So You Think You’re Going to Recover Attorneys’ Fees?

Virginia courts are not fond of awarding attorneys’ fees in litigation, even to the prevailing party. The general rule in this country is that litigants are responsible for their own attorneys’ fees unless a contract or statute says otherwise. Even if you win a case, you still have to pay your lawyer and can’t force the losing party to reimburse you. Even if a statute authorizes recovery of legal fees, the judge will have discretion to determine the amount. Most statutes that allow recovery of legal fees only allow recovery of a “reasonable” amount, so if the judge feels that no amount of fees would be reasonable to assess against the other side, then no fees will be awarded. Let’s check out a recent case from Fairfax County.

Robert M. Swahn, Jr. v. Nouman Hussain was a dispute between neighbors. Before addressing the issue of whether one of the parties could recover legal fees as the “prevailing party” in the litigation, the court characterized the case (in the very first sentence of the opinion) as one in which “everyone loses.” You know you’re not getting an award of attorneys’ fees when the judge calls you a loser.

The Swahns and the Hussains lived next to each other in a townhouse community. The Hussains liked to cook. They cooked so much, however, that the Swahns suspected they were running an illegal commercial catering business. The Swahns didn’t like how the food smelled, either. They sued the Hussains for $200,000, claiming that the unpleasant odors were a nuisance and that they amounted to “noxious or offensive activity” in violation of the HOA’s Declaration of Covenants, Conditions and Restrictions. The Hussains counterclaimed for trespass, durian-300x225claiming the Swahns entered their townhouse to spy on them. The Hussains also requested an award of attorneys’ fees pursuant to Va. Code § 55-515, which states that in actions brought to address non-compliance with an HOA Declaration, “the prevailing party shall be entitled to recover reasonable attorney fees.”

After two years of litigation and a five-day jury trial, the jury found the odors did amount to a nuisance and awarded $2,190.96 in damages. But they also found that it was only a private nuisance–not a public nuisance prohibited by the HOA Declaration–and found in favor of the Hussains on the Declaration-related count. They also found there was no trespass. In sum, they found in favor of the Swahns on the private-nuisance count and the trespass count, and found in favor of the Hussains on the public-nuisance count arising under the Declaration. Because § 55-515 authorizes awards of attorneys’ fees to parties who prevail on Declaration-enforcement claims, the Hussains moved for an award of fees–roughly $122,000.

The court was not about to let that happen. “It would shock the conscience to find the Hussains created a private nuisance and order them to pay $2,190.96 damages to the Swahns, but because they were the prevailing party on the public nuisance count, permit them to collect $118,264.84 in attorney fees from the Swahns,” the court wrote.

First, a quick word on the distinction between private nuisance and public nuisance. A “nuisance” is anything that endangers life or health, or obstructs the reasonable and comfortable use of property. (See Collett v. Cordovana, 290 Va. 139, 145 (2015)). Public nuisances affect people generally, whereas private nuisances interfere only with the use and enjoyment of a particular owner’s property. (See White v. Town of Culpeper, 172 Va. 630, 636 (1939); Newport News v. Hertzler, 216 Va. 587, 592 (1976)). It’s generally a distinction between harm caused to the community as a whole versus harm caused only to a particular individual. The court dealt with the HOA claim as one for public nuisance, and the common-law nuisance claim as one for private nuisance.

The court found multiple ways to deny the Hussains’ request for reimbursement of attorneys’ fees.

First, it held that even though the Hussains were the prevailing party on the public-nuisance claim, they were not the “prevailing party” in the case as a whole. After all, they had to pay the Swahns $2,190.96 in damages. The court decided that the general result of the litigation as a whole should be considered, rather than merely whether the Hussains prevailed on a particular isolated claim. Viewed through that lens, they prevailed only only one of the three claims submitted to the jury. That was not enough, in the court’s view, for them to be considered the “prevailing party” under Section 55-515.

Second, it held that even if the Hussains could be viewed as the prevailing party, it would not be fair or reasonable to award them their legal fees because the Swahns had attempted to nonsuit their public-nuisance claim and the Hussains wouldn’t let them. “Effectively,” the court wrote, “the Hussains are seeking attorney fees on an abandoned count that remained in the litigation due principally to their own insistence.”

Third, the court held that the Hussains failed to demonstrate that their counsel had to spend any extra time working on their case to defend against the public-nuisance count when they were already working to defend against the private-nuisance count, which involved essentially the same issues and facts. The statute at issue only authorized fees incurred in handling the public-nuisance claim, not the private-nuisance or trespass claims. A party seeking to recover fees has the burden of demonstrating entitlement to the fees and that they are reasonable and necessary. Here, the Hussains failed to segregate their attorney fees so the court was unable to determine whether any amount was necessitated by the public-nuisance claim. Result? Fee application denied.

The bottom line is that recovery of legal fees is never a sure thing. Don’t litigate a case on the assumption that the court is going to force the other party to reimburse you for all your legal fees. It may happen if a statute authorizes such an award, but don’t count on it.

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