Samuel v. Samuel, Record No. 2501-01-2 (Va. App. 1/28/2004)
| Decision Date | 28 January 2004 |
| Docket Number | Record No. 2501-01-2.,Record No. 1417-01-2. |
| Parties | BRENDA KISLEK SAMUEL v. THOMAS FRANKLIN SAMUEL, JR. |
| Court | Virginia Court of Appeals |
Appeal from the Circuit Court of Chesterfield County, William R. Shelton, Judge.
Brian H. Jones (Pitney Jones & Fantl, P.L.C., on petition and brief), for appellant.
John N. Clifford (Clifford & Duke, P.C., on briefs), for appellee.
Present: Judges Benton, Clements and Senior Judge Willis.
Brenda Kislek Samuel (wife) appeals the judgment of the trial court in two separate cases. In Record No. 2501-01-2 (Samuel II), wife appeals the trial court's dismissal of her motion for judgment alleging a breach of the parties' "Agreement Regarding Separation, Support and Division of Property" (Agreement) by Thomas Franklin Samuel, Jr. (husband). In Record No. 1417-01-2 (Samuel I), wife appeals the trial court's dismissal of a rule to show cause issued against husband for his alleged violation of the terms of the final decree of divorce by failing to pay wife certain sums in accordance with the Agreement. Husband argues (1) that wife's appeal in Samuel II is barred because wife failed to appeal the trial court's order dismissing her motion for judgment and (2) that the trial court's judgment in Samuel I should be affirmed because wife agreed that the trial court's letter opinion in Samuel II, which was incorporated into the trial court's order dismissing the rule to show cause, resolved the matters at issue in Samuel I. Husband also requests an award of attorney's fees and costs associated with these appeals. For the reasons that follow, we dismiss wife's appeal in Samuel II, affirm the judgment of the trial court in Samuel I, award husband reasonable appellate attorney's fees and costs, and remand these cases to the trial court for determination of those fees and costs.
As the parties are fully conversant with the records in these cases and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of these appeals.
The parties were married on September 11, 1976, and divorced by a final decree of divorce entered on June 10, 1998. The final decree affirmed, ratified, and incorporated the Agreement, which was executed by the parties on December 23, 1997.
On April 14, 2000, wife filed a petition for a rule to show cause against husband in Samuel I, alleging husband had violated the terms of the final decree by failing to pay her certain sums in accordance with the incorporated Agreement. Specifically, wife alleged that husband had agreed to maintain her as an employee of the marital business, Water Beds, Inc. (WBI), for a period of four years beginning on January 1, 1998, and continuing until December 31, 2001, and to guarantee certain payments in connection with that employment, as set forth in paragraphs 24(b), (c), and (d) of the Agreement.1 Wife alleged husband breached the Agreement by failing to keep her as an employee and failing to pay her wages as an employee after December 23, 1999. On May 24, 2000, the trial court entered, "upon consent of the parties," a show cause order requiring husband to subsequently appear before the court and show cause why he should not be found in contempt of court for failing to comply with the final decree of divorce.
During the pendency of Samuel I, wife filed a motion for judgment in Samuel II, alleging husband had breached the Agreement and seeking damages of $54,600, interest, and attorney's fees and costs. Specifically, wife alleged that, as part of the Agreement, husband purchased her interest in WBI, for which she was to receive $525 per week for four years. Wife claimed that husband breached the Agreement by failing to make the required payments for the final two years.
Simultaneously with the filing of her motion for judgment, wife filed a motion to consolidate Samuel II and Samuel I, arguing that "[t]he evidence and legal concepts for resolving [the two] matters [were] identical and judicial economy [was] best served by trying both cases together." The motion, to which husband objected, was denied by the trial court.
Thereafter, husband filed a grounds of defense and counterclaim in Samuel II. In his grounds of defense, husband admitted that wife agreed to transfer her interest in WBI. He averred, however, that the Agreement provided in plain and unambiguous language that, in exchange for her interest in the company, wife was to receive a lump sum equitable distribution of $30,181.66, in three equal installments, which he had already paid her. Husband denied he had failed to make any required payments or breached the Agreement. Husband asked the trial court to dismiss wife's motion for judgment and award him sanctions and attorney's fees.
In his counterclaim, husband sought attorney's fees, costs, and interest, alleging wife had breached the Agreement by filing her motion for judgment. Husband incorporated the Agreement into his counterclaim. Wife filed an answer to husband's counterclaim, admitting the authenticity of the Agreement but denying husband's allegations.
Husband then filed a motion for summary judgment in Samuel II. In his motion, husband asserted, inter alia, that the language of the Agreement was plain and unambiguous and provided: (1) in paragraph 22(g), that wife agreed to transfer to husband all of her interest in the jointly held stock in the closely held corporation, WBI, for which transfer wife would "receive a lump sum equitable distribution award of $30,181.66"; (2) in paragraph 26, that the lump sum settlement of $30,181.66 was "payable in three (3) equal installments of $10,060.55 each, beginning on September 1, 1998, and continuing each two consecutive September firsts thereafter"; (3) in paragraph 24(b), that wife agreed "to remain an employee of [WBI] for a period of four (4) years beginning on the 1st day of January, 1998 and ending on December 31, 2001," and that, "[f]or this period of employment, [w]ife [was to] be paid $525.00 gross income per week, subject to the usual employee deduction[s]"; and (4) in paragraph 24(c), husband agreed to keep wife "as an employee of [WBI] for a period of four (4) years beginning on the 1st day of January, 1998 and ending on December 31, 2001," and that husband "personally guarantee[d] that wife [was to] be paid $50,000 gross during the first two (2) years of this time period," meaning that, if for any reason WBI failed to make those payments to wife, husband would "personally make up the deficiency until [w]ife receive[d] $50,000 from all sources, at which time [husband's] personal guarantee terminate[d]." Husband argued that the Agreement did not provide that the weekly payments of $525 were in exchange for wife's interest in WBI. Rather, he argued, they were compensation for her employment. Husband further argued that, wife having admitted that she received two years of payments at $525 gross per week, or $54,600 total, from WBI, he had no legal liability for the remaining two years under the Agreement. Husband sought dismissal of the motion for judgment and sanctions. In his supplemental memorandum in support of his motion for summary judgment, husband attached and incorporated wife's responses to discovery, in which wife admitted she had received a $30,181.66 lump sum payment pursuant to paragraph 26 of the Agreement and $525 per week in gross pay from January 1, 1998, through December 31, 1999, pursuant to paragraphs 24(b) and (c) of the Agreement.
In her memorandum in opposition to husband's motion for summary judgment, wife argued as follows:
[Wife] does not seek rescission, reformation or cancellation of this contract; only damages for breach of the contract. The nature of the breach is that she did not received [sic] all of the monies due to her under the PSA. However, . . . the operative terms are self-contradictory and ambiguous, thereby requiring the Court to receive parol evidence in order to determine the intent of the parties in entering into the agreement.
There were only two parties to the Agreement, wife asserted. Because husband did not sign the Agreement in his capacity as an officer of WBI, the obligation, wife argued, was husband's personal duty to insure that WBI employed and paid her.
Husband's motion for summary judgment was argued at a hearing on April 13, 2001. The trial court issued a letter opinion on April 26, 2001. Finding the language of the Agreement "clear and unambiguous," the trial court ruled that husband's agreement to keep wife as an employee of WBI was "completely separate from the agreement to guarantee the two years of payments." The court reasoned that, when husband, the president and sole owner of WBI, agreed to employ wife, he acted as an agent of WBI, and, when he agreed to personally guarantee the first two years of payments for that employment, "he made the individual promise that he would pay her if the company failed to pay." Thus, the trial court concluded, husband did "not have a duty to make the remaining two years of payments."
By order entered May 4, 2001, in Samuel II, the trial court granted husband's motion for summary judgment and dismissed wife's motion for judgment, but declined to impose sanctions. The court's order further provided that the "matter [was to] remain pending as to [husband's] [c]ounterclaim." Counsel for wife endorsed the order as follows: "Seen and Objected to: For the reasons and arguments set forth in [wife's] Memorandum in Opposition to Summary Judgment." Wife did not file a notice of appeal within thirty days of the entry of that order.
Thereafter, by order entered May 29, 2001, in Samuel II, the trial court entered judgment on the counterclaim against wife and in favor of husband in the amount of $2,154. The order further...
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