ANALYSIS OF AUGUST 20, 2020 SUPREME COURT OPINION
(Posted August 20, 2020) The Robes in Richmond hand down a single opinion today in a case that invokes the sweetest two-word phrase in the legal system: attorneys’ fees. Berry v. Fitzhugh is a partition proceeding that comes to us from Fairfax County.
The subject of this litigation is the family homestead. When a woman died in 2012, her five children inherited the place. Her will directed an immediate sale followed by distribution of the proceeds to the siblings, but they got their heads together and decided that, in a challenging real-estate market, it would be better to hold onto it for a while. Two of the siblings moved in to keep the place up.
In 2018, one of the siblings, Marsha, brought a partition suit. Two of her siblings hired a lawyer; the other two went it alone, but barely participated in the proceedings.
At trial, Marsha asked the circuit court to decree a sale. She also asked that the shares of the two siblings who had lived in the house be reduced, to account for the rental value during their occupation; she finally sought contribution from the two unrepresented siblings pursuant to a statute.
The judge agreed that a sale of the home was in everyone’s interest, but declined to impose implied rent or charge the unrepresented siblings with a share of Marsha’s legal fees. The court ordered that all five siblings share in the costs of the sale.
Marsha appealed the court’s refusal to impose implied rent and legal fees. Today the justices unanimously affirm. On fees, the Supreme Court notes that such an award is discretionary with the circuit court, despite the presence of the troubling word shall in this statute:
In any partition suit when there are unrepresented shares, the court shall allow reasonable fees to the attorney or attorneys bringing the action on account of the services rendered to the parceners unrepresented by counsel.
The circuit court had found that while Marsha had indeed incurred fees, she didn’t render services to the unrepresented siblings. They were listed as defendants in the suit, and never formally joined in the partition request. Here’s the death knell to this claim: “As this is a question of fact, we give deference to the trial court’s findings.” The justices find that the trial judge wasn’t clearly mistaken in this ruling.
The rent issue also dies an unpleasant death, on grounds that we’ve seen repeatedly in recent years. The circuit court made three separate rulings to justify refusing the requested adjustment. Marsha, in appealing, argued only one of them. As I’ve preached here before, you can’t do that. This is because the other grounds provide independent support for the judgment. Thus, even if you blow away the weakest ground, the judgment still stands on a solid foundation, so any error is harmless.