Eaton v. Everhart

Thomas D. Horne, Chief Judge

MEMORANDUM OPINION

This case is before the Court on the Motion for Reconsideration filed by the defendants Donald and Theresa Fox. Mr. and Mrs. Fox seek to challenge the earlier ruling of the Court denying an award of sanctions against plaintiffs for the pursuit of the instant claim. Absent an award of sanctions, the defendants are not entitled to recover their attorney's fees in the defense of this case.

As to an award of sanctions commentator has observed,

The essence of §8.01-271.1 is that pleadings, motions and other papers, first should be 'well grounded in fact and… law' upon a reasonable inquiry' and secondly, should not be made 'for any improper purpose.' The Supreme Court of Virginia has declared that the first part of the standard is to be governed by an objective rule of reasonableness. The second part has not yet been considered by the Supreme Court of Virginia, but the trial courts are applying a subjective test, and this appears to this writer to be required by the words 'improper purpose.' A purpose or intention to do something that is improper is an act of bad faith. Va. Code Ann. §8.01-271.1 does not impose a continuing duty to update pleadings.
W. Hamilton Bryson, Bryson on Virginia Civil Procedure §15.01(1) (4th ed. 2005).

Defendants suggest they are entitled to recover their attorney's fees as sanctions based upon defendants' defalcations attendant to violations of both prongs of the statute. First, they suggest that, based upon a review of the records of the road case and a prior action that was subject to nonsuit, it is clear that plaintiffs' pursuit of this cause was not well grounded in law and fact. Secondly, they suggest that, based upon prior discussions between the parties, it has been shown that one of the defendants initiated the proceedings as a way of bludgeoning the defendants into providing access to their property.

Defendants counterclaim and motion for reconsideration is denied . The Court has provided the defendants an opportunity to present further evidence and argument on the issues, but finds that they have failed to prove conduct for which sanctions may be imposed. First, given the incomplete nature of the road case file, the plaintiffs' lack of success in proving their case is not one devoid of basis in law and fact. Although the Court would reject the conclusions of the expert and otherwise finds the proceedings procedurally defaulted, this does not mean that the mere pursuit of the claim was foreclosed by the extant road case. See, White v. Reed, 146 Va. 246 (1926).

The testimony concerning the parties, while evidencing a fractious relationship between landowners, is in equipoise as to whether certain representations were made that the suit was initiated or pursued in "bad faith" in order to force the defendants into providing access to plaintiffs' property. Upon this issue, defendants have the burden of proof, and failing to prove the issue, the Court finds for the plaintiffs.

Mr. De Turris may draw a Final Order consistent with that earlier order presented and denying the counterclaim for sanctions to which all parties may note their exception, should they be so advised.

The Clerk shall forthwith mail a copy of this Memorandum Opinion to all counsel of record.

Entered this ___ day of June 2010

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Thomas D. Horne, Chief Judge