Gerensky-Greene v. Gerensky
| Decision Date | 19 June 2012 |
| Docket Number | Record No. 1801-11-4 |
| Court | Virginia Court of Appeals |
| Parties | JUSTIN GERENSKY-GREENE v. DIMITER GERENSKY |
Present: Chief Judge Felton, Judges McCullough and Huff
Argued at Alexandria, Virginia
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Justin Gerensky-Greene ("appellant") appeals the Circuit Court of Arlington County's ("trial court") June 27, 2011 order granting Dimiter Gerensky's ("appellee") nonsuit, and the trial court's August 12, 2011 orders denying appellant's motion for sanctions and granting appellee's motion for his medical records to be held in the trial court's chambers rather than in the trial court's public records. On appeal, appellant argues the trial court 1) erred when it granted appellee's nonsuit of his motion to modify the custody and visitation provisions of the final decree of divorce; 2) abused its discretion by denying appellant's motion for sanctions against appellee and his first counsel, and erred by failing to explain why sanctions were not granted; and 3) erred by ordering the return of all appellee's medical records to chambers and permanently removing them from the trial court's public files.
"When reviewing a trial court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (citations omitted). So viewed, the evidence is as follows.
On November 12, 2008, the trial court entered the final decree of divorce, which incorporated the property settlement agreement between the parties dated July 5, 2007, granting appellant a divorce a vinculo matrimonii from appellee. The property settlement agreement provided that appellant would have sole legal and physical custody of the parties' two children, and appellee would have "visitation rights on Sundays between 9 a.m. and 3 p.m., which shall be supervised at any time [appellant] deems supervision is necessary."
Appellant's counsel endorsed the protective order as "[s]een and [a]greed."
On November 2, 2009, appellee filed a motion for nonsuit. On November 5, 2009, appellant filed a motion for attorney fees and sanctions against appellee and his counsel. On January 8, 2010, the trial court denied appellee's motion for nonsuit after "having determined by letter ruling that . . . Code . . . § 8.01-380 precludes a nonsuit under the circumstances of this case."2
Dr. Mustakova was deposed on May 20 and 23, 2011, during which Dr. Mustakova indicated that appellee had waived his doctor-patient privilege with regard to appellee's communications with her for purposes of her testimony. On May 23, 2011, the trial court entered another protective order permitting counsel to check out copies of the documents held in camera under the first protective order for the sole purpose of using them in the resumed May 23rd deposition of Dr. Mustakova and that the documents were to be returned to chambers following the deposition. During the two depositions, appellant's counsel referred to many of the documents that were held in camera in chambers, and even appended copies of the documents to the deposition, which the court reporter submitted to appellee's counsel before the hearing on May 25, 2011 to be returned to the trial court's chambers pursuant to the protective order.
The trial court heard arguments on May 25, 2011 on appellee's motion to modify custody and visitation, and on appellant's motion to dismiss on grounds of spoliation of evidence andappellee's incompetence to testify and preclusive admissions. At the hearing, appellee again moved for a voluntary nonsuit. The trial court granted the nonsuit as a matter of law without prejudice, continued the case to address appellant's motion for sanctions, and entered the nonsuit order on June 27, 2011. In the order granting the nonsuit, the trial court specifically noted that "the [appellee's] action is hereby non-suited without prejudice; this order does not preclude any hearing on any pending motion for sanctions or similar relief; said motion should be heard by Judge Newman; . . . ." The trial court concluded the order with "AND THIS CAUSE IS FINAL CONTINUED." The trial court struck through the word "final" twice and hand wrote in "continued."
On June 8, 2011, appellee filed a motion for an order requiring all parties and their counsel to return all copies of the medical records filed in the trial court's chambers that were improperly removed and copied. On June 27, 2011, the trial court heard arguments on appellant's motion for sanctions filed on November 5, 2009, and appellee's June 8, 2011 motion for an order requiring the medical records to be returned to the trial court's chambers.
The trial court then granted appellee's motion requiring the medical records to be returned to the trial court's chambers and any copies to be returned or destroyed pursuant to the protective order that was "not rescinded or vacated." Orders reflecting the trial court's ruling on the two motions were entered on August 12, 2011 with each indicating that the cause is final. Appellant's counsel did not endorse the August 12, 2011 orders, nor did appellant's counsel object to either order or file a motion for reconsideration. This appeal followed.
Appellant first contends that the trial court erred in granting a post-judgment motion for nonsuit since applicable law precludes a post-judgment nonsuit of a motion to modify custody or visitation. Specifically, appellant asserts the trial court misapplied the nonsuit statute in this case by granting a nonsuit where the parties already had fully litigated the matter and had a final judgment entered regarding custody and visitation of the children.
Appellee, however, asserts that the trial court did not err in granting the motion for nonsuit since a petition to "revise and alter" a decree of divorce, pursuant to Code § 20-108, is a "cause of action or claim" that is subject to a nonsuit. Code § 8.01-380.
Whether the trial court erred in granting a voluntary motion for nonsuit "presents a question of law and as such is reviewed on appeal under a de novo standard." Transcon. Ins. Co. v. RBMW, Inc., 262 Va. 502, 514, 551 S.E.2d 313, 319 (2001). "[A] nonsuit order is not a final judgment for appeal purposes unless a dispute exists whether the trial court properly granted the motion for nonsuit." James v. James, 263 Va. 474, 480, 562 S.E.2d 133, 137 (2002) (citing Swann v. Marks, 252 Va. 181, 184-85, 476 S.E.2d 170, 172 (1996); McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d 759, 761 (1995); Mallory v. Taylor, 90 Va. 348, 349, 18 S.E. 438, 439 (1893)). "[T]he nonsuit statute contains a number of limitations on a party's absolute right to take a voluntary nonsuit, and if a nonsuit is allowed in violation of those limitations, appellate review must be available to correct the error." Id. at 481, 562 S.E.2d at 137 (citing Wells v. Lorcom House Condo. Council, 237 Va. 247, 251, 377 S.E.2d 381, 383 (1989)).
Code § 8.01-380(A) provides, in relevant 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 proceeding, unless he does so before a motion to strike the evidence has been sustained or before the jury retires from the baror before the action has been submitted to the court for decision." "[F]or 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.'" Transcon. Ins. Co., 262 Va. at 514, 551 S.E.2d at 319 (quoting Moore v. Moore, 218 Va. 790, 795, 240 S.E.2d 535, 538 (1978)).
A plaintiff has an absolute right under Code § 8.01-380 to one nonsuit. Nash v. Jewell, 227 Va. 230, 237, 315 S.E.2d 825, 829 (1984). "The election is his and if he insists upon taking the nonsuit within the limitations imposed by the statute, neither the trial court nor opposing counsel can prevent him from doing so." Id. Furthermore, when a court enters a nonsuit order, the case becomes "concluded as to all claims and parties," and "nothing remains to be done." Dalloul v. Agbey, 255 Va. 511, 515, 499 S.E.2d 279, 282 (1998).
James, 263 Va. at 481, 562 S.E.2d at 137. Put more precisely, "the effect of husband exercising his right, pursuant...
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