Community Bank & Trust Co. v. Turk

The court has heretofore granted plaintiff’s motion for a nonsuit by right in this case. Furthermore, the answer and counterclaim are found to have been properly filed in this case. Pursuit of the counterclaim is independent of the original action. Therefore, the Court did not bar nonsuit of the cause by plaintiff. Section 8.01-380, Code of Virginia, as amended. Counterclaim defendant will be given twenty-one days within which to file such responsive pleadings as he may be advised. Pursuit of the Motion for Sanctions will survive nonsuit of the action by the plaintiff. Cooter & Gell v. Hartmarx Corp., et al., — U.S. — (June 11, 1990). Plaintiff will be given twenty-one days within which to file any written response to the Motion for Sanctions as it may be advised. As the defendant has indicated that the issue raised in the counterclaim is the same as is raised in the Motion for Sanctions, he has inferred that his pursuit of the Motion for Sanctions (and relief to which he may be entitled thereto) may have mooted the counterclaim.

Accordingly, Mr. Burroughs shall draw an order which reflects the proper filing of the counterclaim. Furthermore, that order should reflect that the Motion for Sanctions survives the nonsuit order and that the plaintiff may file any written response to the Motion for Sanctions *379within twenty-one days. Should defendant elect not to pursue the counterclaim, the order should so provide.