Margaret Jane Cryor Gaynor v. Frederick S. Hird, Jr ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Barrow, * Fitzpatrick and Senior Judge Duff
Argued at Alexandria, Virginia
MARGARET JANE CRYOR GAYNOR
v. Record No. 0928-94-4 MEMORANDUM OPINION** BY
JUDGE BERNARD G. BARROW
FREDERICK SYLVESTER HIRD, JR. AUGUST 1, 1995
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Edward V. O'Connor, Jr. (The Lewis Law Firm, on
briefs), for appellant.
William B. Cummings (William B. Cummings, P.C.,
on brief), for appellee.
The parties appeal an award of damages resulting from
suspending the execution of a decree which ordered the appellant
to convey her interest in their marital home to the appellee.
The suspension of the award was conditioned upon the payment of
"all damages incurred as a consequence of such suspension." Such
damages include only the "actual damage incurred in consequence
of the supersedeas." Aetna Casualty & Surety Co. v. Bd. of
Supervisors, 160 Va. 11, 57, 168 S.E. 617, 631 (1933). Thus, we
hold that (1) the expense of litigating the partition proceeding,
pursuing a cross-appeal on the appellee's behalf, and in seeking
*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death, and the panel members joined in the opinion.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
damages in this proceeding are not recoverable, (2) the expenses
of the second closing, while recoverable, are not recoverable if
they were unnecessary duplications, and (3) the rent to which the
appellant was entitled was not a proper subject to be determined
as a cost of the suspension of the decree.
I. PARTITION PROCEEDING
The appellee presented evidence of costs incurred in his
attempt to proceed with the partition to closing, caused by the
appellant's motions to delay, and resulting in a court ruling
"that the partition should proceed forthwith." These expenses
were not caused by the suspension. While they may have been
incurred as a consequence of efforts by the appellant to delay
the closing, as found by the trial court, the record does not
reflect that these expenses resulted from the suspension of the
decree ordering the sale of the home. The award of costs arising
as a consequence of suspending the judgment is not a substitute
for a proceeding to impose sanctions.
II. CROSS-APPEAL
The appellee's expenses in pursuing a cross-appeal which he
describes as a "protective appeal" were not caused by suspension
of the decree of sale. They arose, instead, from the appellant's
appeal and the appellee's desire to assert cross-error.
Suspending the decree of sale did not cause these expenses.
III. SUSPENSION BOND
The appellee's legal expenses in seeking to recover damages
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arising from the suspension of the decree of sale are not
recoverable under the suspending bond. Without a contrary
contractual commitment, a successful litigant in an action is not
entitled to recover attorney's fees incurred in that action.
Owen v. Shelton, 221 Va. 1051, 1055, 277 S.E.2d 189, 192 (1981).
This rule applies in Virginia in actions to recover under the
terms of a performance bond. Ranger Constr. Co. v. Prince
William County Sch. Bd., 605 F.2d 1298, 1301 (4th Cir. 1979).
The suspending bond did not provide for attorney's fees or other
costs incurred in recovering damages arising from the suspension.
IV. COSTS OF SECOND CLOSING
The appellant excepted to the commissioner's recommended
award to the appellee because certain costs which the appellee
sought as damages were unnecessary duplications of expenses. The
trial judge denied this exception because the appellant was
excepting to the appellee's first expenditure and the appellee
did not seek to recover the first expenditure. However, the
court misread the appellant's exception. She excepted to the
award of certain of the expenses because, she contended, they
were unnecessary duplication of expenses. Because the trial
court did not address this contention, we must reverse this award
and remand it for reconsideration.
V. RENT
The appellant's entitlement to rent was not a cost of
suspending the decree ordering her to convey the property to the
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appellee. It was a consequence of her right as one of two
tenants in common to an accounting for rents received by the
other co-tenant which were more than his just share. Code
§ 8.01-31; Gaynor v. Hird, 15 Va. App. 379, 382, 424 S.E.2d 241,
242 (1992). Whether the appellant was entitled to such rents was
addressed in the accounting which resulted in a separate decree
and should not have been considered in this proceeding for
damages recoverable under the suspending bond.
For these reasons, the decree awarding the appellee damages
is reversed and the matter is remanded for further proceedings to
determine what costs of the second closing were not duplicated
and to which the appellee should be entitled under the terms of
the suspending bond.
Reversed and remanded.
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