Chippenham Manor, Inc. v. Dervishian
| Decision Date | 14 January 1974 |
| Parties | CHIPPENHAM MANOR, INC., et al. v. Ernest H. DERVISHIAN et al. |
| Court | Virginia Supreme Court |
Charles A. Somma, Jr., Richmond (Somma & McMurtrie, Richmond, on brief), for appellants.
Ernest H. Dervishian, Richmond (Dervishian & Hutzler, Richmond, on brief), for appellees.
Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
I'ANSON, Justice.
This appeal involves the action of the court below in sustaining a demurrer to a bill of complaint and dismissing the suit filed on March 27, 1972, by the plaintiffs, Chippenham Manor, Inc., Louis Adelman Associates, Inc., and Louis Adelman and Hilda E. Adelman, against the defendants, Richard Turner and William A. Dervishian, trustees, and Ernest H. Dervishian, Harold H. Dervishian, Charles S. Hutzler and William A. Dervishian, partners practicing law under the partnership name of Dervishian and Hutzler.
Plaintiffs alleged in their bill that pursuant to a written agreement entered into on March 23, 1967, Ernest H. Dervishian was employed to represent the Adelmans and Adelman Associates in the defense of a suit pending against them in the Circuit Court of Henrico County and to file a cross-bill in that suit on their behalf; that under the terms of the contract Dervishian's compensation was a combination of a retainer of $4,000, evidenced by a note payable five years after date and secured by a deed of trust on Chippenham Manor property, plus the additional sum of 10 percent of the amount saved by a favorable result, and 1/3 of any judgment obtained on the cross-bill; that they executed and delivered to Dervishian the $4,000 note and deed of trust; that thereafter Dervishian filed an answer and cross-bill on their behalf in the Henrico suit; that to their best knowledge and belief no further action was taken; that the matter was not referred to a commissioner in chancery, no hearings were held, and no evidence was taken; that on or about May 12, 1969, defendant Dervishian withdrew as their counsel; and that the defendants have demanded the payment of the $4,000 note.
The bill prayed (1) that the court enjoin the trustees under the deed of trust from foreclosing on the real property; (2) that Dervishian and Hutzler be enjoined from selling or negotiating the promissory note secured by the deed of trust; and (3) that the value of the services rendered by the attorneys be determined on a quantum meruit basis.
The demurrer filed by the defendants, which was sustained by the court below without stating the reasons therefor, asserted that the bill was not sufficient in law for the following reasons;
(1) Plaintiffs do not contest the validity of the employment contract, the note, or the deed of trust;
(2) Plaintiffs failed to allege lack of consideration but admit that they received legal representation until the relationship was terminated (3) Plaintiffs now attempt to change the amount of the contractual consideration five years after the agreement was executed; and
(4) Plaintiffs made no allegations which entitle them to the relief prayed for.
The effect of the demurrer was to admit as true all allegations of material facts which were well pleaded. Richmond Inc. v. Ewing's Sons, 200 Va. 593, 595, 106 S.E.2d 595, 596--597 (1959); Washington v. Garrett, 189 Va. 57, 61, 52 S.E.2d 83, 85 (1949). When a pleading is tested by a demurrer, 'all reasonable inferences of fact which a trier of facts may fairly and justly draw from the facts alleged must be considered by the court in aid of the pleading.' Ames v. American Nat. Bank, 163 Va. 1, 37--38, 176 S.E. 204, 216 (1934).
The first and second grounds of defendants' demurrer are not responsive to the allegations set forth in the bill of complaint. Plaintiffs' complaint is that Dervishian breached the contract by not fully performing his contractual obligations, and thus he was not entitled to receive the entire amount of $4,000 for services rendered.
Under the third ground of the demurrer, defendants...
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Mathews v. PHH Mortg. Corp.
...see also TC MidAtlantic Dev., Inc. v. Commonwealth, 280 Va. 204, 214, 695 S.E.2d 543, 549 (2010); Chippenham Manor, Inc. v. Dervishian, 214 Va. 448, 451, 201 S.E.2d 794, 796 (1974). Nor can this Court on appeal. For these reasons, I respectfully concur and, like the majority, would affirm i......
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Ryland Group, Inc. v. Wills, 820870
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