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.