Opinion
CL 40591
03-17-2008
Re: Augmentation, Inc. et. al. v. The Atoka Chase Assoc., Inc., et. al.
David Moyes, Esquire
Jack Hanssen, Esquire
21 N. King Street
Leesburg, Virginia 20176 Stephen Price, Esquire
212 East Market Street
Leesburg, Virginia 20176 Gentlemen:
By letter opinion dated July 31, 2007, the Court made specific findings relative to the instant case. Among other things it determined that the plaintiffs were entitled to the relief sought in their Amended Complaint. No attorney's fees were awarded to either party at that time. At some time later, the plaintiff sought reconsideration of the issue of attorney's fees. In support of that motion, plaintiff relied upon the provisions of Va. Code Ann. §55-515 (A) and the clear directive of the Supreme Court of Virginia in White v. Boundary Association, Inc., 271 Va. 50 (2006) that, "…the prevailing parties under that statute…are 'entitled to recover [the] reasonable attorneys' fees and costs expended' in prosecuting their claims." Id. at 57 (authority omitted).
In White, as in the instant case, a homeowner prevailed in an action with property owners association, the activities of which were governed by the Property Owners' Association Act, Va. Code Ann. §§55-508 to -516.2. Having reviewed the briefs in White, the Court is not persuaded by defendants' argument that a failure to address the point in the parties' papers overcomes the express, unequivocal, finding of the Supreme Court that would permit such recovery.
Furthermore, the manner in which the Court chose to address the matter of attorneys' fees does not rule out recovery. The requirement of proof set forth in Lee v. Mulford, 269 Va. 562 (2005), that would, absent an agreement of the parties, statutory grant, or contractual term, prohibit bifurcation of the issue of attorneys' fees is one applicable to "post-verdict" proceedings in jury trials. The instant case was tried without the intervention of a jury.
Courts may permit the evidence to be reopened where no prejudice will accrue to the parties. See, Reifman v. Gorsen, 273 Va. 445 2007); Mundy v. Commonwealth, 161 Va. 1049 (1933). In the instant case, both the plaintiff and defendant requested an award of attorney's fees. Only after it was determined that the plaintiff was the "prevailing party" did it receive the affidavit of counsel on the matter.
To the extent plaintiffs seek to reopen their case to put on testimony of the reasonableness of any fees that may be awarded against the defendants, they will be granted leave to do so. As noted in the Memorandum Opinion of November 9, 2007, the parties may contact the Court for an available hearing date. The parties shall be allowed discovery on the issue, any such discovery to be concluded within 10 days prior to the date set for the hearing.
Should the parties not wish a hearing on the issue of fees, they should so notify the Court promptly upon receipt of this letter in order that this case may be brought to a final resolution.
Very truly yours,
Thomas D. Horne, Judge