Present: Hassell, C.J., Keenan, Kinser, Lemons, Goodwyn, and 

Millette, JJ., and Lacy, S.J. 

PAMELA MARTIN 

v. Record No. 072571 OPINION BY SENIOR JUSTICE 

 ELIZABETH B. LACY 

CHRISTOPHER DUNCAN January 16, 2009 

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

John E. Clarkson, Judge Designate 

In this appeal we consider whether the costs of impaneling 

a jury may be imposed upon a plaintiff seeking a nonsuit as a 

matter of right. 

 Pamela Martin filed a complaint against Christopher Duncan 

seeking recovery of damages she sustained as a result of 

Duncan’s alleged negligence. During a jury trial, Martin moved 

to strike Duncan’s evidence on the issue of liability. The 

trial court denied that motion and Martin sought a nonsuit. 

Duncan’s counsel asked the trial court to assess expenses 

incurred in securing the deposition of an expert witness and 

Duncan’s travel costs. The trial court concluded that Code 

§ 8.01-380(C) did not allow assessment of the costs and expenses 

sought by Duncan. The trial court, however, assessed Martin the 

jury costs associated with the case, $540, finding that 

assessing jury costs was “pretty standard here in this court.” 

 Martin filed a timely appeal to this Court raising five 

assignments of error. We awarded Martin an appeal limited to 

the single issue whether the trial court had the authority to 
require Martin to pay the jury costs when Martin took a nonsuit 

as a matter of right. 

DISCUSSION 

Martin argues that only the costs set out in Code § 8.01-

380(C) may be imposed on a plaintiff taking a nonsuit as a 

matter of right and those costs do not include the costs of 

impaneling a jury.1 Duncan, however, asserts that the trial 

court’s action was proper because nothing in Code § 8.01-380 

prohibits the assessment of jury costs in these circumstances. 

Duncan further argues that Chesapeake Circuit Court Local Rule 5 

authorized the imposition of jury costs in this case.2 We first 

 1

 Code § 8.01-380(C) states: 

If notice to take a nonsuit of right is given to the 

opposing party within seven days of trial, the court 

in its discretion may assess against the nonsuiting 

party reasonable witness fees and travel costs of 

expert witnesses scheduled to appear at trial, which 

are actually incurred by the opposing party solely by 

reason of the failure to give notice at least seven 

days prior to trial. The court shall have the 

authority to determine the reasonableness of expert 

witness fees and travel costs. 

2

 Local Rule 5 of the Circuit Court for the City of 

Chesapeake states in relevant part: 

To promote the convenient and efficient use of 

this Courthouse and Office of the Clerk of Circuit 

Court and the orderly management of the Court docket, 

and in an effort to attain a more efficient 

administration of justice by avoiding undue hardships 

to citizens serving as jurors and to avoid needless 

expense, the following procedure will become 

effective beginning July 1, 2006: 

. . . . 

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consider whether assessment of costs associated with the grant 

of a first nonsuit are limited to those costs set out in Code 

§ 8.01-380(C). 

The General Assembly has established two categories of 

nonsuit – a first nonsuit which can be taken as a matter of 

right and subsequent or discretionary nonsuits which require the 

consent of the trial court. Code § 8.01-380(B). Either type of 

nonsuit is available to a plaintiff any time in the litigation 

before a motion to strike the evidence has been sustained, the 

matter has been submitted to the court for decision, or the jury 

has retired from the bar. Code § 8.01-380(A). Consequently, 

costs may have been incurred at the time a nonsuit is taken – 

regardless of the type of nonsuit. The General Assembly enacted 

subsections (B) and (C) of Code § 8.01-380 to authorize the 

assessment of costs against the nonsuiting party; however, the 

costs which may be assessed are not the same for the two 

categories of nonsuit. Subsection (B) of Code § 8.01-380 allows 

a trial court to assess “costs and reasonable attorneys’ fees” 

 

(3) Any party, having demanded a trial by jury, may 

waive a jury by giving notice to said Clerk, the Jury 

Administrator, and the opposing side. In the event 

the case is settled or is not to be tried, notice 

shall be given to said Clerk, the Jury Administrator, 

and the opposing side. If any such notice is not 

given prior to the day of trial, the cost of the 

jury, if incurred, will be assessed against a 

defendant in a criminal case, or in a civil case will 

be charged against the party or parties who have 

failed to notify said Clerk and Jury Administrator. 

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against the nonsuiting party in connection with a discretionary 

nonsuit, while subsection (C) limits the assessable costs 

associated with a nonsuit as a matter of right to “reasonable 

witness fees and travel costs of expert witnesses scheduled to 

appear at trial.” This difference in assessable costs is 

consistent with the differing nature of the two categories of 

nonsuit. To impose financial burdens on the exercise of the 

right to a first nonsuit erodes the ability to exercise that 

right, thereby justifying a more limited category of assessable 

costs. 

We have previously held that “with respect to a first 

nonsuit a trial court may not place limitations on the absolute 

right of the plaintiff to seek the nonsuit beyond those found in 

the statute.” Janvier v. Arminio, 272 Va. 353, 365, 634 S.E.2d 

754, 760 (2006); see also McManama v. Plunk, 250 Va. 27, 32, 458 

S.E.2d 759, 762 (1995). The imposition of financial costs not 

authorized in Code § 8.01-380(C) places a limitation on the 

absolute right of a plaintiff to exercise that right. 

Accordingly, we conclude that because jury costs are not costs 

authorized by statute to be imposed on a plaintiff exercising 

his absolute right to a first nonsuit, the trial court could not 

assess such costs on Martin in this case. 

 In light of this holding we also reject Duncan’s argument 

that Local Rule 5 gave the trial court the authority to impose 

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the jury costs. Code § 8.01-4 provides that a local rule cannot 

be enforced if it “is inconsistent with . . . any . . . 

statutory provision . . . or . . . has the effect of abridging 

substantive rights of persons before such court.” Assuming 

Local Rule 5 applied in this case and was relied on by the trial 

court when assessing Martin the jury costs, it is inconsistent 

with Code § 8.01-380(C) and had the effect of abridging Martin’s 

absolute right to a first nonsuit. Therefore, Local Rule 5 

could not be the source of authority to impose the costs at 

issue. 

 Accordingly, for the reasons stated above, we will reverse 

that portion of the judgment of the trial court assessing Martin 

jury costs in the amount of $540. 

Reversed and final judgment.