Clarence W Thompson v. Calvinna Dickerson ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Humphreys
CLARENCE W. THOMPSON
MEMORANDUM OPINION *
v. Record No. 2557-02-2 PER CURIAM
FEBRUARY 25, 2003
CALVINNA DICKERSON
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge
(Reginald M. Barley, on brief), for
appellant.
(John K. Dixon, III, on brief), for appellee.
Clarence W. Thompson contends the trial judge erred in
permitting his wife, Calvinna Dickerson, to take a nonsuit of her
divorce suit. Thompson also contends the trial judge erred in
failing to grant his motion to dismiss the suit. Upon reviewing
the record and the parties' briefs, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the trial
judge's decision. Rule 5A:27.
On July 27, 2001, Dickerson filed a bill of complaint against
Thompson for a divorce. The trial judge scheduled a two hour
hearing on June 28, 2002, to address issues involving equitable
distribution, Thompson's motion to quash a deposition, the grounds
for divorce, and spousal support. The trial judge accepted into
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence the transcripts of certain depositions and reserved for
her later ruling whether to admit into evidence the deposition of
Fatimah Moore. The trial judge indicated that she had not yet
reviewed the deposition transcripts and she stated, "We had
reserved the two hours to wrap up all issues not contained in the
deposition[s]. We can cover evidence not contained in the
deposition[s], can take all of the evidence and then I can rule
with regard to all issues."
Thompson moved to quash the deposition of Moore because it
was taken outside of the time frame established by the scheduling
order. After considering the arguments, the trial judge granted
Thompson's motion to quash the deposition. Thompson then moved to
dismiss the case, arguing that the testimony in the depositions
that were accepted into evidence did not prove grounds for the
divorce. The trial judge asked Dickerson's counsel, "What's your
position [on the motion]?" Dickerson indicated that Moore was her
"corroborating witness" and requested a five minutes recess.
After the short recess, Dickerson requested a nonsuit.
Thompson objected to the granting of the nonsuit, arguing
that the motion was untimely because the matter had already been
submitted to the court for adjudication. The trial judge
overruled the objection and granted the nonsuit. The trial
judge's order provides as follows:
Based on the fact that the hearing had been
set for two hours to hear argument and
argument had not yet taken place on either
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the grounds for divorce, equitable
distribution or spousal support the [c]ourt
concludes that the matter had not been fully
submitted and, therefore, a Motion for
Nonsuit was timely and is hereby Granted.
Thompson appeals from this order.
In pertinent part, Code § 8.01-380(A) provides as follows:
A party shall not be allowed to suffer a
nonsuit as to any cause of action or claim,
or any other party to the proceeding, 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 construing the nonsuit statute, the Supreme Court of Virginia
has held that "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.'"
Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 514, 551
S.E.2d 313, 319 (2001) (quoting Moore v. Moore, 218 Va. 790,
795, 240 S.E.2d 535, 538 (1978)).
Dickerson's nonsuit motion was made before the trial judge
considered the merits of Thompson's motion to dismiss. Thus,
Dickerson "did not yield the dispositive issues to the court for
consideration and decision." Kelly v. Carrico, 256 Va. 282,
286, 504 S.E.2d 368, 370 (1998) (holding no submission had
occurred where the motion for nonsuit was made after oral
argument but before the judge recessed to consider the merits of
a motion for judgment on the pleadings). Furthermore, as the
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order indicates, prior to the nonsuit request, the parties had
not presented arguments on other pending issues, such as the
grounds for the divorce, equitable distribution, or spousal
support. Therefore, we hold that the trial judge did not err in
concluding that the matter had not yet been "submitted to the
court for decision" and in granting the nonsuit.
Because the trial judge properly granted the nonsuit and
because the trial judge made no ruling regarding Thompson's
motion to dismiss, we need not address Thompson's second issue
concerning the merits of his motion to dismiss the suit.
Accordingly, we affirm the trial judge's decision.
Affirmed.
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