                  COURT OF APPEALS OF VIRGINIA


Present: Judges Barrow, * Fitzpatrick and Senior Judge Duff
Argued at Alexandria, Virginia


MARGARET JANE CRYOR GAYNOR

v.         Record No. 0928-94-4         MEMORANDUM OPINION** BY
                                        JUDGE BERNARD G. BARROW
FREDERICK SYLVESTER HIRD, JR.                AUGUST 1, 1995



           FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                     Paul F. Sheridan, Judge

          Edward V. O'Connor, Jr. (The Lewis Law Firm, on
          briefs), for appellant.

          William B. Cummings (William B. Cummings, P.C.,
          on brief), for appellee.



     The parties appeal an award of damages resulting from

suspending the execution of a decree which ordered the appellant

to convey her interest in their marital home to the appellee.

The suspension of the award was conditioned upon the payment of

"all damages incurred as a consequence of such suspension."     Such

damages include only the "actual damage incurred in consequence

of the supersedeas."   Aetna Casualty & Surety Co. v. Bd. of

Supervisors, 160 Va. 11, 57, 168 S.E. 617, 631 (1933).    Thus, we

hold that (1) the expense of litigating the partition proceeding,

pursuing a cross-appeal on the appellee's behalf, and in seeking
     *
      Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death, and the panel members joined in the opinion.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
damages in this proceeding are not recoverable, (2) the expenses

of the second closing, while recoverable, are not recoverable if

they were unnecessary duplications, and (3) the rent to which the

appellant was entitled was not a proper subject to be determined

as a cost of the suspension of the decree.

                    I.     PARTITION PROCEEDING

     The appellee presented evidence of costs incurred in his

attempt to proceed with the partition to closing, caused by the

appellant's motions to delay, and resulting in a court ruling

"that the partition should proceed forthwith."      These expenses

were not caused by the suspension.       While they may have been

incurred as a consequence of efforts by the appellant to delay

the closing, as found by the trial court, the record does not

reflect that these expenses resulted from the suspension of the

decree ordering the sale of the home.      The award of costs arising

as a consequence of suspending the judgment is not a substitute

for a proceeding to impose sanctions.
                          II.   CROSS-APPEAL

     The appellee's expenses in pursuing a cross-appeal which he

describes as a "protective appeal" were not caused by suspension

of the decree of sale.    They arose, instead, from the appellant's

appeal and the appellee's desire to assert cross-error.

Suspending the decree of sale did not cause these expenses.

                         III. SUSPENSION BOND

     The appellee's legal expenses in seeking to recover damages



                                 - 2 -
arising from the suspension of the decree of sale are not

recoverable under the suspending bond.     Without a contrary

contractual commitment, a successful litigant in an action is not

entitled to recover attorney's fees incurred in that action.

Owen v. Shelton, 221 Va. 1051, 1055, 277 S.E.2d 189, 192 (1981).

This rule applies in Virginia in actions to recover under the

terms of a performance bond.    Ranger Constr. Co. v. Prince

William County Sch. Bd., 605 F.2d 1298, 1301 (4th Cir. 1979).
The suspending bond did not provide for attorney's fees or other

costs incurred in recovering damages arising from the suspension.

                  IV.   COSTS OF SECOND CLOSING

     The appellant excepted to the commissioner's recommended

award to the appellee because certain costs which the appellee

sought as damages were unnecessary duplications of expenses.      The

trial judge denied this exception because the appellant was

excepting to the appellee's first expenditure and the appellee

did not seek to recover the first expenditure.    However, the

court misread the appellant's exception.    She excepted to the

award of certain of the expenses because, she contended, they

were unnecessary duplication of expenses.    Because the trial

court did not address this contention, we must reverse this award

and remand it for reconsideration.

                               V.   RENT

     The appellant's entitlement to rent was not a cost of

suspending the decree ordering her to convey the property to the



                                - 3 -
appellee.   It was a consequence of her right as one of two

tenants in common to an accounting for rents received by the

other co-tenant which were more than his just share.   Code

§ 8.01-31; Gaynor v. Hird, 15 Va. App. 379, 382, 424 S.E.2d 241,

242 (1992).   Whether the appellant was entitled to such rents was

addressed in the accounting which resulted in a separate decree

and should not have been considered in this proceeding for

damages recoverable under the suspending bond.
     For these reasons, the decree awarding the appellee damages

is reversed and the matter is remanded for further proceedings to

determine what costs of the second closing were not duplicated

and to which the appellee should be entitled under the terms of

the suspending bond.

                                         Reversed and remanded.




                               - 4 -
