Vinson v. Vinson

• Decision Date: 18 November 2003
• Docket Number: Record No. 1434-02-4.
• Citation: 41 Va. App. 675,588 S.E.2d 392
• Parties: Frances F. VINSON, v. William E. VINSON, Sr.
• Court: Virginia Court of Appeals

588 S.E.2d 392

41 Va. App. 675

Frances F. VINSON,¹ v. William E. VINSON, Sr.

Record No. 1434-02-4.

Court of Appeals of Virginia, Richmond.

November 18, 2003.

Leighton Kirby (Francis J. Prior, Jr., Siciliano, Ellis, Dyer & Boccarosse, on briefs, Fairfax), for Kenneth R. Weiner.

David L. Ginsberg (Shoun & Bach, on briefs), Fairfax, for appellee.

Present: FRANK and McCLANAHAN, JJ., and COLEMAN, Senior Judge.

ROBERT P. FRANK, Judge.

Kenneth R. Weiner (appellant) appeals from an order in a divorce case, sanctioning him for violating Code § 8.01-271.1. He argues the trial court erred (1) in precluding a line of cross-examination, (2) in finding he violated Code § 8.01-271.1 during his representation of Frances Vinson (wife), and (3) in awarding sanctions that amounted to more than the costs and fees incurred by William E. Vinson, Sr. (husband). We find the trial court did not err in its rulings.

Background

Wife went alone to appellant's law office to ask for his assistance with a divorce. She explained that she and husband agreed on the distribution of their assets and that they had no disagreements about the divorce.

As part of this meeting, appellant filled out a form, labeled "Retainer Agreement," on his firm's letterhead. The form listed "CLIENT" as both wife and husband. It indicated the services rendered by the law firm would include a "Property Settlement Agreement & Will." The Retainer Agreement said, "CLIENT shall remit a retainer of two thousand five hundred [dollars] ($2500.00)... ." A notation at the bottom of the first page indicated wife would pay half the retainer and husband would pay the other half. Appellant gave the form to wife, who took it home and had husband sign it. Appellant signed the form on May 23, 2000, after husband and wife had signed it.

Wife later returned to the office with a document she said represented the agreement between her and husband. An associate attorney, supervised by appellant, drafted a property settlement agreement (PSA), which wife took home. The agreement gave husband $50,000 "of the net equity resulting from the sale" of the marital home. As a result, although not explicitly stated in the PSA, wife would receive approximately seventy-five percent of the equity in the home, the most valuable marital asset. The agreement did not indicate that either party was represented by counsel, but did say, "each party represents that he or she has had full opportunity to confer with Counsel of his/her own choosing." Husband and wife signed the PSA before a notary on June 6, 2000.

Appellant never spoke to husband about the divorce nor had he any indication from husband that he agreed to this distribution of property, except for his signature on the final PSA. Neither appellant nor husband made any attempt to contact the other, except for bills sent by appellant to husband's home. The only time appellant spoke to husband was when husband was with an associate discussing his will. The PSA was not mentioned during this brief encounter.

Two bills were sent for services rendered under the retainer agreement. Both bills were addressed to husband and wife. Wife paid the bills, totaling $2,500, with checks written on a joint checking account she shared with husband.²

On July 14, 2000, husband filed a bill of complaint alleging the agreement was "unconscionable and was procured through fraud and duress." On August 8, 2000, husband filed a motion to set aside the PSA and a motion to disqualify appellant as the attorney representing wife. The motion to disqualify cited husband's belief, based on the retainer agreement and the billing, that appellant represented both husband and wife when the PSA was drafted.

Appellant continued to represent wife until November 30, 2000, the morning of the hearing on the motion to set aside the PSA. Sometime prior to that morning, appellant informed the court that he did not represent husband and claimed a hearing on the issue would require numerous witnesses and more than a half-hour of the court's time.

The trial court heard testimony on the unconscionability issue on May 23, 2001. Appellant testified that he did not represent husband, but admitted "I guess you'd have to say that under that [retainer] agreement I represented him." Appellant also testified he did not withdraw from the case earlier because he "did not want to withdraw." He explained, "I was incensed with [husband's counsel]. I'm still incensed." The trial court found the PSA was "unconscionable and invalid."

On September 19, 2001, husband filed a motion for sanctions and attorney's fees, "pursuant to Virginia Code § 8.01-271.1," requesting attorney's fees, costs, "and any other relief deemed appropriate by this Court."³ The motion requested sanctions against both appellant and wife. Appellant admitted during the hearing on this motion that he did not consult anyone regarding the conflict until sometime just before he withdrew. When asked by husband's counsel why he waited until the day before the initial hearing to withdraw, appellant explained, "I thought you were playing games with me when you first withdrew your motion for the withdraw [sic]. And then you came back with it. I didn't think you were playing straight, playing fairly."

At the conclusion of the hearing, the trial court found:

a gross conflict of interest here that was apparent on the face of that [retainer] document. . . . [Appellant] has conceded that he didn't really investigate the ethical issue until way, way late in the game.... And I find that [appellant] did not make a reasonable inquiry into the legal and factual basis for his position with regard to the conflict until way late in the game, long after he had been notified of the issue by [husband's attorney]. I find that there was no good faith basis for [appellant's] actions and positions related to the PSA subsequent to [husband's attorney] raising the issue with regard to the conflict.... I find that those attorneys' fees were caused or incurred because of the position taken by [appellant] orally and in writing to the Court.

The trial court entered an order awarding sanctions under Code § 8.01-271.1 in the amount of $23,100. This figure apparently was based on husband's fees and costs related to the motion to set aside the PSA, reimbursement of the $1,250 that husband paid to appellant for the drafting of the PSA, and the motion for sanctions. The motion for sanctions against wife was dismissed.

Analysis

A. Jurisdiction

First, this Court must address its jurisdiction over this appeal. Initially, appellant requested review of this case from the Supreme Court of Virginia. Because the case arose out of a divorce matter, the Supreme Court transferred the appeal to the Court of Appeals of Virginia. See Code § 17.1-405(3)(b). However, in transferring the appeal, the Supreme Court did not address whether this order is a "final judgment, order, or decree" in a divorce case, see id., or is an appealable interlocutory order deciding an issue that arose during those proceedings.⁴ As this case clearly does not involve a final decree of divorce, we must determine sua sponte whether review is permitted under Code § 17.1-405(4), which allows consideration of interlocutory orders.

Under Code § 17.1-405(4), this Court has jurisdiction over interlocutory orders that adjudicate "the principles of a cause." As the Supreme Court pointed out over a hundred years ago, "It is difficult, if not impossible, to define exactly what is meant by adjudicating the principles of the cause in such a way as to fit every case...." Lancaster's Adm'r v. Lancaster's Adm'r, 86 Va. 201, 204, 9 S.E. 988, 990 (1889). Traditionally, Virginia courts have defined an appealable interlocutory order generally as a decree that adjudicates the principles of a cause:

such that "`the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case in order to ascertain the relative rights of the parties, with regard to the subject matter of the suit.'"

Travis v. Finley, 36 Va.App. 189, 195, 548 S.E.2d 906, 909 (2001) (quoting Pinkard v. Pinkard, 12 Va.App. 848, 851, 407 S.E.2d 339, 341 (1991) (quoting Lee v. Lee, 142 Va. 244, 252-53, 128 S.E. 524, 527 (1925))).

The parties and the trial court addressed the motion for sanctions as a part of the divorce proceedings, even though appellant no longer represented a party in those proceedings. The motion and the order granting sanctions are styled Vinson v. Vinson, using the same case number used for the divorce proceedings. Therefore, as brought by the parties and considered by the trial court, the order imposing sanctions is part of the divorce proceedings.⁵ Clearly, the order did not conclude the issues in the divorce case and is not a final order to that action.

However, the appealed order sanctions only appellant, who was the attorney initially representing at least one of the parties in this divorce.⁶ By the time the order was entered, appellant had withdrawn from the case, and he had no further involvement with the divorce. If the motion for sanctions had been severed from the divorce case, then this order clearly would constitute a final order as it "`disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the court.'" Travis, 36 Va.App. at 196,548 S.E.2d at 909 (quoting Erikson v. Erikson, 19 Va.App. 389, 390, 451 S.E.2d 711, 712 (1994)). Effectively, then, this order is a "final" order, completely resolving the issue of sanctions against appellant and allowing for execution of the judgment. See Code § 8.01-466 et seq.

Such an order, resolving all the issues involving sanctions against appellant, while leaving the underlying divorce action unresolved, is an appealable interlocutory order within the meaning of Code § 17.1-405(4). The claims of husband for...