Carson v. Robinson

54 Va. Cir. 255, 2000 Va. Cir. LEXIS 589

• Court: Norfolk County Circuit Court
• Decided: December 15, 2000
• Docket: Case No. (Law) L98-1551
• Status: Published

Opinion

BY JUDGE MARC JACOBSOM

Lee Carson brought suit in the Norfolk General District Court against George S. Robinson, who then removed the case to the Norfolk Circuit Court on June 10,1998. Defendant filed a Third-Parly Motion for Judgment against Felicia Jones in September 1999, and Jones was personally served with the Third-Party Motion for Judgment. Jones neither appeared nor filed any responsive pleadings to the Third-Parly Motion for Judgment and Defendant filed a Motion for Default Judgment against Jones. On September 24,2000, a Judge of die Norfolk Circuit Court granted die Motion for Default Judgment against the Third-Party Defendant Jones and in the Order granting Default Judgment it was provided:

It is further ordered that the third-party defendant indemnify the defendant and third-parly plaintiff, George S. Robinson, for the full amount of any judgment plus interest and costs entered against him as a result of die principal action and that such amount be determined by the Court at the time of the trial of that action.

(Emphasis supplied.)

The above-captioned case was set for trial on October 4, 2000, and Defendant and Third-Party PlaintifFRobinson appeared for trial at which time a representative of the Plaintiff moved the Court for a nonsuit. Defendant objected to the Plaintiff’s request for a nonsuit alleging that the Third-Party action filed against the Third-Party Defendant precluded the granting of a nonsuit.

Virginia Code § 8.01-380(C) provides:

A party shall not be allowed to nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, cross claim or third-party claim which arises out of the same transaction or occurrence as the claim of the party desiring to nonsuit unless the counterclaim, cross claim, or third-party claim can remain pending for independent adjudication by the court.

Considering the language of the Order entered by the Norfolk Circuit Court in the Motion for Default Judgment filed by Defendant against the Third-Party Defendant and the language set forth in Virginia Code § 8.01-380(C), the Court finds and rules that the Motion of the Plaintiff for a nonsuit is denied and the above-captioned action is dismissed [for failure to prosecute the action].