Where the commonwealth nonsuited this case arising from a petition to remove defendant as the mayor of Strasburg, defendant is entitled to an attorney’s fee award.
However, the requested amount, more than $17,500, will be reduced to $2,700.
More than 100 residents of Strasburg filed what proved to be a defective petition to remove defendant mayor from office. Case law requires that the case be styled as being brought by the commonwealth. The locality may be held liable for attorneys’ fees.
The removal petition was filed but it was flawed in that none of the signatures on the petition were under oath. The commonwealth moved for a nonsuit. The motion was granted. Defendant has moved for an attorney’s fee award.
Caselaw provides a framework for determining a reasonable attorneys’ fee. The court has considered the following factors.
The case was filed on Sept. 16, 2019. As of Nov. 1, when the nonsuit was granted, defendant’s attorney billed 14.6 hours at $350 per hour and billed 24.9 paralegal hours at $200 per hour. After Nov. 1, counsel bill 13.5 hours and 11 paralegal hours.
The nature of the services provided were the usual things, meeting with the client, research, drafting and appearing in court. This was not a complex case; the Virginia Supreme Court had issued a 2018 opinion concerning the oath requirement.
Defendant received valuable services as he is no longer facing a removal petition.
The commonwealth was entitled to a nonsuit, and, as a result, there was not an outright dismissal. However, the result is the same as if the court heard a motion to dismiss and granted it. The case was ended in defendant’s favor.
Although the hourly rates are in line with those charged for similar services, the number of hours billed in not consistent for those charged for similar services. “A fee of $17,592.88 for a case that was dismissed by nonsuit at the beginning of the first hearing before the presiding judge is not consistent with those generally charged for similar services.
The effort was not “proportional to the potential recovery[.]” Before Nov. 1, 2.7 hours of attorney time and 6.5 hours of paralegal time would have been necessary and appropriate. After Nov. 1, 1.3 hours of attorney time would have been appropriate.
As a result, the court awards defendant $2,700 in attorney’s fees.
Commonwealth v. Orndorff. CL-19-995, Jan. 3, 2020; Shenandoah Cir. Ct. (Iden). No appearance by the Commonwealth, Michael Helm for the town of Strasburg, Phillip S. Griffin II for Defendant. VLW 020-8-002, 4 pp.