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Westlake Legal Group v. Flynn

Supreme Court of Virginia

April 13, 2017



          Lemons, C.J., Goodwyn, Powell, McClanahan, Kelsey, and McCullough, JJ., and Russell, S.J.



         This is an appeal by an attorney from an award of sanctions against him arising out of his efforts to collect fees and costs from a client. We affirm the award.


         In November of 2008, Eileen Flynn (the "client") entered into a written "representation agreement" with Plofchan & Associates, later known as Westlake Legal Group, a law firm practicing in Loudoun County (the "attorney"), for legal services to be rendered to her in a domestic relations case. The agreement provided for hourly fee rates for services by lawyers and legal assistants and for the client's responsibility for costs and expenses. It also provided that in the event the firm should be required to institute legal proceedings against the client for sums due under the agreement, the firm would be its own attorney and the client would be responsible for its fees in collection proceedings at a $400 hourly rate.

         This appeal arises out of an additional provision of the agreement wherein the client agreed that in the event she did not pay any bill from the attorney within 45 days of the billing, her entire account would be due and accrue interest at an annual rate of 18%. Thomas K. Plofchan, Jr. or Kathryn G. Plofchan were appointed her attorney-in-fact to confess judgment against her in any Virginia circuit court for the entire unpaid balance due under the agreement. The confessed-judgment clause contained the warning required by Code § 8.01-433.1.

         On April 30, 2014, the attorney, then using the name Westlake Legal Group, billed the client for $8, 910.07. On June 5, 2014, the attorney billed the client for an additional $550. Both bills were addressed to the client at an address in Purcellville, Virginia. On the next day, June 6, 2014, Thomas K. Plofchan, Jr., as attorney in fact for the client, filed a confession of judgment against her in the clerk's office of the Circuit Court of Loudoun County in the amount of $9, 460.07, with interest at 18% from April 30, 2014. The confessed judgment showed the client's address as "21804 Cresent [sic] Park Square, Broadlands, VA 20148." The clerk entered an order of judgment and issued a certified copy of the order for service by the sheriff on the client in compliance with the provisions of Code § 8.01-438. On June 10, 2014, the sheriff returned the papers to the clerk marked "not found." The return contained the notation "misspelled street address." It is undisputed that no copy of the judgment was ever served on the client.

         On March 18, 2015, the attorney filed a garnishment suggestion against the client, this time giving her address as "2221 Hunters Run Dr., Reston, VA 20191."[1] The suggestion claimed a debt of $11, 997.97 and identified the garnishee as the client's employer in Ashburn, Virginia. The clerk issued a garnishment summons that was served upon both the client and her employer.

          The client obtained new counsel and moved the court to enter an order declaring the confessed judgment void nunc pro tunc because of failure to serve it on her as required by Code § 8.01-438. The attorney moved to suffer a voluntary nonsuit. The client moved the court for an award of monetary sanctions in the form of recovery of her new counsel's fees. At a hearing on September 4, 2015, the court entered four orders: (1) granting the nonsuit, (2) quashing the confessed judgment nunc pro tunc, (3) ordering payment to the client of all sums held by the clerk by reason of the garnishment, and (4) pursuant to Code § 8.01-271.1, awarding sanctions in the amount of $1, 805 to be paid by the attorney to the client as reasonable expenses she incurred by reason of the garnishment proceedings. We awarded the attorney an appeal of the order granting sanctions.


         A question of law is presented by an assertion that a court improperly asserted jurisdiction. We review such questions de novo. Glasser & Glasser, PLC v. Jack Bays, Inc., 285 Va. 358, 369, 741 S.E.2d 599, 604 (2013). On appellate review of the imposition of sanctions imposed under Code § 8.01-271.1, we apply an abuse of discretion standard based upon objective reasonableness. Shebelskie v. Brown, 287 Va. 18, 26, 752 S.E.2d 877, 881 (2014).

         The attorney presented six assignments of error. We awarded this appeal as to the first five and refused the sixth. Our holding on the first assignment of error is dispositive of the appeal for the reasons expressed below.

         The attorney's first assignment of error is that the circuit court erred in asserting jurisdiction after it had "already entered an order dismissing the confessed judgment action . . .which rendered the garnishment action moot."[2] The attorney argues on appeal that his voluntary nonsuit had the effect of depriving the court of jurisdiction: "Because the underlying judgment has been dismissed, the circuit court lost jurisdiction to ...

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