Alain Wampouille v. Andrea B. Barnett ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ALAIN WAMPOUILLE
MEMORANDUM OPINION *
v. Record No. 1006-99-4 PER CURIAM
MARCH 7, 2000
ANDREA B. BARNETT
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
(Patricia Ladnier, on briefs), for appellant.
(John E. Drury, on brief), for appellee.
Alain Wampouille appeals the decision of the circuit court
awarding Andrea B. Barnett $38,000 in attorney's fees incurred in
connection with litigation on Wampouille's motion to modify
visitation and Barnett's motion to compel compliance with the
parties' property settlement agreement. On appeal, Wampouille
contends that the trial court abused its discretion because (1)
the evidence did not support the trial court's rationale that the
hearing was "90-some percent" about the disputed TIAA-CREF
account; (2) Wampouille did not breach his fiduciary duty to the
parties' child; (3) it was impossible for Wampouille to comply
with his obligations under the parties' separation agreement; (4)
there was no agreement due to a mutual mistake by the parties; (5)
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
laches barred Barnett from seeking the requested relief; (6) the
trial court considered and awarded Barnett attorney's fees for
issues previously litigated and ruled upon; (7) Wampouille's
objections to the attorney's fees were excluded as a sanction for
alleged discovery violations although no hearing had been held and
no order entered compelling more adequate responses as required by
Rule 4:12; (8) the award included attorney's fees incurred after
the June 11, 1998 hearing which were not in evidence at that or
subsequent hearings; (9) the evidence supporting the award was
inadequate because Barnett failed to present contemporaneous time
records or copies of the bills; and (10) Wampouille presented
evidence of settlement efforts and the relief Barnett requested at
trial exceeded the relief requested in her motion to compel. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
"The burden is on the party who alleges
reversible error to show by the record that
reversal is the remedy to which he is
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entitled." We are not the fact-finders and
an appeal should not be resolved on the
basis of our supposition that one set of
facts is more probable than another.
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859
(1992) (citations omitted).
The record demonstrates that wife expended considerable
effort in her attempt, through discovery and litigation, to
determine whether Wampouille had complied with the parties'
property settlement agreement concerning the transfer of his
TIAA-CREF account. Under the agreement, Wampouille was to
transfer his TIAA-CREF account to a separate account in the name
of the parties' child, Sophie, to pay her college expenses. The
account was valued at $5,392 on December 31, 1986, when Sophie was
one year old. Wampouille purchased a twenty-year annuity naming
Sophie as the beneficiary, which paid out dividends quarterly into
a trust account in Sophie's name administered solely by
Wampouille. Wampouille retained the power to change the
beneficiary and retained a reversionary interest in the annuity.
Although the TIAA-CREF was valued at $7,252 in June 1989, the
trust account in Sophie's name held $4,271 in May 1997. The court
found that Wampouille failed to comply with the terms of the
parties' settlement agreement and breached his fiduciary duty to
his daughter "by engaging in self dealing by making that account
one which [he] had a reversionary interest in."
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Percentage of Attorney's Fees
Wampouille contends that an analysis of the hours expended by
Barnett's attorney and the attorney's fees demonstrates that the
trial judge was incorrect when he stated, at the closing of the
March 25, 1999 hearing, that "90-some percent – in excess of 90%
of the hearing was TIAA-CREF. That is what this case was about."
The trial court had previously explained to counsel his decision
to award attorney's fees to Barnett. The decision is amply
supported by the documentation in the record, the trial court's
opinion letter, and the written order. We find no merit in
Wampouille's attempt to minimize the full import of the trial
court's ruling and the exercise of its discretion by turning a
closing comment made by the trial judge from the bench into a
mathematical exercise.
TIAA-CREF ACCOUNT
Wampouille raises several substantive challenges to the trial
court's determination that he failed to comply with the terms of
the parties' property settlement agreement and breached his
fiduciary duty to Sophie. We find no error in the trial court's
decision.
As set out in its January 7, 1999 opinion letter, the trial
court found that Wampouille breached the settlement agreement by
failing to transfer the full value of his TIAA-CREF account into a
fund for Sophie's benefit. Wampouille purchased a twenty-year
annuity, paying "meager dividends" quarterly to an account
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administered by Wampouille. The record indicates that the
annuities paid 2.09% in interest for the period closing December
1998. Although Wampouille reported the total balance of his
TIAA-CREF accounts as $7,252 in June 1989, the closing balance
held in Sophie's trust account as of December 1998 was $5,325.
The parties presented extensive evidence and argument
concerning Wampouille's actions in setting up an account paying
interest only for Sophie's benefit while maintaining the
reversionary interest. The trial court did not find Wampouille's
explanations credible. It is black letter law that "[a] fiduciary
owes total fidelity to the interests of his principal. While the
relationship continues, he may engage in no self-dealing which may
have any adverse effect on the interests of his principal." State
Farm Mut. Auto. Ins. Co. v. Floyd, 235 Va. 136, 143, 366 S.E.2d
93, 97 (1988). The trial court's decision is supported by
evidence in the record, and we will not reverse its determination.
Wampouille also contends it was impossible for him to comply
with the terms of the agreement. As the party raising this
defense, Wampouille was required to present sufficient evidence to
support this contention. Contrary to the assertion in
Wampouille's brief, Barnett was under no obligation to present
evidence that this provision of the parties' agreement "was not
impossible to perform." The trial court rejected Wampouille's
argument. Evidence supports the trial court's determination.
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The trial court rejected Wampouille's argument that the
provision was a mutual mistake by the parties and, therefore,
there was no agreement. Even assuming arguendo that there was an
initial mutual mistake of fact by the parties concerning
Wampouille's ability to transfer the TIAA-CREF account into a new
account in Sophie's name, which the evidence does not establish,
Wampouille did not notify Barnett of this alleged mistake at any
time prior to these proceedings. Instead, he made the irrevocable
election to purchase the annuity while retaining a reversionary
interest. We find no error in the trial court's decision.
Wampouille also contends that Barnett was barred by laches
from alleging a breach of fiduciary duty. No evidence indicated
that Barnett was aware that Wampouille retained a reversionary
interest on the TIAA-CREF account. The trial court did not find
the evidence of this defense convincing, and we do not find that
the trial court's decision was clearly wrong.
Fees Awarded After Final Orders
Wampouille contends that the trial court was barred from
awarding attorney's fees attributable to issues previously
litigated. We find no merit in this contention. The current
round of litigation between the parties began with Wampouille's
Petition to Re-open File and To Enforce Visitation and To Modify
Custody and Visitation. Barnett filed a Motion to Compel
Production of Documents in May 1997 and a Motion to Compel
Compliance with Property Settlement Agreement in August 1997.
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Barnett's attempts to uncover the status of the TIAA-CREF account
were met by repeated resistance. In March 1998, Barnett moved for
an award of attorney's fees incurred in connection with
Wampouille's motion to modify visitation and her motion to compel
compliance with the agreement. Sophie's counsel also moved for an
award of attorney's fees. The trial court granted the request for
attorney's fees for the reasons set out in its opinion letter of
January 7, 1999. Wampouille points to no previous order of the
trial court specifically addressing and denying attorney's fees.
Therefore, the trial court was not barred from awarding attorney's
fees as warranted under the circumstances of this case.
Sanctions for Discovery Violations
"Rule 4:12 gives the trial court broad discretion in
determining what sanctions, if any, will be imposed upon a
litigant who fails to respond timely to discovery." Woodbury v.
Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990).
Wampouille contends that the trial court abused its discretion by
striking his objections to Barnett's legal expenses in response to
Wampouille's discovery violations. We find no abuse of
discretion.
In its January 7, 1999 opinion letter, the trial court asked
counsel "if possible to stipulate as to the authenticity of
[Barnett's] attorney's fees itemization, not as to its
reasonableness." Wampouille's counsel refused to stipulate,
citing the need to preserve issues for appeal. The trial court
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set a final hearing for all remaining issues on March 25, 1999,
stating:
This case is going to be brought to closure
on the 25th without any questions.
Everything in this case is going to be
filed, if it is going to be filed. Anything
and everything to be filed is to be filed by
March 1. Anything not filed by March 1 is
waived. Everybody clear?
Both attorneys acknowledged the court's deadline, which the
court then reiterated: "Anything not filed by March 1 is
waived. No ifs, ands or buts. I'm not going to hear it."
Notwithstanding the court's clear direction, Wampouille
failed to respond to the interrogatories promulgated by Barnett
on January 27, 1999 concerning the reasonableness of the
attorney's fees. On March 8, 1999, Wampouille e-mailed unsigned
answers to the interrogatories that the trial court
characterized as "incomplete, evasive, inappropriate and
improper." Counsel mailed another slightly modified signed
version that was received by Barnett's counsel on or about March
20, 1999. Wampouille's counsel then sought to introduce a
detailed objection to Barnett's attorney's fees, which the court
refused because counsel failed to respond to discovery pursuant
to the deadline previously set.
The trial court was entitled to sanction Wampouille for his
inadequate response to the interrogatories by striking his
pleading. See Rule 4:12(b)(2)(C). We find no abuse of
discretion.
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Post-June 1998 Evidence
We find no merit in Wampouille's contention that Barnett was
not entitled to attorney's fees incurred after June 18, 1998
because there was no supporting evidence introduced at the June
18, 1998 hearing. Barnett submitted documentation supporting the
claimed attorney's fees at each of the subsequent hearings
following the June 1998 hearing. The evidence supported the trial
court's decision.
Contemporaneous Time Sheets
We find no merit in Wampouille's argument that Barnett was
not entitled to attorney's fees in the absence of contemporaneous
time sheets. The trial court found that Barnett produced
sufficient evidence documenting the claimed attorney's fees.
Evidence in the record supports that factual finding.
Evidence of Settlement
Finally, Wampouille contends that the trial court abused its
discretion by ordering him to pay attorney's fees despite evidence
that he sought to settle the claims in an effort to reduce
litigation. In light of the finding of the trial court that
Wampouille's motion to modify custody was filed despite the fact
that counsel knew or should have known it lacked merit, that
Wampouille failed to comply with the terms of the parties'
agreement, and that he attempted to obfuscate his fiduciary breach
by incomplete responses to discovery, we find no merit in this
argument.
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Based on the number of issues involved and the parties' level
of cooperation, we cannot say that the award was unreasonable or
that the trial judge abused his discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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