Graham v. Community Management Corp., Va. S. Ct. 10/12/17. This was a suit on a contract that included a fee award provision for the prevailing party in any suit on the contract.
Graham was sued on a confidentiality agreement by her former employer, and responded that that contract was flawed and invalid. In responding, her lawyer decided not to seek fees under the terms of the contract which she was attacking. "We couldn't take that chance" that doing so might be considered "approbation and reprobation," the lawyer later explained.
The Fairfax Circuit Court and the Supreme Court cited Rule 3:25, which says a party seeking fees "shall" do so in pleadings (whether initial or responding pleadings)."No litigant may recover on a right not pled", the Court wrote.
The Court threw outGraham's argument under Code § 8.01-230 that the claim for fees had not yet accrued because the defendant had not yet paid her lawyer. It accrued when she first incurred any obligation to a lawyer, i.e., "from the outset".