upholding contempt against an attorney who arrived at trial forty minutes later because he had scheduled “multiple matters in different jurisdictions at the same time”
How later courts described this case
- upholding contempt against an attorney who arrived at trial forty minutes later because he had scheduled “multiple matters in different jurisdictions at the same time”
- where court imposed fine in amount greater than allowed by statute, court reduced fine to statutory limit
- upholding summary contempt where the attorney arrived forty minutes late for trial
- “Where the court’s authority to punish for contempt is exercised by a judgment rendered, its finding is presumed correct and will not be reversed unless plainly wrong or without evidence to support it.”
Written by the judges who cited it.
The opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
CURTIS T. BROWN
OPINION BY
v. Record No. 0815-97-1 JUDGE JOSEPH E. BAKER
MARCH 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Curtis T. Brown, pro se.
Jeffrey S. Shapiro, Assistant Attorney
General (Richard Cullen, Attorney General;
Richard B. Smith, Assistant Attorney General,
on brief), for appellee.
On March 3, 1997, attorney Curtis T. Brown was adjudged by
the Circuit Court of the City of Norfolk (trial court) to be in
contempt of court, in violation of Code § 18.2-456. Brown
contends the evidence is insufficient to support the trial
court's finding of contempt and the punishment imposed. We hold
that the evidence is sufficient to support the conviction but
that the fine imposed is invalid to the extent it exceeds the
statutory limit of $50.
The record indicates that, in a civil action pending in the
trial court in which Brown represented the plaintiff, Brown filed
a praecipe requesting that the case be set for trial by jury. At
the court's October 2, 1996 docket call, with Brown's agreement,
the matter was set to be heard at 9:30 a.m. on March 3, 1997. At
the scheduled time, the judge, a jury, defense counsel, and
witnesses were present and prepared to try the case; however,
when the clerk inquired whether the plaintiff was ready, the
trial court noted: "He answers not." Defense counsel advised
the court that defendant was ready. The trial court announced
that Brown would be given fifteen minutes to appear, after which
contempt proceedings would begin pursuant to Code § 18.2-456.
At 10:08 a.m., thirty-eight minutes later, Brown appeared.
When asked if plaintiff was ready, Brown responded only: "The
plaintiff moves for a nonsuit." The court responded: "All
right. So ordered," and directed Brown to "approach the bar."
When the trial court asked for an explanation, appellant replied:
It was just a mistake, Your Honor. I
wasn't aware of it. I left town last week,
we didn't have our docket book. My secretary
made a mistake. I didn't know about it.
When she called -- I guess the clerk called.
Friday morning I was in South Carolina. I
had an uncle that just passed and I didn't
call back to the office to even find out
about the case. Me and [defendant's counsel]
are good friends. We talk all the time, but
this is one case we didn't talk about.
When the court noted that a praecipe signed by Brown had been
filed, Brown replied:
Yes, sir, I'm aware of that. I'm aware
that the case was set but I didn't -- it was
one of the things that I just didn't write
down in my docket book. I've got four cases
down at [Virginia Beach] and I was down there
this morning, but I called back to the office
and they told me about the case. I wasn't
aware.
Brown then advised the court that he had set four other
cases for the same day in Virginia Beach Juvenile and Domestic
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Relations District Court and had gone there to attend to those
cases, having not put the subject case in his docket book. The
transcript shows no other reason for his failure to appear at the
pre-scheduled time. 1 In making its finding, the trial court
said:
All right. Mr. Brown, I find that you
are in contempt of court, in violation of
Virginia Code [§] 18.2-456, and that your
misbehavior interrupted the administration of
justice this morning. I fine you $400, $10 a
minute for every minute you were late.
You're in contempt of court and ordered to
pay the $400.
In relevant part, Code § 18.2-456 authorizes trial courts to
punish officers of the court for "[m]isbehavior in the presence
of the court, or so near thereto as to obstruct or interrupt the
administration of justice."
"Contempt is defined as an act in
disrespect of the court or its processes, or
which obstructs the administration of
justice, or tends to bring the court into
disrepute." 4A Michie's Jurisprudence
Contempt § 2 (Repl. Vol. 1983). Any act
which is calculated to embarrass, hinder, or
obstruct the court in the administration of
justice is contempt. Potts v. Commonwealth,
184 Va. 855, 859, 36 S.E.2d 529, 530 (1946).
Carter v. Commonwealth, 2 Va. App. 392, 396, 345 S.E.2d 5, 7-8
(1986).
1
In his brief to this Court, appellant represents that he
telephoned the deputy clerk prior to 9:30 a.m., explained his
error and asked her to relay his desire for a nonsuit to the
judge. The record contains no indication that these
representations were communicated to the trial judge either by
the deputy clerk or by appellant when he arrived in court.
Therefore, we may not consider them on appeal.
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Where the court's authority to punish for contempt is
exercised by a judgment rendered, its finding is presumed correct
and will not be reversed unless plainly wrong or without evidence
to support it. See Baugh v. Commonwealth, 14 Va. App. 368, 374,
417 S.E.2d 891, 895 (1992).
We hold that, where an attorney schedules multiple matters
in different jurisdictions at the same time, his assertions of
good faith "[do] not negate the reasonable inference that he
recklessly or wilfully failed [timely] to advise the court of his
conflicting schedule." See Murphy v. Maryland, 416 A.2d 748, 756
n.11 (Md. Ct. Spec. App. 1980). Here, appellant's actions in
scheduling multiple matters for trial in different courts in
different jurisdictions at the same time support the trial
court's finding of "[m]isbehavior in the presence of the court,
or so near thereto as to obstruct or interrupt the administration
of justice."
Although we find sufficient evidence to support the
conviction, we hold that the punishment imposed exceeded the
limits allowed by law. Where punishment is by fine and
determined without a jury, Code § 18.2-457 limits the sum to no
more than $50. Where the sentence imposed is in excess of that
prescribed by law, only the part that is excessive is invalid.
See Royster v. Smith, 195 Va. 228, 235, 77 S.E.2d 855, 860 (1953)
(citing Crutchfield v. Commonwealth, 187 Va. 291, 46 S.E.2d 340
(1948)); see also Deagle v. Commonwealth, 214 Va. 304, 305, 199
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S.E.2d 509, 511 (1973).
For the reasons stated, the judgment of the trial court
finding Brown's conduct to be in violation of Code § 18.2-456 is
affirmed but the fine assessed is reduced to the statutory limit
of $50.
Affirmed as modified.
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