JAMES T. DENTON
BROWNTOWN VALLEY ASSOCIATES, INC.
THE CIRCUIT COURT OF WARREN COUNTY Dennis L. Hupp, Judge
All the Justices
WILLIAM C. MIMS, JUSTICE.
appeal, we consider whether the circuit court abused its
discretion by denying a seller specific performance of a
contract for the sale of real property. We also consider
whether the court abused its discretion when it determined
the amount of attorney's fees to award to the prevailing
party under the contract's fee-shifting provision.
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
T. Denton owns a 122.281-acre parcel of real property
("the Property") in Warren County. In June 2005,
Browntown Valley Associates, Inc. ("BVA")
contracted to buy the Property from Denton for $740, 500,
including a $500 purchase money deposit that it placed in
escrow with its purchasing agent. The contract provided that
the sale would be settled the following month. By a series of
amendments, the settlement date was postponed to October
2005. The contract also provided for an award of costs and
reasonable attorney's fees to the prevailing party in any
action arising out of it.
unwilling to settle on the amended settlement date. In
December 2005, it notified Denton's listing agent that it
was "going to have to drop the contract" because it
was unable to reach an agreement with the owner of an
adjacent parcel about improvements to a right-of-way.
BVA's purchasing agent offered Denton a release agreement
terminating the contract and authorizing the return of the
deposit to BVA. Denton's listing agent countered by
offering him a release agreement terminating the contract and
authorizing payment of the deposit to Denton. Denton did not
sign either release agreement.
later, Denton's listing agent sent him an email urging
him to sign her proposed release agreement. He refused,
responding that he had "no intention of releasing [BVA]
from this contract." He wrote that he had accepted
BVA's offer instead of competing offers because it alone
had included no contingencies for settlement. He felt that
BVA's $500 purchase money deposit on a $740, 500 contract
indicated that it had made the offer in bad faith, intending
to minimize its losses if it later abandoned the purchase for
reasons not included as a contingency in the contract. He
felt that the contract was enforceable and he intended to
enforce it unless he received a better offer from another
continued to list the Property for sale intermittently
through November 2010 but he did not receive any offers. In
April 2011, he filed an amended complaint in the circuit
court alleging that BVA had breached the contract, asserting
that he was ready and willing to perform, and seeking
specific performance by BVA. He also sought an award of costs
and attorney's fees. He tendered a deed conveying the
Property to BVA.
filed an answer and grounds of defense alleging, among other
things, that the contract required Denton to convey
marketable title. However, it alleged, his immediate
predecessors-in-title claimed a 4.191-acre tract ("the
Tract") of the Property by adverse possession, but that
neither they nor Denton had obtained a decree quieting title.
Thus, BVA continued, Denton was unable to perform the
contract because his title in the Tract was not clear and
thus he could not convey marketable title in the Property as
a whole. BVA also counterclaimed for costs and attorney's
asserted that he had resolved any dispute over ownership of
the Tract in a deed dated March 19, 1993, between him and
Wayside Inn Limited Partnership ("Wayside"), the
owner of an adjacent parcel. The deed purported to settle the
boundary between the parcels and each party relinquished any
claim to the parcel lying on the opposite side of the
boundary. Denton asserted that Wayside thereby relinquished
any claim to the Tract, so his title in the Property
therefore was clear and marketable.
rebut Denton's assertion regarding the boundary
settlement deed, BVA sought to admit a substitute
trustee's deed dated March 4, 1994 and recorded April 22,
1994, conveying Wayside's parcel to NationsBank of
Maryland, N.A. ("NationsBank") following a
foreclosure sale of the parcel. BVA noted that although
Denton's deed with Wayside was dated March 19, 1993, it
was not recorded until December 1994, after the March 1994
substitute trustee's deed was recorded. BVA argued that
the boundary settlement deed was not in Wayside's chain
of title when NationsBank acquired its parcel, so that deed
did not resolve the dispute over ownership of the Tract.
Denton filed a motion in limine seeking to exclude the
substitute trustee's deed. The circuit court denied the
motion, and the case proceeded to a bench trial.
conclusion of Denton's case, BVA moved to strike the
evidence. The circuit court deferred its ruling on the motion
until BVA presented its case. After all the evidence was
heard, the court further deferred its ruling and heard
closing argument. It subsequently entered an order in which
it granted the motion, awarded judgment to BVA, and dismissed
Denton's amended complaint with prejudice.
filed a motion to reconsider. The circuit court responded
with a letter opinion ruling that the motion would be
circuit court thereafter held a hearing on BVA's
counterclaim for an award of costs and attorney's fees.
BVA sought an award of $98, 673.15 in attorney's fees,
plus expert witness fees and costs. After receiving evidence
and hearing the testimony of competing expert witnesses
called by each party, the court entered a final order
awarding BVA $47, 800 in attorney's fees, plus expert
witness fees and costs.
awarded Denton this appeal.
performance is an equitable remedy. A suit in equity for
specific performance is distinct from an action at law for
breach of contract. There is no right to specific performance
that a court is obligated to enforce. Cox v. Cox, 67
Va. (26 Gratt.) 305, 308 (1875); see also 1 William
Minor Lile, Notes of Lectures on Equity Jurisprudence 224
(1921) ("The most striking feature of the remedy of
specific performance is, that it is not regarded as a strict
right which the court is bound to enforce, but as an
extraordinary act of grace on the part of the court,
to be granted only where the plaintiff makes out his case
fully." (emphasis in original)). He who seeks specific
performance bears the burden of proving both that there is a
definite contract and that he has performed all that is
required of him (or that he is ready and willing to perform
at the time of his suit), and that all conditions precedent
have been fulfilled. Cox, 67 Va. ...