Present: Carrico, C.J., Compton, Stephenson, Hassell, and 

Keenan, JJ., and Poff and Whiting, Senior Justices 

HAZEL & THOMAS, P.C., et al. 

 OPINION BY 

v. Record No. 950211 SENIOR JUSTICE HENRY H. WHITING 

 January 12, 1996 

SHAHRAM YAVARI, et al. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Jr., Judge 

 In this appeal in an attorney malpractice action, the 

dispositive issue is whether the client proved that the 

attorneys' negligence was a proximate cause of the client's loss. 

 Therefore, we recite only those facts relevant to this issue, 

and, in accordance with familiar appellate principles, we state 

those facts in the light most favorable to the client, the 

prevailing party in the trial court. 

 In February 1990, Shahram Yavari asked Daniel H. Shaner, an 

attorney with the law firm of Hazel & Thomas, P.C. (Hazel & 

Thomas), to represent him in the negotiation of a sales contract 

for Yavari's $6.6 million purchase from James M. Kline of a 

6.4259-acre tract of commercial property in the City of 

Alexandria. Since Yavari needed to quickly move his carpet sales 

and installation business from leased property, he told Shaner 

that he wanted to take possession of the Kline property 

immediately after signing the contract and to lease part of the 

property to tenants prior to closing on the contract, which was 

planned for September 1990. 

 Accordingly, Shaner negotiated the contract to provide 

Yavari with these rights. Pursuant to the contract, Yavari was 

to pay Kline a $1 million deposit that would be credited towards 
 -2- 

the purchase price, but would be forfeited if Yavari failed to 

close on the property. The contract also required Yavari to 

execute a purchase money note in which he agreed to pay Kline 59 

monthly payments of $60,500 in principal and interest, with a 

balloon payment of nearly $5 million 60 months after closing. 

The note was to be secured by a purchase money deed of trust on 

the property. 

 The contract also gave Kline the right to convey the 

property subject to the liens of three deeds of trust Kline had 

previously placed on the property. The total of the three liens 

was not to exceed $5.6 million at the time of closing. If Kline 

exercised this right, he was obligated to obtain the three lien 

creditors' consent to the sale. 

 The contract was signed on March 15, 1990 by Kline and by 

Yavari, Mehrdad Yavari, his wife, and his two corporations, 

Carpetland, Inc., and Mattress Land, Inc. (hereafter collectively 

Yavari). Yavari took possession of the property and timely paid 

the $1 million deposit to Kline. 

 After the contract was signed, Kline exercised his right to 

continue his existing financing and obtained the three lien 

creditors' consent to the sale. Although not required to do so 

by the contract, Kline, at Yavari's request, also sought to 

extend the maturity dates on his preexisting notes to conform to 

the maturity date on Yavari's purchase money note. General 

Motors Acceptance Corporation (GMAC), one of Kline's lien 
 -3- 

creditors, agreed to extend the maturity date on the notes it 

held, but conditioned that consent on Kline continuing to be a 

franchised General Motors Corporation (GM) automobile dealer 

during the life of Yavari's purchase money note. If Kline ceased 

to be a GM dealer, then Kline's obligations to GMAC would 

immediately become due. 

 Yavari objected to this condition, fearing that if Kline 

ceased to be a GM dealer and defaulted on his obligations to 

GMAC, Yavari would have to pay in excess of $2 million prior to 

the due date of his balloon payment to protect his possessory 

rights in the property. To assuage Yavari's fears, Kline 

negotiated an agreement with GMAC providing that the obligations 

to GMAC would not become due until one year after any termination 

of Kline's dealership. However, this further agreement did not 

allay Yavari's concerns. 

 Yavari was unable to lease part of the property to 

prospective tenants. This inability arose because the parties 

with whom he was negotiating, large national companies such as 

Midas Muffler, Inc. (Midas), and National Tire Wholesalers (NTW), 

demanded nondisturbance agreements from Kline and the three lien 

creditors before leasing the property. In general, a 

nondisturbance agreement is one in which a lienholder of leased 

property agrees that, in the event of the lessor's default on his 

obligation secured by the lien, the lienholder will not disturb 

the lessee's leasehold rights, provided the lessee continues to 
 -4- 

tender performance to the party succeeding to the lessor's 

rights. Kline refused to provide these agreements, asserting 

that the contract did not require him to do so, and that such 

agreements would place him at risk if Yavari defaulted on the 

contract. 

 When Yavari and Kline could not reach an agreement on these 

two issues, Yavari refused to close on the property. Kline then 

evicted him from the premises, retained the $1 million deposit, 

and instituted an action at law in the Circuit Court of the City 

of Norfolk for the recovery of additional damages because of 

Yavari's refusal to close. Following a bench trial, the court 

held that (1) Kline had performed all his contractual 

obligations, (2) Yavari had breached the contract by failing to 

close on the transaction, and (3) Kline suffered additional 

damages of $773,413.12. Accordingly, the court entered judgment 

against Yavari in that amount, and that judgment is now final. 

 In an amended motion for judgment, Shahram Yavari and his 

two corporations later sought damages for attorney malpractice 

against Hazel & Thomas, Shaner, and Frederick K. Roseman, another 

Hazel & Thomas attorney, who assisted Shaner in the transaction. 

 At a jury trial, William R. Van Buren, III, qualified as an 

expert witness for Yavari on the issue of attorney malpractice in 

the fields of business and real estate transactions. Van Buren 

testified that the defendants violated the standard of care 

required of attorneys practicing in these fields in a number of 
 -5- 

 

respects. Those violations included a failure to negotiate 

provisions in the contract requiring Kline to obtain (1) 

unconditional extensions of the maturity dates of his preexisting 

notes to match the maturity date on Yavari's purchase money note, 

and (2) nondisturbance agreements from Kline and the three lien 

creditors. The defendants offered expert testimony that they 

were free of negligence. 

 Following instructions on the issues of negligence and 

proximate cause, the jury returned a verdict in favor of Yavari 

against Hazel & Thomas and Shaner in the amount of $500,000. 

Hazel & Thomas and Shaner (hereafter collectively the defendants) 

appeal.1

 The defendants raise a number of issues on appeal. Since 

the issue of proximate cause is dispositive, we only consider 

that issue and the contentions and facts relating thereto.2

 Ordinarily, the fact finder decides whether a plaintiff has 

shown that the defendant's negligence was a proximate cause of 

 1Yavari does not assign cross-error to the judgment in favor 

of Roseman. Thus, that judgment is not before the Court. 

 2The defendants also argue that the evidence is insufficient 

to show that Shaner breached the standard of care. Since we 

conclude that the evidence is insufficient to show proximate 

cause, we will assume, without deciding, that the evidence is 

sufficient to show the alleged breaches of the standard of care. 
 -6- 

the plaintiff's loss. Parham v. Albert, 244 Va. 73, 77, 418 

S.E.2d 866, 868 (1992). When, however, the evidence is such that 

reasonable minds could not differ as to the outcome, the issue of 

proximate cause should be decided by the court, not the jury. 

Id. This rule applies equally in attorney malpractice cases, in 

which the client bears the burden of producing evidence that the 

attorney's negligence proximately caused the client's loss. 

Campbell v. Bettius, 244 Va. 347, 352, 421 S.E.2d 433, 436 

(1992); Duvall, Blackburn, Hale & Downey v. Siddiqui, 243 Va. 

494, 497, 416 S.E.2d 448, 450 (1992). Thus, Yavari had the 

burden of showing either that Kline would have agreed to include 

the above-listed provisions in the contract or that Yavari would 

not have signed the contract if Kline had refused to include 

them. 

 Recognizing this burden, Yavari relies on the following 

testimony from Kline: 

 Q: . . . . Back in February and early 

March, before the Purchase Agreement was 

signed, if Mr. Yavari's lawyers had requested 

at that time of you inclusion of a 

nondisturbance provision in the contract, 

would you have granted it? 

 A: I don't know. It's problematical, but I 

certainly would have found a way to make the 

deal happen. 

However, the defendants note Kline's testimony that he would not 

grant a nondisturbance agreement to Midas or NTW just before the 

proposed closing since they were leasing only parts of the 

property and that he did not want to be bound by the leases in 
 -7- 

the event that Yavari defaulted on his note. In our opinion, 

Kline's testimony is insufficient to support the inference that 

he would have agreed to a nondisturbance provision before signing 

the contract when he refused to agree to such a provision several 

months after signing the contract. 

 Furthermore, Yavari is unable to point to any evidence 

indicating that Kline would have agreed to bind himself to obtain 

his lien creditors' unconditional consent to extend the maturity 

dates on his preexisting notes to match the maturity date on 

Yavari's purchase money note. More importantly, Yavari never 

testified that he would not have signed the contract without the 

inclusion of the two provisions specified above had his attorneys 

insisted on them and had Kline refused to agree to them. 

 Accordingly, we conclude that Yavari has failed to introduce 

sufficient evidence that his former attorneys' purported 

negligence was a proximate cause of his loss. Therefore, we will 

reverse the judgment of the circuit court and enter final 

judgment for the defendants. 

Reversed and final judgment.