Randall J. Borden v. Daryn J. Borden

COURT OF APPEALS OF VIRGINIA Record No. 1653-25-4 RANDALL J. BORDEN v. DARYN J. BORDEN Present: Judges O’Brien, Friedman and Frucci Argued at Fredericksburg, Virginia Opinion Issued November 4, 2026* FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Susan J. Stoney, Judge Paul A. Prados (Executive Law Partners, PLLC, on briefs), for appellant. Justin B. Berger (Kimberley A. Murphy; Vasiliki A.P. Topping; Hale Ball Murphy, PLC, on brief), for appellee. MEMORANDUM OPINION BY JUDGE MARY GRACE O’BRIEN Randall J. Borden challenges the circuit court’s order removing him and his brother, Daryn J. Borden, as co-executors of the estate of Priscilla M. Borden, appointing a successor fiduciary, and directing the successor to investigate whether the brothers should forfeit their fiduciary bonds. Randall also argues that the court erred by denying his continuance request when a subpoenaed third party failed to appear. Finding no error, we affirm. BACKGROUND In October 2022, the court qualified brothers Daryn and Randall Borden as co-executors of the estate of Priscilla M. Borden. The brothers posted a $130,000 fiduciary’s bond without a surety. The bond required them to “faithfully perform all duties required by law of said fiduciary * This opinion is not designated for publication. See Code § 17.1-413(A). office.”1 The brothers’ fiduciary oaths required them to “faithfully and impartially discharge all the duties incumbent” on them as co-executors. In March 2023, Randall petitioned to remove Daryn as co-executor, alleging that disagreements between them had made “it impossible for them to work together to administer the [e]state.” Randall alleged that Daryn had filed partition suits against him, had not included certain caretaker payments in Priscilla’s tax returns, and had removed a baseball card collection from Priscilla’s house after her death. Daryn counterclaimed, seeking removal of Randall or both co-executors.2 Daryn denied responsibility for “the inability of the parties to do their job together,” contending that Randall had filed several legal actions “forc[ing] Daryn to litigate in multiple forums” and had removed items from Priscilla’s house without providing an inventory. In May 2023, the Commissioner of Accounts issued summonses to Randall and Daryn, directing them to file an inventory of the estate. In June 2023, the Commissioner issued a report of noncompliance, stating that both Daryn and Randall failed to provide the required inventory. The court issued summonses for both brothers to appear and show cause why the court should not impose a fine or otherwise hold them in contempt. In September 2023, the Commissioner petitioned to remove the brothers as fiduciaries and forfeit their bond. After the brothers submitted “the required filings . . . to the satisfaction of the [C]ommissioner,” in June 2024 the court dismissed the summonses to show cause. In August 2025, the court conducted a bench trial on the brothers’ cross-claims. Before opening statements, Randall moved for a continuance because a subpoenaed witness from Wells Fargo Bank was absent. The court denied the motion. At trial, the evidence showed that the 1 The bond also provided, “If these conditions are faithfully fulfilled, this obligation shall be void; otherwise it shall remain in full force and effect.” 2 Each party demurred to the other’s claims, but neither party argued his demurrer before trial. -2- brothers had been engaged in multiple legal actions against one another in general district court, circuit court, and courts in Maryland and West Virginia. The persistent conflicts between the brothers harmed cooperation between them as co-executors and inhibited their ability to administer the estate. The evidence included details from the brothers’ dispute over the contents of the inventory—the dispute that necessitated the court’s summonses to show cause and the Commissioner’s petition to remove them as co-executors. Daryn rejected Randall’s assertion that a baseball card collection was part of the estate, so he initially refused to sign the inventory that Randall had prepared. Daryn ultimately signed the inventory, but only after the court had issued the show-cause summonses. Daryn also disputed Randall’s removal of estate property from Priscilla’s house without providing an inventory, although Randall insisted that removal was for storage and safekeeping purposes. In addition, Randall disagreed with certain acts and omissions by Daryn prior to and after Priscilla’s death, arguing that Daryn was responsible for six years of unfiled and unpaid government obligations. After hearing the evidence, the court revoked the powers of both fiduciaries under Code § 64.2-1410(A). It ordered that both brothers “shall remain liable on their bond” until the filing of a proper inventory and account of assets. The court also appointed Michael H. Doherty, an attorney, as a successor fiduciary and required him to post an $86,000 bond with a corporate surety. The court directed the successor fiduciary to investigate whether the brothers’ fiduciary bond should be forfeited and to make a report to the Commissioner. The order stated that the “cause is continued.” JURISDICTION Before addressing the merits of the appeal, we consider whether the circuit court’s order is appealable under Code § 17.1-405. With certain exceptions not applicable here, this Court -3- may hear appeals from “any interlocutory decree or order involving an equitable claim in which the decree or order (i) requires money to be paid or the possession or title of property to be changed or (ii) adjudicates the principles of a cause.” Code § 17.1-405(A)(5). The order appealed is interlocutory because it does not dispose of the entire action. See Rule 1:1(b). Specifically, the court revoked the brothers’ fiduciary powers but left open issues pertaining to their bond liability and forfeiture, ordering a proper estate inventory and investigation by the successor fiduciary. Cf. Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 555, 560 (2002) (holding that a “final judgment is one which disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the judgment”). Additionally, by removing the brothers as co-executors, the order “involv[ed] an equitable claim” as required by Code § 17.1-405(A)(5). See Minor v. Heishman, 78 Va. App. 690, 722-23 (2023) (noting that fiduciary actions were once evaluated by a court of equity); see also Napier v. Cannon, No. 0645-24-1, slip op. at 8-9, 2025 Va. App. LEXIS 714, at *11-13 (Nov. 18, 2025) (distinguishing equitable from legal claims based on historic character).3 Finally, the order “adjudicate[d] the principles of the cause” under Code § 17.1-405(A)(5)(ii) because, by removing both brothers as fiduciaries, it “address[ed] the merits of the suit.” Tesla, Inc. v. Va. Auto. Dealers Ass’n, 68 Va. App. 509, 513 (2018); see also Wells v. Wells, 29 Va. App. 82, 86 (1999) (stating that, to adjudicate the principles of a cause, an interlocutory order “must respond to the chief object of the suit” (quoting Erickson v. Erickson, 19 Va. App. 389, 391 (1994))). Accordingly, we find that we have jurisdiction under Code § 17.1-405(A)(5) to consider this appeal. 3 “Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012). -4-  ANALYSIS I. Removal of both brothers as fiduciaries was not an abuse of discretion. Whether the court had authority under Code § 64.2-1410(A) to remove fiduciaries and appoint a third-party fiduciary is a question of statutory interpretation, which we review de novo. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007). “A trial court is afforded considerable latitude when faced with the decision of whether to remove an executor.” Galiotos v. Galiotos, 300 Va. 1, 10 (2021). We review a court’s decision to remove co-executors for abuse of discretion. Id. The “circuit court may revoke and annul the powers of an executor for any cause, as long as the removal of an executor appears proper.” Id. at 11 (citing Code § 64.2-1410(A)).4 The “critical inquiry is whether it is in the best interest of the estate that the executor, or executors, be removed.” Id. Determining the “best interest of the estate” is within the court’s broad discretion. Id. Friction between individuals “can justify the removal of an executor when removal would achieve some beneficial end.” Id. In Galiotos, the Supreme Court affirmed the removal of brothers as co-executors of an estate when the brothers were deadlocked and removal served the estate’s best interest. Id. at 12. The undisputed record established that the estate’s administration suffered because the brothers clashed. Id. at 11. The brothers could not agree either on trivial matters or on how to distribute the estate’s assets. Id. Under such circumstances, the Court found no abuse of discretion in removing the brothers as co-executors. Id. at 12. Randall argues that Galiotos does not apply because Daryn’s bad actions were solely responsible for the problems of estate administration, while Randall aimed to perform his 4 Code § 64.2-1410(A) provides that “whenever from any cause it appears proper, the court may revoke and annul the powers of any . . . fiduciary.” -5- fiduciary duties in good faith. Randall contends that the court unreasonably weighed certain evidence, including the litigation between the parties that “only tangentially involve[d] the [e]state.” But a court need not find bad actions by co-executors to determine that their removal is in the estate’s best interest. See Galiotos, 300 Va. at 11-12. Rather, friction between co-executors can suffice to interfere with estate administration and thus justify their removal. See id. Here, the record supports the court’s finding that the brothers resorted to legal actions against each other in multiple circumstances, lacked cooperation in filing a proper inventory, and engaged in protracted disputes over the estate’s assets and liabilities. They disputed removing personal property from Priscilla’s home without an inventory, and they could not agree on hiring an accountant or tax attorney to conduct estate business. This demonstrated friction between the brothers supported the court’s discretionary decision that removing them would serve the estate’s best interest. II. The court did not err in ordering an investigation. Randall argues that the court erred by ordering the successor fiduciary to investigate the brothers’ actions and to report to the Commissioner of Accounts whether they forfeited their fiduciary bond. Randall argues that insufficient evidence of his wrongful behavior supported an investigation. When reviewing the sufficiency of evidence, we defer to the court’s factual findings unless plainly wrong. See William H. Gordon Assocs. v. Heritage Fellowship, 291 Va. 121, 146 (2016). To the extent this assignment of error requires statutory construction, we review that issue de novo. See Minor, 78 Va. App. at 705. Circuit courts “have jurisdiction over fiduciary matters, including the proper administration of estates.” Id. at 712. “A probate court appoints an executor of a will, and the executor remains under the court’s supervision and control throughout the administration of the probate estate.” Phillips v. Rohrbaugh, 300 Va. 289, 306 (2021) (citing Code §§ 64.2-500 -6- to -508). “Under Code §§ 64.2-1300(A) and -1304, a personal representative must account for estate property in an initial inventory of assets and thereafter make periodic accounts to a ‘commissioner of accounts’ shortly after a will is presented to a probate court.” Id. Code § 64.2-1204(A) authorizes a commissioner of accounts to investigate misconduct of fiduciaries. Specifically, the commissioner can investigate “whether it is improper to permit the estate of the decedent, ward, or other person to remain under the fiduciary’s control due to the incapacity or misconduct of the fiduciary, the removal of the fiduciary from the Commonwealth, or for any other cause.” Code § 64.2-1204(A). The commissioner “shall report the result of every examination and inquiry to the court and to the clerk of court.” Id. Commissioners “serve to assist the court,” and their authority is an “extension of the circuit court’s subject matter jurisdiction to administer estates.” Gray v. Binder, 294 Va. 268, 276, 278 (2017). “Trustees, conservators, and other types of fiduciaries have an obligation to ‘account before the Commissioner of Accounts.’” Minor, 78 Va. App. at 712 (quoting Code § 64.2-1206). The “statutory scheme places affirmative duties upon both the fiduciary and the Commissioner.” Id. “Every personal representative shall administer, well and truly, the whole personal estate of his decedent.” Code § 64.2-514. The fiduciary bond filed with the court in this case also assigned fiduciary duties to the executors. Both a court and its commissioner of accounts have authority to determine whether an executor’s fiduciary bond should be forfeited. Minor, 78 Va. App. at 713-14. A commissioner has authority to petition the court for forfeiture, and the court can forfeit a portion of the bond. Id. Likewise, a successor fiduciary, as part of his obligation to administer the estate “well and truly,” may assist the court and commissioner in investigating whether bond forfeiture is appropriate. Code § 64.2-514. -7-  Although Randall argues that insufficient evidence of his wrongful behavior supported an investigation, wrongful behavior is not a prerequisite to a court’s investigation; the investigation is meant to protect the estate and verify that the estate’s fiduciary has made a complete and proper account. Minor, 78 Va. App. at 713. Investigatory hearings are within the court’s supervisory authority to ensure that the fiduciary has fulfilled this accounting duty. Id. Here, considering the brothers’ protracted dispute relating to the accuracy of the inventory, the estate’s potential tax liability, and the Commissioner’s prior finding of noncompliance, we find no error in the court’s decision to order the investigation into the propriety of bond forfeiture. III. The court did not err in denying the continuance. “The decision of whether to grant a continuance is committed to the discretion of the circuit court.” Shah v. Shah, 70 Va. App. 588, 593 (2019). We only reverse the denial of a motion for a continuance “upon a showing of abuse of discretion and resulting prejudice to the movant.” Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 33 (2007) (emphasis added) (quoting Butler v. Commonwealth, 264 Va. 614, 621 (2002)). Randall contends that the court erred by not continuing the trial when his Wells Fargo witness did not appear. He argues that the testimony was intended to authenticate financial records relevant to his allegations of wrongdoing by Daryn. But the record supports a finding that Randall’s continuance request was untimely, considering that the case had been pending for two years and Randall had only subpoenaed his witness approximately three weeks before trial. Randall acknowledged to the court that he could have authenticated the financial records with a custodian’s written certification, which he did not obtain. See Code § 8.01-390.3(A) (allowing authentication of business records by written certification of a records custodian). “In determining whether the trial court properly exercised its discretionary powers, we look to the diligence exercised by the moving party to gather and make the evidence available at trial.” -8- Smith v. Commonwealth, 16 Va. App. 630, 636 (1993). Based on our review of the record, we cannot say that the court abused its discretion in denying the continuance. Even if it had, we find no prejudice because Randall failed to proffer what the testimony would have been. See Graham v. Cook, 278 Va. 233, 249 (2009) (holding that when “trial testimony is excluded before it is delivered, an appellate court lacks a basis for reviewing a circuit court’s evidentiary ruling unless the record reflects a proper proffer”). There was no showing that the evidence would have impacted the result here, as financial records would be unlikely to negate the conflict between the brothers that justified a new fiduciary appointment. IV. Daryn is not entitled to an award of attorney fees and costs. “An executor is entitled to ‘any reasonable expenses incurred by him in his capacity as a fiduciary,’ which may include attorney[] fees.” Galiotos, 300 Va. at 12 (quoting Clare v. Grasty, 213 Va. 165, 170 (1972)); see also Code § 64.2-1208 (providing for certain fiduciary expenses). “The attorney[] fees and costs must be for services that aid the executor in the performance of his duties and are beneficial to the estate.” Galiotos, 300 Va. at 13. Attorney fees and costs may be denied where they are incurred for personal benefit and not to benefit the estate or aid in the executor’s duties. See O’Brien v. O’Brien, 259 Va. 552, 557-58 (2000). Here, the evidence established that the brothers incurred attorney fees and costs to “advance the individual interests of the competing co-executors, rather than the interests of the [e]state,” so an award is not appropriate.5 Galiotos, 300 Va. at 13 (denying award of attorney fees and costs). CONCLUSION For these reasons, we affirm the circuit court’s judgment. Affirmed. 5 Moreover, neither Rule 5A:30(b) nor Code § 8.01-271.1 provides a basis for attorney fees, as Daryn contends, because the court did not award Daryn attorney fees, the equities do not warrant them here, and there is no ground for sanctions under Code § 8.01-271.1. -9-