Wilby v. Gostel, Record No. 021606

Decision Date17 April 2003
Docket NumberRecord No. 021646,Record No. 021655.,Record No. 021606
Citation578 S.E.2d 796,265 Va. 437
PartiesCharles David WILBY, v. Sheree T. GOSTEL, Administrator of the Estate of Carrie Anne Newton. Daniel J. Middleton, et al., v. Sheree T. Gostel, Administrator of the Estate of Carrie Anne Newton. Sheree T. Gostel, Administrator of the estate of Carrie Anne Newton, v. Charles David Wilby, et al.
CourtVirginia Supreme Court



These appeals arise out of an action for wrongful death in which the trial court granted partial summary judgment to one of the defendants on the ground that the decedent was contributorily negligent as a matter of law. In companion appeals brought by the defendants, we consider whether the trial court erred in permitting the administrator of the decedent's estate to take a voluntary nonsuit as to all claims alleged in her motion for judgment after the motion for partial summary judgment had been granted. In a separate appeal, the administrator has assigned error to the trial court's granting the partial summary judgment.


We will recite the facts relevant to the motion for summary judgment in the light most favorable to the non-moving party. Slone v. General Motors Corp., 249 Va. 520, 522, 457 S.E.2d 51, 52 (1995). The issue regarding the nonsuit presents a question of law, and as such we review the record on appeal under a de novo standard. Transcontinental Insurance Co. v. RBMW, Inc., 262 Va. 502, 514, 551 S.E.2d 313, 319 (2001).

On March 8, 2000, Carrie Anne Newton ("Newton") had an argument with Charles David Wilby ("Wilby"), her boyfriend, at the apartment that the couple shared in Henrico County. Both Newton and Wilby had been consuming alcohol. At some point that day, Wilby left the apartment and got behind the wheel of a van parked outside. The van was owned by Middleton Heating & Air, Inc., Wilby's employer.

Newton followed Wilby to the van, and stepped onto its front bumper so that she was positioned facing Wilby behind the wheel. Although the parties dispute whether the van was moving at the time Newton stepped onto the bumper, Wilby subsequently caused the van to travel forward at a speed of up to 25 miles an hour, and then to decelerate rapidly. Newton was thrown from the front of the vehicle and sustained fatal injuries.

Sheree T. Gostel ("Gostel"), the administrator of Newton's estate, filed a motion for judgment on November 17, 2000, in the Circuit Court of Henrico County. The first count of the motion for judgment alleged that Wilby "operated the van while and despite the fact that Newton was standing on the bumper of the van," and, thus, was responsible for the wrongful death of Newton as a result of his "negligent operation of the van." It was alleged further in the same count that "Wilby's actions constituted ... willful and wanton conduct and demonstrate such recklessness as to evince a conscious disregard for the rights of others." The second count alleged that Wilby's failure to render assistance to Newton after she was injured also constituted negligent and willful and wanton conduct proximately contributing to Newton's death.

The motion for judgment also named Middleton Heating & Air, Inc. and Daniel J. Middleton, the owner and operator of that company, as defendants (collectively "Middleton") in the third count. This count alleged that Middleton was liable for Wilby's actions under a theory of negligent entrustment. All defendants filed answers to the motion for judgment denying liability and asserting the affirmative defense of contributory negligence.

In response to requests for admission from Middleton, Gostel admitted that Newton "had used intoxicants on the night of March 8, 2000" and had voluntarily "climbed onto the van operated by" Wilby. In response to requests for admission from Wilby, Gostel denied that Newton had "jumped" onto the van and denied that "the van being operated by Charles David Wilby was moving" at the time she stepped onto the bumper of the vehicle.

On October 15, 2001, Wilby filed a motion for summary judgment asserting that the admissions made in response to Middleton's discovery established that Newton was contributorily negligent in causing her death and sought dismissal of the motion for judgment on that ground. Gostel filed a brief opposing the motion for summary judgment, contending that neither consuming intoxicants nor stepping onto the bumper of a vehicle constituted negligence per se and that a jury should decide the matter.

On October 26, 2001, the trial court held a hearing on Wilby's motion for summary judgment. At that hearing, Wilby contended that Gostel had admitted that Newton had climbed onto a moving vehicle because the admission stated that the vehicle was "operated by" Wilby. Gostel contended the admission was only that Wilby operated the vehicle at some point, but that this did not necessarily mean that the vehicle was moving when Newton climbed onto it. Gostel noted that she had specifically denied that the van was moving when Newton stepped onto its bumper. The trial court observed that "the fact ... missing is that the van was moving. See there is nothing in these admissions that says the van was moving." The trial court took the matter under advisement.

In an opinion letter dated November 6, 2001, the trial court stated that "[t]he admissions in the pleadings show that Ms. Newton was negligent as a matter of law ... [because the] Motion for Judgment states that she was standing on the bumper of Mr. Wilby's van while Mr. Wilby operated it." The trial court further opined that the conclusion that Newton was negligent "does not end the case, because plaintiff alleges `willful and wanton' conduct by Mr. Wilby." The trial court directed counsel for Wilby to "submit an Order for partial summary judgment on the issue of Ms. Newton's contributory negligence, preserving the remaining issues for trial."

On January 14, 2002, the trial judge entered an order granting partial summary judgment to Wilby, finding that Newton was contributorily negligent as a matter of law based upon the rationale stated in the November 6, 2001 opinion letter. The order further stated that "there remain for trial material issues of fact respecting Wilby's conduct, whether it was `willful and wanton', and whether Wilby can rely upon Newton's contributory negligence as a defense under Wolfe v. Baube, 241 Va. 462, 403 S.E.2d 338 (1991)."

Also on January 14, 2002, Gostel filed a motion for a nonsuit as to the claim asserted against Middleton.1 On January 24, 2002, Gostel filed a motion for a nonsuit as to the claims against Wilby. In response to the motion for nonsuit against him, Wilby proffered a draft order that would grant the nonsuit, but expressly preserve the trial court's ruling that Newton was contributorily negligent, and limit any refiling by Gostel to "the causes of action that survived" the January 14, 2002 order.2

Thereafter, Gostel filed a motion to reconsider the January 14, 2002 order, and in the same pleading stated her objections to the language in Wilby's draft order of nonsuit. On April 19, 2002, the trial court entered a final order denying Gostel's motion to reconsider. In addressing the nonsuit issue, the trial court determined that the holding of Dalloul v. Agbey, 255 Va. 511, 515, 499 S.E.2d 279, 282 (1998), relied upon by Wilby and Middleton, was inapplicable to its January 14, 2002 ruling, because the granting of "partial summary judgment in favor of the defendants did not dismiss any claim(s) or count(s) with prejudice." Accordingly, the trial court awarded Gostel a nonsuit on all claims. These appeals followed.


We awarded appeals to Wilby and Middleton on the following assignment of error:

The trial court erred in the entry of its Order of April 19, 2002 when it granted the plaintiff's request to suffer a voluntary nonsuit as to all counts and claims in her Motion for Judgment including the plaintiff's claim for negligence that was resolved by partial summary judgment in the Court's Order of January 14, 2002.

We also awarded an appeal to Gostel to consider whether the trial court erred in finding that Newton was contributorily negligent as a matter of law. However, any consideration of the issue raised by Gostel in her appeal necessarily is contingent upon our first finding that the trial court erred in not limiting the nonsuit order. This is so because an appeal from a nonsuit order is limited to resolving disputes regarding the propriety of granting the nonsuit. Otherwise, a nonsuit order is not an appealable order. McManama v. Plunk, 250 Va. 27, 32, 458 S.E.2d 759, 761 (1995). Thus, only if we conclude that the trial court erred in not preserving within the nonsuit order the ruling that Newton was contributorily negligent will we be able to reach the issue of whether that ruling was proper. See Dalloul, 255 Va. at 514-15,499 S.E.2d at 281-82. For this reason, we will consider the issue raised in the Wilby and Middleton appeals first.

Code § 8.01-380, which governs the right of a plaintiff to take a voluntary nonsuit, provides, in pertinent 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 has done 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.

In Dalloul, we held that "`the action' subject to a plaintiff's nonsuit request is comprised of the claims and parties remaining in the case after any other claims and parties have been dismissed with prejudice or otherwise eliminated from the case." 255 Va. at 514, 499 S.E.2d at 281. In that case, the trial court entered an order dismissing with prejudice four of six counts of a motion for judgment.3 Subsequently,...

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