McIntosh v. Flint Hill Sch.
| Decision Date | 17 September 2018 |
| Docket Number | Case No. CL-2018-1929 |
| Court | Circuit Court of Virginia |
| Parties | Re: Alessia McIntosh v. Flint Hill School |
Mr. Harris D. Butler, III
Butler Royals, PLLC
140 Virginia Street, Suite 302
Richmond, Virginia 23219
Mr. Cyrus Mehri
Mehri & Skalet, PLLC
1250 Connecticut Ave., N.W., Suite 300
Counsel for Plaintiff Atessia McIntosh
Mr. Timothy B. Hyland
Ms. Elizabeth A. Dwyer
Ms. Tyler Southwick
Hyland Law, PLLC
1818 Library Street, Suite 500
Reston, Virginia 20190
Counsel for Defendant Flint Hill School
Dear Counsel:
This cause comes before the Court on the Motion of Alessia McIntosh ("Plaintiff") for Summary Judgment to declare invalid a provision in the contract between the parties at issue which entitles Flint Hill School ("Defendant") to collect attorneys' fees and costs from Plaintiff without limitation in any action arising out of or related to their contract, irrespective of who initiates or prevails in such suit. This dispute raises the questions of whether the case is ripe for adjudication; whether Plaintiff has standing to petition the Court enter a declaratory judgment; whether Plaintiff's husband and co-signatory to the contract is a necessary party; whether the challenged contract clause is unconscionable; and whether the clause is otherwise void as a matter of public policy.
For the reasons as more fully stated herein, this Court holds as follows: (1) the question of the validity of the attorneys' fees and costs provision is ripe for adjudication, as Plaintiff's filing of her lawsuit has triggered the applicability of the contract clause sought to be declared unlawful; (2) Plaintiff has proper standing to petition the Court to enter a declaratory judgment as an aggrieved party with a justiciable controversy; (3) Plaintiff's husband and co-signatory to the contract is not a necessary party to this dispute because Plaintiff is seeking only to determine her rights and his rights are not ripe for adjudication; (4) the challenged clause is both procedurally and substantively unconscionable because the Contract is one of adhesion wherein Plaintiff is subject to attorneys' fees and costs even if she litigates a successful claim against the School or is sued by the School and yet prevails, and without regard to whether the attorneys' fees and costs imposed are "reasonable"; and (5) the challenged contract clause is void as against public policy in contravening the public welfare by significantly barring potentially meritorious resort to the courts by Plaintiff, and in flouting the corollary principle discernedfrom the Rules of Professional Conduct not to punish the prevailing party in litigation with payment of the loser's expenses.
Consequently, the Court shall by separate order grant Plaintiff's Motion for Summary Judgment declaring the attorneys' fees and costs provision of the parties' contract to be invalid and unenforceable.
Plaintiff is the parent of a minor child who attends Flint Hill School, located in Fairfax County, Virginia. On February 12, 2017, Plaintiff and her husband, Robert McIntosh, entered into an Enrollment Contract with Defendant that governed the terms and conditions of the child's enrollment in the School. In the relevant part, the Enrollment Contract states: "We (I) agree to pay all attorneys' fees and costs incurred by Flint Hill School in any action arising out of or relating to this Enrollment Contract." (Pl.'s Ex. 1 at 3, ¶ 16).1
Plaintiff filed a complaint for declaratory relief seeking to invalidate the Paragraph 16 clause of her Enrollment Contract entered into with Defendant. Plaintiff has moved for Summary Judgment asking the Court find such clause to be unconscionable and, as such, unenforceable under Virginia law. Plaintiff ultimately aims to assert a breach of contract claim against Defendant arguing that, due to the exclusion of Plaintiff's husband, Mr. McIntosh, from school grounds, the school has "willfully put her child in harm's way"thus violating Paragraph 13 of the Enrollment Contract. Plaintiff's concern is that because both her current and potential future claims relate to the Enrollment Contract, she will be obligated to pay the attorneys' fees and costs of Defendant regardless of which party is ultimately victorious.
"A claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Texas v. United States, 523 U.S. 296, 300, 140 L. Ed. 406, 411, 118 S. Ct. 1257, 1259 (1998) (citing Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568, 581, 87 L. Ed. 2d 409, 105 S. Ct. 3325 (1985)). The "basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ...." Abbott Labs v. Gardner, 387 U.S. 136, 148, 18 L Ed. 2d 681, 691, 87 S. Ct. 1507, 1515 (1967). Ripeness turns on two considerations: the fitness of the issues for determination and the hardship to the parties if the court withholds review. Id. at 149.
This case poses a difficult question for the Court. Normally, a case must be ripe at the time of filing, but here, arguably, it is the filing itself which first made the claim ripe, by bringing to the fore the controversy of whether attorneys' fees and costs may now be imposed upon Plaintiff. In this case, the incurring of attorneys' fees by Defendant is particularly probable because in a suit against a corporation, the entity must respond through counsel and thus generally pay counsel's fees. The ripening of a claim by the filing of suit is not normal, but neither is the clause for attorneys' fees and costs sought tobe vitiated. Still, it is a troubling concept that the Plaintiff could create the ripening of a cause of action by filing the cause of action.
At the same time, the Supreme Court of Virginia has made clear:
"[T]he General Assembly created the power to issue declaratory judgments to resolve disputes 'before the right is violated.'" Charlottesville Area Fitness Club Operators Ass'n, 285 Va. 87, 98, 737 S.E.2d 1, 7 (2013) (quoting Patterson v. Patterson, 144 Va. 113, 120, 131 S.E. 217, 219 (1926)). In other words, "[t]he intent of the declaratory judgment statutes is not to give parties greater rights than those which they previously possessed, but to permit the declaration of those rights before they mature." Cherrie v. Virginia Health Servs., 292 Va. 309, 317-318, 787 S.E.2d 855, 859 (2015) (quoting Charlottesville Area Fitness Club Operators Ass'n, 285 Va. at 99, 737 S.E.2d at 7). Accordingly, "where claims and rights asserted have fully matured, and the alleged wrongs have already been suffered, a declaratory judgment proceeding . . . is not an available remedy." Charlottesville Area Fitness Club Operators Ass'n, 285 Va. at 99, 737 S.E.2d at 7 (quoting Board of Supervisors v. Hylton Enters., 216 Va. 582, 585, 221 S.E.2d 534, 537 (1976)).
RECP IV WG Land Inv'rs LLC v. Capital One Bank USA, N.A., 295 Va. 268, 281, 811 S.E.2d 817, 824 (2018). Thus, the Plaintiff need not actually be subjected to the claim for attorneys' fees and costs, but rather need only be imperiled with the application of such fees while their validity is decided. The question to be resolved nevertheless cannot be merely theoretical, i.e., dependent on contingencies yet to occur.
See Martin v. Garner, 286 Va. 76, 83, 745 S.E.2d 419, 422 (2013) ("[T]he question involved [in a declaratory judgment action] must be a real and not a theoretical question."[)] (quoting Patterson, 144 Va. at 120, 131 S.E. at 219); see also Charlottesville Area Fitness Club Operators Ass'n, 285 Va. at 107, 737 S.E.2d at 12 (Kinser, J., concurring) (); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414, 418, 177 S.E.2d 519, 522 (1970) ().
RECP IV WG Land Inv'rs LLC, 295 Va. at 282, 811 S.E.2d at 825.
Here, however, the triggering event for ripeness is the occurrence of litigation between the parties, irrespective of who initiates the action. The application of attorneys' fees is no longer theoretical, but now only a matter of whether the Defendant chooses to assert or abandon such right.
The claim asserted is further "purely legal," in that what the Plaintiff seeks is declaration the contract term is per se unconscionable, rather than merely when applied to the distinct facts at hand.
The ripeness doctrine "prevents judicial consideration of issues until a controversy is presented in 'clean-cut and concrete form.'" Miller, 462 F.3d at318-19 (quoting Rescue Army v. Mun. Ct. of L.A., 331 U.S. 549, 584, 67 S. Ct. 1409, 91 L. Ed. 1666 (1947)). Under that inquiry, a court must "balance the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration." Id. at 319 (internal quotations omitted). "A case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties." Id. In other words, "[a] claim...
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