Petrosinelli v. PETA

PRESENT: All the Justices

JOSEPH G. PETROSINELLI
OPINION BY
v. Record No. 061785 JUSTICE G. STEVEN AGEE
April 20, 2007
PEOPLE FOR THE ETHICAL TREATMENT OF
ANIMALS, INC.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge

In this appeal, we consider the judgment of the Circuit

Court of Fairfax County which found Joseph G. Petrosinelli in

civil contempt and awarded monetary sanctions against him. For

the reasons set forth below, we will reverse the judgment of the

circuit court.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

This appeal arises from litigation in two similar lawsuits

brought by the People for the Ethical Treatment of Animals, Inc.

(“PETA”). PETA initially filed a motion for judgment on May 30,

2002 against Kenneth Feld, Richard Froemming, Joel Kaplan,

Charles Smith and three “John Doe” defendants, alleging

statutory and common law conspiracy and misappropriation of

trade secrets (“PETA I”). In response to Feld’s demurrer, he

was nonsuited on July 25, 2003.1

1
By the time of the nonsuit as to Feld, PETA I had
materially changed because Froemming had died, Kaplan proceeded
pro se, and Smith asserted any claims against him had been
discharged in bankruptcy.
 PETA filed a second motion for judgment on January 26,

2004, naming Feld and three “John Doe” parties as defendants,

alleging that Feld, CEO of Feld Entertainment, Inc., parent

company of Ringling Brothers and Barnum & Bailey Circus, Inc.,

conspired and wrongfully took trade secrets and documents from

PETA in an effort to thwart PETA’s animal protection work (“PETA

II”). Throughout PETA II, Feld was represented by several

attorneys, including Petrosinelli.

On February 27, 2004, Feld moved to consolidate PETA I and

PETA II for trial and discovery, which motion the circuit court

denied.2 In September 2004, Feld again moved to consolidate PETA

I and PETA II, which the circuit court took under advisement.3

On December 2, 2004, PETA issued a subpoena to depose

Steven Kendall, a resident of Pennsylvania, in PETA I.4 Kendall

failed to appear at the scheduled deposition, but he made a

written agreement with PETA to appear in Alexandria, Virginia at

the office of PETA’s counsel on February 11, 2005 at 10:00am for

a deposition in PETA I.

2
An order entered on April 16, 2004 by Judge Gaylord L.
Finch, Jr. provided “the motion to consolidate the matter for
trial and discovery is denied.”
3
Judge Dennis J. Smith issued an order on September 24,
2004, which provided that Feld’s “Renewed Motion to Consolidate
is taken under advisement.”
4
Steven Kendall was allegedly an undercover operative
working on behalf of Feld Entertainment to infiltrate PETA and
similar organizations. Kendall authored a book that contained
potentially damaging information about Feld and Feld
Entertainment, Inc.

2
 On December 9, 2004, at a hearing in response to Feld’s

renewed motion to consolidate which had been taken under

advisement, the circuit court entered an order consolidating

PETA I and PETA II for purposes of trial, but not for discovery.5

During the December 9, 2004 hearing, Petrosinelli orally

requested that although discovery would not be consolidated, the

parties should be notified when discovery was occurring in

either PETA I or PETA II, even though Feld was no longer a party

in PETA I. The circuit court denied Petrosinelli’s request but

invited the parties to revisit the issue, stating that they “are

welcome to raise these issues again, because I’ll be a lot

deeper into the discovery.”

On December 29, 2004, Feld filed a motion for permission to

access discovery in PETA I, which PETA opposed. At a January

21, 2005 hearing on the motion, Petrosinelli reiterated his

request on behalf of Feld to have access to discovery in PETA I.

The circuit court reaffirmed that PETA I and PETA II would be

joined for trial but separated for purposes of discovery,

stating

this really is about the third iteration of a very
similar motion, and that doesn’t even include the
hearing before Judge Smith where he took the matter
under advisement. . . .

5
Judge David T. Stitt issued the December 9, 2004 order and
all subsequent orders in this case.

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 I exercise my discretion by again refusing . . .
to join [the two cases] for discovery, and the motion
for access to discovery . . . is denied.6

On February 3, 2005, Feld issued a subpoena in PETA II to

depose Steven Kendall, requesting that he appear at the office

of Blankingship & Keith, P.C. in Fairfax, Virginia on February

11, 2005 at 10:00am. The subpoena was signed by William B.

Porter, another attorney representing Feld, but at

Petrosinelli’s direction and with his knowledge of the PETA

deposition of Kendall already scheduled in PETA I for the same

date and time, at the office of PETA’s counsel in Alexandria.

Kendall’s attorney responded on February 8, 2005 by sending

letters to PETA and Feld indicating that Kendall would make

himself available for a single deposition.7 PETA responded the

next day by letter to Kendall’s attorney accusing Feld and

Kendall of “engaging in a conspiracy to obstruct justice”

because of the deposition scheduling.

PETA immediately moved in the circuit court to quash Feld’s

subpoena of Kendall in PETA II. On February 9, 2005, the

circuit court conducted an emergency hearing by telephone

6
The circuit court issued an order on January 24, 2005,
which stated that Feld’s “Motion for Access is DENIED for the
reasons stated from the bench.”
7
Identical letters were sent to Feld and PETA, which
stated: “Inasmuch as the subject matter of both depositions will
be the same, we will be available to sit for one deposition and
will submit to questions posed by you and [opposing counsel]”
(emphasis in original).

4
conference call on PETA’s motion. The circuit court quashed

Feld’s subpoena of Kendall in PETA II and instructed that the

PETA deposition of Kendall in PETA I continue as scheduled.

PETA drafted an order to reflect the circuit court’s

ruling, but Feld objected to some of the proposed language.

Specifically, Feld objected to language in the proposed order

stating Feld’s subpoena of Kendall was “a circumvention of prior

rulings in this case” and that the “previously noticed

deposition [on PETA I] shall proceed.” When the parties did not

reach agreement, PETA forwarded the proposed order as drafted to

the circuit court along with the comments submitted by Feld. On

February 15, 2005, the circuit court entered the order as

originally drafted by PETA, including the language to which Feld

objected.

On February 18, 2005 PETA filed an ex parte petition for a

rule to show cause in PETA II as to why Porter and Petrosinelli

should not be held in contempt for violating the circuit court’s

order of January 24, 2005 and similar orders dated April 16,

2004 and December 9, 2004. The petition for the rule to show

cause included an affidavit from PETA’s counsel, Philip J.

Hirschkop, detailing how Porter and Petrosinelli allegedly

violated the referenced orders.

On March 14, 2005, the circuit court issued a rule to show

cause in PETA II stating “that an order of this Court was

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apparently violated.” The rule directed Porter and Petrosinelli

to “show cause why they should not be held in contempt for

violating this Court’s orders of January 21, 2005, April 16,

2004 and December 9, 2004.”8 On April 8, 2005, Feld filed a

motion to vacate the rule to show cause, or, in the alternative,

a response to the rule, with affidavits from Petrosinelli and

Porter attached.

On May 25, 2005, the circuit court conducted a hearing on

the rule to show cause and Feld’s motion to vacate the rule to

show cause.9 Judge Stitt held Petrosinelli in contempt under the

rule to show cause for issuing the Kendall subpoena. Although

Judge Stitt discussed the April 16, 2004 and December 9, 2004

orders, he made specific reference to the January 24, 2005 order

and stated:

That is a clear order denying access to discovery
and what was done with this subpoena to Kendall was
precisely an attempt to access discovery in [PETA I].
There’s no other way to fairly characterize it.
That’s what it was, just a blatant violation of that
order.

8
Although the rule to show cause recites an order dated
January 21, 2005, the actual order was signed on January 24,
2005, which memorialized the court’s ruling at the January 21,
2005 hearing denying Feld’s motion for access to discovery. See
also supra note 6.
9
The circuit court also considered other motions, but those
motions are the subject of a separate appeal brought by Feld in
Williams & Connolly, LLP v. People for the Ethical Treatment of
Animals, 273 Va. ___, ___ S.E.2d ___ (2007), which is also
decided this day.

6
 And I do find there was contempt pursuant to
Virginia Code Section 18.2-456(5).10 This was
disobedience by an officer of the court of an order of
the court.

The rule to show cause against Porter was dismissed.11

On August 18, 2005, the circuit court conducted a further

hearing and reaffirmed its May 25, 2005 ruling from the bench

holding Petrosinelli in contempt,12 and ordered him to pay

sanctions of $11,305.00 to PETA, all of which were memorialized

in an August 26, 2005 order.

Petrosinelli filed a notice of appeal with the Court of

Appeals pursuant to Code § 19.2-318 regarding the civil contempt

sanction. We certified Petrosinelli’s appeal in the Court of

Appeals for review pursuant to Code § 17.1-409(A) and (B).

10
Code § 18.2-456(5) provides that “The courts and judges
may issue attachments for contempt, and punish them summarily
[for] [d]isobedience or resistance of an officer of the court,
juror, witness or other person to any lawful process, judgment,
decree or order of the court.”
11
Petrosinelli admitted that he asked Porter to issue the
Kendall subpoena. The court noted that Porter was “a young
attorney, a former law clerk to this court, [and] he’s obviously
not calling the shots in this case, and I appreciate Mr.
Petrosinelli taking the responsibility for having told him to
issue the subpoena.” Petrosinelli responded to the circuit
court’s ruling with a motion for reconsideration of the finding
of contempt, but the circuit court denied the motion.
12
Judge Stitt confirmed at the August 18, 2005 hearing that
the contempt proceeding against Petrosinelli was civil contempt:
“if I were going to proceed with criminal sanctions . . . I
would let everybody know and refer the matter to the
Commonwealth’s Attorney. I obviously haven’t done that and so I
don’t think there’s any question that we’re only proceeding on
civil sanctions at this point.”

7
 II. ANALYSIS

A court has discretion in the exercise of its contempt

power. Sapp v. Commonwealth, 263 Va. 415, 425, 559 S.E.2d 645,

650 (2002); see also Leisge v. Leisge, 224 Va. 303, 309-10, 296

S.E.2d 538, 541 (1982). It “is within the discretion of the

trial court” to conduct civil contempt proceedings, Arvin, Inc.

v. Sony Corp. of America, 215 Va. 704, 706, 213 S.E.2d 753, 755

(1975), thus we review the exercise of a court’s contempt power

under an abuse of discretion standard. Tonti v. Akbari, 262 Va.

681, 687, 553 S.E.2d 769, 772 (2001).

Because the “judicial contempt power is a potent weapon,”

Int’l Longshoremen’s Ass’n, Local 1291 v. Philadelphia Marine

Trade Ass’n, 389 U.S. 64, 76 (1967), our centuries-old

jurisprudence has long provided that “contempt lies for

disobedience of what is decreed, not for what may be decreed.”

Taliaferro v. Horde, 22 Va. (1 Rand.) 242, 247 (1822).

Additionally, “before a person may be held in contempt for

violating a court order, the order must be in definite terms as

to the duties thereby imposed upon him and the command must be

expressed rather than implied.” Winn v. Winn, 218 Va. 8, 10,

235 S.E.2d 307, 309 (1977). Thus, “there must be an express

command or prohibition” which has been violated in order for a

proceeding in contempt to lie. French v. Pobst, 203 Va. 704,

710, 127 S.E.2d 137, 141 (1962).

8
 The March 14, 2005 rule to show cause stated that

Petrosinelli “apparently violated” the circuit court’s prior

orders of January 24, 2005, April 16, 2004 and December 9, 2004

(the “three orders”) by issuing the Kendall subpoena. The

August 26, 2005 order finding contempt simply stated, “Joseph G.

Petrosinelli is adjudged in contempt” but did not identify which

order or orders were found to be the source of the contempt.

At the May 25, 2005 hearing on the rule to show cause, the

circuit court discussed the three orders but emphasized the

January 24, 2005 order as a particular order Petrosinelli

violated because that order was “a clear order denying access to

discovery and what was done with this subpoena to Kendall was

precisely an attempt to access discovery in [PETA I]. . . .

That’s what it was, just a blatant violation of that order.”

The court then concluded “that there was contempt pursuant to

Virginia Code Section 18.2-456(5).” We therefore review the

language of the three orders to determine whether the circuit

court abused its discretion in adjudging Petrosinelli in

contempt.

Each of the three orders is short, with the pertinent

adjudication of the court stated in one sentence. The January

24, 2005 order provides only that Feld’s “Motion to Access is

DENIED for the reasons stated from the bench.” The April 16,

2004 order states only that Feld’s “Motion to consolidate the

9
matter for trial and discovery is denied.” The December 9, 2004

order states only that “Feld’s Motion to Consolidate is granted

as to trial, but denied as to discovery.”

Petrosinelli contends, as he did in the circuit court, that

he did not violate any of the three orders. Petrosinelli argues

that no order of the court barred a subpoena to depose Kendall

in PETA II. Because Kendall was a Pennsylvania resident,

Petrosinelli avers that the distinct possibility existed in

which Feld would be unable to depose Kendall at all if he failed

to act when he did. By issuing the subpoena in PETA II,

Petrosinelli argues he was attempting in good faith to follow

the court’s orders while also preserving Feld’s right to take

the deposition of a key witness. As Kendall would agree to sit

for only one deposition, Petrosinelli contends Feld faced the

likely result that a Pennsylvania court would protect Kendall

from multiple depositions on essentially the same subject matter

as represented by PETA I and PETA II. If that occurred,

Petrosinelli argues, PETA would have the benefit of Kendall’s

deposition in PETA I to use in PETA II, but Feld would have been

foreclosed from that information.

Petrosinelli also contends that the circuit court

inappropriately relied on a mere implication that he could not

depose Kendall as its basis for holding him in contempt.

Petrosinelli insists that by issuing a separate subpoena

10
deposition to Kendall, he was in compliance with the circuit

court’s ruling that discovery be separate between PETA I and

PETA II.

In response, PETA asserts that Petrosinelli was found in

contempt because he “engineer[ed]” a consolidated deposition

with Kendall for PETA I and PETA II in direct violation of the

three orders. PETA insists that it is crucial to consider the

context of the circuit court’s third denial of consolidated

discovery in the January 24, 2005 order, when examining whether

Petrosinelli acted contemptuously. PETA avers that the three

orders provided Petrosinelli with explicit notice of what was

required of him, yet Petrosinelli willfully defied the orders

and effectively attempted to consolidate discovery. Because the

circuit court’s January 24, 2005 order included language that

the court had denied consolidated discovery “for the reasons

stated from the bench,” PETA contends this provided Petrosinelli

with sufficient notice of what was required. Finally, PETA

argues that even if Petrosinelli did not violate explicit orders

of the circuit court, his “egregious misbehavior in obstructing

the administration of justice by causing the Kendall deposition

subpoena to be issued” at the same date and time but at a

different location as the deposition for PETA I, constitutes

contempt.

11
 We agree with Petrosinelli. In reviewing the three orders,

we do not find an express prohibition on the issuance of a

subpoena to Kendall by Feld or any other party. The three

orders did not expressly command or prohibit Petrosinelli from

acting to depose a witness, and Petrosinelli issued the subpoena

only in PETA II. The text of the three orders is devoid of any

prohibition regarding the issuance of a subpoena to Kendall or

any other person.

A court generally speaks through its written orders.

McMillion v. Dryvit Sys., 262 Va. 463, 469, 552 S.E.2d 364, 367

(2001). We presume that the written orders accurately reflect

what transpired during the court’s proceedings. Waterfront

Marine Constr. v. North End 49ers Sandbridge Bulkhead Groups,

251 Va. 417, 427 n.2, 468 S.E.2d 894, 900 n.2 (1996). While a

court’s contempt power encompasses written orders as well as

“oral orders, commands and directions of the court,” Robertson

v. Commonwealth, 181 Va. 520, 537, 25 S.E.2d 352, 359 (1943), a

duty that arises by implication cannot sustain a finding of

contempt. See, e.g., Winn, 218 Va. at 10-11, 235 S.E.2d at 309.

If there was any prohibition upon Petrosinelli against

subpoenaing Kendall for a deposition in PETA II, such a duty

was, at best, an implication from general remarks of the court

made in prior hearings. Petrosinelli was never explicitly

prohibited by a court order from issuing the Kendall subpoena.

12
Mere implication of a duty cannot form the basis of a contempt

judgment. Id.

Rather, the three orders, each of which denied joint

discovery in PETA I and PETA II, “merely declare[d] the rights

of the parties without an express command or prohibition.”

French, 203 Va. at 710, 127 S.E.2d at 141. As we stated in

French, “there must be an express command or prohibition” to

support a finding of contempt. Id. No such express command or

prohibition exists that prohibited Petrosinelli from issuing the

subpoena to Kendall.

Thus, after a review of the three orders, we hold that the

circuit court abused its discretion when it adjudged

Petrosinelli in contempt of court. Petrosinelli’s subpoena to

Kendall in PETA II was not a violation of any express order of

the court and thus could not be an act of contempt as a matter

of law.

III. CONCLUSION

For the foregoing reasons, we will therefore reverse the

judgment of the circuit court, which adjudged Petrosinelli in

contempt, and we will vacate the award of sanctions against

Petrosinelli individually in the amount of $11,305.00 and enter

final judgment in favor of Petrosinelli.

Reversed and final judgment.

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