Tort Law

Brien Roche

This page consist of a summary of cases dealing with the topic of non-suits when allowable. The cases are from the Virginia Supreme Court and are summarized by Brien Roche. For more information on the topic of personal injury see the other pages on the site. For more information on nonsuits see the pages on Wikipedia.

Non-Suits When Allowable: Cases

2012 INOVA Health Care Servs. v. Kebaish, 284 Va. 336, 732 S.E.2d 703.
Prior dismissal in federal court pursuant to Rule 41 is not a non-suit as defined in the Virginia statute.

2009 Martin v. Duncan, 277 Va. 204, 671 S.E.2d 151.
Assessment of jury costs for taking of non-suit during trial where that was the first non-suit is reversible error.

2009 Johnston Mem. Hosp. v. Bazemore, 277 Va. 308, 672 S.E.2d 858.
Plaintiff filed complaint alleging wrongful death prior to her qualifying as personal representative. Plaintiff thereafter qualified as administrator and then non-suited. Circuit Court granted motion to non-suit and denied defendant’s motion to abate the action. The action was a nullity from the beginning since there was no administrator appointed and therefore there was no right to non-suit.

2006 Berry v. F&S Fin. Mktg., 271 Va. 329, 626 S.E.2d 821.
Trial court properly granted non-suit made prior to the Defendant’s lodging of a motion to dismiss.

2006 Bio-Medical Applications of Va., Inc. v. Coston, 272 Va. 489, 634 S.E.2d 349.
In this medical malpractice action, after briefing and oral argument of a motion for summary judgment by defendant, the trial court announced a ruling for defendant and then invited further comment from counsel. Plaintiff attempted to non-suit at that point but the motion for non-suit was untimely.

2005 Williamsburg Peking Corp. v. Xianchin Kong, 270 Va. 350, 619 S.E.2d 100.
While motion for sanctions was pending, plaintiff moved for non-suit. Although plaintiff may have been entitled to non-suit, it was error for trial court to grant non-suit and thereby void the motion for sanctions. Case is remanded to trial court for ruling on the motion for sanctions prior to granting the plaintiff’s non-suit.

2004 Brake v. Payne, 268 Va. 92, 597 S.E.2d 59.
In this police excessive force claim resulting in wrongful death, first action was brought in name of parents of decedent. That action was non-suited. Second action was brought in name of administrator. Plaintiff in that second action sought to non-suit. Non-suit was properly allowed since second action involved a different plaintiff.

2003 Atkins v. Rice, 266 Va. 328, 585 S.E.2d 550.
Trial court improperly granted non-suit after defendant’s motion to dismiss filed, memorandum of law had been submitted, arguments made before the trial court, and no further evidence was to be presented or arguments made. In this case, the motion was one to dismiss based upon defects in service of process. Although that is not a motion to strike the evidence, it is a motion that had been submitted to the court for decision and as such, non-suit was not allowable.

2003 Ford Motor Co. v. Jones, 266 Va. 404, 587 S.E.2d 579.
Trial court properly permitted plaintiff to take non-suit after jury verdict had been reversed.

2003 Wilby v. Gostel, 265 Va. 437, 578 S.E.2d 796.
Plaintiff sought to non-suit after entry of order granting motion for partial summary judgment as to negligence of plaintiff. In that order, trial court determined that plaintiff was guilty of contributory negligence. For plaintiff to prevail, plaintiff had to then prove that defendant was guilty of willful and wanton negligence. That determination by trial court was not a dismissal of any claim and, therefore, plaintiff still had right of non-suit.

2002 Liddle v. Phipps, 263 Va. 391, 559 S.E.2d 690.
Non-suits when allowable: Personal injury action where plaintiff sought to take non-suit after discovery order had been entered directing plaintiff to comply with discovery or otherwise suffer the sanction of dismissal. Issue was whether plaintiff could still obtain non-suit during pendency of that order. Under terms of order, additional consideration by trial court was anticipated before issue of dismissal would be decided and therefore, the matter had not been completely submitted for decision or finally determined for purposes of non-suit statute and therefore, non-suit was appropriate. This discovery order was not a final order and therefore, 21-day rule did not apply.

2001 Waterman v. Halverson, 261 Va. 203, 540 S.E.2d 867.
Non-suits when allowable:Plaintiff filed medical malpractice action, and more than one year after filing without obtaining service, took voluntary non-suit. Plaintiff then refiled within six months. This was permissible and was not violative of Va. Code § 8.01-275.1. There is no conflict between that statute and Rule 3:3 and as such, the action was properly non-suited and properly refiled.

2000 Berean Law Group, P.C. v. Cox, 259 Va. 622, 528 S.E.2d 108.
Non-suits when allowable:Trial court entered order granting demurrer and indicated that action stands dismissed unless on or before September 17, 1998, plaintiff files an amended motion for judgment which is sufficient in law. Trial court thereafter extended that date but no order was entered. When plaintiffs filed amended motion for judgment in accordance with their recollection of court’s ruling, the defendants objected. Court thereafter granted a motion for non-suit. Since the previous order was final order and more than 21 days had passed, court had lost jurisdiction.

1998 Kelly v. Carrico, 256 Va. 282, 504 S.E. 2d 368.
Non-suits when allowable:On morning of trial defendant moved for judgment on pleadings on the grounds that plaintiff had not responded to new matter raised in its grounds of defense. After hearing argument on issue plaintiff moved for non-suit. That motion was made before court recessed to consider issue and as such was timely made. For submission of issue to occur as defined in non-suit statute it is necessary for parties to have both yielded on issues to court for consideration and decision.

1998 Norris v. Mitchell, 255 Va. 235, 495 S.E.2d 809.
Non-suits when allowable:Trial court sustained demurrer and dismissed action but granted plaintiff leave to amend within 21 days. This order did not become final until that 21-day period had expired. At that point court had additional 21 days within which to amend. The non-suit taken within that subsequent 21-day period was allowable since court still had jurisdiction.

1997 Ward v. Insurance Co. of N. America, 253 Va. 232, 482 S.E.2d 795.
Plaintiff recovered judgment against other motorist on October 23, 1986 and then filed suit against insurance carrier of other motorist alleging that plaintiff was beneficiary of that policy. This latter suit was filed on October 23, 1991, then non-suited on June 10, 1994, and refiled on December 12, 1994. The latter action was filed on Monday. The first action against insurance company was timely filed even though there was intervening leap year since years under Virginia rules are defined as calendar years and not just 365-day periods. In regards to refiling of non-suited action that too was timely filed even though technically filed more than six months after date of non-suit since last day for refiling was Saturday.

1996 Bremer v. Doctors Bldg. Partnership, 251 Va. 74, 465 S.E.2d 787.
Non-suits when allowable:Nonsuit was allowable even though defendants had filed plea pursuant to Code § 8.01-422, which was still pending. There were no pending counter-claims, cross-claims or third party claims.

1995 Gilbreath v. Brewster, 250 Va. 436, 463 S.E.2d 836.
Dismissal under Rule 3:3 for failure to effect service within one year is dismissal with prejudice. In this instance, plaintiff not allowed to nonsuit because of pendency of counterclaim and third party claim which could not be independently adjudicated.

1995 McManama v. Plunk, 250 Va. 27, 458 S.E.2d 759.
Non-suits when allowable:Order of Nonsuit is appealable only when dispute exists as to whether or not the trial court properly granted Motion for Nonsuit. Action in this instance not time barred since accident occurred on September 5, 1988, almost two years later plaintiff filed suit, a year and two days after original filing Ex Parte Order of Nonsuit entered, and then on January 6, 1992, plaintiff filed Second Motion for Judgment naming administrator of estate as defendant since defendant had passed away. Refiling within six months of nonsuit is timely.

1994 Hilb, Rogal & Hamilton Co. v. DePew, 247 Va. 240, 440 S.E.2d 918.
Non-suits when allowable:In this case plaintiff moved to nonsuit during court’s discussion of its proposed ruling but before it had ruled. Motion was timely.

1989 City of Hopewell v. Cogar, 237 Va. 264, 377 S.E.2d 385.
Non-suits when allowable:Court granted parties time to brief issue. During that period plaintiff sought to nonsuit. Case had not been submitted to court for decision. Therefore, nonsuit should have been granted.

1989 Wells v. Lorcom House Condo. Council, 237 Va. 247, 377 S.E.2d 381.
Non-suits when allowable:Order of nonsuit may be appealed where dispute exists as to whether trial court properly granted motion for nonsuit. In this instance, motion for nonsuit came too late since parties had done everything necessary to submit case to court for decision.

1984 Nash v. Jewell, 227 Va. 230, 315 S.E.2d 825.
Non-suits when allowable:Suit remained inactive for two years and defendant then moved for dismissal pursuant to Va. Code § 8.01-335(a). Citing another case, court noted that dismissal for want of diligent prosecution should be imposed only where there has been unreasonable delay and usually after proper warning. In this case, after defendant filed his motion to dismiss, plaintiff set matter on trial calendar. Supreme Court held there was no basis for dismissal since plaintiff did indicate his willingness to prosecute matter. Pursuant to Va. Code § 8.01-380 plaintiff has absolute right to one nonsuit. Plaintiff does not have absolute right, however, to withdraw his motion for nonsuit. That is committed to discretion of court. If plaintiff’s counsel had announced his intention to nonsuit and as result of that jury had been dismissed, witnesses had been excused or other inconvenience would result, then presumably trial court would deny motion. That was not circumstance here, and, as such, court did not abuse its discretion in allowing plaintiff to withdraw his motion for nonsuit.

1980 Iliff v. Richards, 221 Va. 644, 272 S.E.2d 645.
Non-suits when allowable:Order of nonsuit which dismisses plaintiff’s case against cross defendant without notice to cross claimant is abuse of discretion. Such order is appealable where cause of action set forth in cross claim is time barred.

1980 Newton v. Veney & Raines, 220 Va. 947, 265 S.E.2d 707.
Non-suits when allowable:must be taken before motion to strike granted.

1964 Berryman v. Moody, 205 Va. 516, 137 S.E.2d 900.
Non-suits when allowable: may be taken at any time before court rules on motion to strike.