In American courts, the typical rule is that each party bears her own legal fees and costs. On rare occasions, the law permits “fee shifting,” under which the “prevailing party” may apply for and receive, in the court’s discretion, reimbursement from the losing party. Rarer still is an award of fees to a party that did not prevail in the underlying action. But that is exactly what GFL client Karen Komar recently received in a clean-sweep decision against her sister (and Co-Trustee) in Fairfax County Circuit Court.

Ms. Komar has been enmeshed in a series of lawsuits with her sister relating to the disposition of assets left to the parties by their mother in trust. Following an unsuccessful attempt to remove her sister as Co-Trustee, Ms. Komar hired Gerard Fox Law to break a logjam caused by her Co-Trustee’s steadfast refusal to cooperate in the sale of the Trust’s core asset, a home in Falls Church, Virginia. GFL filed a Petition for Aid and Direction, an action available to fiduciaries under Virginia’s Trust Code to obtain guidance and help in situations like Ms. Komar found herself. In that case, Ms. Komar prevailed in a slew of motions:

• to appoint a real estate agent, because Ms. Komar’s Co-Trustee would neither agree to hire an agent Ms. Komar proposed, or even one she first proposed, after Ms. Komar attempted to compromise with her;

• for reconsideration, when the Co-Trustee asked the court to reconsider its eminently reasonable decision to appoint the agent Ms. Komar proposed – who specialized in the neighborhood and knew the house well, having represented one of the prior potential buyers the Co-Trustee refused to engage with – over two submitted by the Co-Trustee, who specialized elsewhere and had no connection to the home;

• for emergency relief, when the Co-Trustee refused to sign a listing agreement with the court-appointed agent; and

• to appoint a second real estate agent, after the first one quickly closed a sale, only to see the buyer walk following inspection, because the Co-Trustee would not agree to re-enlist the first agent.

Despite this record, Ms. Komar’s actions were almost too successful from a fee-recovery perspective. The last agent appointed on Ms. Komar’s motion quickly closed a deal on the home, effectively mooting the case (forcing the home sale was her Petition’s object). Nonetheless, Ms. Komar invoked Va. Code §64.2-795, which provides that in proceedings “involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party…” Ms. Komar argued that the broad sweep of this provision trumped any “prevailing party” requirement. The other side argued the contrary, while submitting a dueling fee application based on case law supposedly authorizing the Co-Trustee to “defend” the Trust at Trust expense.

Following a full-day evidentiary hearing conducted by GFL partner Scott Abeles and assisted by associate Mary Catherine Amerine, the court ruled from the bench that Ms. Komar should take all of her requested fees and expenses, while her Co-Trustee should take none, deeming Karen’s Co-Trustee “at fault” for the twenty-month delay in disposing of Trust property. 

GFL has deep experience litigating and winning high-end Trust & Estate disputes across the country. If you would like to discuss such a case, please contact any of the firm’s partners.