September 18, 1998
Record No. 972272




Thomas D. Horne, Judge

Present: All the Justices

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
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:
"[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
"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.
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 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).
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.


[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 that the party does not
know whether a fact exists shall be treated as a denial that the
fact exists."