Swahn v. Hussain

In protracted litigation between townhome neighbors, the defendants/counter-plaintiffs’ losses on two issues offset their success on a third. The plaintiffs sued the defendants for public and private nuisance based on alleged operation of an illegal commercial catering business out of the home; the defendants counterclaimed for trespass.

Analyzing the claim results overall, the defendants are not “prevailing parties” and therefore are not entitled to the attorneys’ fees for their one success.

In addition, the plaintiffs/counter-defendants attempted to abandon the claim they lost, having waived the only available remedy. However, they were unable to non-suit it only because the defendants refused to dismiss their counterclaim for attorneys’ fees. Thus, they had no incentive to argue it at trial, and the defendants’ “victory” on that count is inconsequential.

Finally, the defendants/counter-plaintiffs failed to prove that their claimed attorneys’ fees were reasonable and necessary to their success. The fee award requested is the full amount of attorneys’ fees incurred in the litigation; the proffered fees aren’t segregated by claim.

Petition for attorneys’ fees denied.

Swahn v. Hussain, Nos. CL16-12933 and -15236, Jan. 17, 2019. Fairfax (Oblon).

Categories: Opinions, Virginia Circuit Courts

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