Damages: ‘Fees on fees’ request is denied

Where the circuit court denied a request for attorney’s fees incurred for litigating the issue of attorney’s fees, it did not err. The trial court reasoned that these fees were not reasonable “based on the facts and circumstances of this case.”

Background

In 2022, William and Traci Butcher sued General R.V. Center Inc. and Keystone RV Company seeking recovery for defects in a recreational vehicle they purchased. Although the parties ultimately settled the underlying claim, the trial court awarded appellants only some of their requested attorney’s fees, excluding the portion of those fees incurred while litigating the issue of attorney’s fees.

Fees

The record demonstrates that appellees engaged in minimal litigation before the attorney’s fees issue arose, propounding no discovery requests and choosing not to pursue motions to dismiss or transfer venue. Indeed, after the initial complaint, the next pleading filed by appellants was their motion and supporting memorandum for attorney’s fees.

Nevertheless, before filing that motion, appellants’ counsel billed over 50 hours—10 of which was his associate’s time—for tasks such as reviewing appellees’ pleadings, corresponding with his clients and opposing counsel and negotiating settlement. After considering all the evidence before it, the trial court found that those hours were reasonable and necessary but that the additional 19.43 hours at $500 per hour to recover attorney’s fees for an already settled case were not.

Appellants insist that the trial court disregarded the Supreme Court’s opinion in Denton v. Browntown Valley Associates, Inc., 294 Va. 76 (2017), which acknowledged that attorney’s fees “the prevailing party incurs while litigating the issue of attorney’s fees are no different from those it incurs while litigating any other issue on which it prevails.” Appellants argue that, by excluding fees incurred in litigating the attorney’s fees issue, the trial court credited an “irrelevant or improper factor.”

That argument, however, mischaracterizes the trial court’s holding. The court did not decline to award the additional 19.43 hours because they were incurred in litigating the fee issue. Rather, the trial court held that portion of the incurred fees not reasonable “based on the facts and circumstances of this case.” In other words, the trial court found that appellants had failed to meet their burden of proving that the fees associated with the litigation to recover attorney’s fees were “reasonable and necessary” under the specific circumstances of this case.

Undeterred, appellants next contend that there were “no other ‘facts and circumstances of this case’” on which the trial court could base its judgment and that the “only grounds articulated or expressed by the trial court itself was the fact ‘basically, you spent 20 hours at $500 an hour to try to recover your fees.’” Appellants cite an unpublished opinion from the Virginia federal district court for the proposition that the trial court was

required to “set forth clearly [its] findings of fact for fee awards” so that this court will have an adequate basis for reviewing whether the trial court abused its discretion.

In the Commonwealth, however, “[t]here is no general requirement that trial courts must state for the record the reasons underlying their decisions.” Moreover, as noted above, the record demonstrates that the trial court looked at the entire case, including all the various phases of the litigation, and concluded that appellants had reasonably incurred over 50 hours of attorney’s fees to litigate a case involving few filings and court appearances. Appellants’ arguments to the contrary fail to show any abuse of discretion in that judgment.

Offer

Appellants argue that the trial court erred by admitting and considering evidence of the pre-lawsuit settlement offer of $98,898. The trial court, however, admitted the settlement offer to help evaluate the reasonableness of appellants’ attorney’s fees, and even then, the trial court explicitly held that it was not considering the amount of the offer as probative of “the necessity of the attorney’s fees.”

In doing so, the trial court considered the offer only for its relevance regarding “the value of the services to the client” and “the results obtained”— two of the factors the court must consider when assessing the reasonableness of attorney’s fees. Because Rule 2:408(a) did not prohibit the admission of the settlement offer for those purposes, appellants have failed to demonstrate that the trial court abused its discretion.

But even if the trial court’s ruling was an abuse of discretion, any such error was harmless because that alleged error did not influence its decision to not award the attorney’s fees incurred while litigating the issue of fees.

Affirmed.

Butcher v. General R.V. Center Inc., Record No. 1995-23-2, Jan. 14, 2025. CAV (unpublished opinion) (Huff). From the Circuit Court of Hanover County (Kelly). James B. Feinman (Law Office of James B. Feinman, on briefs), for appellants. Danielle D. Giroux (Brian M. Touna; Harman, Claytor, Corrigan & Willman, on brief), for appellees. VLW 024-7-398. 13 pp.