In the case of Robert C. Nusbaum v. Candace L. Berlin, the Circuit Court of Virginia Beach imposed a monetary sanction against attorney Robert C. Nusbaum for misconduct during a jury trial, awarding attorneys' fees and costs to the opposing parties. Additionally, Nusbaum was found guilty of criminal contempt of court, resulting in a $250 fine. Nusbaum appealed the monetary sanctions and the contempt conviction. The higher court reversed the monetary sanction, stating that a trial court’s inherent authority does not extend to imposing monetary sanctions such as attorneys’ fees. However, the conviction for contempt and the fine were affirmed. The underlying incident involved a confrontation between Nusbaum and opposing counsel, Everette G. Allen, which included allegations of unprofessional behavior during a bench conference and physical aggression, as witnessed by a bailiff. The court emphasized the need for civility among attorneys in its admonition.
The circuit court addressed concerns about the conduct of attorneys during a sidebar conference, specifically involving Mr. Allen and Mr. Nusbaum. Mr. Allen expressed that he did not take offense at a prior incident, highlighting the heated nature of discussions among lawyers, and noted his respect for Mr. Nusbaum. However, the court indicated it was troubled by the situation. Mr. Nusbaum objected to Mr. Allen's assertion that Ms. Laibstain was not truthful, stating he had never accused another lawyer of dishonesty in court and felt it was his duty to express his objection.
The court determined that the conduct was inappropriate and declared a mistrial, assigning trial costs to the plaintiffs for the days the trial had been in session. Ms. Laibstain objected to the assessment of costs and requested to be heard on the matter. She also indicated a desire to retain counsel for her and Mr. Nusbaum. Mr. Nusbaum reiterated his objections regarding the basis for the mistrial, noting that the incident occurred in the presence of the judge and attorneys, and emphasized that the court had not personally witnessed the incident in its entirety. The judge acknowledged only observing the bailiff intervening but maintained that the situation warranted a mistrial.
Mr. Nusbaum asserted that Mr. Allen did not feel personally threatened during an incident where they bumped into each other. Nusbaum acknowledged that a bailiff admonished him for inappropriate conduct, which he disputed, claiming there was no basis for a mistrial. He noted that the jury was present but likely unaware of the incident, and he objected to the mistrial's basis rather than its granting. Allen requested enhanced sanctions to cover the defendants' losses due to the trial's continuance, while all defendants urged the circuit court to impose sufficient sanctions against the plaintiffs for their counsel's alleged misconduct.
Nusbaum filed a written objection to the mistrial and associated costs, arguing that the circuit court lacked justification for declaring the mistrial and imposing costs for conduct that did not violate legal codes. He also pointed out that the proposed sanctions would exceed the maximum fine allowable under contempt laws. In his affidavit, Nusbaum clarified that any contact with Allen was unintentional, describing the incident as a minor bump that left Allen with the impression of being pushed. He believed the bailiff's concerns stemmed from his comments to Allen, which he deemed appropriate.
Conversely, Allen submitted an opposing affidavit disputing Nusbaum's account, claiming the contact was intentional and asserting that Nusbaum had blocked his path and physically confronted him. Following these developments, the circuit court reconvened on January 12, 2006, to consider attorney fees and costs against Nusbaum, announcing that the decision to declare a mistrial was based on the bailiff's account.
The court found that Mr. Nusbaum intentionally attacked Mr. Allen in front of the jury and expressed concern over Nusbaum's affidavit that challenged the bailiff's testimony. The circuit court identified two key issues regarding Nusbaum’s misconduct: whether it could impose monetary sanctions or was limited to contempt remedies under the Virginia Code (specifically, Codes 18.2-456(1) and 18.2-457). After arguments from both sides, the court concluded it lacked authority to impose financial sanctions but found Nusbaum guilty of contempt for shoving opposing counsel. It announced intent to punish under Code 18.2-457 and then disqualified Nusbaum’s law firm from representing the plaintiffs.
Nusbaum's counsel reminded the court that without a jury trial, the maximum punishment was a $250 fine or ten days in jail. The court ultimately imposed a $250 fine. Nusbaum's counsel registered an objection to the court's ruling. Subsequently, Nusbaum filed a motion to reconsider the disqualification of his law firm, disputing the court's authority to disqualify the firm based on one lawyer's misconduct. Defendants opposed this motion and sought reconsideration of the denial of monetary sanctions.
On March 21, 2006, the court amended its earlier ruling, allowing Nusbaum's law firm to continue representing the plaintiffs and ordering Nusbaum to pay reasonable attorneys’ fees and costs to the defendants for the hearings. Nusbaum's counsel noted specific objections to the contempt finding, asserting a right to a trial on the issue of misconduct not witnessed by the judge, claiming that the lack of trial constituted a denial of due process.
Nusbaum's counsel aimed to preserve the right to appeal the contempt ruling without requesting a change in the court's decision. Allen opposed this, contending that the objections were untimely and could not be preserved at a later hearing. During the March 27, 2006, hearing, the circuit court finalized its order regarding monetary sanctions against Nusbaum, including attorneys' fees totaling $52,738.88 and a contempt conviction under Code 18.2-456(1) with a $250 fine. Both parties registered their objections to the final order, leading to subsequent appeals.
In his appeals, Nusbaum challenges the monetary sanction and the contempt conviction separately. He argues that a trial court lacks the authority to impose attorneys' fees as a sanction without a contractual or statutory basis, asserting that the inherent power to discipline attorneys serves to protect the public rather than to punish or compensate parties. Defendants counter that while the court's inherent power to impose monetary sanctions hasn't been previously addressed, it is reasonable and less severe than license suspension, which is clearly within a court's authority. The excerpt references historical case law affirming that courts possess inherent powers to maintain order and discipline attorneys.
A court has inherent authority to discipline attorneys, which includes the ability to remove an attorney from a case or suspend their license. However, the specific question addressed is whether this power extends to imposing monetary sanctions, such as awarding attorneys' fees and costs to opposing parties. Previous rulings, including Lannon v. Lee Conner Realty Corporation, established that courts may discipline litigants by assessing attorney’s fees for bad faith actions but emphasized adherence to the American rule, which typically prohibits recovery of attorney’s fees without statutory or contractual basis.
The decision in Lannon highlighted that a court's inherent power to impose discipline is limited by established legal principles and is not intended for punishment but to protect public interests and the integrity of the legal profession. The monetary sanction against attorney Nusbaum was deemed punitive rather than disciplinary, as it was solely aimed at punishing his misconduct related to specific hearings. Without statutory authority or relevant court rules, a trial court cannot impose attorneys' fees and costs as a disciplinary measure. The court expressed that it would be imprudent to allow such fee awards as sanctions outside of authorized situations, affirming that misconduct may be addressed through contempt proceedings if necessary.
A court possesses inherent authority to dismiss a lawsuit with prejudice and to impose attorney’s fees as a sanction, as established in Couch v. Private Diagnostic Clinic. The circuit court incorrectly asserted its power to impose a monetary sanction against Nusbaum for misconduct. Nusbaum was convicted of contempt of court under Code 18.2-456(1), which allows for summary punishment of misbehavior obstructing justice. He challenges this conviction on three grounds: (1) violation of due process rights due to lack of notice and a hearing, (2) insufficient evidence for the contempt conviction, and (3) error in rejecting his affidavit and dismissing the contempt charge. The Commonwealth argues that Nusbaum did not preserve his due process objections, claiming his initial general objections were inadequate. Nusbaum contends he properly preserved his objections through specific statements made later. Under Rule 5:25, errors are not sustained unless objections are stated with reasonable certainty at the time of ruling, allowing the trial court to address issues intelligently and reducing unnecessary appeals. If a trial court is not given the opportunity to rule on objections, the issue is waived on appeal.
The circuit court did not address Nusbaum's due process objections due to two main reasons: first, during the January 12 hearing, the court did not make the rulings Nusbaum later objected to; second, Nusbaum failed to request the court to rule on his due process objections or reconsider any aspect of the contempt finding after the hearing. At the January 12 hearing, Nusbaum was convicted of contempt, with his counsel registering a general objection to the court's decisions, which included disqualifying Nusbaum and his law firm. However, Nusbaum did not object to the summary proceeding of what he termed indirect criminal contempt, nor did he challenge the lack of sworn testimony from the bailiff. His counsel instead indicated that a separate sanction hearing would be unnecessary if a jail sentence was not imposed. Consequently, the court did not rule on any due process issues during that hearing.
Following the January 12 hearing, Nusbaum filed a motion to reconsider the disqualification decision but did not contest his contempt conviction or claim a lack of due process. In a supporting memorandum, he explicitly stated he was not seeking to challenge other court rulings. It wasn't until the March 21 hearing that Nusbaum raised specific objections regarding the lack of a trial, asserting it violated his due process rights. Nonetheless, he did not request the court to reconsider its contempt finding, only indicating a desire to preserve his appeal rights. This stance was reiterated at the March 27 hearing, where Nusbaum's counsel sought to have the final order reflect specific objections but again did not request the court to rule on them. Overall, the record indicates no rulings by the circuit court on the due process issues raised on appeal, nor any requests from Nusbaum for such rulings.
In Riner, the court found that the defendant failed to give the trial court a chance to intelligently rule on an issue raised on appeal regarding double hearsay in witness testimony. The trial court admitted the first level of hearsay but did not address the second level, which the defendant challenged on appeal. The court concluded that the defendant waived the issue because he did not inform the trial court that it had only ruled on the first level of hearsay. Similarly, Nusbaum’s counsel did not prompt the trial court regarding due process objections during a prior hearing and instead indicated he was not seeking reconsideration of any ruling. Nusbaum acknowledged at a later hearing that he had not made specific objections earlier. As a result, he did not allow the court to address the due process issues related to his contempt conviction, which included lack of notice and a formal hearing. Consequently, these issues are deemed waived on appeal, as they were not raised at a time when the court could rectify the alleged errors. The court emphasized that the trial court did not inhibit Nusbaum from voicing his objections or seeking rulings.
A party's failure to object to a ruling or order at the time it is made does not prejudice their right to appeal. At the March 21 hearing, Nusbaum was allowed to express his objections regarding a contempt of court finding, and the circuit court encouraged him to preserve his appellate rights. Following a January 12 hearing, Nusbaum filed a motion to reconsider, focusing only on the court's decision to disqualify his law firm, without addressing the contempt finding. Although surprised by the contempt ruling, Nusbaum raised due process objections later and had opportunities to request the court to reconsider the contempt finding, which he did not do.
In assessing the sufficiency of evidence for the contempt ruling on appeal, the court must view evidence favorably to the prevailing party and will not disturb the trial court's judgment unless it is plainly wrong or unsupported by evidence. Nusbaum's appeal presents two main arguments: first, that the circuit court improperly relied on an unsworn statement from a bailiff, asserting that this reliance should be waived only if the defendant is informed that such testimony will be used in a criminal context. Second, he argues insufficient evidence to prove he intentionally made physical contact with another individual. However, as Nusbaum did not raise objections regarding the bailiff's statement before the circuit court, this issue is considered waived.
The circuit court offered to place the bailiff under oath, but no parties requested it, and Nusbaum did not question the reliance on the bailiff’s unsworn statement during the trial. Consequently, the appellate court will not consider this issue, as it was raised for the first time on appeal, per Rule 33 5:25 and established case law. The court evaluated evidence from the bailiff, Nusbaum, and Allen to assess the sufficiency of evidence for Nusbaum's contempt conviction. The bailiff stated she witnessed Nusbaum elbowing Allen, while Nusbaum described the incident as an accidental "bump." Allen contradicted Nusbaum, asserting the action was intentional and obstructive. The circuit court, as the fact-finder, weighed the conflicting testimonies and found Nusbaum guilty of contempt for misbehavior that obstructed justice. Nusbaum argued the court failed to consider his affidavit, but the court indicated it deemed his account not credible rather than ignoring it. Ultimately, the appellate court reversed the monetary sanction against Nusbaum but affirmed the contempt conviction and the $250 fine.
