THE CIRCUIT COURT OF FAIRFAX COUNTY Jan L. Brodie, Judge
STEPHEN R. McCULLOUGH JUSTICE.
Graham challenges the trial court's dismissal of her
action, which sought to recover attorney's fees she
incurred in defending a prior action. The trial court held
that Rule 3:25 "precluded [her] from requesting
attorney's fees because she failed to request said fees
in the underlying litigation." We agree with the trial
court, and affirm the judgment.
worked for the Community Management Corporation as its Chief
Executive Officer. Her employment contract contained a clause
requiring her to keep certain information confidential. A
separate Confidentiality Agreement provided that "[i]n
the event that an action is brought for relief under the
provisions of this paragraph, the prevailing party shall be
entitled to an award of its attorney's fees."
Graham obtained employment elsewhere, the Community
Management Corporation filed a complaint in which it alleged
that Graham had breached her obligation of confidentiality
with respect to its proprietary information. Among other
things, it asked for "attorney['s] fees incurred in
connection with its prosecution of the action for breach of
the Confidentiality Agreement." Graham filed a number of
responsive pleadings, including two demurrers, several pleas
in bar, and an answer. She did not, however, ask for
attorney's fees in any of these pleadings.
Graham obtained a defense verdict.
the conclusion of that case, Graham filed a new action of her
own against the Community Management Corporation in which she
demanded that her former employer pay the attorney's fees
she incurred in defending the earlier action. The defendant
demurred, arguing that Rule 3:25 required Graham to seek fees
in the first suit, and her failure to ask for them in that
case constituted a waiver. The circuit court agreed and
dismissed Graham's complaint. This appeal followed.
review questions of law de novo." Amin v. County of
Henrico, 286 Va. 231, 235, 749 S.E.2d 169, 170 (2013).
"A lower court's interpretation of the Rules of this
Court, like its interpretation of a statute, presents a
question of law that we review de novo." Id.
3:25, captioned "Claims for Attorney's Fees"
A. Scope of Rule. This rule applies to claims for
attorney's fees, excluding (i) attorney's fees under
§ 8.01-271.1 of the Code of Virginia, and (ii)
attorney's fees in domestic relations cases.
B. Demand. A party seeking to recover attorney's
fees shall include a demand therefor in the complaint filed
pursuant to Rule 3:2, in a counterclaim filed pursuant to
Rule 3:9, in a cross-claim filed pursuant to Rule 3:10, in a
third-party pleading filed pursuant to Rule 3:13, or in a
responsive pleading filed pursuant to Rule 3:8. The demand
must identify the basis upon which the party relies in
requesting attorney's fees.
C. Waiver. The failure of a party to file a demand
as required by this rule constitutes a waiver by the party of
the claim for attorney's fees, unless leave to file an
amended pleading seeking attorney's fees is granted under
D. Procedure. Upon the motion of any party, the
court shall, or upon its own motion, the court may, in
advance of trial, establish a procedure to adjudicate ...