Tonti v. Akbari

Present: 	All the Justices
KAREN A. TONTI
OPINION BY
v. 	Record No. 002770 	JUSTICE LAWRENCE L. KOONTZ, JR.
November 2, 2001
ASSADULLAH AKBARI
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge
In this appeal, we consider whether the trial court1 erred
in awarding attorney’s fees against a party after denying the
party’s motions to quash subpoenas duces tecum issued to non-
parties.
BACKGROUND
Assadullah Akbari and Karen A. Tonti were involved in an
automobile accident on November 13, 1997. 	Akbari filed a
warrant in debt against Tonti in the Fairfax County General
District Court seeking $10,000 in damages for his alleged
personal injuries and lost wages arising from the accident.
Asserting various substantial defenses, Tonti had the case
removed to the Circuit Court of Fairfax County (the trial
court). 	Code § 16.1-92.
On June 2, 2000, Tonti filed a motion, pursuant to Rule
4:10, for an independent medical examination of Akbari by Dr.
1Judge Kathleen H. MacKay entered the discovery orders that
are under consideration in this appeal. 	Judge Henry E. Hudson,
however, entered the final order in the underlying jury trial.

John A. Bruno. 	On June 3, 2000, Akbari requested subpoenas
duces tecum, pursuant to Rule 4:9(c), to be served on Bruno and
USAA Casualty Insurance Company (USAA), Tonti’s automobile
liability insurance carrier, requiring each to produce certain
tax and other business records related to the employment or
consulting relationship between Bruno and USAA.
On June 9, 2000, Tonti filed motions to quash the subpoenas
duces tecum, asserting that they were overbroad, unduly
burdensome, not reasonably calculated to lead to the discovery
of admissible evidence, and invaded the privacy of other
persons. 	In a brief opposing Tonti’s motions, Akbari contended,
among other things, that the motions were not made in good
faith, and that the production of the requested documents was
not unduly burdensome. 	Akbari requested an award of attorney’s
fees and costs incurred in opposing Tonti’s motions. 	Akbari
also filed a motion to compel Bruno and USAA to comply with the
subpoenas duces tecum. 	He further requested the trial court to
issue show cause orders against Bruno and USAA and to impose “a
fine or other sanction for contempt,” if appropriate.
In an order dated July 14, 2000, the trial court denied
Tonti’s motions to quash and ordered Bruno and USAA to comply
with the subpoenas duces tecum. 	The trial court further ordered
Tonti to pay attorney’s fees in the amount of $600 to Akbari’s
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counsel. 	The order made no reference to the source of the trial
court’s authority to impose this sanction.
On July 19, 2000, Tonti filed a motion for reconsideration
of the July 14, 2000 order. 	Relevant to the issue raised in
this appeal, Tonti contended that the award of attorney’s fees
was improper. 	Apparently assuming that this award was entered
pursuant to Code § 8.01-271.1, Tonti contended that her motions
to quash were well grounded in fact and law and, thus, were not
sanctionable under that statute. 	Akbari filed a brief opposing
Tonti’s motion for reconsideration. 	He contended that Rule
4:12(a)(4) was dispositive of the issue regarding the award of
attorney’s fees rather than Code § 8.01-271.1. 	Akbari asserted
that the award of attorney’s fees was justified because Tonti’s
motions to quash “were akin to a Rule 4:1(c) motion for a
protective order” and, thus, under an express provision of that
rule, “[t]he provisions of Rule 4:12(a)(4) apply to the award of
expenses incurred in relation to the motion,” unless the trial
court expressly finds that the motions to quash were
“substantially justified.” 	By an order dated August 3, 2000,
the trial court denied Tonti’s motion for reconsideration.
In response to Tonti’s notification of an intent to appeal
the award of attorney’s fees after the case concluded, the trial
court, by a letter to counsel dated August 8, 2000, stated that
it wanted to “make [its] position clear and articulate [the]
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reasons for . . . awarding attorney[’s] fees.” 	The trial court
stated that it agreed with the contentions made by Akbari in his
brief opposing the motion for reconsideration. 	The trial court
further stated that the award of attorney’s fees was “not
pursuant to Va. Code § 8.01-271.1 but rather pursuant to Rule
4:12(a)(4). 	In so doing [the trial court] regarded the award of
fees as a routine matter.”
Tonti filed a motion to stay enforcement of the sanction
pending resolution of the underlying cause of action and appeal.
By order dated August 18, 2000, the trial court denied the
motion to stay. 	Tonti avers on brief that the sanction was duly
paid.
In a subsequent jury trial, Akbari was awarded a judgment
in the amount of $5,000. 	Tonti timely filed a petition for
appeal in this Court limited to the issue whether the trial
court abused its discretion in awarding an attorney’s fee
sanction in this case pursuant to Rule 4:12(a)(4). 	By order
dated March 5, 2001, we awarded Tonti an appeal.
DISCUSSION
An award of attorney’s fees as a sanction should never be
“a routine matter.” 	The general rule in this Commonwealth is
that, in the absence of a provision in a statute, rule, or
contract to the contrary, a trial court may not award attorney’s
fees to a party merely on the basis of that party’s having
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prevailed upon an issue or cause. 	See Prospect Development Co.
v. Bershader, 258 Va. 75, 92, 515 S.E.2d 291, 300 (1999);
Gilmore v. Basic Industries, Inc., 233 Va. 485, 490, 357 S.E.2d
514, 517 (1987). 	This is the so-called “American Rule,” and its
purpose is to avoid stifling legitimate litigation by the threat
of the specter of burdensome expenses being imposed on an
unsuccessful party.
Where a rule or statute authorizes the trial court to
impose the costs of litigation in the form of attorney’s fees as
a sanction against a party, such sanction is intended, in part,
to protect litigants from the expense of frivolous claims,
unfounded in fact or law. 	Gilmore v. Finn, 259 Va. 448, 466,
527 S.E.2d 426, 435 (2000). 	“ ‘Yet the threat of a sanction
should not be used to stifle counsel in advancing novel legal
theories or asserting a client’s rights in a doubtful case.’ ”
Id. (quoting Oxenham v. Johnson, 241 Va. 281, 286, 402 S.E.2d 1,
3 (1991)). 	In short, far from being “a routine matter,” an
award of attorney’s fees as a sanction is a matter that must be
made under proper authority and with due exercise of the trial
court’s sound judicial discretion.
Akbari has not participated in this appeal. 	However, as we
have noted above, the trial court agreed with Akbari’s
contentions that Tonti’s motions to quash “were akin to a Rule
4:1(c) motion for a protective order” and that this rule
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provides that when a motion for a protective order is denied
“[t]he provisions of Rule 4:12(a)(4) apply to the award of
expenses incurred in relation to the motion.” 	We disagree.
Akbari requested that subpoenas duces tecum be issued to
non-parties pursuant to Rule 4:9(c). 	This rule provides that in
such cases “the person so required to produce, or . . . the
party against whom such production is sought” may file a written
motion requesting that the trial court quash or modify the
subpoena.2 (Emphasis added). 	Tonti was “the party against whom
such production [was] sought” contemplated by Rule 4:9(c) and
authorized by that rule to seek to quash the subpoenas duces
tecum issued to the non-parties in question. 	Accordingly, while
Tonti’s motions to quash might be facially “akin to a Rule
4:1(c) motion for a protective order,” the provisions of Rule
4:1(c) do not apply to her motions because they were not filed
pursuant to that rule.
We turn then to consider the interplay of the provisions of
Rule 4:12 and those of Rule 4:9 under the circumstances of this
case. 	In that context, Rule 4:12(a)(2) expressly limits its
application with respect to discovery requests submitted under
2Rule 4:9 was amended effective July 1, 2000. 	Accordingly,
the subpoenas duces tecum and the motions to quash were filed
under the former version of the rule. 	However, the portions of
the rule relevant to this case are substantially unchanged by
the amendment and now appear in Rule 4:9(c)(1).
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Rule 4:9 to instances in which “a party, in response to a
request for inspection . . ., fails to respond that inspection
will be permitted as requested or fails to permit inspection as
requested.” 	(Emphasis added). 	In such instances, the party
requesting the inspection may seek an order compelling the
inspection, and, if that order is granted, the trial court may
award attorney’s fees as a sanction under Rule 4:12(a)(4).
Similarly, Rule 4:9(d) provides that “[i]f a party fails or
refuses to obey an order made under subsection (b) of this Rule,
the court may proceed as provided by Rule 4:12(b)(2).” 	In
contrast, Rule 4:9(d) also provides that “[i]f a non-party . . .
fails or refuses to comply” with a subpoena duces tecum issued
under Rule 4:9(c), “he may be proceeded against as for contempt
of court as provided in [Code] § 18.2-456.” 	(Emphasis added).
The express distinction made between a party and a
non-party under Rule 4:9(d) with regard to a discovery violation
is significant and, indeed, dispositive of the issue in this
appeal. 	Unlike a case involving a party, under this rule the
failure or refusal of a non-party to comply with a properly
issued and served subpoena duces tecum under Rule 4:9(c) is
subject to a contempt sanction as provided in Code § 18.2-456.
This express provision for the application of Code § 18.2-456
excludes the conduct of the non-party from the scope of Rule
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4:12(a)(2) and, by necessary extension, from the sanctions
provided under Rule 4:12(a)(4).
In the present case, Akbari sought to compel Bruno and
USAA, non-parties, to comply with subpoenas duces tecum issued
and served on them pursuant to Rule 4:9(c). 	Their failure or
refusal to comply with these subpoenas would have subjected them
to contempt sanctions under Code § 18.2-456 and not Rule
4:12(a)(4). 	It then necessarily follows that Rule 4:12(a)(4)
does not provide authority for the imposition of attorney’s fees
as a sanction against Tonti for filing motions to quash
subpoenas duces tecum issued to these non-parties. 	Accordingly,
we hold that the trial court erred in relying upon Rule
4:12(a)(4) as its authority for awarding attorney’s fees against
Tonti.3 In the absence of such authority, the award of that
sanction “as a routine matter” was clearly an abuse of
discretion.
CONCLUSION
For these reasons, we will reverse the judgment of the
trial court with respect to the award of $600 in attorney’s fees
3Because the trial court expressly stated that it was not
relying on the authority of Code § 8.01-271.1, we need not
address whether the sanction would have been appropriate under
that statute under the specific circumstances of this case.
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and remand the case to the trial court for entry of an order
directing return of the funds paid pursuant to that judgment.
Reversed and remanded.
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