
    CIRCUIT COURT OF FAIRFAX COUNTY
    AC Technology, Inc. v. Morris
    February 26, 1999
    Case No. (Law) 169613
   By Judge Robert W. Wooldridge, Jr.

This matter comes before me on the plaintiffs motion for an award of attorneys’ fees following a jury verdict. At trial of this matter, die parties agreed to bifurcate the claim of attorneys’ fees from die merits of the case otherwise heard and determined by the jury and to allow die court to decide the issue of attorneys’ fees. At argument on that issue on February 5,1999, the plaintiff provided an affidavit in support of its request for attorneys’ fees and costs totaling just under $20,000.00.

Plaintiff relies upon the employment agreement at issue, which provides that “[i]f legal action is required to insure compliance [with the agreement], then [defendant] will pay [plaintiffs] costs of such suit Or proceeding, including attorney’s fees.” Defendant objects to my considering die affidavit in support of attorneys’ fees on the grounds that diere was no opportunity to cross-examine the affiant. Defendant further relies upon the fact that plaintiff filed its action on March 2, 1998, seeking $40,784.50 in damages (plus interest, costs, and attorneys’ fees) and that by letter of March 25, 1998, defendant offered to pay $6,515.62 in settiement “[ijn order to limit all parties’ attorneys’ fees and their respective claims to recover those fees from the other side.” Given that die jury’s verdict in fevor of plaintiff was for $6,515.62 (the precise amount that the defendant had offered in settlement a few weeks after suit was filed), plus pre-judgment interest, defendant contends that any award of attorneys’ fees should be limited to the amount incurred by the plaintiff before the settlement offer was made (approximately $1,500.00).

While expert testimony is typically needed to aid a fact finder in determining the reasonableness of a request for attorneys’ fees, such testimony is not required in every case. Mullins v. Richlands National Bank, 241 Va. 447, 449 (1991). Where the authorization for recovery of attorneys’ fees is clear, affidavits and detailed time records when unrefuted by countervailing evidence may be sufficient to justify an award of costs and attorneys’ fees. Tazewell Oil Co. v. United Va. Bank, 243 Va. 94, 111-12 (1992). I find that plaintiffs affidavit suffices in this case as a basis for awarding attorneys’ fees and costs. The more difficult question is a reasonable amount under the circumstances presented here, hi determining reasonable attorneys’ fees, “the fact finder should consider such circumstances as the time consumed, the effort expended, the nature of the services rendered and other attending circumstances.” Mullins, 241 Va. at 449. Defendant’s settlement offer shortly after suit was filed is among “attending circumstances” to be considered in this case.

Taking into account all of (he evidence, factors, and circumstances surrounding this matter, I award the plaintiff $2,000.00 in attorneys’ fees, plus costs of $124.00 (filing fees). 
      
       By Status Conference Order entered May 21,1998, Plaintiff and Counter-Plaintiff were required to designate any expert witnesses on or before ninety days prior to trial. Plaintiff designated no expert witness to testify on toe issue of attorneys’ fees. Defendant objected to plaintiff’s affidavit in support of attorneys’ fees at toe February 5,1999, hearing not on toe grounds that it constituted expert testimony but for lack of opportunity to cross-examine toe affiant. It is unclear from Tazewell Oil whether an affidavit regarding attorneys’ fees that is objected to on toe grounds of hearsay may even be considered by the trial court. Admittedly, an exception to toe hearsay rule under these circumstances may well be difficult to justify. Should toe hearsay rule preclude consideration of toe affidavit, no recovery of attorneys’ fees could be allowed here.
     