Present: All the Justices 

RYAN E. SMITH, BY HER NEXT 

FRIEND AND PARENT, NINA ROSEN 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 961766 June 6, 1997 

WILLIAM C. SMITH 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Arthur B. Vieregg, Jr., Judge 

 I. 

 The primary issue in this appeal is whether the 

plaintiff's evidence was sufficient to establish a claim for 

alleged conversion of funds under Code § 31-38, which is a 

part of the Virginia Uniform Transfers to Minors Act. 

 II. 

 Ryan E. Smith, by her next friend and parent, Nina 

Rosen, filed her motion for judgment against William C. 

Smith. Plaintiff alleged that the defendant, who is Ryan's 

father, converted proceeds from the sale of bonds that he 

had placed in a custodial account with Merrill, Lynch, 

Pierce, Fenner & Smith, Inc., "pursuant to the former 

Uniform Gift[s] to Minors Act, former Virginia Code § 31-26, 

et seq. and now § 31-37 as amended." The defendant filed a 

grounds of defense admitting that he had purchased certain 

bonds for the benefit of the plaintiff, but denying that he 

had committed any unlawful acts. 

 The plaintiff filed a pretrial motion for summary 

judgment and requested that the trial court enter judgment 

on her behalf. The trial court refused to do so, holding 

that there were genuine issues of fact in dispute and that 
summary judgment was premature at that stage of the 

proceedings. 

 On the morning of a bench trial, the defendant moved to 

dismiss the plaintiff's action on the basis that the court 

lacked subject matter jurisdiction. The defendant asserted 

that the evidence would show that the Uniform Transfers to 

Minors Act "could not apply because none of the 

prerequisites for [the] application of the Act under . . . 

Code § 31-38 were met by the alleged transfer." Code § 31-

38, which is a part of the Virginia Uniform Transfers to 

Minors Act, states in relevant part*

: 

 "This chapter applies to any transfer that 

refers to the Uniform Transfers to Minors Act or 

this chapter in the designation under § 31-45 A by 

which the transfer is made if, at the time of the 

transfer, the transferor, the minor, or the 

custodian is a resident of this Commonwealth or 

the custodial property is located in this 

Commonwealth. The custodianship so created 

remains subject to this chapter despite a 

subsequent change in residence of a transferor, 

the minor, or the custodian, or the removal of 

custodial property from the Commonwealth. 

. . . . 

 A transfer that purports to be made and which 

is valid under the Uniform Transfers to Minors 

Act, the Uniform Gifts to Minors Act, or a 

substantially similar act of another state is 

governed by the law of the designated state and 

may be executed and is enforceable in the 

Commonwealth if, at the time of the transfer, the 

transferor, the minor, or the custodian is a 

resident of the designated state or the custodial 

property is located in the designated state." 

 

 *The Uniform Gifts to Minors Act, former Code §§ 3-26 

through -36, was repealed by the General Assembly in 1988 

and replaced by the Virginia Uniform Transfers to Minors 

Act, Code § 31-37 through -59. 
(Emphasis added). 

 The plaintiff objected, contending that the trial court 

should not consider such motion on the morning of trial. 

The trial court offered the plaintiff a continuance and 

cautioned her that "this is a matter either of granting you 

a continuance, which I would readily do under these 

circumstances, or alternatively, trying the case. . . ." 

The plaintiff's counsel, after consulting with plaintiff, 

declined the court's offer of a continuance. The trial 

court took the defendant's motion under advisement and the 

plaintiff proceeded. 

 The plaintiff's mother testified that she, the 

plaintiff, and the defendant lived in the District of 

Columbia in September 1984, when the bonds were allegedly 

transferred. The plaintiff's mother also testified that the 

bonds were maintained in the District of Columbia at the 

offices of Merrill, Lynch, Pierce, Fenner & Smith, Inc. 

 Plaintiff called the defendant as an adverse witness. 

The defendant testified that when he established the account 

at Merrill, Lynch, Pierce, Fenner & Smith, Inc., he did not 

make a gift to plaintiff and that he explicitly told his 

broker "not to do anything with respect to a gift or any 

sort of gift act." Rather, the defendant stated that he had 

directed his broker to purchase the bonds and structure the 

transaction so that the bonds would be taxed at his 

daughter's lower rate of income taxation. 

 The defendant testified that he redeemed the bonds and 
utilized the funds for various purposes, including payment 

of the plaintiff's private school tuition and child support. 

 Additionally, the proceeds from the sale of one of the 

bonds, which the defendant had used as collateral for a 

business loan, was forfeited. 

 At the conclusion of the plaintiff's evidence, the 

defendant renewed his motion to dismiss the plaintiff's case 

on the basis that the court lacked subject matter 

jurisdiction. The trial court agreed with the defendant, 

dismissed the action, and entered a judgment in his favor. 

 Subsequently, the trial court, sua sponte, reconsidered 

its ruling. The trial court held that the plaintiff's 

evidence showed that the purported designation and gift 

could not have been made pursuant to the Virginia Uniform 

Transfers to Minors Act because the plaintiff failed to 

prove that either the gift or the parties had any nexus to 

Virginia when the gift was purportedly made. Amending its 

earlier ruling, the trial court held that it did have 

subject matter jurisdiction to consider the plaintiff's 

cause of action. The court entered an order which stated in 

part: 

 "ADJUDGED, ORDERED and DECREED that 

Defendant's Motion to Strike be and hereby is 

GRANTED on the ground that Plaintiff's evidence 

was insufficient to support the claim for relief 

sought herein, for the reason that Plaintiff's 

evidence showed that the alleged designation and 

gift was not made under the Virginia Uniform 

Transfers to Minors Act and therefore Defendant 

owed no fiduciary duties to Plaintiff under the 

Virginia Act." 
 The plaintiff then filed a motion requesting that the 

trial court vacate its judgment and permit her to amend her 

pleadings to conform with the evidence. The trial court 

denied that motion and the plaintiff appeals. 

 III. 

 In response to the plaintiff's requests for admission, 

the defendant admitted the following: he purchased and 

transferred bonds to his daughter under the Virginia Uniform 

Gifts to Minors Act, Code § 31-26, et seq., now the Virginia 

Uniform Transfers to Minors Act, Code § 31-37, et seq.; he 

held the bonds in a custodial account for her; he sold seven 

of the bonds and deposited the proceeds of $58,093.03 in his 

personal checking account; and he forfeited a bond, in the 

amount of $11,282, which he had used as collateral for a 

loan. The plaintiff argues that the defendant's responses 

to her requests for admission demonstrate that she is 

entitled to judgment as a matter of law and, therefore, the 

trial court erred by denying her motion for summary 

judgment. We disagree. 

 We have stated that "the decision to grant a motion for 

summary judgment is a drastic remedy which is available only 

where there are no material facts genuinely in dispute." 

Slone v. General Motors Corp., 249 Va. 520, 522, 457 S.E.2d 

51, 52 (1995) (quoting Turner v. Lotts, 244 Va. 554, 556, 

422 S.E.2d 765, 766 (1992)). Additionally, "[i]n our 

discovery rules, we have cautioned that discovery ordinarily 

should not supplant the taking of evidence at a 
trial. . . ." Carson v. LeBlanc, 245 Va. 135, 137, 427 

S.E.2d 189, 190 (1993). 

 In denying the plaintiff's motion, the trial court 

stated: 

 "I think there are genuine issues of fact 

that preclude the court from granting summary 

judgment. I think the legal issues are very novel 

and I think that they have been well presented. 

But I think that it would be premature to make a 

judgment about the merits of any of the legal 

issues." 

The record reveals that there were factual issues in 

dispute. For example, the defendant denied that he had 

committed any illegal or unlawful acts against the 

plaintiff. The defendant also disputed the plaintiff's 

allegation that he used the proceeds from the sale of the 

bonds for his personal use. Rather, the defendant asserted 

that he had purchased the bonds to insure that he would have 

funds to satisfy his contractual obligations under a 

separation and property settlement agreement with the 

plaintiff's mother. Thus, we hold that the trial court 

properly denied plaintiff's motion for summary judgment. 

 IV. 

 Plaintiff argues that the trial court abused its 

discretion "in permitting the [d]efendant to recant on the 

morning of trial, [his] prior written admission that the 

custodial property was created under the Virginia Uniform 

Gifts to Minors Act." The plaintiff says that the defendant 

did not file a motion to withdraw or amend his responses to 

requests for admission and, therefore, plaintiff was 
prejudiced "by the court's allowance of the 'withdrawal.'" 

 The defendant, relying upon TransiLift Equipment, Ltd.

v. Cunningham, 234 Va. 84, 360 S.E.2d 183 (1987), argues 

that the plaintiff waived her right to rely upon any 

conclusive effect of his responses to her requests for 

admission. We agree with defendant. 

 Rule 4:11 permits a party to serve written requests for 

admission upon any other party. Rule 4:11(b) states, "[a]ny 

matter admitted under this Rule is conclusively established 

unless the court on motion permits withdrawal or amendment 

of the admission." 

 However, in Cunningham, we held that a defendant, who 

failed to object to a plaintiff's testimony, which was 

contrary to the plaintiff's responses to requests for 

admission, waived any binding and conclusive effect of the 

responses to the requests for admission. Id., at 92, 360 

S.E.2d at 188. Applying this rule, we hold that the 

plaintiff waived her right to rely upon any binding and 

conclusive effect of the defendant's admissions because she 

failed to object to his testimony which directly 

contradicted those admissions. As we mentioned in part II 

of this opinion, the defendant testified without objection 

that he did not give the bonds to plaintiff. Indeed, we 

observe the plaintiff elicited the contradictory testimony 

from the defendant during her direct examination of him. 

 V. 

 The plaintiff argues that the trial court erred by 
granting defendant's motion to strike her evidence. We 

disagree. 

 Code § 31-38 specifies that a transfer which is valid 

under the Uniform Transfers to Minors Act or the Uniform 

Gifts to Minors Act is enforceable in Virginia if, at the 

time of the transfer, the transferor, the minor, or the 

custodian is a resident of the designated state or the 

custodial property is located in the designated state. The 

plaintiff's own uncontroverted evidence established that 

the plaintiff, defendant, and custodian of the account were 

residents of the District of Columbia when the defendant 

purportedly transferred the bonds to her. The plaintiff 

conceded at trial that Virginia is the designated state. 

Thus, applying the plain meaning of the words in Code § 31-

38, the plaintiff may not enforce any rights that she may 

have obtained as a result of the alleged transfer because 

when the purported transfer occurred, none of the specified 

parties was a resident of Virginia and the custodial 

property was not located in Virginia. 

 VI. 

 Plaintiff contends that the defendant was allowed to 

create and profit from a "variance" between the proof and 

the pleadings and that the trial court abused its discretion 

by failing to grant the plaintiff's motion to amend its 

pleadings to conform to the evidence as permitted by Code 

§ 8.01-377. We find no merit in the plaintiff's 

contentions. 
 Code § 8.01-377 states: 

 "If, at the trial of any action, there 

appears to be a variance between the evidence and 

the allegations or recitals, the court, if it 

consider that substantial justice will be promoted 

and that the opposite party cannot be prejudiced 

thereby, may allow the pleadings to be amended, on 

such terms as to the payment of costs or 

postponement of the trial, or both, as it may deem 

reasonable. Or, instead of the pleadings being 

amended, the court may direct the jury to find the 

facts, and, after such finding, if it consider the 

variance such as could not have prejudiced the 

opposite party, shall give judgment according to 

the right of the case." 

 We recently stated that Code § 8.01-377 "should not be 

interpreted in a manner inconsistent with its plain 

language." Hensley v. Dreyer, 247 Va. 25, 30, 439 S.E.2d 

372, 375 (1994); accord City of Richmond v. Richmond 

Metropolitan Auth., 210 Va. 645, 648, 172 S.E.2d 831, 833 

(1970). Code § 8.01-377 authorizes a trial court to grant a 

variance "at the trial of any action." Here, the plaintiff 

did not seek a variance at the trial of her action. Rather, 

she made her motion nine days after the trial court had 

granted the motion to strike her evidence and concluded the 

case. We hold that the trial court properly denied the 

motion because it was not made "at the trial of any action." 

 VII. 

 In view of the foregoing, we need not consider 

plaintiff's remaining arguments. Accordingly, we will 

affirm the judgment of the trial court. 

Affirmed.