City of Norfolk v. Burns

• Decision Date: 20 August 2019
• Docket Number: CIVIL NO.: CL18-8403
• Parties: CITY OF NORFOLK, etc., Plaintiff, v. SORENTO B. BURNS, et al., Defendants.
• Court: Circuit Court of Virginia

CITY OF NORFOLK, etc., Plaintiff, v. SORENTO B. BURNS, et al., Defendants.

CIVIL NO.: CL18-8403

CIRCUIT COURT OF THE CITY OF NORFOLK

August 20, 2019

DECREE

This cause again came before the Court on August 6, 2019, pursuant to the Court's decree of July 3, 2019, to determine the disbursement of the surplus proceeds from the sale of a parcel of real property known as 1822 Carswell Street. Rachel E. VanHorn, Esq. appeared for the Commonwealth. Ashton H. Pulley, Esq. and Banoro Garrett also appeared. The Court received evidence and argument.

Paragraphs 11 and 15 of the complaint list judgments the City of Norfolk has against a Lillie Taylor and Curtel Garrett ("Curtel") for more than $13,000, but the City did not appear at the hearing, despite notice, and it has submitted no proof of its claim.¹ Paragraph 12 of the complaint lists a judgment held by a Bennie Harris against Lille Taylor, but he has made no appearance in this cause.

The Court grants the Commonwealth's motion to file a late answer. Ms. VanHorn did not present any additional evidence, but relied on the Commonwealth's claim as stated in her "Motion for Payment from Surplus Funds," and no one present opposed this. TheCommonwealth's total claim for the five unpaid judgments against Curtel, which were docketed from December 2013 through April 2016, is $5,552.22.

The history of this cause and the basis for Mr. Pulley's claim for fees are set forth in this Court's decree of June 18, 2019. The Court appointed him guardian ad litem for Gren Garrett ("Gren") and Banoro Garrett ("Banoro") in January 2008 in a partition suit concerning the property sold in this cause and another parcel. The suit was protracted.

Sorrento Burns ("Burns"), Banoro, Mr. Pulley, and Mr. Klein, counsel for Burns, reached an agreement around September 30, 2008 (the "agreement"). The agreement provided: "That the attorney's fees incurred by the Estate and Banoro...shall be paid by the Estate in conjunction with the conclusion of the litigation," that the proceeds of the sale of the two properties would be divided equally among the heirs subject to, inter alia, the "debts of the Estate,"² and that it was "subject to approval of Curtel and Gren. Curtel and Gren never signed the agreement. The final decree of December 12, 2008,³ which Burns, Banoro, Mr. Pulley, and Mr. Klein endorsed, required the sales proceeds to be disbursed as stated in the agreement. No appeal was taken.

Mr. Pulley claims a lien for his fee arising out of the agreement. He filed a "Notice of Lien for Attorney's Fee" with the Clerk on May 13, 2010. This notice did not state the nature of the lien he claims, nor is its nature disclosed in his answer or brief filed in this cause.

Attorneys may have both a common law and a statutory lien. The common law lien, if it exists in Virginia, is the right to retain property or money belonging to the client until the attorney's fees are paid. The lien depends on possession.⁴ Stevens v. Sparks, 205 Va. 128, 135 S.E.2d 140 (1964). Mr. Pulley did not have possession of any of Gren's or Banoro's property.

The attorney's statutory lien is in Code of Virginia § 54.1-3932(A), which as pertinent provides:

Any person having or claiming a right of action sounding in tort, or for liquidated or unliquidated damages on contract or for a cause of action for annulment or divorce, may contract with any attorney to prosecute the same, and the attorney shall have a lien upon the cause of action as security for his fees for any services rendered in relation to the cause of action or claim.

Mr. Pulley has no statutory lien. First, his representation was in a partition suit, which is not tort, contract, annulment, or divorce. Second, neither Gren nor Banoro contracted with him for representation. The Court appointed him.

Code § 8.01-9(A) provides, as pertinent:

A suit wherein a person under a disability is a party defendant shall not be stayed because of such disability, but the court in which the suit is pending...shall appoint a discreet and competent attorney-at-law as guardian ad litem to such defendant...When, inany case, the court is satisfied that the guardian ad litem has rendered substantial service in representing the interest of the person under a disability, it may allow the guardian reasonable compensation therefor, and his actual expenses, if any, to be paid out of the estate of the defendant.

Mr. Pulley's statement shows he performed his services from January 29, 2008, until October 6, 2009. The Court relieved him as guardian ad litem for Banoro by order of October 26, 2009, in the first reinstatement of the partition suit. Gren and Banoro signed their disclaimers in 2010⁵ after Mr. Pulley filed his notice of lien.

Mr. Pulley spent forty-nine hours on the case over twenty months. The amount of time spent was reasonable. A review of his statement does not reveal excessive billing. His defendants were incarcerated in different prisons and the Court is aware of the difficulty in corresponding and communicating with prisoners.⁶

A partition suit of an intestate decedent's land is not simple. The attorney for an heir must determine his client's share; evaluate the claims of lien holders; obtain a court order for the sale of property; monitor the sale and the payment of expenses; review the accounting with the Commissioner; insure his client's receipt of his share of the surplus proceeds. There can also be many practical difficulties: all the heirs may not agree to a sale or the sales price; the attorney may have to deal with realtors and contractors to put the property in a marketable condition; the heirs may dispute the need for repairs and the costs; if the property is occupied, the occupant may not cooperate in the repairs to or the showing of the property; a willing and able purchaser may not be found. Given the nature of Mr. Pulley'srepresentation there was a significant risk of not being paid, and he has not been paid in almost a decade.

The Court also finds the hourly rate Mr. Pulley charged to be reasonable given the nature of the work and his experience. Notwithstanding Banoro's objections, the Court approves the amount of Mr. Pulley's claim.

The funds out of which Mr. Pulley hoped to be paid did not materialize in the partition suit, but by happenstance they are now in the control of the Court.⁷ As suits to partition land and suits to sell land for delinquent taxes are equitable causes, Code §§ 8.01-81, 58.1-3967, the Court will apply equitable principles. The Court finds Mr. Pulley has an equitable lien. This is but an application of the ancient maxim that "Equity regards as done, that which ought to be done." Atwood v. Shenandoah Valley R.R.Co., 85 Va. 966, 991, 9 S.E. 748, 757 (1889).

An equitable lien arises either from a written contract which shows an intention to charge some particular property with a debt or obligation, or is declared by a court of equity out of general considerations of right and justice as applied to the relations of the parties and the circumstances of their dealings.

Noremac, Inc. v. Centre Hill Court, 164 Va. 151, 162, 178 S.E. 877, 879-80 (1935). For a writing to properly establish an equitable lien:

[I]t must appear that it was the intention of the parties that certain specified property should be set aside and appropriated as security for the payment of a particular debt, that such property had actually been set aside and appropriated for this particular purpose, and that it can be clearly identifiedas the property the parties had in mind at the time.

Huffman v. First Nat. Bank of Boston, 205 Va. 232, 237, 135 S.E.2d 818, 822 (1964).

The agreement created an equitable lien. It clearly shows an intent to charge some particular property — the proceeds of the...