The Virginia Business Litigation Blog
A party with an ironclad statutory or contractual right to attorney fees can still lose that right by failing to plead it correctly. That is the lesson of Pinnacle Flooring Solutions, LLC v. Premier Homes Group, LLC, Record No. 250618 (Va. July 30, 2026), in which the Supreme Court of Virginia held that Virginia Rule 3:25’s requirement that parties “identify the basis upon which the party relies in requesting attorney fees” is satisfied only by affirmatively identifying the basis for a fee request in the pleading itself, regardless of whether the other party is aware of the basis for requesting legal fees. Reversing the Court of Appeals, the Court reinforced that Rule 3:25 is a pleading requirement, not a notice requirement, and that the distinction is dispositive.
Premier Homes Group had subcontracted with Pinnacle Flooring Solutions to install flooring in three homes Premier was constructing. Each of the three nearly identical subcontracts contained a Section 8(b) providing that if Pinnacle defaulted and failed to cure after notice, Premier could take whatever corrective steps it deemed necessary at Pinnacle’s cost, with Pinnacle liable for that cost plus Premier’s reasonable overhead, profit, and attorney fees. When the relationship broke down, Pinnacle sued for nonpayment, attaching the subcontracts as exhibits to its complaint. Premier counterclaimed, alleging that Pinnacle’s work was defective and below industry standards and requesting that the court award it the attorney fees it incurred in prosecuting the matter. Premier incorporated various paragraphs from the subcontracts into its pleading—including the paragraph authorizing recovery of attorney fees—but did not expressly state a basis for its request for attorney fees.
Pinnacle promptly challenged the fee demand, both in its answer and in a motion to strike, arguing that the counterclaim failed to identify a basis for fees as required by Rule 3:25(b). The parties bifurcated the fee issue and tried the merits, and the trial court entered judgment for Premier on its breach-of-contract counterclaim. In the run-up to the later fee hearing, Premier’s memorandum attached two email threads in which its counsel had twice told Pinnacle’s counsel that the fee request arose from Section 8(b) of the subcontracts. Pinnacle’s counsel responded by agreeing to bifurcation but did not address the basis for the fees. At the hearing, Premier conceded that its counterclaim did not specify the basis for fees in isolation but argued that the incorporated paragraphs and the emails together satisfied the rule. The trial court disagreed and denied fees for noncompliance with Rule 3:25(b). A panel of the Court of Appeals reversed, reasoning that Premier had stated a fee claim and had attached the contract, which put Pinnacle on notice of the single available ground for fees. 
(The contract language was actually incorporated, not attached, but ultimately this distinction did not make a difference).
The Supreme Court reversed. Reviewing the interpretation of its own rules de novo, the Court began with the text. Rule 3:25(b) requires a party seeking fees to demand them in an authorized pleading and further provides that the demand “must identify the basis upon which the party relies.” Because Virginia adheres to the American Rule, a party seeking fees must point to a contractual or statutory provision authorizing recovery. (See St. John v. Thompson, 299 Va. 431, 434 (2021)). Premier’s demand did neither. It requested the fees incurred in prosecuting the matter but identified no statutory basis and no contractual basis; indeed, it never even mentioned the subcontracts, let alone Section 8(b). Under the plain terms of the rule, a party that fails to make the required demand waives the fee claim unless it obtains leave to amend under Rule 1:8. Premier did neither, effectively waiving its right to fees.
Drawing on Graham v. Community Management Corp., 294 Va. 222 (2017), the Virginia Supreme Court held that Rule 3:25 imposes a pleading obligation rather than a notice obligation. The Court of Appeals had asked whether a reasonable litigant in Pinnacle’s position would have understood that the fee request rested on Section 8(b) and concluded that it would. But that’s the wrong approach. The requirement that a party plead the basis for fees is consistent with the bedrock Virginia principle that no litigant may recover on a right not pled. Additionally, it serves a variety of important functions that a pure notice standard would defeat: it enables trial courts to exercise their case-management authority, it guards against claim duplication, and it preserves jury-trial rights on fee claims. Whether Pinnacle should have known the basis for the request was therefore beside the point. Compliance comes only from affirmatively identifying the basis in the demand, held the Court, and Premier had not done so.
So, if you have a fee-shifting clause in your contract, be sure to invoke it in your pleading. Ask for fees and specify the precise basis upon which you rely in making that request. If you become aware that your fee demand is deficient, move promptly for leave to amend your pleading under Rule 1:8.