Present: All the Justices
ROBERT C. NUSBAUM
v. Record No. 061277
CANDACE L. BERLIN, ET AL.
OPINION BY JUSTICE CYNTHIA D. KINSER
March 2, 2007
ROBERT C. NUSBAUM
v. Record No. 061784
CANDACE L. BERLIN, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
J. Warren Stephens, Judge Designate
The circuit court entered judgment imposing, as a
monetary sanction against Robert C. Nusbaum, an attorney,
for his misconduct during a jury trial, an award of
attorneys’ fees and costs to the opposing parties. In the
same judgment order, the circuit court found Nusbaum guilty
of criminal contempt of court in violation of Code § 18.2-
456(1) and imposed a fine of $250 pursuant to Code § 18.2-
457. Nusbaum petitioned for an appeal to this Court
pursuant to Code § 8.01-670(A)(3) from the circuit court’s
judgment imposing the monetary sanction. Nusbaum also
appealed the conviction for contempt of court to the Court
of Appeals of Virginia pursuant to Code § 19.2-318. We
awarded Nusbaum an appeal, certified the appeal of his
contempt of court conviction from the Court of Appeals to
this Court pursuant to Code §§ 17.1-409(A) and -409(B)(2),
and paired the two cases. We will reverse the circuit
court’s judgment imposing the monetary sanction because a
trial court’s inherent authority to discipline an attorney
does not include the power to punish the attorney by
assessing a monetary sanction consisting of an award of
attorneys’ fees and costs. We will affirm the circuit
court’s judgment convicting Nusbaum of contempt of court
and imposing a $250 fine.
I. FACTS AND PROCEEDINGS
The incident giving rise to both the assessment of the
monetary sanction and the conviction for contempt of court
occurred on December 12, 2005 during a multi-week civil
jury trial in the Circuit Court of the City of Virginia
Beach. Nusbaum and Linda S. Laibstain represented the two
plaintiffs. Everette G. Allen, Jr., along with another
attorney, represented three of the four defendants.1
During Allen’s cross-examination of one of the
plaintiffs, Laibstain objected several times to alleged
discrepancies in certain documentary evidence. Allen
countered at one point by stating that Laibstain’s
1
Another attorney represented the fourth defendant.
On appeal, only the three defendants represented by Allen
and his co-counsel have entered an appearance. All
references in this opinion to “the defendants” pertain only
to those three defendants unless otherwise indicated.
2
complaints were not true. Laibstain then requested a brief
bench conference. Nusbaum claims that, during this bench
conference, which was not recorded, Allen again accused
Laibstain of being untruthful. When the bench conference
concluded, the circuit court took a recess. After the jury
left the courtroom, the circuit court admonished the
attorneys by stating:
Ladies and gentlemen, the [c]ourt is not going to
tolerate the lack of civility between and among
the lawyers. It’s uncalled for. And with any
objection that is required by any or all lawyers,
the [c]ourt will hear the motion and make the
decision.
. . . .
And any movement towards touching or shoving will
be dealt with properly.
Following additional cross-examination of that
plaintiff and a subsequent luncheon recess, the circuit
court informed counsel and the parties, outside the
presence of the jury, that the bailiff had advised the
court about an incident that had occurred immediately after
the bench conference earlier that morning. The court then
asked the bailiff to state on the record what she had
observed. The court offered to place the bailiff under
oath, but no one responded. The bailiff then gave this
statement in open court:
3
[W]hile all parties were at the side bar . . . ,
I saw Mr. Nusbaum get in Mr. Allen’s face. Mr.
Allen backed up, but he couldn’t go any further
because his back was to my podium, and I saw Mr.
Nusbaum get in his face and shove him with the
elbow. And I grabbed Mr. Nusbaum by his forearm,
and I said, that was inappropriate. You will not
do that again. And [Mr. Nusbaum] stated to me,
“I thought it was appropriate.”
The circuit court inquired whether anyone wanted to
ask the bailiff questions. Allen responded:
Your Honor, I will just say I didn’t take
any offense at that. This is – we have some
heated discussions sometimes and sometimes
lawyers get a little frazzled. And a lawyer
bumps up against me, that doesn’t bother me.
Mr. Nusbaum has always been a gentleman with
me and certainly I overlooked it, didn’t think
any more about it. But she has – the deputy has
recited it the way it happened.
But I wouldn’t – I hope the [c]ourt is not
troubled by it.
The following colloquy then occurred:
THE COURT: The [c]ourt is troubled by it,
Mr. Allen.
MR. ALLEN: Then I’ll sit down.
THE COURT: I appreciate your attitude, but the
[c]ourt is troubled by it, very troubled.
Mr. Nusbaum.
MR. NUSBAUM: When Mr. Allen told the
[c]ourt that Ms. Laibstain was not being
truthful, I objected to that. You speak about a
lack of civility; I can’t recall ever telling a
judge that another lawyer wasn’t being truthful.
I could disagree with what he said, I could have
a different version testify [sic], but I never
4
accused a fellow lawyer before the [c]ourt of
being untruthful, and I resented it very much.
And whatever – take a step forward, I would
probably do it again under the same
circumstances.
I did not mean to threaten Mr. Allen
physically and I’m sure he didn’t feel
threatened, but when somebody says about my
co[-]counsel that they are not telling the truth,
I feel that it’s my duty to step forward and make
it clear that I object to that.
THE COURT: Thank you, Mr. Nusbaum.
The jury is sitting in the box and had an
opportunity to observe all of this. Now, whether
they did or not, the [c]ourt does not propose to
make that inquiry of the jury. That doesn’t have
anything to do with them.
As the bailiff said, the conduct was
inappropriate, and the [c]ourt is going to
declare a mistrial and charge the plaintiffs with
the trial expense for the days that the [c]ourt
has been in session.[2]
. . . .
MS. LAIBSTAIN: Your Honor, the one thing
that we would like to do is object to the
assessing the cost.
. . . .
THE COURT: . . . It’s the most troubling
experience I have ever had. . . . I didn’t see
the occurrence.
I think [the bailiff] – what she said, I
have no reason but to accept [her] version of
what happened. And the [c]ourt cannot let this
thing go without declaring a mistrial and
2
The plaintiffs had unsuccessfully moved for a
mistrial prior to the incident at issue but for other,
unrelated reasons.
5
assessing the plaintiffs with the costs of the
proceedings for the four or five days we’ve been
in trial.
Is there anything further?
. . . .
MS. LAIBSTAIN: Your Honor, I think that we
would like to be heard on that because –
. . . .
MS. LAIBSTAIN: We’d like to object to that.
THE COURT: I think that it should be done
promptly. I’ll give you a day.
Laibstain also advised the circuit court that she
wanted to retain counsel to represent her and Nusbaum.
Nusbaum again objected to the basis of the circuit
court’s decision to declare a mistrial:
MR. NUSBAUM: If Your Honor please, I want
to just say a sentence or two for the record
about the incident that the [c]ourt saw fit to
address his basis for a mistrial.
I’d like the record to show that the
incident occurred at – under the bench in a side
bar conference where the judge was present, along
with all four or five attorneys, and as I
understand, Your Honor, you did not observe
anything personally?
THE COURT: I merely – I saw [the bailiff]
take your arm and [say] something to you that
conduct is inappropriate or something like that.
That’s the first attention I had, that’s the only
thing I saw, and that’s why I asked her to recite
what had happened.
MR. NUSBAUM: Well, as Your Honor knows, we
had already moved for a mistrial not on that
6
basis, of course; it seems to me – and I
respectfully want to put this in the record –
that the [c]ourt has overreacted to [the
bailiff’s] experience or perception of what
happened since it was apparently not significant
enough to even attract her attention when you
were standing right there within two or three
feet of us, and so I do want to say that I don’t
feel like Mr. Allen was personally threatened in
any way, I don’t think he would even tell you
that he felt threatened by the fact that we may
have bumped each other.
I do acknowledge that the [bailiff] did take
me by the arm as we were leaving to return to our
tables and saying what she thought had happened
was inappropriate, and I disagreed with her. But
beyond that, I don’t know that there is any
conduct that would possibly be the basis for a
mistrial. It was in the presence of the jury.
There’s no indication that the jury saw it or was
disturbed by it.
THE COURT: The jury was in the box.
MR. NUSBAUM: I understand. But Your Honor
didn’t see it, it was up there in the cluster of
the people that were standing very close to each
other and there’s no indication that the jury was
aware of anything of the kind.
So my objection is not to the granting of
the mistrial, but the basis for it that the
[c]ourt is saying.
Allen then asked for “‘enhanced sanctions’ meaning
enough reimbursement to truly cover [the defendants] for
the money that they will lose because of this continuance.”
In subsequently filed motions and memoranda, all the
defendants urged the circuit court to use its inherent
authority to impose sufficient sanctions so as to make them
7
whole and prevent the plaintiffs from benefiting from their
counsel’s misconduct. Nusbaum, now represented by counsel,
filed a written objection to the circuit court’s decision
to grant the mistrial and assess costs. Nusbaum argued not
only that the circuit court had no basis for declaring the
mistrial but also that it did not have the authority to
impose costs against an attorney for conduct that did not
violate either Code § 8.01-271.1 or Rule 4:12(b). He noted
that the proposed monetary sanction, if assessed, would
exceed the maximum fine allowable in a summary criminal
contempt proceeding under Code § 18.2-457.
Nusbaum attached an affidavit to his written
objection. In his affidavit, Nusbaum vowed that he never
intended to have physical contact with Allen on the
occasion in question. Nusbaum explained:
[T]he sidebar conference having ended, Mr.
Allen turned around to return to his seat at
defense counsel’s table. As I was standing
behind him, about to speak to him, and he was
moving toward his seat, we bumped, and I believe
he stepped back at the instant of contact,
understandably leaving [the bailiff] with the
impression that he had been shoved or pushed. I
said to him quietly at that point that he ought
not be telling [the] Judge . . . that [Laibstain]
is untruthful. He responded, “Well, she’s not
telling the truth.” Disappointed, I turned
around to walk to my seat, and he proceeded to
his seat.
As I turned to go to my seat, [the bailiff]
walked over and put her hand on my right forearm,
8
as if to get my attention. I stopped, and she
said to me, “What you did was inappropriate.”
Since I had absolutely no sense of any improper
physical contact or what she has described as
pushing or shoving, I could only conclude that
she was referring to the conversation I had just
had with Mr. Allen. I responded that I thought
it was appropriate. To my astonishment, still
not understanding what [the bailiff] was
referring to, she said something to the effect
that, if it happened again, it would be serious.
I was perplexed by her concern, but gave it no
further thought.
In an opposing affidavit, Allen challenged Nusbaum’s
recollection of the incident. Allen asserted that
Nusbaum’s “ ‘physical contact’ or ‘bump’ was neither
inadvertent, nor was it unintended.” Allen stated that,
after the bench conference ended, Nusbaum blocked his path
and moved within inches of his face. Allen claimed that he
stepped back twice until he was positioned against a
podium. Then, according to Allen, Nusbaum shoved his elbow
against Allen’s chest and told Allen that everything
Laibstain said was true.
The circuit court reconvened on January 12, 2006 to
decide whether to assess attorneys’ fees and costs against
Nusbaum. Before hearing argument on that issue, the
circuit court announced that its decision to declare a
mistrial “was compelled by the uncontroverted account of
[the bailiff].” The court stated that, based on that
account, it had “concluded that Mr. Nusbaum deliberately in
9
the presence of the jury physically attacked Mr. Allen.”
The court further stated that it was “astounded and
troubled that Mr. Nusbaum would execute and tender as an
exhibit to his submission his affidavit seeking for the
first time to challenge [the bailiff’s] testimony.” The
circuit court then identified the two issues before it as a
result of Nusbaum’s misconduct: “[I]s the [c]ourt
authorized under existing statutes or decisions to impose
upon Mr. Nusbaum such monetary sanctions as the [c]ourt had
indicated it was considering initially; or . . . is the
[c]ourt limited to the contempt remedies as are provided by
[Code §§] 18.2-456(1) and 18.2-457 and, if so, the forms
thereof.”3
After each side presented argument, the circuit court
determined that it did not have the power to impose
“financial sanctions” under the circumstances of the case.
The circuit court, however, found Nusbaum guilty of
contempt of court under Code § 18.2-456(1) for “shoving
counsel” in the courtroom on December 12, 2005 and
expressed its intention to punish him in accordance with
3
The circuit court also stated that Nusbaum’s
contention that the court had improvidently declared a
mistrial was moot and not an issue at the January 12
hearing. The court noted that it had given counsel on both
sides the opportunity to have the bailiff placed under oath
but no one had requested the court to do so; nor had anyone
offered to testify about the incident in question.
10
Code § 18.2-457. The court then stated, “I don’t know what
you-all’s attitude about that is . . . whether you want to
be heard at a later time or what with respect to that.”
Then, before anyone could respond, the circuit court
disqualified Nusbaum’s law firm from further service to the
plaintiffs in the litigation, pursuant to its “inherent
authority.” The circuit court then asked, “How do you all
want to do the sanctions?”
In response to the circuit court’s questions, counsel
for Nusbaum reminded the court that, without a jury trial,
the maximum punishment for a conviction of contempt of
court is a fine of $250 or up to ten days in jail. His
counsel stated, “Well, if Your Honor does not have a jail
sentence in mind, I don’t think that there would be
anything to be gained to have a separate hearing on a $250
fine, if that’s what you have in mind.” The circuit court
then sentenced Nusbaum by imposing a fine of $250. At that
point, Nusbaum’s counsel noted an “objection to the
determination of the [c]ourt . . . and to all of the
rulings.”
Soon after the January 12 hearing, Nusbaum filed a
motion asking the circuit court to reconsider its decision
to disqualify Laibstain and Nusbaum’s law firm from any
further representation of the plaintiffs. Nusbaum
11
challenged the circuit court’s inherent authority to
disqualify an entire law firm based on the misconduct of
one of its lawyers. In a memorandum filed in support of
the motion, Nusbaum, however, advised that he was not
asking the circuit court to reconsider any other part of
its rulings, including the decision to disqualify Nusbaum.
All the defendants opposed Nusbaum’s motion to reconsider
and, in addition, filed their own motions requesting the
circuit court to reconsider its decision denying an award
of monetary sanctions.
On March 21, 2006, the circuit court heard argument on
the parties’ respective motions. The circuit court decided
to amend its January 12, 2006 ruling and permitted
Laibstain and Nusbaum’s law firm to continue their
representation of the plaintiffs in the litigation. The
circuit court further amended its prior decision by
imposing as a sanction against Nusbaum an award of
reasonable attorneys’ fees and costs to all the defendants
for their time expended in preparing for and appearing at
the January 12 and March 21 hearings.
After the circuit court announced its decision,
counsel for Nusbaum stated that he wanted to note specific
objections to the contempt of court finding since he had
voiced only a general objection to the court’s rulings at
12
the January 12 hearing. Nusbaum’s counsel asked the
circuit court to recite in its order Nusbaum’s objection to
the summary determination of contempt of court on the
grounds that, “where the misconduct is not seen by the
judge[,] the defendant has a right to be accorded a trial
on that particular issue, and the lack of a trial is a
denial of due process.” Nusbaum’s counsel, however,
stated, “I am not asking [the court] at this time to change
[its] ruling. I am simply going to make sure . . . that I
have preserved any right of appeal with respect to the
contempt finding.” Allen opposed the attempt to interpose
objections at that time and argued that the objections were
not timely raised at the January 12 hearing and therefore
could not be preserved by stating them at this later
hearing.
During the final hearing, on March 27, 2006, the
circuit court considered the form of its final order and
the amount of monetary sanctions to be imposed against
Nusbaum. A discussion again arose concerning the
objections to the contempt of court finding that Nusbaum
wanted to recite in the final order. His counsel again
stated that he was not requesting the circuit court to
reconsider its ruling but that, instead, he merely wanted
13
the court’s order to include the “particulars” of his
objection with respect to the contempt of court conviction.
At the conclusion of this hearing, the circuit court
entered its final order, imposing as a sanction against
Nusbaum an award of attorneys’ fees and costs to all the
defendants in the total amount of $52,738.88. The order
also set forth the circuit court’s judgment convicting
Nusbaum of contempt of court in violation of Code § 18.2-
456(1) and sentencing Nusbaum with a fine in the amount of
$250. The parties noted their respective objections to the
final order.4 These appeals ensued.
II. ANALYSIS
In his two appeals, Nusbaum raises distinct
assignments of error challenging the imposition of the
4
Nusbaum, both individually and by counsel, noted the
following objections on the final order: (1) the conviction
for criminal contempt of court violated Nusbaum’s due
process rights because it was a summary proceeding with no
notice, rule to show cause, or attachment; the alleged
contempt was indirect and not personally witnessed by the
trial judge; and the contempt charge was not brought by the
Commonwealth; (2) the evidence was insufficient to
establish beyond a reasonable doubt that Nusbaum intended
to engage in any misconduct; (3) the contempt charge should
have been dismissed because the conduct could be construed
in two ways and Nusbaum submitted an affidavit showing he
did not intend to engage in any misconduct; and (4) the
circuit court exceeded its inherent power in the
circumstances of this case by imposing a monetary sanction,
and the amount of the sanction was excessive.
14
monetary sanction and the conviction for contempt of court.
We will address them separately and in that order.
A. Monetary Sanction
In this appeal, Nusbaum challenges the circuit court’s
judgment awarding attorneys’ fees and costs to all the
defendants as a sanction for Nusbaum’s misconduct. The
dispositive issue is whether the circuit court erred by
using its “inherent power” to impose the monetary sanction
against Nusbaum.
In that regard, Nusbaum argues that, absent a
contractual or statutory provision permitting an award of
attorneys’ fees, a trial court does not have the authority
either to make such an award or to impose it as a sanction.
According to Nusbaum, the purpose of a trial court’s
inherent power to discipline an attorney is to protect the
public, not to punish the attorney or to compensate the
parties; thus, a trial court cannot use such power to
impose an award of attorneys’ fees as a disciplinary
measure.
In response, the defendants acknowledge that this
Court has never decided whether a trial court’s inherent
power to discipline an attorney includes the power to
impose a monetary sanction. Nevertheless, the defendants
argue that such a sanction is reasonable and should be
15
available to trial courts since it would be a less severe
sanction than the suspension of an attorney’s license to
practice in a particular court, which is indisputably
within a court’s authority. See Norfolk & Portsmouth Bar
Ass’n v. Drewry, 161 Va. 833, 838, 172 S.E. 282, 284
(1934).
Nearly two centuries ago, in Anderson v. Dunn, 19 U.S.
204 (1821), the Supreme Court of the United States stated,
“Courts of justice are universally acknowledged to be
vested, by their very creation, with power to impose
silence, respect, and decorum, in their presence, and
submission to their lawful mandates.” Id. at 228. These
“inherent powers” are “governed not by rule or statute but
by the control necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious
disposition of cases.” Link v. Wabash R. Co., 370 U.S.
626, 630–31 (1962).
Similarly, this Court has recognized that the courts
of this Commonwealth have the inherent power to supervise
the conduct of attorneys practicing before them and to
discipline any attorney who engages in misconduct.
Judicial Inquiry and Review Commission of Virginia v.
Peatross, 269 Va. 428, 447, 611 S.E.2d 392, 402 (2005);
Richmond Ass’n of Credit Men, Inc. v. The Bar Ass’n of
16
Richmond, 167 Va. 327, 335, 189 S.E. 153, 157 (1937);
Norfolk & Portsmouth Bar Ass’n, 161 Va. at 836, 172 S.E. at
283; Legal Club of Lynchburg v. Light, 137 Va. 249, 250,
119 S.E. 55, 55 (1923). A court’s inherent power to
discipline an attorney practicing before it includes the
power not only “to remove an attorney of record in a case,”
Peatross, 269 Va. at 447, 611 S.E.2d at 402, but also “in a
proper case to suspend or annul the license of an attorney
practicing in the particular court.” Legal Club of
Lynchburg, 137 Va. at 250, 119 S.E. at 55; accord Norfolk
and Portsmouth Bar Ass’n, 161 Va. at 836, 172 S.E. at 284.
The question before us is whether a court’s inherent power
to discipline an attorney also includes the authority to
impose a monetary sanction comprised of an award of
attorneys’ fees and costs to the opposing parties.5
As the defendants noted, we have not previously
addressed this precise question. We did, however, in
Lannon v. Lee Conner Realty Corporation, 238 Va. 590, 385
S.E.2d 380 (1989), address a trial court’s inherent power
to discipline a litigant by assessing attorney’s fees
against her. There, the trial court ordered a litigant to
pay $1,500 in attorney’s fees to opposing counsel because
5
The issue whether a trial court can impose a monetary
sanction when using its contempt power is not before us.
17
of the litigant’s “ ‘wanton and oppressive conduct’ in
requiring [opposing counsel] to attend ‘a number of
hearings for the sole purpose of replacing counsel at
different stages of the case.’ ” Id. at 593, 385 S.E.2d at
382. Recognizing the absence of statutory authority for
such an award, the trial court relied on its inherent power
to require the losing party to pay attorney’s fees when
that party had “ ‘acted in bad faith, vexatiously, wantonly
or for oppressive reasons.’ ” Id. at 594, 385 S.E.2d at
383 (quoting In re Randolph, 28 B.R. 811, 813 (Bankr. E.D.
Va. 1983)).6 We rejected the trial court’s ruling that it
had inherent power to award attorney’s fees as a means of
disciplining the offending litigant because, we concluded,
the award was at odds with the “American rule” and our
strong adherence to it. Id. at 594, 385 S.E.2d at 383.
Under that rule, “ordinarily, attorneys’ fees are not
recoverable by a prevailing litigant in the absence of a
specific contractual or statutory provision to the
contrary.” Id. (citing Gilmore v. Basic Industries, 233
Va. 485, 490, 357 S.E.2d 514, 517 (1987)).
Although Lannon dealt with misconduct by a litigant as
opposed to misconduct by an attorney, our decision there
6
The trial court’s assessment of attorney’s fees in
Lannon occurred before the effective date of Code § 8.01-
271.1.
18
stands for the proposition that a court’s inherent power to
take disciplinary actions in response to misconduct is
constrained by established legal principles. In the
present case, the monetary sanction assessed against
Nusbaum is not in accord with the purpose of a trial
court’s inherent power to discipline an attorney, which is
“not to punish [the attorney], but to protect the public.”
Drewry, 161 Va. at 837, 172 S.E.2d at 284; accord Ex parte
Wall, 107 U.S. 265, 288 (1883) (“The proceeding is not for
the purpose of punishment, but for the purpose of
preserving the courts of justice from the official
ministration of persons unfit to practise in them.”);
Statewide Grievance Committee v. Fountain, 743 A.2d 647,
650 (Conn. App. 2000) (“A court disciplining an attorney
does so not to punish the attorney, but rather to safeguard
the administration of justice and to protect the public
from the misconduct or unfitness of those who are members
of the legal profession.”) The monetary sanction at issue
served only to punish Nusbaum for his misconduct. This is
so even though the circuit court awarded attorneys’ fees
only for the time expended by all the defendants with
regard to the January 12 and March 21 hearings, both of
which were necessitated by Nusbaum’s misconduct.
19
In the absence of authority granted by a statute, such
as Code § 8.01-271.1, or a rule of court, such as Rule
4:12, we conclude that a trial court’s inherent power to
supervise the conduct of attorneys practicing before it and
to discipline an attorney who engages in misconduct does
not include the power to impose as a sanction an award of
attorneys’ fees and costs to the opposing parties. We
agree with the observations of the court in Bauguess v.
Paine, 586 P.2d 942 (Cal. 1978): “It would be both
unnecessary and unwise to permit trial courts to use fee
awards as sanctions apart from those situations authorized
by statute. If an attorney’s conduct is disruptive of
court processes or disrespectful of the court itself, there
is ample power to punish the misconduct as contempt.”7 Id.
at 948–49; but see Chambers v. NASCO, Inc., 501 U.S. 32, 45
(1991) (Since a court has the inherent authority to dismiss
a litigant’s lawsuit with prejudice, the “‘less severe
sanction’ of an assessment of attorney’s fees is
undoubtedly within a court’s inherent power as well.”);
Couch v. Private Diagnostic Clinic, 554 S.E.2d 356, 362
(N.C. Ct. App. 2001) (holding that trial courts have
7
After the court’s decision in Bauguess, the
California legislature statutorily broadened a trial
court’s authority to impose monetary sanctions, including
attorney fees. See Olmstead v. Arthur J. Gallagher & Co.,
86 P.3d 354, 356-57 (Cal. 2004).
20
inherent authority to impose an award of attorney’s fees as
a sanction); Van Eps v. Johnston, 553 A.2d 1089, 1091 (Vt.
1988) (“[T]rial courts have the inherent power to assess
expenses against an attorney in the form of consequential
damages suffered by the opposing side, such as attorney’s
fees . . . incurred due to the attorney’s abuse of the
judicial process.”) Thus, we hold that the circuit court
erred, as a matter of law, by concluding that it had the
inherent power to impose the monetary sanction against
Nusbaum as a means of disciplining him for his misconduct.8
B. Criminal Contempt of Court
The circuit court convicted Nusbaum of contempt of
court in violation of Code § 18.2-456(1). That provision
permits a court or judge to issue “attachments for
contempt, and punish them summarily” in cases involving
“[m]isbehavior in the presence of the court, or so near
8
We do not apply the abuse-of-discretion standard in
reviewing the circuit court’s decision here because the
circuit court did not have the inherent power to impose the
monetary sanction. That standard of appellate review is
applicable when a court has the authority to impose a
particular sanction and we are reviewing either the trial
court’s decision to sanction or its choice of the sanction
to impose. See Switzer v. Switzer, 273 Va. ___, ___, ___
S.E.2d ___, ___ (this day decided).
In light of our decision, it is not necessary to
address Nusbaum’s other two assignments of error in his
appeal from the circuit court’s judgment imposing the
monetary sanction.
21
thereto as to obstruct or interrupt the administration of
justice.”9 Nusbaum challenges his conviction on three
grounds: (1) that the circuit court violated his “due
process rights by summarily convicting him of indirect
criminal contempt in a civil proceeding with no notice of
the charge, no plenary criminal hearing and without
substituting the Commonwealth as the prosecuting party;”
(2) that the evidence was insufficient to support the
conviction for contempt of court; and (3) that the circuit
court erred by rejecting Nusbaum’s affidavit and failing to
dismiss the contempt charge based on his affidavit.
With regard to the first issue, the Commonwealth
contends that Nusbaum did not properly preserve his due
process objections. The Commonwealth asserts that
Nusbaum’s general objection to the circuit court’s
determination and all its rulings, which his counsel noted
after the court announced its finding of contempt at the
January 12 hearing, was not sufficiently specific to
preserve the due process issues now raised on appeal.
Continuing, the Commonwealth also points out that, when
Nusbaum’s counsel later stated more specific objections
9
Pursuant to Code § 18.2-457, “[n]o court shall,
without a jury, for any such contempt as is mentioned in
the first class embraced in § 18.2-456, impose a fine
exceeding $250 or imprison more than ten days.”
22
asserting a violation of his due process rights, he
affirmatively stated he was not asking the circuit court to
reconsider any matter. Thus, according to the
Commonwealth, Nusbaum’s failure to ask the circuit court to
rule on his due process objections waived appellate review
of them under Rule 5:25.
Nusbaum counters that he initially objected to all the
circuit court’s rulings and later made the circuit court
aware of the substance of his due process objections by
stating them at the March 21 hearing and noting them on the
final order. Thus, according to Nusbaum, he did all that
was required under the provisions of Code § 8.01-384(A) to
preserve his objections for appeal. Nusbaum further
contends that, having made the circuit court aware of his
objections, he had no obligation to ask the court to
reconsider any matter since the court had the opportunity,
within 21 days of entering the final order, to vacate that
order and change its rulings.
Under Rule 5:25, we will not sustain error to a ruling
of a trial court “unless the objection was stated with
reasonable certainty at the time of the ruling.”
The main purpose of requiring timely
specific objections is to afford the trial court
an opportunity to rule intelligently on the
issues presented, thus avoiding unnecessary
appeals and reversals. In addition, a specific,
23
contemporaneous objection gives the opposing
party the opportunity to meet the objection at
that stage of the proceeding.
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167
(1991) (internal citation omitted). Furthermore, “[a]
trial court [must have] an opportunity to rule
intelligently on a party’s objections,” thereby “avoiding
unnecessary mistrials or reversals”. Johnson v. Raviotta,
264 Va. 27, 33, 563 S.E.2d 727, 731 (2002); accord Riner v.
Commonwealth, 268 Va. 296, 325, 601 S.E.2d 555, 571 (2004).
When a trial court is not afforded that opportunity, “the
issue is waived on appeal.” Riner, 268 Va. at 325, 601
S.E.2d at 571.
In this case, the circuit court did not have the
opportunity to rule on Nusbaum’s due process objections for
two reasons: (1) at the January 12 hearing, the circuit
court never made the rulings to which Nusbaum later
objected; and (2) thereafter, Nusbaum never asked the
circuit court to rule on his due process objections or
reconsider any matter relating to the finding of contempt
of court. At the January 12 hearing after the circuit
court convicted Nusbaum of contempt of court, his counsel
stated: “[N]ote our objection to the determination of the
[c]ourt . . . and to all of the rulings.” Other than the
circuit court’s ruling disqualifying Nusbaum, Laibstain,
24
and Nusbaum’s entire law firm from continued representation
of the plaintiffs, the only other rulings by the circuit
court at that point were its finding that Nusbaum was
guilty of contempt of court in violation of Code § 18.2-
456(1) and its decision to impose a fine of $250.
Undoubtedly, everyone at the January 12 hearing was
surprised when the circuit court, without prior notice to
anyone, raised the issue of criminal contempt of court.
However, at no point thereafter, either during the argument
at that hearing or after the circuit court found Nusbaum
guilty of contempt of court, did Nusbaum object to the
court’s proceeding summarily on what he now claims was a
charge of indirect criminal contempt, without notice,
without a plenary criminal hearing, and without
substituting the Commonwealth as the prosecuting party.
Nor did Nusbaum object to the fact the bailiff’s statement
was not offered under oath. Instead of objecting to the
manner in which the circuit court had proceeded, Nusbaum’s
counsel stated that a separate hearing on the issue of a
sanction would not be necessary if the court did not have a
jail sentence in mind. Consequently, the circuit court
made no ruling at the January 12 hearing on any of the due
process issues now raised on appeal. They simply were not
in front of the court at that time. Thus, the general
25
objection by Nusbaum’s counsel to the circuit court’s
rulings did not pertain to those issues.
Following the January 12 hearing, Nusbaum filed a
motion asking the circuit court to reconsider its decision
to disqualify Laibstain and the entire law firm from
further representation of the plaintiffs. Nothing in that
motion challenged Nusbaum’s conviction for contempt of
court or asserted a lack of due process afforded to him by
the circuit court in making that finding. Moreover,
Nusbaum affirmatively stated in a memorandum in support of
the motion that he was not asking the circuit court to
reconsider any other aspect of its rulings, including its
decision to disqualify Nusbaum, individually, from further
representation of the plaintiffs.
Not until the March 21 hearing did Nusbaum state
specific objections to the manner in which the circuit
court had proceeded in finding Nusbaum guilty of contempt
of court. Nusbaum’s objection at that time was that,
because the circuit court had not directly observed the
misconduct, Nusbaum was entitled to a trial, the denial of
which violated his due process rights. However, instead of
asking the circuit court to reconsider and set aside the
finding of contempt of court for those reasons, Nusbaum’s
counsel stated, “I am not asking [the court] at this time
26
to change [its] ruling. I am simply going to make sure
. . . that I have preserved any right of appeal with
respect to the contempt finding.”
Nusbaum took the same position at the March 27
hearing. When a discussion arose about the objections
Nusbaum’s counsel wanted to recite in the circuit court’s
final order convicting Nusbaum of contempt of court,
Nusbaum’s counsel again stated that he was not requesting
the court to reconsider its ruling. Instead, Nusbaum’s
counsel indicated he just wanted the order to reflect the
“particulars” of his objections to the contempt of court
conviction. Both Nusbaum and his counsel noted the
“particulars” of the due process objections on the final
order, but again, there was no ruling by the circuit court
on those objections nor a request that it make one. In
sum, this record contains no rulings by the circuit court
on the due process issues raised on appeal nor any request
by Nusbaum for the circuit court to rule on those issues.
We addressed an analogous situation in Riner, where we
held the defendant did not afford the trial court an
opportunity to rule intelligently on an issue subsequently
raised on appeal. At trial, the defendant objected to a
witness’s testimony on the grounds that it contained
“double hearsay.” 268 Va. at 323, 601 S.E.2d at 570. The
27
specific objection dealt with the second level of hearsay,
but the trial court decided that the first level of hearsay
was admissible and did not determine whether the second
level of hearsay contained in the challenged testimony fell
within a recognized exception to the hearsay rule. Id. at
324, 601 S.E.2d at 571.
On appeal, the defendant asserted that the trial court
erred in admitting the testimony because it contained
double hearsay. Id. We agreed that the testimony
contained double hearsay but concluded that the defendant
waived the issue because he failed to remind the trial
court, when it ruled that the testimony was admissible,
that it had addressed only the first level of hearsay and
had not determined whether the second level of hearsay was
also admissible under a recognized exception to the hearsay
rule. We held that, “by failing to bring to the trial
court’s attention the fact that it had ruled only on the
admissibility of the primary hearsay in the statement, [the
defendant] did not afford the trial court the opportunity
to rule intelligently on the issue.” Id. at 325, 601
S.E.2d at 571. Thus, the defendant waived the issue on
appeal. Id.; see also Green v. Commonwealth, 266 Va. 81,
94–95, 580 S.E.2d 834, 842 (2003) (change of venue issue
waived because a defendant did not renew the motion to
28
change venue before the jury was empanelled and sworn, or
remind the trial court that the motion was still pending);
Lenz v. Commonwealth, 261 Va. 451, 463, 544 S.E.2d 299, 306
(2001) (defendant’s failure to request a ruling on a
pretrial motion waived the issue on appeal); cf. Horner v.
Dep’t of Mental Health, 268 Va. 187, 194, 597 S.E.2d 202,
206 (2004) (failure to assign cross-error to an issue the
Court of Appeals did not address waived further appellate
review of the matter).
Here, Nusbaum’s counsel did not just fail to remind
the circuit court that it had not yet ruled on his due
process objections; he actually stated, on more than one
occasion, that he was not asking the court to reconsider
any ruling. We can only infer from those statements that
Nusbaum realized that his objection to the circuit court’s
rulings at the January 12 hearing was not stated “with
reasonable certainty.” Rule 5:25. Indeed, he admitted as
much at the March 21 hearing when he told the circuit court
he wanted to note specific objections to the contempt of
court finding because he had stated only a general
objection at the January 12 hearing. Similarly, he
acknowledges on brief that he did not make the circuit
court aware of the substance of his due process objections
29
until he stated them at the March 21 hearing and noted them
on the final order.
Despite that apparent realization, Nusbaum still did
not ask the circuit court to rule on his due process
objections. In other words, Nusbaum never allowed the
circuit court to rectify the effect of what he now asserts
as error. See Johnson, 264 Va. at 33, 563 S.E.2d at 731
(“an objection must be made . . . at a point in the
proceeding when the trial court is in a position, not only
to consider the asserted error, but also to rectify the
effect of the asserted error”). Thus, we conclude that
Nusbaum did not afford the circuit court an opportunity to
rule intelligently on the due process issues that he now
raises. See Riner, 268 Va. at 325, 601 S.E.2d at 571.
Those issues, whether the circuit court violated his due
process rights by summarily convicting him of indirect
criminal contempt, with no notice of the charge, no plenary
criminal hearing, and no substitution of the Commonwealth
as the prosecuting party, are therefore waived on appeal.
See Rule 5:25; Riner, 268 Va. at 325, 601 S.E.2d at 571.
Furthermore, this is not a situation where the circuit
court prevented Nusbaum from voicing his objections, asking
the court to rule on them, or requesting the court to
reconsider a ruling. See Code § 8.01-384 (“if a party has
30
no opportunity to object to a ruling or order at the time
it is made, the absence of an objection shall not
thereafter prejudice him . . . on appeal”). At the March
21 hearing, the circuit court allowed Nusbaum to state on
the record his objections to the contempt of court finding.
At one point, the circuit court even stated that it wanted
Nusbaum to do whatever he thought was necessary in order to
preserve his appellate rights.
Of particular significance is the fact Nusbaum, after
the January 12 hearing, filed a motion to reconsider but
addressed only the circuit court’s decision to disqualify
Laibstain and Nusbaum’s entire law firm from further
representation of the plaintiffs. The circuit court ruled
on that motion, as well as the defendants’ motions asking
the court to reconsider its decision denying an award of
monetary sanctions. Yet, during all this time, Nusbaum
never asked the circuit court to reconsider its contempt of
court finding or to rule on the objections he raised at the
March 21 hearing. While Nusbaum was perhaps surprised when
the circuit court found him guilty of contempt of court, he
subsequently stated his due process objections and had
ample opportunities to ask the circuit court to rule on
them. Compare Jones v. Commonwealth, 194 Va. 273, 280, 72
S.E.2d 693, 697 (1952) (when defense counsel was taken by
31
surprise and failed to object to the trial court’s
erroneous reply to a juror, the issue was not waived on
appeal) with Weidman, 241 Va. at 44, 400 S.E.2d at 167
(counsel afforded trial court opportunity to rule
intelligently by making position known at a hearing and by
filing a motion for rehearing during the 21 days during
which the trial court retained jurisdiction over the final
order).
We turn now to the question whether there was
sufficient evidence to support the circuit court’s finding
of contempt of court. When the sufficiency of the evidence
is challenged on appeal, this Court is required to view the
evidence in the light most favorable to the prevailing
party at trial and to accord to that party the benefit of
all reasonable inferences fairly deducible from the
evidence. Viney v. Commonwealth, 269 Va. 296, 299, 609
S.E.2d 26, 28 (2005). “[A] trial court’s judgment will not
be disturbed on appeal unless it is plainly wrong or
without evidence to support it.” Walton v. Commonwealth,
255 Va. 422, 426, 497 S.E.2d 869, 871 (1998) (citing Dukes
v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383
(1984)).
Nusbaum’s argument on this issue is two-pronged. He
first asserts that the circuit court improperly relied on
32
the unsworn statement of the bailiff to find Nusbaum guilty
of contempt of court. Though recognizing that the failure
to administer the oath to a witness can be waived, Nusbaum
claims that a waiver cannot occur when a defendant is not
informed that certain testimony will be used in a criminal
proceeding. He further argues that, when the circuit court
heard the bailiff’s statement, it was not in the context of
a criminal proceeding, and thus, it is doubtful whether the
court weighed the statement in light of the proper standard
of proof beyond a reasonable doubt. Second, Nusbaum claims
that, even if the circuit court could rely on the bailiff’s
unsworn statement, there was not sufficient evidence that
he intentionally made physical contact with Allen.
With regard to Nusbaum’s assertion that the circuit
court improperly relied on the bailiff’s unsworn statement,
that issue, like his due process objections discussed
earlier, is waived. In this instance, however, the waiver
occurred because Nusbaum never raised the objection before
the circuit court. As already discussed, the circuit court
offered to place the bailiff under oath, but none of the
parties requested that she be sworn. At no time thereafter
did Nusbaum question whether the circuit court could rely
on the bailiff’s unsworn statement. We will not consider
an issue raised for the first time on appeal. See Rule
33
5:25; Martin v. Ziherl, 269 Va. 35, 39, 607 S.E.2d 367, 368
(2005).
Thus, in determining whether the evidence was
sufficient to support the conviction for contempt of court,
we consider the bailiff’s statement along with the other
evidence, i.e., Nusbaum’s and Allen’s statements to the
circuit court on the day the incident occurred and their
respective affidavits. The bailiff stated that she saw
Nusbaum use his elbow to shove Allen. In his affidavit,
Nusbaum explained the incident as an inadvertent “bump”
that “understandably [left the bailiff] with the impression
that [Allen] had been shoved or pushed.” Allen stated that
the bailiff’s “recitation of the events that took place
[was] consistent with [Allen’s] own recollection.” Allen
further stated that “Nusbaum’s . . . ‘bump’ was neither
inadvertent, nor was it unintended.” Allen explained that,
when he “turned to resume questioning the witness[,]
Nusbaum blocked [Allen’s] path,” forcing Allen to “step[]
back twice.” Following the last step, according to Allen,
“Nusbaum shoved his elbow against [Allen’s] chest, forcing
[Allen] against the podium.”
As reflected by the evidence, the circuit court heard
conflicting versions of the incident. It was within the
province of the court, as the fact-finder, to determine the
34
credibility of the witnesses. See Mercer v. Commonwealth,
259 Va. 235, 242, 523 S.E.2d 213, 217 (2000). “The factual
determinations of the [circuit] court, like those of a
jury, are binding on this Court, and we will reverse such
findings ‘only if they are plainly wrong or without
evidence to support them.’ ” Id. at 243, 523 S.E.2d at 217
(quoting Richardson v. Richardson, 242 Va. 242, 246, 409
S.E.2d 148, 151 (1991)); Code § 8.01-680. As an appellate
court, we are not permitted to reweigh the evidence.
School Board of Campbell County v. Beasley, 238 Va. 44, 51,
380 S.E.2d 884, 888 (1989). Based on the record before us,
we cannot say that the circuit court’s judgment finding
Nusbaum guilty of contempt of court was plainly wrong or
without evidence to support it. The evidence established
that Nusbaum engaged in “[m]isbehavior in the presence of
the court, or so near thereto as to obstruct or interrupt
the administration of justice.” Code § 18.2-456(1).
Finally, Nusbaum argues that the circuit court erred
by not considering his affidavit. We find nothing in the
record to demonstrate that the underlying factual assertion
is correct. At the beginning of the January 12 hearing,
the circuit court stated that it was “astounded and
troubled that Mr. Nusbaum would execute and tender as an
exhibit to his submission his affidavit seeking for the
35
first time to challenge [the bailiff’s] testimony.” As
this statement reveals, the circuit court did not fail or
refuse to consider Nusbaum’s affidavit; the court merely
found Nusbaum’s account of the incident not believable.
CONCLUSION
For the reasons stated, we will reverse the circuit
court’s judgment imposing the monetary sanction against
Nusbaum and vacate that sanction. We will affirm the
circuit court’s judgment convicting Nusbaum of contempt of
court and imposing a fine of $250.
Record No. 061277 – Reversed and final judgment.
Record No. 061784 – Affirmed.
36