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STROUPE, et al. v. RIVERO, et al.




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STROUPE, et al.

v.

RIVERO, et al.


COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements

Argued at Alexandria, Virginia

Record No. 1936-02-4

THERESE STROUPE, DAVID STROUPE AND

THOMAS K. PLOFCHAN, JR.

v.

SONIA RIVERO, COMMISSIONER,

VIRGINIA DEPARTMENT OF SOCIAL SERVICES

AND COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY CHIEF JUDGE JOHANNA L. FITZPATRICK

DECEMBER 9, 2003

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

David T. Stitt, Judge

Thomas K. Plofchan, Jr., pro se.

Allen T. Wilson, Assistant Attorney General (Jerry W. Kilgore,

Attorney General; David E. Johnson, Deputy Attorney General;

Siran S. Faulders, Senior Assistant Attorney General, on brief),

for appellees.

Thomas K. Plofchan, Jr. (appellant) was found in contempt of
court in violation of Code

?? 18.2-456(1) and 18.2-456(5). On appeal, he contends that
the trial court erred by (1) finding him

in contempt of court when he attempted to respond to the trial
judge’s question; (2) imposing a

sanction in excess of that permitted by Code ? 18.2-457 without
a jury trial; and (3) failing to

inform him of the specific factual findings underlying the
contempt. Appellant concedes that he

failed to preserve these issues for appeal; however, he argues
the ends of justice require us to

reverse the contempt judgement. For the following reasons, we
affirm the judgment of the trial

court.

I.

Appellant represented the Stroupes in an injunction action filed
by the Virginia Department

of Social Services on November 16, 2001. Trial was set for May
30, 2002. At a scheduled

discovery dispute hearing on May 10, 2002, appellant made an
"oral motion" to dismiss because

"the Commissioner . . . lacks the authority to go forward
in this case." The trial court instructed him

to file a proper written motion. The day before trial, May 29,
2002 at 2:08 p.m., appellant filed a

Motion to Dismiss the injunction for lack of subject matter
jurisdiction with the circuit court.

Appellant’s certificate of service stated he faxed a copy of
the motion to opposing counsel May 28,

2002, the day before he filed it with the circuit court. On May
30, 2002, as the trial began and the

trial judge asked opposing counsel to make their opening
statements, the following colloquy

occurred.

[APPELLANT]: Your Honor, if I may, we have filed a sworn

motion to dismiss on undisputed facts for want of subject matter

jurisdiction. We filed that yesterday with the Court. We sent by

fax a copy to [opposing counsel]. We believe that challenge of

jurisdiction needs to be heard first.

As a matter of fact, Your Honor, at this time there’s been no

answer to that challenge of jurisdiction. It is a sworn pleading
of

undisputed facts. And given the rules of pleading because it has

not been answered or denied, we would ask for the Court to grant
a

summary judgement.

THE COURT: You said you filed it yesterday?

[APPELLANT]: Yes, sir.

THE COURT: How are they supposed to respond to it?

[APPELLANT]: Your Honor, they say they are prepared to go

forward for trial. They haven’t asked for a continuance to
respond.

They haven’t asked — or given any indication that they intend
to

respond.

THE COURT: We will deal with it at the end of the hearing.

[APPELLANT]: Your Honor, it’s a challenge of jurisdiction.

THE COURT: I understand. We’ll deal with it at the end of the

hearing. It was filed yesterday. . . .

[APPELLANT]: Your Honor, if you –

THE COURT: Sir, will you have a seat?

[APPELLANT]: Sir, if you will note my exception on the record

that this is a challenge of jurisdiction. The Court has no power
to

go forward on the case until they have — I have challenged the

Court’s jurisdiction to go forward, and the Court must make a

decision on the record as to whether it has jurisdiction or not.

THE COURT: Have a seat.

[APPELLANT]: It’s not proper to go forward on anything, Your

Honor. I’m noting my objection to that case.

THE COURT: Well, what I’m going to — listen, let’s get

something straight. If I want to hear from you, I will ask you
to

talk. I don’t want to hear from you right now. I want you to
have

a seat, and I want to hear from [opposing counsel]. Sir, if you

open your mouth again I’m going to hold you in contempt of
court.

Do you understand that?

[APPELLANT]: Your Honor –

THE COURT: That’s $100.

[APPELLANT]: Your Honor –

THE COURT: That’s $300.

[APPELLANT]: Your Honor –

THE COURT: That’s $500.

[APPELLANT]: I’m obligated under the –

THE COURT: That’s $500. I will do an order later. . . .

[APPELLANT]: Your Honor, I’m obligated under the

Constitution of the United States –

THE COURT: Sir, I’m going to have you removed from the

courtroom if you don’t be quiet.

[APPELLANT]: Your Honor, if I can just –

THE COURT: No, you may not. Be quiet. Sit down. Are you

amused by something?

[APPELLANT]: Well, Your Honor, I believe that it — I actually

find it irregular in this case where someone is trying to put an

objection on the record for the Court to tell him he can’t do
that.

THE COURT: You already put the objection on the record, and all

you’re doing now is talking when I told you not to.

[APPELLANT]: Your Honor, I’ve asked you to respond to the

record, which I believe — respond to the objection, which I
believe –

THE COURT: You’re up to $700. If you want to go for more,

that’s fine. You can deal with it with the Appellate Court.

The Court later states:

THE COURT: I did make one misstatement. I went from $100 to

$300, which was fine, but then I went to $700. And the maximum

I can do on a particular instance of contempt is $250. So the
total

amount [appellant] will need to pay to the clerk of the court
within

10 days of today is $550.

[APPELLANT]: Your Honor -

THE COURT: Do an order reflecting that. Give it to [the deputy.

Appellant]?

[APPELLANT]: Your Honor, could we ask that you stay the -

we’re noting our appeal on both the contempt as well as the

underlying charge, and we ask you to stay the injunction until
the

resolution of the appeal.

THE COURT: The motion will be denied.

At no time during the trial nor at the later entry of the orders
in the case did appellant ever

state the reasons he now asserts on appeal as a basis for trial
court error. On the contrary, he noted

on the final order that it was "seen and objected to for
all reasons stated on the record and any that

may be later proffered to include a motion for recusal for bias.
Reserve the right to state additional

reasons."[2]
On June 10, 2002, the trial court denied appellant’s motion to reconsider the
injunction

and the contempt. No objections to the contempt finding were
noted.

The final order included the following language: "4. The
Court finds counsel for the

Respondents, Thomas Plofchan, in contempt of court pursuant to
section 18.2-456(1) and (5) and

18.2-457 of the Code of Virginia and fines him a total of $550
payable within 10 days of entry of

this order."

Appellant appeals from this order.

II.

Because appellant failed to present any of the arguments to the
trial court that he now raises

on appeal, we do not address his arguments. We have long held
that we will not consider an

argument on appeal that was not presented to the trial court.
See Jacques v. Commonwealth, 12

Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule
5A:18). "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." Weidman v.

Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991) (citation
omitted). Accordingly,

appellant’s arguments are barred by Rule 5A:18 because they
were not raised in the circuit court,

providing us no ruling to review on appeal. See Ohree v.
Commonwealth, 26 Va. App. 299,

307-08, 494 S.E.2d 484, 488 (1998); Fisher v. Commonwealth, 16
Va. App. 447, 454, 431

S.E.2d 886, 890 (1993).

Further, the ends of justice do not require us to address these
issues. "[T]he ends of justice

exception is narrow and is to be used sparingly. . . . The trial
error must be clear, substantial and

material." Redman v. Commonwealth, 25 Va. App. 215, 220-21,
487 S.E.2d 269, 272 (1997)

(internal quotations and citations omitted). "[To invoke
the ends of justice exception to Rule

5A:18, the record] must affirmatively show that a miscarriage of
justice has occurred, not that a

miscarriage might have occurred." Id. at 221, 487 S.E.2d at
272 (internal quotations and

citations omitted).

In the instant case, the record shows the trial judge announced
he would deal with

appellant’s untimely filed motion at the end of the case and
directed the parties to begin their

opening statements. Appellant refused to follow the trial court’s
directive to begin the case on at

least four occasions and continued to argue the merits of his
untimely motion. The trial court

warned him he would be found in contempt if he continued his
actions. No ends of justice

exception is applicable under these facts. Appellant had many
opportunities after the initial

colloquy with the trial court to object to the contempt finding
and state his grounds for that

objection. He failed to make any objections regarding the
contempt proceeding or the amount of

the fines imposed. His motion to strike continued for more than
20 transcript pages, which the

judge allowed him to complete, and he failed to mention the
contempt or the amount of the

sanctions.[3]
The record fails to disclose anything that would allow us to invoke the ends of
justice

exception to Rule 5A:18.

Appellant’s argument that the trial court’s monetary amount
exceeds the statutory maximum

is also not preserved. We note that Code ? 18.2-456(1) limits
the amount to $250 but Code

? 18.2-456(5) does not. [4]

Therefore, we affirm the decision of the trial court.

Affirmed.

 

Benton, J., dissenting.

I.

In pertinent part, Code ? 8.01-384(A) provides that "if a
party has 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 motion for a new trial or on appeal." The
record clearly establishes that when

the trial judge ruled that the attorney was in contempt, the
attorney had no reasonable

opportunity to object. As the following portion of the record
indicates, the judge had threatened

sanctions if the attorney spoke:

[Judge]: Well, what I’m going to — listen, let’s get
something

straight. If I want to hear from you, I will ask you to talk. I
don’t

want to hear from you right now. I want you to have a seat, and
I

want to hear from [opposing attorney]. Sir, if you open your

mouth again I’m going to hold you in contempt of court. Do you

understand that?

[Attorney]: Your Honor –

[Judge]: That’s $100.

[Attorney]: Your Honor –

[Judge]: That’s $300.

[Attorney]: Your Honor –

[Judge]: That’s $500.

[Attorney]: I’m obligated under the –

[Judge]: That’s $500. I will do an order later. . . .

[Attorney]: Your Honor, I’m obligated under the Constitution
of

the United States –

[Judge]: Sir, I’m going to have you removed from the courtroom

if you don’t be quiet.

[Attorney]: Your Honor, if I can just –

[Judge]: No, you may not. Be quiet. Sit down. Are you amused

by something?

[Attorney]: Well, Your Honor, I believe that it — I actually
find it

irregular in this case where someone is trying to put an
objection

on the record for the Court to tell him he can’t do that.

[Judge]: You already put the objection on the record, and all

you’re doing now is talking when I told you not to.

[Attorney]: Your Honor, I’ve asked you to respond to the
record,

which I believe — respond to the objection, which I believe –

[Judge]: You’re up to $700. If you want to go for more, that’s

fine. You can deal with it with the Appellate Court.

I would hold that these circumstances excuse the attorney’s
failure to speak further and put on

the record a specific objection to the contempt ruling.

II.

Applying Code ? 18.2-456, we have generally defined contempt as
follows:

"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." Any act which is
calculated to

embarrass, hinder, or obstruct the court in the administration
of

justice is contempt.

Carter v. Commonwealth, 2 Va. App. 392, 396, 345 S.E.2d 5, 7-8
(1986) (citation omitted).

The record indicates that the trial judge had deferred until the
end of the hearing

consideration of the motion to dismiss for lack of subject
matter jurisdiction. The record also

indicates that when the judge ruled that the attorney was in
contempt the attorney was requesting

a ruling on his objection to the judge’s decision to defer a
ruling on the jurisdiction issue. The

judge made the contempt ruling during the following colloquy:

[Attorney]: Your Honor, it’s a challenge of jurisdiction.

[Judge]: I understand. We’ll deal with it at the end of the
hearing.

It was filed yesterday. [Opposing attorney] would you care to

make an opening statement?

[Attorney]: Your Honor, if you –

[Judge]: Sir, will you have a seat?

[Attorney]: Sir, if you will note my exception on the record
that

this is a challenge of jurisdiction. The Court has no power to
go

forward on the case until they have – I have challenged the
Court’s

jurisdiction to go forward, and the Court must make a decision
on

the record as to whether it has jurisdiction or not.

[Judge]: Have a seat.

[Attorney]: It’s not proper to go forward on anything, Your

Honor. I’m noting my objection to that case.

[Judge]: Well, what I’m going to — listen, let’s get
something

straight. If I want to hear from you, I will ask you to talk. I
don’t

want to hear from you right now. I want you to have a seat, and
I

want to hear from [opposing attorney]. Sir, if you open your

mouth again I’m going to hold you in contempt of court. Do you

understand that?

[Attorney]: Your Honor –

[Judge]: That’s $100 . . . .

In other decisions, we have held that when an attorney makes an
objection in the trial

court on behalf of his client, it is that attorney’s
responsibility to obtain a ruling from the trial

judge on the objection. See Ohree v. Commonwealth, 26 Va. App.
299, 308, 494 S.E.2d 484,

489 (1998) (holding that "because the trial court never
ruled upon Ohree’s objection to the

imposition of costs and her motion to set the costs aside, there
is no ruling for us to review on

appeal"). This holding relies in part upon an earlier
decision by the Supreme Court in Taylor v.

Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967).
There, the Supreme Court cited

the specific objection that an attorney made at trial, noted
"[t]here was no ruling by the [judge]

on the objection," and declined to consider the issue on
appeal. Id. at 324, 157 S.E.2d at 191.

Indeed, in Taylor the Supreme Court noted that "[c]ounsel
for defendant did not insist that the

[judge] rule." Id. These procedural default rules
"have been strictly enforced" by both appellate

courts. Mounce v. Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d
742, 744 (1987).

The record in this case supports a conclusion that the attorney
was assertive in seeking a

ruling. Although needlessly requesting his "exception"
be noted, see Code ? 8.01-384

(eliminating "[f]ormal exceptions to rulings"), the
attorney argued that he had "challenged the

Court’s jurisdiction to go forward" and said "the
Court must make a decision on the record as to

whether it has jurisdiction or not." The effect of his
argument was to "insist" that the judge rule

on his objection to proceeding before ruling on his motion to
dismiss. See Taylor, 208 Va. at

324, 157 S.E.2d at 191. The record does not establish, however,
that in so doing the attorney

sought to embarrass, hinder, or obstruct the judge. The judge
made no finding that the attorney

acted in bad faith when filing the motion to dismiss. See Gentry
v. Toyota Motor Corp., 252 Va.

30, 34, 471 S.E. 485, 488 (1996); Ange v. York/Poquoson Dep’t
Soc. Servs., 37 Va. App. 615,

624, 560 S.E.2d 474, 478 (2002). Moreover, the record does not
establish that the attorney acted

"willfully" to cause delay. Carter, 2 Va. App. at 397,
345 S.E.2d at 8. In view of the attorney’s

belief, stated on the record, that he was entitled to a ruling
on his objection, I would hold that the

record is insufficient to prove that this was
"[m]isbehavior . . . as to obstruct or interrupt the

administration of justice," Code ? 18.2-256(1), or
"[d]isobedience . . . to any lawful . . . order of

the court," Code ? 18.2-256(5).

For these reasons, I would reverse the conviction for criminal
contempt.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]Since there
were no "reasons stated on the record" or "later proffered"
regarding the

contempt findings, the purpose for this language is unclear.

 

[3]We note that
the limits of Code ? 18.2-457 apply only to the first class embraced in

Code ? 18.2-456.

 

[4]Code ?
18.2-456 provides in pertinent part:

The courts and judges may issue attachments for contempt, and

punish them summarily, only in the cases following: (1)

Misbehavior in the presence of the court, or so near thereto as
to

obstruct or interrupt the administration of justice; . . . (5)

Disobedience or resistance of an officer of the court, juror,
witness

or other person to any lawful process, judgment, decree or order
of

the court.

Code ? 18.2-457 provides: "No 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; . . . ."


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