Lee v. Mulford

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, Agee,
JJ., and Russell, S.J.

WAYNE M. LEE

v. Record No. 041584 OPINION BY JUSTICE DONALD W. LEMONS
April 22, 2005
PRESTON MULFORD

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
James F. Almand, Judge

In this appeal, we consider whether the trial court erred

in confirming the jury's verdict and refusing to award

attorney's fees in a post-verdict proceeding. For the reasons

discussed below, we will affirm the judgment of the trial

court.

I. Facts and Proceedings Below

Wayne M. Lee ("Lee") sued Preston Mulford ("Mulford") on

a promissory note in an action brought in the Circuit Court of

Arlington County. Lee sought damages in the amount of

$130,648.26, plus interest, attorney's fees, and costs.

Mulford filed a counterclaim and affirmative defense alleging

fraud. The matter was tried before a jury.

During the trial, Lee presented no evidence of attorney's

fees. As part of the instructions, given without objection by

either party, the trial court instructed the jury, "The

contract should be considered as a whole. No part of it

should be ignored. The contract should be interpreted to give

effect[] to each of the provisions in it." One of the
provisions of the promissory note, Paragraph 15, stated in

part, "On or after Default, to the extent permitted by law, I

agree to pay all expenses of collection, enforcement or

protection of your rights and remedies under this Note.

Expenses include (unless prohibited by law) reasonable

attorneys' fees, court costs, and other legal expenses."

The jury returned a verdict in favor of Lee and awarded

damages of $39,908.26 and further provided in their verdict,

"Both parties split court costs [50% each]," and "Each party

pays its own legal fees." The jury was polled at the request

of Mulford and acknowledged their verdict. Lee then asked the

trial court for a post-trial hearing concerning attorney's

fees because he did not "think the issues [sic] of attorney's

fees was before the jury, so that's typically handled during

the post-trial motion where we put on an expert if necessary."

The trial court scheduled a hearing to consider the arguments

of counsel. Prior to this hearing, Lee submitted a motion for

an award of attorney's fees and Mulford filed a brief in

response.

Upon consideration of the written and oral arguments made

by counsel, the trial court entered a final order denying

Lee’s request for attorney’s fees and entered judgment on the

jury's verdict. Lee filed a timely petition for appeal.

II. Analysis

2
 As stated by Lee, the issue before us on appeal is

whether the trial court "erred by failing to award Lee, the

prevailing party, his attorney's fees and costs, despite

unambiguous contractual language that mandated the award of

such fees and costs." Lee's assignment of error is predicated

upon his assertion that "it is customary to argue the issue of

fees post-trial." Lee contends that the trial court rewrote

the promissory note to eliminate the attorney's fees

provision. Because the jury found in favor of Lee and the

note unambiguously entitled Lee to attorney's fees, Lee argues

that it was error for the trial court to deny his post-trial

motion for an award of attorney's fees.

We "will uphold the judgment of the trial court unless it

appears from the evidence that the judgment is plainly wrong

or without evidence to support it." Upper Occoquan Sewage

Auth. v. Blake Constr. Co., 266 Va. 582, 590, 587 S.E.2d 721,

725 (2003) (citing Code § 8.01-680). As we stated in Mullins

v. Richlands Nat’l Bank, 241 Va. 447, 403 S.E.2d 334 (1991),

“[g]enerally, absent a specific contractual or statutory

provision to the contrary, attorney’s fees are not recoverable

by a prevailing litigant from the losing litigant.” Id. at

449, 403 S.E.2d at 335. We continue to adhere to this so-

called “American rule.” As in Mullins, this case involves a

contract, specifically a promissory note, which provides for

3
attorney’s fees but does not fix the amount to be awarded.

Consequently,

a fact finder is required to determine from the
evidence what are reasonable fees under the
facts and circumstances of the particular case.
In determining a reasonable fee, the fact
finder should consider such circumstances as
the time consumed, the effort expended, the
nature of the services rendered, and other
attending circumstances. Ordinarily, expert
testimony will be required to assist the fact
finder.

Id. (citations omitted). We have noted that expert testimony

is not required in every case. Tazewell Oil Co. v. United

Virginia Bank, 243 Va. 94, 112, 413 S.E.2d 611, 621 (1992).

We are aware of many cases in which the parties, with the

concurrence of the trial court, have bifurcated the fact-

finding process. See Wilkins v. Peninsula Motor Cars, 266 Va.

558, 559, 587 S.E.2d 581, 582 (2003) ("By agreement of the

parties, the issue of attorney's fees and costs . . . was

reserved for determination by the trial court"); Chesapeake &

Potomac Tel. Co. v. Sisson & Ryan, Inc., 234 Va. 492, 500, 362

S.E.2d 723, 728 (1987) ("The parties agreed to submit the

question of attorneys' fees to the trial court following the

verdict."). In this case there is no such prior agreement

between the parties that was approved by the trial court.

Lee sought attorney’s fees as part of his claim for

damages and a jury was empanelled to decide the case. He

4
offered no evidence to the jury in support of an award of

attorney's fees. Additionally, without objection, the jury

was instructed, “The contract should be considered as a whole.

No part of it should be ignored. The contract should be

interpreted to give effect to each of the provisions in it."

The jury followed this instruction when, in the absence of any

evidence on the subject, it determined, based on the language

governing an award of attorney’s fees in Paragraph 15 of the

promissory note, that the parties should bear their own

attorney's fees and split court costs equally.

Lee concedes that there was no express agreement with

approval of the trial court to bifurcate the fact-finding

process; however, he asserts that “it is customary to argue

the issue of fees post-trial” before the trial judge. Lee

does not identify whether it is a custom of the bar or a

custom of the bench generally or a custom of the particular

trial judge. Lee offered no evidence in support of his

contention that such a custom exists in the Circuit Court of

Arlington County or anywhere else. Furthermore, the parties

disagree whether such a custom exists. Neither party offered

evidence in support of their arguments. Additionally, neither

party cites any authority for the proposition that custom and

practice, if proved, may alter the substantive rights of the

5
parties otherwise provided by case law, statute, or pursuant

to the Rules of Court.

Lee's proposition would, in effect, raise custom and

practice to the status of local rule. We note that Code

§ 8.01-4 provides:

The district courts and circuit courts
may, from time to time prescribe rules for
their respective districts and circuits. Such
rules shall be limited to those rules necessary
to promote proper order and decorum and the
efficient and safe use of courthouse facilities
and clerks' offices. No rule of any such court
shall be prescribed or enforced which is
inconsistent with this statute or any other
statutory provision, or the Rules of Supreme
Court or contrary to the decided cases, or
which has the effect of abridging substantive
rights of persons before such court. Any rule
of court which violates the provisions of this
section shall be invalid.

The courts may prescribe certain docket
control procedures which shall not abridge the
substantive rights of the parties nor deprive
any party the opportunity to present its
position as to the merits of a case solely due
to the unfamiliarity of counsel of record with
any such docket control procedures.

If local custom and practice were to be enforced as Lee

proposes, Mulford argues that it would deny his substantive

right to insist upon a jury determination guaranteed by

Article I, § 11 of the Constitution of Virginia which provides

in pertinent part, "in controversies respecting property, and

in suits between man and man, trial by jury is preferable to

any other, and ought to be held sacred."

6
 We need not interpret the Constitution of Virginia in

this case because the General Assembly, acting pursuant to

this constitutional provision, has provided in Code § 8.01-

336:

A. The right of trial by jury as
declared in Article I, Section 11 of the
Constitution of Virginia and by statutes
thereof shall be preserved inviolate to the
parties.

B. Waiver of jury trial. – In any
action at law in which the recovery sought
is greater than $100, exclusive of interest,
unless one of the parties demand that the
case or any issue thereof be tried by a
jury, or in a criminal action in which trial
by jury is dispensed with as provided by
law, the whole matter of law and fact may be
heard and judgment given by the court.

C. Court-ordered jury trial. –
Notwithstanding any provision in this Code
to the contrary, in any action at law in
which there has been no demand for trial by
jury by any party, a circuit court may on
its own motion direct one or more issues,
including an issue of damages, to be tried
by a jury.

Mulford had the right in this case pursuant to Code

§ 8.01-336 to insist that the issue of attorney's fees be

submitted to a jury. In this case, the issue was submitted to

a jury and the jury rendered a judgment. Absent agreement of

the parties with the concurrence of the court, or pursuant to

contract or statute with specific provisions, a litigant is not

entitled to bifurcate the issues and have the matter of

7
attorney's fees decided by the trial court in post-verdict

proceedings.

III. Conclusion

Based on a review of the record, we cannot say that the

trial court abused its discretion in denying Lee’s post-

verdict motion for attorney’s fees. We will affirm the

judgment of the trial court.

Affirmed.

8