This matter is before the Court on Complainant’s Motion for Nonsuit. Complainant filed his motion on January 19, 1988, four days after oral argument on a plea in bar previously filed by Defendant. The question which this Court must determine is whether Complainant, at this stage in the proceedings, should be permitted to suffer a voluntary nonsuit under Va. Code § 8.01-380 (Repl. Vol. 1984).
Under § 8.01-380, no party shall "be allowed to suffer a nonsuit as to any cause of action or claim . . . unless he does so . . . before the action has been submitted to the court for decision." (Emphasis added.) A "submission" occurs when "the parties, by counsel . . . both yield [ ] the issues to the court for consideration and decision. This [may be] accomplished either as the result of oral or written argument, formal notice and motion, or by tendering a jointly endorsed sketch for a decree." Moore v. Moore, 218 Va. 790, 795-96 (1978) (original emphasis).
Under the circumstances of this case, this action had already been submitted to the Court for determination when Complainant moved to nonsuit. Defendant’s Plea in Bar by its very nature went to the substantive merits of the case. See Boyd and Koontz, Burks Pleadings and Practice, § 216 at 369 (1952). Such pleas, if sustained,
Defendant’s plea was argued by both counsel on January 15, 1988. Immediately thereafter, the Court orally sustained Defendant’s plea, although the written order has not yet been entered. Notwithstanding the Court’s oral pronouncement of its decision, when counsel concluded their arguments, the matter was submitted to the Court for determination.
Consequently, Complainant’s Motion for Nonsuit is denied, and Mr. Sabourin’s proposed order sustaining Defendant’s Plea in Bar has been entered.