Supreme Court of Virginia address timeliness of a nonsuit under Va. Code § 8.01-380(A)

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On April 16, 2015, the Supreme Court of Virginia, in the appeals of Anheuser-Busch Cos. v. Cantrell and Newport News Shipbuilding and Dry Dock Co. v. Cantrell, Record Nos. 140748 and 140749 respectively, issued an opinion regarding the timeliness of a nonsuit under Virginia Code § 8.01-380(A), which provides, in part, that “[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 the action has been submitted to the court for decision.” The defendant appellants argued that the plaintiff’s motion for nonsuit was made after the action had been submitted to the court for decision, and was thus untimely, because the demurrers at issue had been fully briefed, oral argument already held, and the trial judge had taken the demurrers under advisement at the time of the plaintiff’s motion for nonsuit.

In holding that the plaintiff’s motion was untimely, the Supreme Court reasoned simply that 1) “an action is ‘submitted to the Court for decision’ within the meaning of the statute when the case ‘is in the hands of the trial judge for final disposition, either on a dispositive motion or upon the merits,’” and, 2) based on its 1989 holding in Wells v. Lorcom House Condominiums’ Council of Co-Owners, 237 Va. 247, “a demurrer is a dispositive motion.” The grounds of the various demurrers and their respective merits were immaterial to the Court.

Appellant Unilever United States, Inc. was represented by Patricia Bugg Turner and Henry N. Ware, Jr. of Spotts Fain.

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