PRESENT: All the Justices 

CECILA RENE LIDDLE 

 OPINION BY 

v. Record No. 010614 JUSTICE DONALD W. LEMONS 

 March 1, 2002 

JOHN REX PHIPPS 

FROM THE CIRCUIT COURT OF CARROLL COUNTY 

Duane E. Mink, Judge 

 In this appeal, we consider whether an order of nonsuit 

under Code § 8.01-380(A) was proper. 

I. Facts and Proceedings Below 

 On May 2, 2000, John Rex Phipps (“Phipps”) filed a personal 

injury action against Cecila Rene Liddle (“Liddle”). Liddle 

timely filed her grounds of defense and on May 19, 2000, Liddle 

served interrogatories on Phipps. Phipps did not respond to 

Liddle’s interrogatories, despite inquiries by Liddle in June, 

July, and August 2000. On August 11, 2000, Liddle filed a 

motion to compel discovery. 

 At a telephone hearing on August 23, 2000, the trial court 

orally granted Liddle’s motion to compel and ordered that Phipps 

completely and accurately respond to Liddle’s discovery requests 

by October 2, 2000, or pay a sanction of $250. The trial court 

further ordered that if Phipps failed to completely and 

accurately respond to Liddle’s discovery requests by November 2, 

2000, Phipps’ “action shall be dismissed with prejudice, which 
dismissal this Court finds to be an appropriate sanction in 

accordance with Rule 4:12 and other applicable Virginia law.”1 

 Phipps failed to respond to Liddle’s discovery request by 

either the October or November deadlines established in the 

order. Liddle prepared a proposed final order dismissing the 

case with prejudice and presented the order to Phipps for 

endorsement. 

 On November 29, 2000, Phipps filed a motion for nonsuit. 

At a hearing on December 4, where Phipps appeared in person and 

Liddle participated by telephone, the court heard argument on 

both Liddle’s proposed final order dismissing the case with 

prejudice and Phipps’ motion for a nonsuit. During the hearing, 

Liddle argued that because Phipps failed to respond to the 

discovery requests, the case should be dismissed with prejudice 

in accordance with the trial court’s order of October 5, 2000. 

Liddle further maintained that Phipps’ motion for nonsuit came 

too late because the action “had ‘been submitted to the Court 

for decision’ within the meaning of [Code § 8.01-380].” 

 Phipps’ counsel stated that Phipps is elderly and unable to 

drive, that he and his wife live in South Carolina where his 

wife is under treatment in a health care facility, and that 

their daughter, the only person who could drive them to 

 1

 The trial court entered an order on October 5, 2000 

memorializing the August ruling. 

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Virginia, was in a car accident sometime after November 2, 2000. 

Phipps’ counsel stated that he contacted Phipps “on several 

occasions to have him return to Carroll County” in order to 

prepare the discovery responses, but Phipps had not yet 

returned. Phipps’ counsel maintained that the motion for 

nonsuit was not untimely, that Phipps had not previously taken a 

nonsuit in this action, and that he had an absolute right to a 

nonsuit under Code § 8.01-380. 

 The trial court found that “[Phipps] ha[d] not served . . . 

responses to [Liddle’s] discovery requests,” but the trial court 

held “that [Phipps’] motion for nonsuit [was] not too late under 

§ 8.01-380 or the decisions of the Supreme Court of Virginia 

interpreting that statute, and consequently, that [Phipps’] 

motion for nonsuit should be granted.” Additionally, the trial 

court ordered that Phipps pay Liddle the sum of $250 as a 

discovery sanction. Liddle appeals the ruling of the trial 

court granting Phipps a nonsuit. 

II. Analysis 

 On appeal, Liddle argues that the trial court’s October 5, 

2000 order “constituted an adjudication that this case should be 

and would be dismissed with prejudice” if Phipps did not respond 

to the discovery requests by November 2, 2000. Liddle maintains 

that the matter of dismissal had been submitted to the circuit 

court for decision and had been decided. Accordingly, Liddle 

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argues, Phipps’ November 29, 2000 motion for nonsuit was 

untimely under Code § 8.01-380.2

 Code § 8.01-380(A) provides in pertinent part: 

 A party shall not be allowed to suffer a nonsuit 

as to any cause of action or claim, or any other 

party to the proceedings, 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. 

As we have previously held, a matter that has been decided most 

assuredly has been “submitted to the court” under the terms of 

the statute. Khanna v. Dominion Bank, 237 Va. 242, 245, 377 

S.E.2d 378, 380 (1989). However, when further submissions from 

the parties are contemplated, a matter has not been finally 

yielded for decision or finally determined. 

In the context of this discovery dispute, the trial court 

ordered Phipps to respond to discovery requests propounded by 

Liddle and provided an escalating series of sanctions for 

failure to do so. The trial court’s order provided, in part, 

that, “if the plaintiff fails to respond completely and 

accurately to the defendant’s discovery requests by October 2, 

2000, the plaintiff shall pay to the defendant the sum of 

$250.00 which payment this Court finds to be an appropriate 

sanction in accordance with Rule 4:12 and other applicable 

Virginia law.” Clearly, a failure to respond at all would be 

 2

 Phipps did not submit a brief in this appeal. 

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sanctionable, as would a response that was not complete and 

accurate. The order, by its very terms, contemplated that 

further consideration by the trial court regarding compliance 

may be necessary before the sanction could be imposed. 

 Similarly, the trial court’s discovery order contemplated a 

second level of sanction by directing that, “if the plaintiff 

fails to respond completely and accurately to the defendant’s 

discovery requests by November 2, 2000, the plaintiff’s action 

shall be dismissed with prejudice, which dismissal this Court 

finds to be an appropriate sanction in accordance with Rule 4:12 

and other applicable Virginia law.” As with the first level of 

sanctions, the provision for dismissal also contemplated further 

consideration by the trial court to potentially evaluate the 

completeness and accuracy of Phipps’ responses prior to 

imposition of a dismissal order as a sanction. Additionally, 

the last provision in the trial court’s order stated, “[a]nd 

this action is continued.” 

 The express language of the discovery order and the 

subsequent conduct of counsel and the trial court confirm that 

further consideration by the trial court was contemplated by the 

discovery order. On this record, it is clear that the issue of 

dismissal had not been decided by the discovery order. 

 Nonetheless, the question remains, was the issue “submitted 

to the court for decision?” In Transcontinental Ins. Co. v. 

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RBMW, Inc., 262 Va. 502, 514, 551 S.E.2d 313, 319 (2001), we 

held that “when construing the nonsuit statute, . . . 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.’” (Citing Moore v. Moore, 

218 Va. 790, 795, 240 S.E.2d 535, 538 (1978)). In City of 

Hopewell v. Cogar, 237 Va. 264, 377 S.E.2d 385 (1989), we held 

that there was no submission of the issue when the trial court 

permitted the litigants to file additional memoranda in support 

of their positions on a motion for summary judgment, and the 

plaintiff took a nonsuit prior to the date upon which such 

memoranda were due. Id. at 267, 377 S.E.2d at 387. Similarly, 

in the case before the Court, the express terms of the discovery 

order and the conduct of the parties reveal that additional 

consideration by the trial court was anticipated before the 

matter of dismissal would be decided. We hold that the issue of 

dismissal was not decided by the discovery order and was not 

submitted to the trial court within the meaning of Code § 8.01-

380(A). 

 Citing The Berean Law Group v. Cox, 259 Va. 622, 528 S.E.2d 

108 (2000), Liddle argues that the discovery order became a 

final order upon the occurrence of Phipps’ failure to respond to 

discovery on November 2, 2000 and that an order of nonsuit could 

not be entered more than 21 days after November 2, 2000. In 

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Berean the trial court had ordered that a demurrer be sustained 

and further that “plaintiff’s action against [the defendants] 

shall STAND DISMISSED unless on or before [a subsequent date 

certain], the plaintiff shall file an Amended Motion for 

Judgment which is sufficient in law.” Id. at 624, 528 S.E.2d at 

110. The plaintiff did not act within the time specified, and 

on a date more than 21 days after the time specified in the 

order, the trial court granted plaintiff’s motion for a nonsuit. 

Id. at 625, 528 S.E.2d at 110. 

 We reversed the trial court’s entry of nonsuit and entered 

final judgment for the defendants, holding: “[A]n order that 

sustains a demurrer and dismisses the case if the plaintiff 

fails to amend his motion for judgment within a specified time 

becomes a final order upon the plaintiff’s failure to file an 

amended motion within the specified time.” Id. at 626, 528 

S.E.2d at 111. An order sustaining a demurrer and dismissing a 

case is a final order, whereas the discovery order in this case 

was not. We have recently restated that discovery orders are 

not final orders. America Online, Inc. v. Anonymous Publicly 

Traded Co., 261 Va. 350, 358, 542 S.E.2d 377, 381 (2001). 

Because the discovery order was not final, it was not subject to 

the limitations upon modification contained in Rule 1:1. 

Additionally, as we have noted above, the discovery order did 

not decide the issue of dismissal. 

7
 When the trial court simultaneously considered the motion 

for entry of a dismissal order and the motion for entry of an 

order of nonsuit, the dismissal issue had not been decided or 

previously submitted to the court for decision. Because the 

discovery order was not subject to the limitations of Rule 1:1, 

the trial court had the power to reconsider its provisions. 

Clearly, the trial court did so when it entered the nonsuit 

order rather than the dismissal order. The trial court did not 

err in doing so. 

 Accordingly, we will affirm the judgment of the trial 

court. 

Affirmed. 

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