PRESENT: All the Justices

WILLIAM H. BOLTON, ET AL.

 OPINION BY

v. Record No. 200637 JUSTICE WILLIAM C. MIMS

 APRIL 1, 2021 

JOHN W. MCKINNEY

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY

Paul M. Peatross Jr., Judge Designate

In this appeal, William H. Bolton (individually “Bolton”) and his wife, Sheller C. Bolton 

(collectively, the “Boltons”) ask this Court to determine whether the Circuit Court of 

Rockingham County erred in failing to grant them attorney’s fees as damages in an action for 

breach of a covenant not to sue. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Bolton and John W. McKinney were partners in a business venture called Skyline 

Building Systems, LLC. Approximately one year after they acquired the company, Bolton 

purchased McKinney’s ownership interest. McKinney stayed on as an employee but was later 

terminated by Bolton. McKinney then brought several lawsuits against Skyline and Bolton, 

causing Skyline to lose its financing and go out of business. Bolton filed for bankruptcy shortly 

thereafter, with McKinney listed as a creditor.

During the bankruptcy proceedings, the Boltons and McKinney entered into a 

“Settlement Agreement and Global Mutual Release of Claims.” In consideration for $25,000 

and the Boltons’ covenant not to sue the McKinneys, the McKinneys relinquished all rights to 

sue the Boltons. The recitals stated: “It is the intention of the parties that ... there be no more 

litigation among the parties or claims asserted by any of them against the others.” Additionally: 

“The McKinneys and the Boltons agree and covenant not to sue or prosecute any claims released 
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by this Agreement.” The settlement agreement also contained an arbitration clause, providing 

that:

any dispute that may arise between the Parties out of this Agreement including the 

interpretation of the Agreement, shall be resolved by binding arbitration in 

accordance with the rules of the American Arbitration Association, and not by 

litigation, except to the extent that a court is required to adopt and enforce the 

decision of the arbitrator. 

Less than a year after entering into the settlement agreement, McKinney breached the 

covenant not to sue by suing Bolton twice in state court and once in federal court for claims 

relating to his time at Skyline. All of the suits were resolved in favor of Bolton. Bolton 

contends that he incurred more than $80,000 in attorney’s fees in defending these actions. 

In response to the lawsuits, the Boltons filed this action against McKinney alleging a 

breach of the settlement agreement. They sought recovery for the attorney’s fees they expended 

defending against McKinney’s unsuccessful lawsuits and an injunction to prevent McKinney 

from pursuing further actions against them. 

McKinney filed a motion to dismiss, asserting that the mandatory arbitration provision of 

the settlement agreement should be enforced. The circuit court ruled that McKinney had waived 

the right to enforce the arbitration clause by filing multiple lawsuits against Bolton that related to 

McKinney’s time at Skyline.

The Boltons thereafter moved for partial summary judgment on the issue of McKinney’s 

liability for breach of contract. The circuit court granted the motion and held a hearing on the 

Boltons’ claim for damages. After the hearing, the court took the matter under advisement to 

determine whether the Boltons could be awarded attorney’s fees as damages under the 

circumstances of this case.
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The court decided that there were no grounds for the requested award of damages 

because, under Virginia law, attorney’s fees are generally only awarded when explicitly 

authorized by a contract or statute. The court noted that the settlement agreement is silent on 

whether fees should be awarded if the case was resolved at trial. The court therefore reasoned 

that since courts cannot read provisions into a contract, an award of attorney’s fees was not 

appropriate. 

We awarded the Boltons this appeal.

II. ANALYSIS

The interpretation of a contract is a question of law that this court reviews de novo. 

Schuiling v. Harris, 286 Va. 187, 192 (2013). “The guiding light in the construction of a 

contract is the intention of the parties as expressed by them in the words they have used, and 

courts are bound to say that the parties intended what the written instrument plainly declares.” 

Id. (quoting Wilson v. Holyfield, 227 Va. 184, 187 (1984)). 

Virginia follows the American rule on attorney’s fees, under which “[g]enerally, absent a 

specific contractual or statutory provision to the contrary, attorney’s fees are not recoverable by a 

prevailing litigant from the losing litigant.” REVI, LLC v. Chicago Title Ins. Co., 290 Va. 203, 

213 (2015). The purpose of the rule is to “avoid stifling legitimate litigation by the threat of the 

specter of burdensome expenses being imposed on an unsuccessful party.” Tonti v. Akbari, 262 

Va. 681, 685 (2001). 

A covenant not to sue is “an agreement not to enforce an existing cause of action against 

another party to the agreement.” 66 Am. Jur. 2d Release, § 4 (Feb. 2021 update). It is 

recognized in most jurisdictions, including Virginia, that a covenant not to sue can be asserted as 

a complete bar to any subsequent actions initiated by the obligee against the obligor that are
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covered by the terms of the agreement. See 16 Michie’s Jurisprudence, Release, § 3 & n.448 

(2021 update); Lackey v. Brooks, 204 Va. 428, 432 (1963). 

The remedy for a breach of contract “is intended to put the injured party in the same 

position in which it would have been had the contract been performed.” Marefield Meadows, 

Inc. v. Lorenz, 245 Va. 255, 261 (1993). A breach of a covenant not to sue, therefore, creates a 

unique situation in which the damages stemming from the breach may be the attorney’s fees 

incurred by the party protected by the covenant. 

Generally, attorney’s fees are not recoverable as damages. Hiss v. Friedberg, 201 Va. 

572, 577 (1960). Whether Virginia law allows an award in the amount of attorney’s fees as 

damages for the violation of a covenant not to sue, however, is a question of first impression for 

this Court. Other jurisdictions are divided on the issue. 

Jurisdictions that do not allow for the award of attorney’s fees in this circumstance reason 

that the parties can provide for attorney’s fees in the contract if they so choose. See Artvale, Inc. 

v. Rugby Fabrics Corp., 363 F.2d 1002, 1008 (2d Cir. 1966) (“Certainly it is not beyond the 

powers of a lawyer to draw a covenant not to sue in such terms as to make clear that any breach 

will entail liability for damages, including the most certain of all – defendant's litigation 

expense.”); Bunnett v. Smallwood, 793 P.2d 157 (Colo. 1990) (“It is not unfair to require each 

party to pay its own legal costs if the parties did not find it necessary to include a fee shifting 

provision when they entered into the agreement.”); Dodge v. United Servs. Auto. Assn., 417 A.2d 

969, 976 (Me. 1980) (“[L]awyers who wish to swim against the tide of the American rule are 

perfectly capable of including an express undertaking that the damages resulting from any breach 

of the settlement agreement shall include attorney's fees.”). Moreover, some courts have held 

that a covenant not to sue is to be used as a “shield rather than as a sword,” intended only to 
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allow a party to bar a suit initiated by the obligee, not to recover damages incurred as a result of 

the suit. Artvale, Inc., 363 F.2d at 1008; see also Bunnett, 793 P.2d at 161. 

By contrast, other jurisdictions have recognized that the American rule against the award 

of attorney’s fees in the absence of a statutory or contractual right does not apply to “those cases 

in which attorney fees are not awarded to the successful litigant in the case at hand, but rather are 

the subject of the lawsuit itself.” Zuniga v. United Cav Co., 812 F.2d 443, 445 (9th Cir. 1987); 

see also Anchor Motor Freight, Inc. v. Int'l Bhd. of Teamsters, etc., Local Union No. 377, 700 

F.2d 1067, 1072 (6th Cir. 1983); Paper, Allied, Chem. & Energy Workers Int'l Union, Local 5-

508 v. Slurry Explosive Corp., 107 F. Supp. 2d 1311, 1331 (D. Kan. 2000). 

Applying this principle, jurisdictions that permit the award of attorney’s fees as damages 

for the violation of a covenant not to sue do so primarily because, unlike in most cases, 

attorney’s fees are direct or consequential damages of a breach of this type of agreement. As the 

New Hampshire Supreme Court recently observed: 

When a party requests attorney's fees and costs in defending the action as 

consequential damages for breach of a covenant not to sue, this request does not 

seek an award of attorney's fees within the meaning of the American Rule. 

Rather, under these circumstances, attorney's fees and costs help to put the nonbreaching party in the position it would have been in had the breach not occurred. 

Pro Done, Inc. v. Basham, 210 A.3d 192, 203 (N.H. 2019). The court explained, “[A] defendant 

in an action brought in violation of a covenant not to sue bargained to receive, and exchanged 

consideration for, the opposing party's promise that it would forbear from bringing suit. Under 

these circumstances, the lawsuit itself is the object that the bargain intended to prohibit.” Id.; see 

also Scott v. Reedy, 1876 Ohio Misc. LEXIS 27, at *6 (Ohio Super. Ct. Oct. 1, 1876) (“The 

employment of counsel by the plaintiff to resist [an action brought in violation of a covenant not 

to sue], the occupation of the time and the services of the plaintiff in attending upon it, may well 
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be regarded as having been in contemplation of the parties in entering into the contract, and as 

the natural and almost unavoidable consequences of the defendant's breach of it.”). 

Under the facts of this case, this Court finds more persuasive the reasoning of courts that 

have decided that the amount of attorney’s fees incurred should be awarded as damages. 

Allowing damages in this circumstance compensates the injured party for its loss and puts it back 

in the same position in which it would have been had the other party adhered to its promise. To 

prevent the Boltons from obtaining direct damages from the breach of an express term of the 

contract simply because they happen to also be attorney’s fees would rob them of the benefit of 

their bargain and make their victories in the respective lawsuits hollow. 

McKinney argues that the Boltons cannot receive attorney’s fees as damages because the 

Boltons pursued this claim through litigation. The settlement agreement specified that attorney’s 

fees would only be available to the prevailing party in an arbitration proceeding. The circuit 

court found that McKinney had waived his right to enforce the arbitration provision by bringing 

numerous lawsuits. In light of that finding of waiver, the fact that the Boltons sought redress in 

court as opposed to arbitration does not preclude them from obtaining the relief they seek for 

McKinney’s breach.

We hold that the circuit court erred in failing to award the amount of attorney’s fees the 

Boltons incurred defending the lawsuits initiated by McKinney as damages in the current action. 

In so holding, we do not overrule the general rule in Virginia law that attorney’s fees are not 

recoverable as damages. We recognize only that the plaintiff’s damages for a breach of a 

covenant not to sue may be the amount of the attorney’s fees incurred by the plaintiff in 

defending actions that breached the agreement.
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III. CONCLUSION

We reverse the judgment of the Circuit Court of Rockingham County and remand for 

further proceedings in accordance with this opinion. 

Reversed and remanded.