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. 
- 2 - 

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 
- 3 - 

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 
- 4 - 

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.