Lemon Law Ford Motor Company v. Burnette

http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjcca&searchTerm=eEZL.HINa.aadj.eeag&searchFlag=y&l1loc=FCLOW

2001 Va. Cir. LEXIS 527,*;66 Va. Cir. 462

Stephen C. Burnette, et al. v. Ford Motor Co.

CL 5416

CIRCUIT COURT OF AMHERST COUNTY, VIRGINIA

66 Va. Cir. 462; 2001 Va. Cir. LEXIS 527

February 5, 2001, Decided

DISPOSITION:   

Fees awarded to Davidson, Sakolosky, Mosely &Tiller and Mr Wilson.

COUNSEL:    [*1]  Cary P. Moseley, Esq., Davidson, Sakolosky, Moseley & Tiller, Lynchburg, VA.

G. Edgar Dawson, III, Esq., Petty, Livingston, Dawson & Richards, Lynchburg, VA.

JUDGES:   J. Michael Gamble, Judge.

OPINION BY:   J. Michael Gamble

OPINION   

I am writing this letter to rule in the above case. In this regard, I award to the firm of Davidson, Sakolosky, Moseley & Tiller fees and costs in the amount of $9,294.50. This consists of fees in the amount of $6,860.00 to Mr. Moseley, $1,862.50 to Mr. Wilson, $500.00 for expert witness fees, and $72.00 for filing costs.

Mr. Moseley’s fee is based on 39.2 hours at $175.00 per hour. I have deducted 15.4 hours for the time that Mr. Moseley spent on his efforts to establish an attorney’s fee after January 19, 2001. In my view, the law does not support compensation to Mr. Moseley for time spent establishing the attorney’s fees after the primary Lemon Law claim has settled. Thus, I have deducted 15.4 hours from his time.

While the Magnuson-Moss Warranty Act and the Virginia Motor Vehicle Warranty Enforcement Act allow for the recovery of attorney’s fees, expert witness fees, and court costs, these fees and costs are collateral damages to the compensatory damages  [*2]  and equitable relief for the breach of warranty. Accordingly, it follows that the recovery of attorney’s fees incurred subsequent to the settlement of the primary action are not recoverable.

In the instant case, the primary claim was settled in the period of December 2000 to January 2001. The parties left open the issue of attorney’s fees to be decided by the Court. Because the plaintiffs were successful in achieving the settlement, they are entitled to attorney’s fee up to the point the settlement was implemented. However, the action to recover attorney’s fees subsequent to the settlement violates the Virginia Rule that attorney’s fees are generally not recoverable. The instant proceeding is basically a lawsuit to recover attorney’s fees. To award attorney’s fees in this action to recover attorney’s fees would violate the general rule in Virginia that attorney’s fees are not recoverable in litigation. Prospect Development Co. v. Bershader, 258 Va. 75, 92, 515 S.E.2d 291 (1999).

Mr. Moseley has sought a fee of $200.00 per hour. I find that the customary fee for lawyers in this area with his experience would be $150.00 per hour. However, he has special expertise for automobile  [*3]  Lemon Law litigation. Accordingly, I am adding $25.00 to his hourly rate. I know that in other jurisdictions, judges have approved $200.00 per hour. However, most of those jurisdictions appear to be more urban jurisdictions were attorney’s fees are naturally higher.

I have set the fee of Mr. Wilson at $125.00 per hour. I have awarded him all of the hours because they were all incurred prior to the settlement.

The plaintiffs incurred $500.00 in expert witness fees, which are reasonable. These are awarded. Additionally, I award the $72.00 filing costs.

J. Michael Gamble, Judge

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