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June 7, 2017

Judge awards family $800k in fiduciary breach case

Photo/Douglas Lees
The trustees of Stephen Roszel VI’s estate said P. Jay Fetter (left) used the funds in part to support his Golden Zebra polo team. Here, Mr. Fetner plays at Great Meadow in 2009.
Stephen Roszel VI died in November at the age of 95.
Photo/Douglas Lees
Mr. Fetner, photographed here after a polo match, contends that Mr. Roszel sought his estate planning help and willingly invested in a book and/or film project.
In my nearly 40 years (of practicing law), this is the first time I’ve had a case where we were awarded punitive damages.
— Robin Gulick, attorney for the Roszel estate
Roszel v. Fetner
• Plaintiffs: Stephen S. Roszel VII and Per Bang-Jensen, co-executors of the Stephen S. Roszel VI estate.

• Defendant: Philip Jay Fetner of The Plains.

• Lawsuit: Alleges defendant breached fiduciary duties and converted Roszel trust funds to personal use.

• Filed: Sept. 17, 2009.

• Venue: Fauquier County Circuit Court.

• Judge: Jeffrey W. Parker

• Trial: Feb. 22-24, 2017.

• Ruling: March 16 for plaintiffs; judge awards $647,042 in damages, $75,000 in punitive damages and $75,000 in attorney’s fees.

• Plaintiffs’ attorney: Robin C. Gulick of Warrenton.

• Defense attorney: Christopher T. Whelan of Warrenton at trial; defendant has since represented himself.

• Judgment affirmed: Tuesday, June 6.

• Next: Mr. Fetner said he will petition the Virginia Supreme Court to hear his appeal.
By .(JavaScript must be enabled to view this email address)
Editor
An Ivy League-educated, polo-playing author from The Plains misused almost $650,000 from an elderly friend’s trust funds, a Fauquier judge has ruled.

Philip Jay Fetner contended that friend and neighbor Stephen S. Roszel VI eight years ago knowingly and willingly invested in the second printing of his book, The African Safari: The Ultimate Wildlife and Photographic Adventure and/or a film project.

Mr. Roszel, who died at age 95 in November, also sought his help in estate planning, Mr. Fetner said.

But, Circuit Court Judge Jeffrey W. Parker rejected Mr. Fetner’s explanation for using the funds to pay personal expenses, including his polo team’s operation, home repairs and mortgage payments.

> Court documents at bottom of story

“It was all wishful thinking,” Judge Parker said Tuesday of the plan to get a substantial return by converting funds from Mr. Roszel’s trusts to investment in production of a safari book and/or movie. “Actions speak louder than words. The use of that money for personal expenses speaks louder than words.”

The judge made his comments during a 40-minute hearing on Mr. Fetner’s motion to reconsider an April 18 ruling, which awarded almost $800,000 in damages and fees to Mr. Roszel’s estate.

Although he had a lawyer for the lawsuit trial in February, Mr. Fetner — a 1970 Harvard Law School graduate — has represented himself since then. He argued Judge Parker “ignored” the defendant’s testimony that Mr. Roszel directed the reorganization of his estate planning and understood its complexities.

“Roszel moved the money and knew exactly what was happening,” Mr. Fetner said in court Tuesday.

Mr. Fetner said his testimony, as the defendant, went uncontested during the trial Feb. 22-23.

“I can accept or reject anything you say, Mr. Fetner,” the judge responded. “I can say you were motivated by self-interest, and I can reject it.”

The defendant called the judge’s ruling “a legal travesty . . . . I don’t see how the court can ignore my testimony.”

“Not ignore,” Judge Parker said. “Reject it.”

Representing Mr. Roszel’s adult children and a friend who serves as a trustee of his estate, Warrenton attorney Robin Gulick argued, “The documentary evidence in this case is clear.”

After assuming power of attorney and creating new trust documents for Mr. Roszel in February 2009, Mr. Fetner immediately transferred $300,000 to checking accounts under his personal control, Mr. Gulick said.

The defendant used his own social security number to set up a new trust fund checking account in the name of Mr. Roszel’s daughter, Susan Hartz, the attorney noted.

“Clearly, she did not authorize the use of those funds,” Mr. Gulick said.

During the trial, the plaintiffs introduced evidence that Mrs. Hartz received only $3,200 from a trust fund worth about $700,000. She requested that check to make a college tuition payment for her daughter, according to the evidence.

Mr. Gulick also said the defendant created the new trust and power of attorney documents without a witness or a notary.

The plaintiffs’ attorney described Mr. Fetner as financially desperate, struggling to pay three mortgages — totaling $17,000 a month — on his home, valued at $2.5 million.

At one point Tuesday morning, Judge Parker asked the defendant: “Was borrowing for your personal expenses permitted in any those documents? . . . Visa bills? Was that in the documents? Was that in the trust agreement?”

“I could have given it to charity,” Mr. Fetner replied. “I could have done whatever I wanted.”

In a pretrial deposition, Mr. Fetner had testified that those who invest in an artist’s production often pay for living expenses during the creative process.

The judge Tuesday imposed the order to enforce his ruling, which includes $75,000 in punitive damages and $75,000 in attorney’s fees for the Roszel estate. The judgment also accrues 6-percent annual interest, starting April 18.

Outside the courthouse, Mr. Fetner said in an interview that he will petition the Virginia Supreme Court to hear his appeal of the judgment.

“Oh, yes,” he said. “I have no choice.”

At his death, Mr. Roszel had an estate worth about $4 million — about half of it liquid, according to court documents. The pilot and World War II veteran had enjoyed success in Asian oil exploration. He also made successful real estate investments in Fauquier.

Mr. Roszel and his wife had separated late in life.

Mr. Fetner, who earned a bachelor’s degree from Yale University and studied at Cambridge University in England, had practiced law in Washington, D.C.

He is “the managing principal of a private consulting, trade and merchant-banking firm headquartered in Washington, D.C., with offices located throughout Africa,” according to a note about the author of his 1987 safari book, published by St. Martin’s Press in New York.

Fellow Harvard graduate George Plimpton, the author of Paper Lion, wrote the forward to Mr. Fetner’s book.

Mr. Fetner said Tuesday the 660-page book sold 30,000 copies and that the new edition will appear soon.

In Fauquier, Mr. Fetner made a splash with his Golden Zebra polo team, which included top-ranked professional players from Argentina. He also has a record of protracted litigation, including a lawsuit filed by well-known horsewoman and philanthropist Rose Marie Bogley, who sued to get him removed from her Upperville estate, where Mr. Fetner rented a home in the 1990s.

In the more recent case, Mr. Fetner contended “was drawn” to help his elderly friend with estate planning because of Mr. Roszel’s disagreements with his second son, Stephen S. “Bo” Roszel VII.

Among other things, his work set up a more equitable distribution of assets among Mr. Roszel’s two sons and daughter, whom the previous trusts shortchanged “in the old Virginia way,” the defendant said.

Mr. Roszel invited his help, according to Mr. Fetner.

But, “Bo” Roszel said he and his father never disagreed. He provided a different account of Mr. Fetner’s involvement with his father’s financial affairs.

“They first met because my father’s dog would hear Fetner’s dog and go through the woods” near the Northern Fauquier Community Park, the younger Roszel said. “Fetner brought the dog back.

“They were not great friends.”

But, the two men grew closer about a decade ago, and Mr. Fetner invited his father to a Christmas party in 2007, according to Bo Roszel. “My brother Tommy was home from Indonesia.”

Soon thereafter, “he approached my father and wanted to see my father’s estate planning,” the younger Roszel said in a recent interview.

By late 2008, he knew that Mr. Fetner had begun reviewing the documents, Bo Roszel said.

Unbeknownst to the son, however, Mr. Fetner in February 2009 created new documents, removing four-decade friend Per Bang-Jenson and Bo Roszel as trustees of the estate. New documents established Mr. Fetner as the successor trustee, with power of attorney.

That summer, after meeting with Mr. Fetner to ask about the estate planning’s progress, Bo Roszel said he and his siblings grew concerned.

The younger Roszel said he called his lawyer, Mr. Gulick, on Friday, Aug. 28, 2009, after finding copies of a trust amendment and new power of attorney on his father’s desk. They met in Mr. Gulick’s office three days later and quickly pieced together what had transpired.

In the days that followed, the senior Roszel removed Mr. Fetner as trustee and nullified the power of attorney, substituting Mr. Bang-Jensen and his son.

About the same time, they also discovered a plan to move a $2-million trust account from the Wachovia office in Warrenton to a brokerage in Baltimore. The Roszels terminated that transaction.

Mr. Fetner this week maintained that Mr. Roszel knew everything about the new estate planning and his work.

He accused Mr. Roszel’s children of delaying the lawsuit, filed in September 2009, unnecessarily. And, Mr. Roszel died before the case went to trial, depriving him of questioning the only potential witness who would corroborate or dispute his testimony, the defendant said.

He argued that the plaintiffs never conducted a sworn deposition of Mr. Roszel to preserve his testimony.

But, in his ruling, Judge Parker noted that Mr. Fetner also could have deposed Mr. Roszel.

“It has been frustrating,” Bo Roszel said of the protracted litigation. “My position all along was my father’s trust is paying (the legal bills). We ought to pursue the case . . . . I couldn’t look myself in the mirror if we didn’t do everything we could.

“So, we persevered with all his legal maneuvering and delays. I said, ‘We’ll keep going’.”

But, he expressed satisfaction with the judgment in circuit court.

“Obviously, we’re very pleased with the judge’s ruling, and his ruling was based on the evidence, which was overwhelming,” Mr. Gulick said.

“Mr. Fetner converted Mr. Roszel’s money to Mr. Fetner’s personal use,” the attorney said. “The record showed that all these funds were used for personal expenses: payments on his mortgage, polo, gas, groceries, clothing, shoes, fitness (club membership), roofing, utilities, maintenance, supplies, his personal insurance, care for his horses, feed for his horses, overseas travel to play polo, magazines, restaurants.”

During Tuesday’s hearing, Judge Parker said he awarded $75,000 in punitive damages “to send a message” to anyone who would take financial advantage of a senior citizen.

“I think he was vulnerable,” the judge said of Mr. Roszel, in his late 80s when the changes in his estate planning took place.

“In my nearly 40 years (of practicing law), this is the first time I’ve had a case where we were awarded punitive damages,” Mr. Gulick said.

But, he more frequently sees cases of elderly people suffering financial losses because of misplaced trust, the attorney said.

“You want to entrust your financial matters to a financial advisor or bank or brokerage house that you’ve had a relationship with,” he suggested.


The judge’s opinion

Roszel v. Fetner.judgment Entered 4.18.17 by Fauquier Now on Scribd




The judgment

Roszel v. Fetner.3.16.17 Letter Opinion by Fauquier Now on Scribd




Fetner’s motion to reconsider

Fenter Motion to Reconsider by Fauquier Now on Scribd




Plaintiff’s response to motion for reconsideration

Plaintiffs Response to Fetner Motion by Fauquier Now on Scribd

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WatchingWarrenton · June 9, 2017 at 2:53 pm
Life was so much simpler when the landed gentry actually had money for their hobbies.

BJ · June 7, 2017 at 9:07 pm
It sure seems like at least once a month we have someone in a position of trust helping themselves to others funds/funding. How do they sleep at night? And how do they get away with it for so long before getting caught? Who is doing the same exact thing right now in our community? Fox in the hen house mentality.
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