Virk v. Clemens

• Docket Number: Record No. 1903-22-4
• Decision Date: 13 August 2024
• Citation: 904 S.E.2d 651,81 Va.App. 632
• Parties: Rachel VIRK v. Gary L. CLEMENS, et al.
• Court: Virginia Court of Appeals

904 S.E.2d 651

81 Va.App. 632

Rachel VIRK

v.Gary L. CLEMENS, et al.

Record No. 1903-22-4

Court of Appeals of Virginia.

August 13, 2024

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY, Joanne F. Alper, Judge Designate

Thomas K. Plofchan, Jr.(Jacqueline A. Kramer; Westlake Legal Group, PLLC, on brief), for appellant.

Alexander Francuzenko(Philip C. Krone; Cook Craig & Francuzenko, PLLC, on brief), Fairfax, for appellees.

Present: Judges Beales, Friedman and Callins

OPINION BY JUDGE DOMINIQUE A. CALLINS

₆₄₂During a pretrial motions hearing, the presiding judge held Rachel Virk, an attorney, in contempt of court and ordered that she be seized, arrested, and incarcerated overnight.Virk subsequently brought a civil action, alleging claims of false imprisonment, negligence per se, gross negligence, civil conspiracy, and respondeat superior against Loudoun County Deputy SheriffKen Hollaway, Loudoun County SheriffMichael L. Chapman, Loudoun County Deputy Clerk of CourtSusan Barbini, and Loudoun County Clerk of the Circuit CourtGary L. Clemens(collectively, "the defendants").On appeal, Virk assigns several errors to the judgment of the circuit court sustaining the defendants’ demurrers and dismissing her case.For the reasons that follow, we affirm the judgment of the circuit court.

₆₄₃BACKGROUND¹

I.The Summary Contempt Judgment

[1] On January 31, 2020, Rachel Virk appeared in Loudoun County Circuit Court before Judge James P. Fisher on an emergency pretrial motion in a pending divorce matter.Virk represented one of the parties to the matter and argued on her client’s behalf.At one point in the proceeding, Virk persistently challenged the court’s ruling.The following exchange ensued:

Virk: So if you would explain and I would ask for the record your statutory justification what is the ordinary --

Judge Fisher: -- ma’am, ma’am, ma'am --

Virk: -- course of business and mutually agreed --

Judge Fisher: -- ma’am, don’t go there.

Virk: Well, I want to go there.

Judge Fisher: No.

Virk: That’s what this is all about.With all due respect --

Judge Fisher: -- no, I don’t think you’re being ---

Virk: -- how can Your Honor --

Judge Fisher: --respectful, ma’am.I think you’re being disrespectful.

Virk: I --

Judge Fisher: -- that’s the opposite of respectful.You’ve heard the court’s ruling.We’re going to move on.

Virk: I need the justification --

Judge Fisher: -- you’re not going to argue with me here today.

Virk: -- for the record.

₆₄₄Judge Fisher: I’ve given you justification for the record, ma’am.

Virk: So I’m not clear what that is.Under 103 --

Judge Fisher: -- well, let me make something clear --

Virk: -- is that what you say?

Judge Fisher:

If you keep arguing with me, you’re going to be held in contempt.Is that clear?

Virk: Yes, Your Honor.

Judge Fisher:

All right.Let’s go to the next one.Letter D.

Virk: As clarification, does [my client] need permission to use business assets?

Judge Fisher:

Let’s go to letter D.

Virk: I don’t know Your Honor’s ruling.

Judge Fisher:

(Banging gavel.).You’re held in contempt, ma’am.

The judge immediately instructed Deputy Hollaway to "[t]ake custody of Mrs. Virk.Step her back."Judge Fisher continued, declaring, "I impose a penalty of $250 and one night in the county jail.This matter is adjourned."The judge then left the courtroom, and the proceeding adjourned before Virk could respond.

Barbini, a deputy clerk of the circuit court, served as Judge Fisher’s courtroom clerk during the proceeding.Barbini prepared and endorsed a "Form DC-352," a commitment order generated by the Supreme Court of Virginia Office of the Executive Secretary, directing that Virk be remanded to the custody of the sheriff.Under a column on the form titled, "Virginia Crime Code," in an area designated "Description: Civil Contempt," Barbini hand-wrote the following: "As a civil contempt sanction the court orders that Rachel Virk is remanded to custody for one (1) night in Jail and a $250.00 fine."The form did not indicate a specific statutory subsection under which Virk was being charged and punished for contempt.Barbini later amended the Form DC-352 to add the phrase "[t]o [b]e released at 9:00 am" to the language indicating the sentence duration and fine amount.

₆₄₅Upon the order of Judge Fisher, Hollaway took custody of Virk in the courtroom.Hollaway then transported Virk to the Loudoun County Adult Detention Center, where she remained until the following morning.Upon her release from the detention center, Virk received a copy of the Form DC-352; her copy did not include Barbini’s handwritten amendment.Neither the original Form DC-352 nor Virk’s copy contained Judge Fisher’s signature.

II.The Present Action

On April 5, 2021, about 14 months after the underlying proceeding, Virk filed a complaint in the Loudoun County Circuit Court² alleging false imprisonment against Hollaway; negligence per se against Barbini; and gross negligence and civil conspiracy against both Hollaway and Barbini.Virk also alleged respondeat superior claims against Clemens and Chapman, respectively.

Virk amended her first complaint solely to correct the spelling of Hollaway’s name.The defendants filed demurrers to Virk’s first amended complaint, and the circuit court held a hearing at which both parties presented argument.³The court sustained the defendants’ demurrers as to false imprisonment and negligence per se, dismissing the claims with prejudice.The circuit court found that "there [wa]s no question" that Judge Fisher granted Hollaway the legal authority to take Virk into custody and keep her overnight, and thus, Hollaway had a legal excuse that defeated Virk’s false imprisonment claim.It similarly found that Barbini acted within her authority₆₄₆ in signing the Form DC-352 order.The court sustained the defendants’ demurrers as to the remaining claims but granted Virk 30 days’ leave to amend.

Virk filed a second amended complaint realleging her claims of gross negligence, civil conspiracy, and respondeat superior asserted in the first amended complaint.The defendants demurred to Virk’s second amended complaint.At a hearing on these demurrers, Virk argued that, by failing to obtain "written authority from a judicial officer to put someone in jail," Barbini and Hollaway acted with gross negligence in "stop[ping] the regular process" once Hollaway seized Virk.Virk further argued it was a "shock to the conscience of [a] citizen" that Hollaway would "blatantly ignore""requirements" Virk contended were "known to all officers "

Relying on an unpublished opinion of this Court,⁴the circuit court determined that Judge Fisher’s oral order from the bench was a valid order and, therefore, Barbini and Hollaway’s actions were not grossly negligent.The circuit court sustained the demurrers and dismissed with prejudice the gross negligence and civil conspiracy claims against Barbini and Hollaway.Virk’s related respondeat superior claim against Clemens, whom Virk alleged was liable for the actions of Barbini, was similarly dismissed with prejudice.The respondeat superior claim against Chapman, whom Virk alleged was liable for the actions of Hollaway, was dismissed "in accordance with the underlying Counts against Hollaway."The circuit court permitted Virk to amend her complaint a third time to solely re-allege under the Virginia Tort Claims Act ("VTCA") ordinary negligence against Hollaway and the related respondeat superior claim against Chapman.

Virk filed a third amended complaint asserting an ordinary negligence claim against Hollaway and a respondeat superior claim against Chapman.Hollaway and Chapman both filed demurrers.At a hearing, Virk acknowledged that instead of ₆₄₇bringing her claims under the VTCA, she raised the same theories that the court previously rejected.The circuit court ultimately concluded that Virk "had enough bites of this apple."In a final order, the circuit court sustained the defendants’ demurrers and dismissed Virk’s third amended complaint with prejudice.Virk now appeals.

ANALYSIS

I.The Significance of the Summary Contempt Judgment

Virk’s claims, in large part, purport to turn on whether Judge Fisher’s oral order to "[t]ake custody of Mrs. Virk.Step her back.I impose a penalty of $250 and one night in the county jail[,]"⁵ and the subsequent Form DC-352 prepared by Barbini, comport with the requirements delineated under Code§ 18.2-456.But Virk’s claims misunderstand the issue.The crux of this case is not whether Judge Fisher’s oral order and the Form DC-352 comply with Code§ 18.2-456.Rather, the question before us concerns the legitimacy of the actions undertaken by the defendants in response to Judge Fisher’s oral order.The extent to which Hollaway and Barbini were obligated to act pursuant to Judge Fisher’s oral order is the fulcrum of our inquiry.

A.The Court’s Contempt Powers

[2–6]Under the Virginia Constitution, all courts of the Commonwealth maintain inherent power and authority to summarily punish for contempt.⁶Va. Const. art. IV § 14.

₆₄₈"Contempt under Virginia law is '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.’ "Abdo v. Commonwealth,64 Va. App. 468, 476, 769 S.E.2d 677(2015)(quotingRobinson v. Commonwealth,41 Va. App. 137, 142, 583 S.E.2d 60(2003))."It has long been recognized and established that a court is invested with power to punish for contempt."Higginbotham v. Commonwealth,206 Va. 291, 294, 142 S.E.2d 746(1965);Parham v. Commonwealth,60 Va. App. 450, 455, 729 S.E.2d 734(2012)(explaining that the "power to punish for contempt is inherent in, and as ancient as, courts themselves"(quotingCarter v. Commonwealth,2 Va. App. 392, 395, 345 S.E.2d 5(1986))).However, this power of the courts is a "delicate one" that must be exercised with care to "avoid arbitrary or oppressive conclusions."Cooke v. United States,267 U.S. 517, 539, 45 S.Ct. 390, 396...