In re Klingenhagen

BY JUDGE ROBERT W. WOOLDRIDGE, JR. This matter came before me for hearing upon the petition of Karen German for the appointment of a guardian and a conservator for John L. Klingenhagen, Sr. After granting that petition, I took under advisement Petitioner’s motion for attorney’s fees pursuant to Virginia Code § 37.1-134.7(C). That motion is now granted. I find that the Petitioner is entitled to the reimbursement of reasonable costs and fees pursuant to the language of Virginia Code § 37.1-134.7(C). Section 37.1-134.7(C) states in part, “if a guardian or conservator is appointed and the estate of the incapacitated person is available and sufficient therefor, the court shall order that the petitioner be reimbursed from the estate for all costs and fees.” I find that the estate in this case is sufficient enough to accommodate the reimbursement of such costs and fees. I further find that it was the intention of the General Assembly that under such circumstances as are present here, “costs and fees” was intended to include attorney’s fees. Support for reimbursement of attorney’s fees is also found outside of § 37.1-134.7(C). In Virginia, as a general rule, a court can only grant a prevailing party its reasonable attorney’s fees if either a contract or statute permits such an award. See Prospect Dev. Co. v. Bershader, 258 Va. 75, 92, 515 S.E.2d 291 (1999). As noted in Bershader, however, there are several exceptions to this rule. A trustee who defends a suit against his trust may recover reasonable attorney’s fees resulting from the suit. See Cohn v. Central Nat. Bank, 191 Va. 12, 60 S.E.2d 30 (1950). The same is true for an executor or administrator of a will duly admitted to probate. An executor or administrator may recover from the estate the necessary expenses of defending a suit brought either to revoke the probate or test the validity of such will. See Butt v. Murden, 154 Va. 10, 152 S.E. 330 (1930). [538] In petitioning for the appointment of a guardian or conservator, Ms. German is not unlike a trustee, executor, or administrator. I find that when she prevails in such a suit, she is entitled to recover attorney’s fees both under § 37.1-134.7(C) and as an exception to the general American rule. Petitioner is awarded costs of $3,068 and attorney’s fees of $10,000, to be paid out of the estate of John L. Klingenhagen, Sr.