GULICK, CARSON ‘& THORPE,P.c. ‘Arromeys a Law 70 Main Szeee ‘Warrenton, VA 20186 Ph (540) 347-3022 CIVIL ORDER BOOK 2017, PG. 508 VIRGINIA: IN THE CIRCUIT COURT OF FAUQUIER COUNTY STEPHEN S. ROSZEL VIl_and PER BANG-JENSEN, Co-Executors of the Last Will: and Testament of Stephen S, Roszel VI, et al., Plaintiffs, v. Case Number CLO9-670 PHILIP JAY FETNER, 7 Defendant. SUDGMENT THIS CAUSE came on to be heard ore tenus on February 22, 23, and 24, 2017, upon the First Amended Complaint, upon the Answer and Amended Counterclaims of the Defendant, and upon the Answer to the Amended Counterclaims. After opening statements, Plaintiffs put on their case and rested. The Defendant moved to strike the evidence as to all counts of the Complaint, which motions were denied except for Count VII (actual fraud), which motion to strike was granted: The Defendant nonsuited Count Il of the Amended Counterclaim and thereafter put on his case. At the conclusion of the evidence, the Defendant renewed his motion to:strike, which was denied, and the matter was argued by counsel ‘The case was taken under advisement by the Court and on March 16, 2017, the Court rendered its verdict by letter opinion of the same date. The letter opinion of the Court of March 16, 2017, is incorporated herein by reference. ‘The Court finds the Defendant Fetner while acting in a fiduciary capacity as. Trustee of both Roszel Trusts and as Attorey-in Fact for Stephen S. Roszel VI (i) =\—engaged in self-dealing; (jl) converted funds of the Plaintiffs to his personal use; and (ii) committed @ breach of trust and a breach of fiduciary duties. Fuither, Fetner’s insider dealings raised a rebuttable inference of fraud, which inference was not rebutted by Defendant Fetner. Consequently, this Court further finds that Fetner acted fraudulently concerning his insider seif-dealings. UPON CONSIDERATION WHEREOF, the Court doth ADJUDGE, ORDER and DECREE that by and with the consent of the Plaintiffs, Per Bang-Jensen and Stephen S. Roszel VII, Co-Executors of the Last Will and Testament of Stephen S: Roszel VI, are hereby granted judgment in the amount of $647,042.25 against the Defendant Philip Jay Fetner together with interest at 6% from the date of this Order until paid UPON FURTHER CONSIDERATION, the Court doth award Per Bang-Jensen and Stephen S. Roszel Vil, Co-Executors of the Last Will and Testament of Stephen S. Roszel VI, judgment against Philip Jay Fetner in the amount of $75,000.00 in Punitive damages with interest thereon at 6% from the date of this Order until paid, !tis further ORDERED, for reasons stated in the letter opinion of March 16, 2017, that Per Bang-Jensen and Stephen S. Roszel VII, Co-Executors of the Last Will and Testament of Stephen S. Roszel VI, recover from the Defendant Philip Jay Fetner the sum of $75,000.00 in attorneys’ fees and Court costs of $84.00. It is further ORDERED that, pursuant to the provisions of Section 64.2-779, the. Susan R. Hartz Irrevocable Trust Agreement dated February 10, 2009 be and the same is hereby terminated. Itis further ORDERED that, pursuant to the provisions of Section 64,2-7928, Philip Jay Fetner be and is hereby removed as Trustee of any Trust in which Stephen Sage8. Roszel VI or Susan Roszel Hartz is either Settlor, Grantor, Trustee or Beneficiary due to Fetner's breach of fiduciary duty. q Counts | and Il of the Counterclaims of the Defendant Philip Jay Fetner be and are hereby DISMISSED with prejudice. THIS JUDGMENT IS FINAL. 2017. APR 18 IT Virginia State Bar Number 16715 GULICK, CARSON & THORPE, P.C. 70 Main Street, Suite 52 P.O. Box 880 Warrenton, Virginia 20188 Telephone: 540-347-3022 Facsimile: 540-347-9711 E-mail: rgulick@gotlaw.com Counsel for Plaintiffs SEEN and OBJECTIONS NoTED: (See. ostacked ) esd aoit- 4a Christopher T. Whelan Virginia State Bar Number 33611 Morrison, Ross.and Whelan, PLLC 31 Garrett Street Warrentén, Virginia 20186 Telephone: 540-347-1000 Facsimile: 540-349-4422 ‘ E-mail: chris.whelan@mrwiawirm.com Counsel for Defendant —3Defendant Philip Jay Fetner's Objections to Final Order The Defendant asserts that the Court’s judgment is contrary to the law and the evidence. Specifically, the Defendant asserts that the following findings are contrary to the evidence: a) “Fetner and Steve . . became friends for reasons that were not completely clear.” b) “Fetner invited the request. .. to assist Steve in managing his personal affairs and estate planning.” ©) “On February 6, 2009, Fetner transferred $300,000 from Steve's Revocable Living ‘Trust... . account to the Hartz Roszel fund account at SunTrust.” 4) “Fetner liquidated Steve’s Northwestern Mutual Investment Services securities account, allegedly at Steve's request .....” (Emphasis added). ©) “Fetner acting as “attomey” for Steve (and purportedly at his direction) executed real estate closing documents, selling Steve's real estate in Florida.” 1) “Steve, while still legally competent, wes vulnerable to being manipulated by someone with impressive professional credentials, who played to his ego.” 2) “Fetner .. . had a somewhat lavish lifestyle, and no other credible sources of income.” h) “Steve presented an opportunity to separate him from his money.” i) “Steve was became [sic] more forgetful.” 5). “Once [Steve] was made aware of the withdrawals from the Hartz-Roszel account he {intended to and in fact did stop funding the trust, and terminated his relationship with Fetner.” k) “There was no credible evidence presented rebutting the inference of fraud conceming the insider dealing by Fetner.” ‘There are insufficient facts to justify an award of punitive damages. ‘The Court erred by not finding that the Plaintiffs’ failure to preserve Steve's testimony in’ 2009 (when, by the testimony of the Plaintiffs’ witnesses, Steve was showing signs of “dementia”) justified an inference that Steve's testimony would have been unfavorable to the Plaintiff. Any negative inference of wrongdoing by Fetner was rebutted by Fetner's testimony, which was unrebutted, that Steve was informed of and consented to his actions taken as Attorney-in-Pact and as Trustee. Therefore, the Court erred by finding that Fetner breached any fiduciary duty to Steve, ‘The Court eired in dismissing Fetner's Counterclaim for quantum meruit, and particularly by finding that “[NJo time sheets or tangible record keeping of his time was presented.” ‘The Court’s judgment for conversion is contrary to the law and evidence in'that the Plaintiff's evidence established that Steve in fact transferred funds from his Revocable Trust to accounts owned by Fetner. The Defendant further objects to the court’s discussion and/or finding of an “inference of fraud” regarding the “insider dealing” by the Defendant. Under well-established case law dealing with claims for breach of fiduciary duty, upon the plaintiff's production of evidence establishing a -y-prima facie claim, the burden of production shifts to the defendant to show the fairness of the ‘transaction. See Ayers v. Shaffer, 286 Va. 212, 225 (2013). There is nothing in the case law dealing with claims for breach of fiduciary duty that requires a showing of fraud, or otherwise discusses the concept of an “inference of fraud” arising from the production of evid constituting a prima facie case by the plaintiff.