COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
REGINA ROBERTS
MEMORANDUM OPINION * BY
v. Record No. 2096-97-1 JUDGE NELSON T. OVERTON
FEBRUARY 24, 1998
CHAD HAIAR
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Manolita A. Marmol (Joynes & Marcari, P.C.,
on brief), for appellant.
(Robert A. Boester; Hawkins, Burcher & 1
Boester, P.C., on brief), for appellee.
The law firm of Joynes & Bieber, P.C. 2 (appellant) appeals
an order of the Circuit Court of the City of Newport News holding
it in summary civil contempt for violation of a court order.
Because we agree with the result, but find the amount of the fine
to be excessive, we modify and affirm.
On September 25, 1995 appellant filed a motion for judgment
on behalf of its client, Regina Roberts. On November 18, 1996
the trial court entered a "scheduling order," pursuant to Rule
4:13, which required counsel for each party to meet with the
court on March 5, 1997. The purpose of this pre-trial conference
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Counsel for appellee waived oral argument.
2
Joynes & Marcari is the successor in interest to Joynes &
Bieber, the law firm that was held in contempt.
was to identify issues, discuss exhibits, approve witnesses and
consider any matters that would facilitate the orderly progress
of the trial. The attorney representing appellant, Manolita
Marmol, signed the order as "SEEN & AGREED." In spite of this,
she did not appear for the pre-trial conference as ordered.
On March 27, 1997 the case was tried before a jury. At that
time, appellant objected to the testimony of an expert witness as
primarily containing hearsay statements. The trial court
sustained the objection, but held that it was more properly the
subject for a motion in limine which should have been settled at
the pre-trial conference. Subsequently, the trial court held
appellant in summary civil contempt and fined it twelve hundred
dollars, an amount equal to the fee paid by appellee to the
expert witness.
"The courts and judges may issue attachments for contempt,
and punish them summarily, only in the following cases:
Misbehavior in the presence of the court, or so near thereto as
to obstruct or interrupt the administration of justice . . . ."
Code § 18.2-456(1). The record indicates that appellant had full
and complete notice of the conference and yet did not appear.
The trial court found that this action greatly inconvenienced the
parties and the court. Under these circumstances, we cannot say
that this finding is plainly wrong or without evidence to support
it. See Code § 8.01-680.
We must, however, correct the amount of the fine. The trial
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court issued the summary contempt order under the auspices of
Rule 4:12, which allows the court to punish a party for failing
to comply with discovery. There is nothing on the record before
us which indicates that appellant failed to comply with any
discovery order issued by the court, only that it failed to
appear for a conference which was to discuss subjects which
impacted the course of trial. Therefore, the court's summary
contempt power flowed not from Rule 4:12, but from Code
§ 18.2-457, which restrains a court from "imposing a fine
exceeding fifty dollars." See Robbins v. Grimes, 211 Va. 97,
100, 175 S.E.2d 246, 248 (1970). "A sentence in excess of one
prescribed by law is not void ab initio because of the excess,
but is good insofar as the power of the court extends, and is
invalid only as to the excess." Deagle v. Commonwealth, 214 Va.
304, 305, 199 S.E.2d 509, 510-11 (1973) (citing Royster v. Smith,
195 Va. 228, 77 S.E.2d 855 (1953)). Consequently, we now modify
the order so as to bring it in line with the statutory limit.
Because the trial court did not err by holding appellant in
contempt, but only had the power to punish monetarily up to fifty
dollars, we now reduce the fine to fifty dollars and affirm.
Affirmed.
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Regina Roberts v. Chad Haiar
Combined Opinion