Seyfarth, Shaw, Fairweather & Geraldson v. Lake Fairfax Seven Ltd. Partnership

Present: All the Justices

SEYFARTH, SHAW, FAIRWEATHER & GERALDSON

OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 961021 January 10, 1997

LAKE FAIRFAX SEVEN LIMITED PARTNERSHIP, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge

In this appeal, we consider whether a law firm that

filed an action to collect legal fees from a former client

is required to establish with expert testimony that the fees

charged to the former client were reasonable. This appeal

is presented to us in an unusual procedural posture in that

the trial court sustained the defendants' motion to strike

the plaintiff's evidence at the conclusion of the opening

statements.
The law firm, Seyfarth, Shaw, Fairweather & Geraldson,

a limited partnership, filed its motion for judgment against

Lake Fairfax Seven Limited Partnership and Thomson M. Hirst,

individually, alleging the following. The law firm was

retained by the defendants to provide legal services related

to a lease dispute between the defendants and a third party.

The law firm executed a written "retainer agreement" with

Lake Fairfax Seven Limited Partnership, and Hirst personally

guaranteed payment of the legal fees. The retainer

agreement specified hourly rates for the various attorneys

who would perform the legal services.

The law firm "properly billed the [d]efendants on a

monthly basis at [the law firm's] ordinary and customary
hourly rates for services rendered, as well as for incurred

costs and disbursements. The retainer agreement expressly

obligate[d] the [d]efendants to make full payment within 30

days from receipt of each monthly statement." The

defendants discharged the law firm without cause, the law

firm properly billed the defendants for services rendered as

well as incurred costs and disbursements, and the defendants

have refused to make full payment on the outstanding bills,

leaving a balance due of $81,377.90. A copy of the written

contract was attached as an exhibit to the motion for

judgment.
The trial court entered a pretrial conference order

which required, among other things, that the law firm

identify its expert witnesses at least 90 days before trial.

On the morning of trial, after counsel had made their

opening statements to the jury, the defendants' counsel

informed the court that the law firm had not identified any

person who would render expert opinions at trial. The

defendants asserted that the law firm was required to

present expert testimony to establish the reasonableness of

the fees charged and that the law firm could not do so

because it had not identified an expert witness within the

time prescribed in the pretrial order. The defendants'

counsel, recognizing that his action was "a little

premature," nevertheless filed with the court a written

motion to strike the plaintiff's evidence.

The law firm asserted that it was not required to
present expert testimony to establish the reasonableness of

the legal fees. After the litigants argued their respective

positions, the trial court recessed, reviewed the written

memorandum in support of the motion to strike, and

subsequently granted the motion. The trial court entered a

final order in favor of the defendants, and we awarded the

law firm an appeal.

The law firm argues that the trial court erred by

granting the defendants' motion to strike the law firm's

evidence at the conclusion of opening statements. We agree.
We are of opinion that a trial court should not grant a

motion to strike the plaintiff's evidence before the

plaintiff has had an opportunity to present evidence in

support of the allegations in the motion for judgment.

Indeed, we have stated on several occasions that we

disapprove the grant of motions which "short circuit" the

legal process thereby depriving a litigant of his day in

court and depriving this Court of an opportunity to review a

thoroughly developed record on appeal. See CaterCorp, Inc.

v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277,

279 (1993); Renner v. Stafford, 245 Va. 351, 353, 429 S.E.2d

218, 220 (1993); Carson v. LeBlanc, 245 Va. 135, 139-40, 427

S.E.2d 189, 192 (1993). We hold that the trial court erred

by granting the motion to strike at the conclusion of the

litigants' opening statements.

Next, the law firm argues that the trial court erred in

ruling that the law firm was required to present expert
testimony establishing the reasonableness of the total fees

and expenses. The defendants do not contest the

reasonableness of the hourly rates specified in the retainer

agreement; rather, the defendants contend that the law firm

expended an unreasonable amount of time in the performance

of legal services and, therefore, the total amount of fees

charged was unreasonable. The defendants assert that the

law firm was required to present expert testimony to

establish the reasonableness of the total fees. We agree

with the law firm.
An attorney who seeks to recover legal fees from a

present or former client must establish, as an element of

the attorney's prima facie case, that the fees charged to

the client are reasonable. The attorney, however, is not

required to prove the reasonableness of the fees with expert

testimony in all instances.

In Mullins v. Richlands National Bank, 241 Va. 447, 403

S.E.2d 334 (1991), we considered whether a bank that had

recovered attorney's fees against several defendants, as

permitted by provisions in promissory notes, was required to

prove that the attorney's fees that the bank incurred to

collect the debt were reasonable. There, we stated:
"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. at 449, 403 S.E.2d at 335.

In Tazewell Oil Company v. United Virginia Bank, 243
Va. 94, 413 S.E.2d 611 (1992), we considered whether the

evidence was sufficient to support an award of attorney's

fees to a plaintiff under Code § 18.2-500(a), which permits

recovery for conspiracy of "the costs of suit, including a

reasonable fee to plaintiff's counsel." In Tazewell, the

trial court awarded the plaintiff attorney's fees in the sum

of $472,000. The plaintiff submitted to the trial court

about 300 pages of contemporary time records detailing the

activities for which the fees were sought in support of the

motions for costs and attorney's fees. The plaintiff also

submitted affidavits of its attorneys on the subjects of the

accuracy of the time billed and the reasonableness of the

hourly rates charged. Approving the trial court's award of

attorney's fees in Tazewell, we applied the rationale
established in Mullins, supra:
"While expert testimony ordinarily is necessary to
assist the fact finder, such testimony is not
required in every case. . . . In this case,
expert testimony was not necessary because of the
affidavits and detailed time records."

Tazewell Oil Co., 243 Va. at 112, 413 S.E.2d at 621.

Here, just as in Tazewell, we are of opinion that the

law firm was not required to present expert testimony to

prove the reasonableness of the total fees charged to the

defendants. The proffer of evidence that the law firm made

after the trial court struck its evidence reveals that the

law firm would have produced the following evidence at a

trial. The law firm executed a written contract with the

defendants, and the contract identified the firm's attorneys
who would perform work for the defendants and the hourly

billing rates that would be charged by each attorney. An

attorney from the law firm would have testified about the

nature of the legal services provided to the defendants, the

complexity of those services, the value of those services to

the defendants, and that the services were necessary and

appropriate.

Moreover, the law firm was entitled to present evidence

about the time and effort that its attorneys expended on the

defendants' behalf, and whether the fees incurred were fees

ordinarily charged in similar types of legal representation.

The finder of fact could infer from this testimony that the

law firm's fees were reasonable.
Of course, once the law firm establishes its prima

facie case, the defendants are entitled to present expert

evidence, if they so desire, on the issue whether the law

firm's fees were reasonable. The finder of fact would be

required to consider all the relevant evidence and determine

whether the fees charged were reasonable.

Accordingly, we will reverse the judgment of the trial

court, and we will remand this case for a trial.
Reversed and remanded.