made her nonsuit motion before the trial
court recessed to consider the merits of Kelly's dispositive
motion. We have stated, when construing the nonsuit statute, that
for a submission to occur, it is "necessary for the parties, by
counsel, to have both yielded the issues to the court for
consideration and decision." Moore v. Moore, 218 Va. 790, 795, 240
S.E.2d 535, 538 (1978). Here, there was no submission because the
nonsuit motion was made before the court recessed to consider the
merits of Kelly's motion and, thus, Carrico did not yield the
dispositive issues to the court for consideration and decision.
See City of Hopewell v. Cogar, 237 Va. 264, 268, 377 S.E.2d 385,
387-88 (1989) (nonsuit erroneously denied when motion was made
within period allowed by court for litigants to file memoranda of
law); Khanna v. Dominion Bank, 237 Va. 242, 245, 377 S.E.2d 378,
380 (1989) (nonsuit motion properly denied when filed after court
had announced decision).
5
Even though the trial court's final order states that after
the trial judge returned to the bench from his recess, he
"indicated that he was ready to rule on the motion, and the
[p]laintiff requested leave to suffer a second nonsuit of this
cause of action, to which the [d]efendant objected," the order also
states that before the trial court recessed, "the [c]ourt indicated
its willingness to grant a second nonsuit, and counsel for
[Carrico] stated that he would ask for a second nonsuit as stated."
Our review of this order indicates that the trial court was correct
in ruling that Carrico's request for a second nonsuit was made
before the court recessed to consider the merits of Kelly's motion.
We do not consider Kelly's assignment of error that "[t]he
trial court erred in permitting Carrico to suffer a second nonsuit
because the second nonsuit was prejudicial to Kelly's rights." As
Carrico observes on brief, Kelly did not raise this objection in
the trial court. Rule 5:25. Likewise, we do not consider Kelly's
contention that Carrico's failure to file a pleading required by
the Rules does not constitute good cause for granting a second
nonsuit because this argument was not raised in the trial court.
Rule 5:25.
Accordingly, the judgment of the trial court will be affirmed.
Affirmed.
6