*3 REID, and Associate Before TERRY KING, Judge, Judges, Associate Retired.* TERRY, Judge: Associate Missionary Baptist State Alabama Inc., Convention, president, and its Dr. Felix Nixon, complaint against filed a the National USA, Convention, (NBC), Baptist Inc. others, breach of alleging contract and seek- ing injunctive Along relief. with the com- plaint, a temporary filed motion for a (TRO) prevent restraining order authority prior presi- transfer NBC’s dent, newly Dr. to its T.J. elected president, Henry Lyons, al- Dr. because of legedly procedures defective election September NBC convention in Or- New leans. eventually granted

The trial court the mo- Lyons summary tion of and Dr. for NBC judgment. No contests the merits The court its decision. then turned Dr. attention to motion NBC and Lyons improper for sanctions based on affi- in support original davits re- offered quest for TRO. There a followed numerous depositions, discovery, additional and eviden- tiary period over a hearings of several weeks. hearing, About five months after the last thorough meticulously 61-page detailed order, found Dr. the court Dr. Jemi- (Jemison’s son, Fleming, Esquire A. Jo attor- ney),1 former and the board of directors severally jointly Dr. Jemison NBC under $150,000 liable for “perpetrating gross fraud and serious Moore, Maddox, Jerry III, imposed A. The court and John D. the court.” addi- DC, Washington, for appellants T.J. Jemison tional sanctions on the same individuals Fleming. A. directing to reimburse Dr. Jo them NBC and * King Rouge, Judge Judge practices law was an Associate court at 1. Ms. in Baton changed argument. Louisiana, the time of His status bar. and is a member of the Louisiana Retired, Judge, September Associate ready vote, fees, costs, only 511 cards were

Lyons tied to but for their yet 511 cards were expenses, the amount of which was After those distribution. distributed, delegates not receive determined.2 who did Committee, which went to the Election cards order, In second issued after further all distributed to that cards be then directed relating submissions delegates requested who of the Alabama $237,- Lyons Dr. awarded NBC pro- them, voting including Dr. Nixon. attorneys’ fees, costs, and 322.00 for their incident, and the without further ceeded expenses. The court also denied Jemison by independent, profes- tabulated votes were Fleming’s or amend the motion alter de- Lyons election officials. sional 59(e), judgment Super.CtCiv.R. their under by margin the election clared the winner of *4 reconsideration, separate and motion for votes, ad- and later he of more than 500 Nixon, their motion to strike evidence. Je- president. as the convention its dressed mison, appeal Fleming from both session, no remained in the convention While punitive damages imposi- award of complained or she been that he one tion of affirm.3 sanctions. We right to vote. denied BaCkground I.Factual Although Lyons Dr. the new board annual in NBC held its convention New election, upon Jemison had assumed office in to new September 1994 elect a Orleans complete Lyons to some asked for a month officers, president, and members board organi- turning over the “paperwork” before presi- The of of directors. term the former Lyons was thus zation’s books and records. dent, Jemison, expire Dr. at the end of would administra- separated control of NBC’s from convention, by and he a term was barred tive and financial resources. offices in from run- limitation the NBC constitution Nixon, time Fleming used this additional Franklyn ning a term. Dr. Rich- for new W. prevent Lyons implement a scheme successor, ardson was choice a Jemison’s serving president. from supported Dr. Nixon Richardson. also Alabama, told Upon returning to Nixon were, however, There three additional candi- with the that he was- dissatisfied Henry Jemison including Dr. presidency, dates for the urging, Nixon a At Jemison’s called election. Lyons. of special meeting the Executive Board history first time This was the ap- to obtain the Alabama State Convention by NBC that the election was be held name proval to file suit the Convention’s election, each ballot. To conduct secret presented contesting the election. Dr. Nixon representa- the four candidates chose two prepared to the Board memorandum Committee, multi-partisan Election tives to a Fleming, attorney, Jo which would Jemison’s Allen as its selected Rev. James S. which the lawsuit. Ms. as the foundation for serve by the procedures adopted chairman. Under Fleming the elec- claimed to have reviewed Committee, delegate required to each 616 dele- tion records and determined that card badge and an identification obtain gates been denied then- from Alabama had voting proceeding to booth. before ap- passed right A resolution was to vote. was to distribute Election Committee proving the suit. delegate cards on the basis identification registrations. arrange- Fleming making began then Ms. Dr. filing of the suit ments for the

A in the initial distribution problem arose purport Dr. would to be which delegation, Alabama of cards Fleming his be counsel. delegations. defendant and would the state largest Newton, an attor- Fleming registrants enti- called Demetrius 1127 Alabama There were briefed, argument part counsel for been oral its decision in 2. The court later modified they pursued. board of directors not be and ruled that former NBC told us that would event, moot, light liable. any NBC would not held They of our appeals. two in the other five decision cross-appeals, protective Nos. two 3. NBC noted cross-appeals are therefore dismissed. 96-CV-414, they but have 95-CV-1031 and ney previously represented who had the Ala- Committee should take action to resolve Convention, Kimber, bama State dispute. discuss where the Rev. Boise Richard- brought. later, suit campaign manager, should be time about Some son’s told Allen Fleming again say persuade Ms. called purported complaints Newton and tried to the suit would be filed in the District of also Alen to intervene. When Jemison election, Columbia and that Dr. Nixon urged had retained R. Allen to set aside the Allen Mundy, prominent Washington yielded Kenneth pressure. At Jemison’s re- (now deceased), attorney represent quest, him. Allen wrote Jemison a letter acknowl- edging complaints irregulari- about election any litigation begun, Before Fleming stating ties would his Committee Mundy extensively communicated fact, only people them. In address by phone each other and facsimile machine. whom Alen had heard references to preliminary Ms. reviewed drafts of complaints were Jemison and Kimber. This application and the TRO sever- letter, along with the fabricated Nixon-Jemi- days al before were filed. The twofold exchange correspondence, son was faxed purpose of application per- the TRO was to to Mr. to be filed with the TRO suade the court prob- that there were serious application. lems with the election results and to obtain *5 an declaring Lyons yet order Dr. complaint not in application and the TRO office. The trial court later found that it requested that installation the new plaintiffs’ objec- enjoined, defendants’ and leaving “mutual pow- officers be Jemison in tive to ruling convince the court to defer provided er. NBC’s constitution that to send the case to the Election newly Committee responsi- elected board would assume alleged for resolution of irregu- bility upon adjournment election the recess or of the However, larities.” copy convention. of the consti- tution applica- that was attached to the TRO Fleming with the assistance photocopied way tion in such a Nixon, began assembling documents to VI, passages § relevant of Article refer- support their claims that more than 600 Ala- board, ring newly to the duties of the elected delegates bama right had been denied the to copy were omitted. This of the constitution vote, Lyons yet that had officially been among provided those documents to Mr. president, installed as widely and that it was counsel, Mundy, by Fleming. Nixon’s Ms. recognized that questions there were serious about the conduct of the election. To support allegation that To their that hundreds they prepared letters, end ostensibly two delegates of Aabama had been denied the signed by vote, Nixon and Jemison and appellants presented forty addressed more than other, to each which would be filed with the “affidavits of All disenfranchisement.” letter, application. TRO Sep- false, Nixon’s dated these affidavits were and all but a few 27, 1994, tember stated that 600 Alabama forged had been in the names of various delegates right had been denied the to vote. Aabama citizens who never knew that their Jemison’s letter in response, Septem- dated being way. names were used in this ber asserted that widely there were prepared, part, rec- affidavits were with the aid ognized problems Lewis, with the election Tommy and that of Rev. Lee who had been prominent other appointed by members of the convention Dr. Nixon Executive supported his view. It was later established Board the Aabama State Convention and supposed forged by that Nixon’s letter was had been made chairman of the committee to name, Fleming gather and Jemison Nixon’s that evidence for the lawsuit. The affida- it, signed Mundy Nixon never and that Jemison’s vits were sent to Mr. Boise Kim- ber, purported “response” campaign manager. was written an ef- Richardson’s time, fort to create the Throughout Fleming basis for a TRO. this and Jemison Lyons did not inform Dr. of their efforts. Appellants campaign then initiated a to Allen, persuade 29, 1994, September Rev. the chairman of the Mundy On Mr. filed Committee, complaint application. Election that there was a serious and the TRO controversy over the Fleming election and that and Jemison wrote to stat- (600) or allegation six hundred they

ing copy had received a of the central right papers purport- persons more were denied the TRO so, vote, ing accept though qualified on is based service behalf NBC. do manufactured, false, objection evi- Fleming forged added that she had or upon ap- the TRO hearing the scheduled date for or known to be false dence which was plication presence. and waived her have be false should been known defendants, coun- and them plaintiffs, allegations fraudulent On the basis of the sel. documentation, granted the TRO was on September parte hearing an ex be- after Nixon, Jemison, Flem- The court found judge Superior fore a of the Court. Ms. Convention, and the the Alabama State ing, Lyons, notifying then contacted .Dr. of di- of the former NBC board members him barred court’s order NBC rectors installing been the officers who had elected effort to invoke a collusive orchestrated Lyons September Dr. 8. She instructed ' jurisdiction court and mislead they that the officers remained as were be- designed entering orders the court into the election. fore rights parties who were prejudice the before A status conference was scheduled Because acted not before the court. later, judge a week on October 6. another initiating jointly corruptly however, morning of October On action, maintaining preparing indicating Lyons filed a written submission to the court causing and in to be submitted they appeared that the facts were not what false, fabricated, and fraudulent docu- conference, Following the to be. status ments, perpetrating and in otherwise pre- judge hearing on the set a consolidated against the court gross and serious fraud *6 liminary injunction and the merits for Octo- scheme, their in furtherance of tortious appellants’ request to ber but she denied will impose the court shall sanctions which order the Election Committee to resolve jointly severally against pur- them run and asserted factual issues about conduct Superior Civil Rule and suant to Court the election. regu- authority court to the inherent of the Lyons Dr. the new board then entered and preserve integrity of the late and and filed a motion for the case as intervenors judicial process. judgment, on the summary primarily based inception, this with- From the action was By of the Octo- First Amendment. the time evidentiary support designed was out and pres- hearing, Lyons Dr. able to ber was power the reins of to allow a few to retain six of the affidavits ent evidence that least hierarchy of the Nation- to control the forgeries. He filed a motion therefore were contrary to Baptist the Con- al Convention sanctions, supporting affidavits. At mission, tenets, principles, its vention’s hearing, granted court the motion for Constitution. judgment. The then asked summary court any there additional evidence whether was specifically Dr. Nixon court found that in connection with the motion be considered were “di- and the Alabama State Convention presenting After the testimo- for sanctions. rectly responsible for and fraudu- the false witnesses, Lyons’ ny of Dr. counsel several affidavits, pursuant it to their lent since might Dr. the court that Jemison advised prepared and col- directive that Rev. Lewis participated in fraud. The have also Jemison, Similarly, Dr. the same. lected to con- appropriate that it court decided counsel, through prepared also at least two of ” hear- discovery and scheduled a further duct affidavits, if not more.... ing. that Dr. Nixon “knew firsthand further found discovery widespread two additional hear- allegations After ... of elec- order on June ings, grounded trial court issued an irregularities not well tion 26,1995, stating part: fact,” that both Jemison. of the fraudulent well aware

Virtually every submitted in were likewise document TRO, nature of the lawsuit. support and to support of the On the basis of findings, these and similar legal support proposition offer for the the court assessed in the jurisdiction that the court has to sanction $150,000 against Nixon, amount of Dr. Dr. conclude, non-party, particu- and we in the Fleming. They and Ms. were also ease, lar circumstances of this that the court pay ordered to all reasonable power had the to do so. costs, expenses intervenors, Dr. authority The trial court’s to sanction Dr. Lyons and NBC. Those costs were later Jemison was based on his involvement $237,322.00.4 determined to be filing fraudulent scheme and the of the suit Findings II. The COURT’S of Fact it, though that arose from even he was tech- Appellants challenges make numerous nically party. arranged not a the trial findings court’s of fact and conclu- filing aof collusive lawsuit and was ac- them, sions of law. Most of reduced to es- tively forged involved in the submission of sentials, are contentions that the evidence documents the court. The evidence support was insufficient to findings, directly showed legal that Jemison wired fees imposition hence that the sanctions Mundy, to Mr. knowing each all legally of them was erroneous. filing the suit. Jemison also forwarded to Intertwined with these assertions are others Mundy Allen, a letter to himself purely legal a more nature. We will strive referring complaints irregu- about election to address them all in this section of our larities, applica- in order to bolster the TRO opinion though, even strictly speaking, they tion. This letter was written Dr. Allen at are not all evidentiary claims of insufficiency. request simply of Dr. Jemison and ac- Our standard of review is well established. knowledged complaints that Jemison himself In a case jury, tried without a we address had made. novo, legal issues de judge’s but findings Probably egregious the most of Jemison’s of fact can be reversed if activities exchange was the fabrication of an “plainly wrong or without sup evidence to of letters between himself and port 17-305(a) (1997); [them].” § D.C.Code see, hoped he sugges- would lend e.g., credence to the Washington Medical Center v. Holle, irregularities tion of massive (D.C.1990); require 573 A.2d so as to *7 Simpson Chesapeake v. court bearing & intervention. The letter Nix- Potomac Tele Co., phone (D.C.1987). signature Nixon; A.2d on’s was never seen it Applying standard, this we hold that the forged by had been Fleming. Jemison and findings appellant as to each amply sup signed by The letter carefully Jemison was ported by the evidence. “respond” tailored to to the fabricated letter purportedly came from Nixon. Both A. Jemison’s Involvement Mundy, letters were then sent to along Mr.

Dr. Jemison claims that because he with the letter from Dr. Allen. party lawsuit, was not a underlying the the (without citing single Jemison contends a jurisdiction court had no to assess ease) party he because was not a named fees and damages against him. The litigation, the power trial court had no defendant, names singular a impose him sanctions on for his involve- Baptist Convention, USA, Inc.,” “National ment in the “President, fraudulent activities which culmi- listing T.J. Sr.” in low filing nated in the of a collusive But lawsuit. person er-case letters as the to be served whether he was or was not a is not the process. Similarly, with the application TRO Rather, out, requests “enjoining appellees point real issue. Baptist the National Convention, USA, Inc.” the per- and does not mention issue is whether the trial court had Jemison, however, Jemison. Dr. jurisdiction does not sonal over Dr. Jemison which sanctions, however, imposed 4. No pre-filing inquiry were on the able would not have disclosed counsel, plaintiffs' Mundy. pleadings papers Mr. The court found and other rely that it grounded was reasonable for him to on the well in fact. No one takes issue with client, representations findings. of his and that a reason- these Baugh had “induced impose that Mr. court to sanctions the court found would enable the investment ad- wrongful [the him to sue on for his conduct.5 the Beneficiaries spread to do so to and was motivated visor] all, note, first of that Jemison We resulting the Beneficiaries’ ac- the loss a party” raised his “not claim in the never Expressly at against tion him.” Id. long until the trial court after sanctions order the trial court rejecting Baugh’s claim that It his was entered. first surfaced in motion against assessing attorneys’ in fees had erred (which for we reconsideration shall address a court party, was not the him because he than part opinion), in of filed more V this statutory of in the absence held that “even It eight months after issuance the order. impose attorney’s authority, may fees court jurisdic personal is settled law that a lack of against non-party as an exercise waived, can we tion conclude sanctions to power impose inherent court’s by failing case Jemison waived it (cita- litigation practices.” Id. curb abusive filing it time the motion raise before omitted). tions agree appel for reconsideration. We cannot, receiving an unfa Similarly, Lockary Kayfetz, lees that “one after v. 974 F.2d denied, (9th ruling judge, Cir.1992), vorable from the trial concoct 1166 cert. 508 U.S. (1993), objections appeal.” Copeland v. for use on 124 L.Ed.2d 298 Marshall, 390, 415, U.S.App.D.C. imposition affirmed the the same court (1980) (en banc). (PLF) F.2d non-party corporation on sanctions which had assuming, argu But even sake organized plaintiffs and ment, pre contacted adequately the claim was ... paid litigation some- [and had] for the motion for served its inclusion reconsideration, representa- ... reject held itself out as it. times would have to we as the plaintiffs, tive of sometimes “if Supreme Court has stated lawyers, and court, employer plaintiffs’ informed neither the discretion directing litigation always entity task, as the up to statute nor the rules are “calling the shots.” safely rely power” court on its inherent engage in bad faith sanction those who 1168. After the case was resolved Id. at litigation. conduct in the course of Cham imposed plaintiffs, against the the trial NASCO, Inc., 32, 50, 111 bers v. 501 U.S. sanctions (1991). Although 115 L.Ed.2d 27 S.Ct. PLF, entity which had controlled person an the sanctioned Chambers was, litigation ... and in the court’s case, party to the a recent case in actual view, responsible abuse substantial reasoning af Ninth Circuit used similar system. of the court imposition fees firm the heavily Relying Id. at 1169. on Chambers non-party, comparable circumstances NASCO, Inc., Appeals supra, the Court *8 what we have here. Corder v. Howard John ruling proper as exercise the upheld this a (9th Cir.1994), Co., in 53 F.3d 225 son & powers sanction trial court’s “inherent management of a dispute a over the volved entity.” responsible PLF the Id. 1170. private plan; alleged pension the suit reasoning of the Ninth duty by agree fiduciary plan’s the invest We with the breach adopt it here. ruling of Circuit in these two cases After on the merits ment advisor. claim, that the trial court had the inherent We hold underlying the the trial court awarded Jemison, given the power to sanction Dr. against Gary Baugh, pres the fees judi- of the proof flagrant clear of his abuse company that had established ident of the in process. Baugh the Corder though cial Like Mr. plan. Even he was not case, Lockary PLF in the Dr. Jemi- capacity,”6 case and litigation “in his individual any impose dissenting colleague agrees could not sanctions of kind that the court court upon Our 5. pay him. permissibly order Jemison to attor could Jemison, damages. neys’ but not Rather, however, Baugh his as defendant in such distinction. had been named draws no plan. pension capacity party, his as a trustee was not a is that because he contention affidavits, deeply son was involved in the fraudulent Rev. Kimber conceived the idea very them, beginning. prepared provided scheme from the them to Mr. He took however, part planning an active in litigation Mundy. Fleming, of the admitted Ms. in preparation preparing single signed of the false documents affidavit and sub- request by which the TRO based. The the trial court was mitted Rev. Kimber. As noted, clearly evidence along significantly showed that all of the affidavits are form, format, Fleming with very type- at the in in and even in was similar Furthermore, reject heart of argument the fraud. We his face to the Kimber affidavit. support pre- evidence was insufficient to the Kimber affidavit had to have been imposition by court’s pared knowledge sanctions. someone with of the support All other affidavits. of these facts Fleming’s B. Involvement finding Fleming the court’s that Ms. filing involved a collusive and fraudulent Fleming Ms. likewise maintains that lawsuit. her involvement in the fraudulent activities minimal, and that she therefore should C. Nixon’s Involvement asserts, not have been sanctioned. She

example, nothing that she had to do with the that Nixon claims his role minimal, selection Mundy of Mr. as counsel for the fraud was far less than that of the suit that was filed in participants. the District of Colum other While that is trae to quite possible extent, bia. While it is Fleming some we are satisfied that his involve selection, not have made the final finding ment was sufficient for a bad faith actively evidence subject showed she was in and that he should therefore be choosing volved in the venue for the imposed suit and the sanctions the trial court. finding Mundy. Mr. She was in direct engage Nixon asserts that he did not Mundy’s contact begin office from the conduct, participate bad faith much less ning, consulting jurisdiction about and TRO (as plaintiff) in conspiracy a massive with the obtained, standards. After the TRO was points He defendants. out that the trial phone there were numerous calls between court found that he never saw four dozen Mundy’s office Fleming’s office. false “affidavits disenfranchisement” which

Fleming also contends that the evidence were filed with the court. The court also failed to show that participated she found that Nixon did not write or authorize drafting of the appli- forged and the TRO letter to Jemison at- which was cation. Mundy’s She cites Mr. complaint. statement tached to the that there were “several calls back and forth Despite findings these favorable to Dr. myself Fleming and Ms. in which I was Nixon, however, the trial court also found trying identify who the members of the played major that Nixon role in the institu- Election Committee were.” went on tion of the fraudulent lawsuit. It was Nixon say purpose that this “wasn’t for the arranged special meeting who filing. setting griev- [It for] forth the Alabama State Convention’s Executive Board asking ances and for official action approval to obtain the board’s of a suit chal- Baptist National Convention.” The trial lenging helped the election its name. He infer, did, properly court could as it gain support by relieving votes to the suit proof while there was no direct positions certain officials of their and then *9 participated in drafting legal pa- the of the board, appointing including others to the pers, repeated the calls and faxes between presented Rev. Dr. Nixon Lewis. Fleming Mundy Fleming showed that at memorandum, prepared Executive Board a preparation. least had some role in their Fleming, Ms. which served as the “factu-

Finally, Fleming complaint. Fleming that the asserts she had al” foundation for knowledge that purported fraudulent affidavits were be- to document that 616 voters from ing any right collected or that affidavits were to be Alabama had been denied their to vote complaint with the that submitted and the TRO at the convention. Nixon knew this application. She states that Rev. Lewis and memorandum been fabricated and was

284 defending against the the

not He also told Mr. that of fees incurred accurate. compensatory litigation properly treated as delegates than had been is more 600 Alabama NASCO, Inc., damages. v. right allega- central See Chambers denied the to vote—-the 2123. Fur complaint. supra, U.S. at Dr. Nixon tion of the fraudulent law, thermore, District of Columbia assigned gather- under then Rev. Lewis the task of always prereq is of net ing support the evidence worth false statements to suit. damages. punitive of See uisite to an award way knowing just of how While there is no Chavez, Corp. Management v. Town Center closely Dr. Nixon collaborated with Rev. (D.C.1977); see also Jona 373 A.2d affidavits, arranging forged Lewis in for the Breeden, A.2d than Woodner Co. assigned amply the fact that the task Nixon 1097, 1098 (D.C.1995),modified, 681 A.2d his fraud. When demonstrates role the (1996) (net must shown when worth be affiants, purported one of the Rev. Willie punitive damages are on the wealth of based McClung, approached Dr. his Nixon about damages person from whom such the affidavit, forged him “mind Nixon told to — denied, U.S. -, sought), cert. S.Ct. the Although own business.” Nixon left [his] (1997). 137 L.Ed.2d management the active of suit Jemison Fleming, helped he fabri- provide the D. NBC The Constitution allegations upon cated suit and, fraud based when with the confronted Fleming claim that Jemison forgery, nothing mitigate did it in knowledge excerpt had no altered way. The court found: NBC filed Mr. Mun from the constitution plaintiff, application. The knew firsthand dy as an attachment to the TRO allegations They argue that the raised omissions from the also that the TRO, consisting of application simply faxing and the for constitution were errors. Mr. eligible however, Mundy’s mass or dele- testimony, denials 600 more as well as his vote; gates’ right to interrogatories, assertions showed that he answers Fleming and President had not been specifically new Board Ms. send him a asked installed; unspecified breaches of the Con- copy constitution. The trial NBC Constitution, importance vention and assertions aware of the widespread irregularities, reasonably election find language, omitted could grounded in fact. not well one crucial sec that the likelihood this inadvertently omitted was tion would abundantly by the finding supported This is quite finding The that the alteration remote. evidence. culpa constitution was deliberate argues Nixon the court also supported by is the record.8 ble well damages punitive could not award without assessing damages,7 and compensatory (cid:127)first Mundy’s E. Mr. Retainer awarding punitive court erred con court found that Nixon asked trial court never trial because the reject pay fees of his net worth. We Jemison sidered evidence against NBC. Dr. Nixon arguments. legal proceedings In this case award both In the Executive Board of compensatory. had earlier advised fees was itself that it would repayment State Convention litigation, context of bad faith Alabama Columbia, essentially peat, argument We is frivolous. there must be In the District of i.e., Fleming's input least a basis in the evidence for the letters note also Ms. into actual — compensatory damages dam- unmistakable, before as the trial court concluded. is — See, ages e.g,Maxwell v. Galla- evidence, be awarded. example, that in all her There was (D.C.1998) (citing gher, 709 A.2d 104-105 (rather placed re:" correspondence "In than she cases). "Re:”) customary middle the more it, spacing, page after double and followed argue also that the two 8. Jemison and forged Septem- subject. Nixon letter of purported letters from Nixon *10 Fleming’s prepared in characteristic ber 27 was fabricated or from Jemison Nixon were not form. copious evidence of fraudulent. Given the scheme, re- which we need not here fraudulent

285 pay any money litiga- not have to toward this under another name.” Id. at 39. This court Following however, tion. say, damages Nixon’s conversation with punitive did not 28, 1994, September Jemison on could not also be awarded in addition $9,500 Mundy Washington. sent to Mr. attorneys’ only but that a trial is The court found that there were no docu- prerequisite to such an award: supporting ments or discussions Nixon’s puni- suggest that an award of We do claim that the retainer a personal fee was damages inappropri- have tive would been loan to him from and ruled that the case, present an ate but such award payment by of the fee Dr. Jemison to the made, was not nor could it have been attorney representing purported his adver- absent trial. sary improper. added). (emphasis argue, Appellees Id. Appellants continue to assert (or, agree, we that if there a trial in this is as money simply personal this loan case, trial-type hearing), Syn- then neither Mundy. They to Mr. contend that there was anon nor other an case bars award of no evidence that either Dr. Jemison or Ms. punitive damages in a case such as this. was in control of Mr. and his handling of the disagree. lawsuit. We Appellees also that in assert evidence showed that Dr. Jemison wired the Synanon case “the trial court followed money directly Mundy, knowing to Mr. Again, agree. letter.” we The court allowed Mundy was about to file the generous discovery and held three evidentia application. TRO Suits which one side over, ry hearings, and when pays presumed both sides’ fees are to be express findings court made and detailed collusive because parties “one of the has appellants that each of the three had acted dominated the conduct pay of the suit with the required malicious state of mind ment of the fees of both.” United States v. See, Daka, punitive damages. e.g., Inc. Johnson, 302, 304, 319 U.S. 87 Breiner, (D.C.1998); 711 A.2d 98-99 (1943). was, L.Ed. 1413 There trial Holle, Washington supra, Medical Center v. found, pre evidence to rebut this Particularly 573 A.2d at 1284. when the sumption, and thus the court did not err in activity question contains the elements of a holding payment improper. tort, punitive classic intentional for which damages permissibly granted,9 we see no Damages

III. Punitive why may punitive reason a court not award Appellants assert See, that the trial court Middleton, damages. e.g., Weisman v. did authority not have to assess punitive (D.C.1978)(both 390 A.2d damages as a civil sanction for bad faith punitive damages may properly fees and litigation, citing Synanon Foundation, Inc. v. claim). prosecution awarded on a malicious Bernstein, (D.C.1986). 517 A.2d They Synanon. damages “Whether will Synanon misread In we held that depends lie faith, the intent with which the when a suit has been filed bad done, wrong was court in its and not on the extent of the discretion “award the entire legal expenses damages.” Washington actual Medical incurred the defendant.” Cen ter, (citation supra, Id. at 38. If the 573 A.2d at award of omit fees is ted). greater expenses than the actual amount of That intent has been described in a incurred, variety ways, then to the extent that it exceeds but its nature can be dis amount, truly language “that award is not attor cerned used in our case neys’ punitive damages fees at all but rather requi- law.10 The finder of fact can infer the Columbia, fraud, will, recklessness, excep 9. In the District of with rare nied with ness, ill wanton tions, punitive damages only are available oppressiveness, disregard willful Fernandez, intentional torts. See Bernstein v. plaintiff’s rights, tending or other circumstances ” (D.C.1991); Washington A.2d Medi aggravate injury.’ Washington Medical Holle, supra, cal Centerv. 573 A.2d 1284 n. 24. Holle, (citations supra, Centerv. 573 A.2d at 1284 omitted); see, e.g., Young Arthur & Co. v. Suther "Punitive are warranted when land, ("evil (D.C.1993) 631 A.2d motive ‘accompa- the defendant commits a tortious act *11 286 Wag punitive damages. Harris v. surrounding mind cir for See

site state of from shal, 283, (D.C.1975). In cumstances; indeed, A.2d 289 usually impossible it is 343 case, joint otherwise, finding and several in addition to to do for of that direct evidence if the liability, the trial court held that even state of mind is rare. See Robinson v. Sari (D.C.1988). 901, appellant of each were to be consid actions sky, 535 906 A.2d the im separately, would warrant ered appellants’ The trial court found conduct spelling position out what of sanctions. After nature, accompanied by ill egregious be of an the fraud appellant each had done to further disregard rights will and willful of the of scheme, concluded, court “Their ulent opinion Throughout its court others. joint actions, individually or whether viewed “collusive,” “despicable,” used such terms as upon ly, resulted a most serious fraud “dastardly,” misleading,” “false “perni- court, imposi integrity which the for odious,” fraud,” “gross cious and serious wholly tion of is mandated and is 'sanctions upon integrity “a most serious fraud legal no or appropriate.” We discern factual appellants of the court” to what describe ruling, light especially error in this of exaggeration done. There was no in this Harris. language. Appellants engaged in a collusive Appellants further maintain that scheme characterized the outset punitive damages really a of was deception, subverting judicial fraud and award contempt, im disguised penalty for criminal process outrageous itself their efforts to required legal or posed without the notice clearly overturn the of valid elec- results plain safeguards, thus error. We and was pur- tion. court found conscious and disagree; not matter that called this was poseful respect fraud with both the overall nor contempt proceedings, criminal can many specific scheme and fraudulent or col- penalty. a criminal acts, the award be construed as sup- abundantly lusive and the evidence damages private punitive An to a award findings.11 ported those or claims on a civil claim is based Appellants further maintain that a mat- as penalty, criminal sanction to which civil not a joint ter law there can be several See, protections apply. e.g., criminal law damages. They liability punitive assert Gore, America, Inc. BMW North v. 517 that there are strict limitations on the vicari- 1589, 559, 22, 574 n. 134 U.S. imposition ous (1996) (although penalties 809 civil L.Ed.2d knowledge include “full of the facts” process requirements, must due “[t]he meet person vicariously charged. being See afforded to safeguards strict constitutional 189, Co., City Woodard v. Stores 334 A.2d applicable to criminal defendants are not civil (D.C.1975). argue Appellants 191 cases”); Browning-Ferris Ver Industries not trial court did find each individual Inc., mont, Disposal, U.S. Inc. Kelco jointly punitive damages whom 2909, 106 L.Ed.2d S.Ct. knowledge of severally assessed had full (1989) (“[a]wards punitive damages do not culpable conduct of others. concerns”). [Eighth implicate Amendment] fine, held, however, provided “If the it is remedial court has relief is This puni jointly wrongful paid complainant, it persons participate when is who severally paid liable tive it is to the court-” Hicks jointly conduct when malice”); Garfinckel’s, before we decided Jona actual Vassiliades v. almost three months or Rhoades, Inc., Brothers, case, 492 A.2d Brooks Miller & at a when the standard than Woodner time (D.C.1985) ("outrageous conduct which proof yet settled. Because issue not wanton, reckless, malicious, disre- court, or in willful is timely trial we de raised in the (citations omitted)). gard rights” for another’s now, as we declined in simi cline to consider it cases, Daka, prior lar in two su circumstances Appellants also contend that the trial Dyer v. pra, n. William S. 711 A.2d at 99 convincing” did not use a "clear and standard Associates, Inc., Bergman 657 A.2d & awarding punitive damages, required by Jona- Woodner, (D.C.1995). 665 A.2d at See Jonathan Breeden, supra, Co. v. 665 A.2d than Woodner aspect (discussing Dyer). of Jonathan That specifically the court did not use 938. While challenged has not been here. Woodner language, appellants note, moreover, to do We never asked it so. order filed that the court's

287 Feiock, 624, 632, v. apply misrepresentations 485 U.S. 108 S.Ct. not because were (1988). 99 721 punitive pleading). L.Ed.2d Because the in not made a written damages in paid this case were ordered to be Chevalier, light In Bredehoft court, appellees, to the not the and because that, we hold to the extent that the court emphasized the trial court that relied on Rule it erred insofar as neither being awarded for harm “the severe caused” n Jemison Fleming signed any plead nor had NBC, by appellants Lyons to Dr. find we ing or other document on which the court’s appellants’ in argument.12 merit hold, also howev sanctions were based. We reasons, reject For all of appel- these we er, any that such error was harmless because challenges punitive lants’ various dam- the court also found that and Flem Jemison ages award. ing had acted bad faith and exercised its authority—well inherent founded case IV. ATTORNEYS’FEES Chevalier)—to (including law Bredehoft claim that at punish litigation, bad faith there because alleged violations, the time prior overwhelming support evidence to 1, 1995, applied only June Civil Rule 11 to a findings. court’s party attorney signed or who and filed a paper. Appellants motion or other also contend that tri While this assertion correct, essentially may is al aggregated a court court erred when it relied on neverthe (albeit impose calculating attorneys’ less time sanctions not under Rule entries fees. 11) attorney Supreme when it finds that the party appli or Court has held that “the engaged has cant ... litigation, billing bad faith even if should maintain time records person signed in a any pap reviewing has not manner that will enable a identify Hensley court to distinct claims.” v. ers.13 Eckerhart, 424, 437, 461 U.S. 103 S.Ct. recently This court addressed a similar (1983). 76 L.Ed.2d 40 Courts in the District Alexander, situation in 686 A.2d Bredehoft imposed require of Columbia have never (D.C.1996), in which we reversed an or- daily task-specific billing, ment of even under imposing der sanctions under Rule 11 be- authorizing statutes awards of “reasonable” attorney sign cause sanctioned did not application “[T]he fees. fee need so, challenged pleading. doing In howev- present ‘the exact number of minutes er, we made clear that if the trial court had spent precise activity nor the to which each faith, finding made a of bad it could have specific hour was nor devoted attain imposed sanctions under its inherent “au- ” attorney.’ ments of each National Ass’n of thority impose sanctions” for bad faith Secretary Defense, Concerned Veterans v. regardless conduct attorney of whether 94, 102, U.S.App.D.C. 675 F.2d signed papers. had (citing Id. at 589 (1982) (citations omitted). NASCO, Inc., supra, Chambers v. 501 U.S. at 45-46, 2123); accord, Appellees’ comported Chevalier v. fee submission with Moon, (D.C.1990) (affirm- 576 A.2d requirement provide sufficiently that it ing award of descriptions fees when trial court performed detailed of the work finding had made acted and the hours billed. The submission con- bad faith misrepresenting judge daily facts to sisted of the time entries of each of the orally healing, though at a attorneys legal even Rule 11 did assistants involved. agree appellees imposition Appellants 12. We assert that the court erred "in closely sanctions in this case an award resembles holding Fleming signed that either Jemison or damages prose- in a civil action for malicious any filed document in violation of Rule 11.” The conduct, process. cution or abuse of For such court, however, finding; never made such recognizes the law award courts both contrary, plainly it was aware damages compensatory punitive damages (or signer attorney a client whose filed a docu- See, contempt protections. e.g., without criminal behalf) ment on his her can or be liable under Middleton, supra, Weisman v. 390 A.2d Rule 11. (both attorneys’ punitive damages fees and "proper damage elements of award” in a [a] case). prosecution malicious 26, 1995, challenge prepared same in order to documents were These (as contend), or, at appellees its in which the law firm maintained award manner billing latest, purposes, very days time and includ- ten after Febru- entries within *13 description performed 7, 1996, challenge ed a of the activities the attor- ary to order by given day total attorney each on a and the neys’ appellants Because failed fees award.15 attorney day. spent failure, time each that explain this to do either and failed to accompanied was de- fee submission untimely, February their motion filed 29 was affidavits, explanatory including an af- tailed refusing to and the trial court did not err per- describing fidavit the overall services address it.16 decisions, formed, particular staffing and made in the exercise counsel’s “write-offs” VI. ConClusion judgment. that the docu- We are satisfied any part error in find no reversible We supporting the attor- mentation calculation of Accordingly, the trial court’s decision. neys’ require- was meet fees sufficient to Jemison, Fleming, appeals five Hensley other ments of v. Eckerhart and are affirmed for review orders before us relevant cases. cross-appeals noted respects. in all The two V. The Motion For Reoonsideration dismissed; 3, supra. by NBC are see note 26, 1995, the court On June trial awarded is It so ordered. punitive against appellants in the $150,000 that appellants amount of and ruled REID, concurring part Judge, Associate attorneys’ for would be liable reasonable part: dissenting in fees, costs, expenses, the amount join fully Judge Terry’s support I pro- be after which would determined further except part imposes for opinion, that ceedings. July they separate On filed against Dr. punitive damages the sanction of appeal from The court notices of that order. agree I the factual circum- Jemison. precise of at- did not determine the amount 7, warrant sanctions. February stances of matter torneys’ expenses fees until me, however, 1996, is most for assessing it What troublesome when entered an order 29, power to inherent $237,322.00. February at is the use of court’s costs On those damages, in to at- impose punitive addition appellants filed a motion to reconsider fees, non-party. torneys In an a a June 26 sanction order. sanction on court’s 10, 1996, the court April order dated trial 26, 1995, The trial court’s order June for was held that the motion reconsideration party. At the time as a treats Dr. Jemison untimely it.14 Jemi- and declined consider complaint, Dr. plaintiffs their filed now that the court son and contend litigation. party not to the On made ruling. in so its discretion abused inquired trial court October appropriate par- pre-trial set a whether Dr. Jemison “is The court’s order 7,1994, the trial filing ty in this case.” On October ten-day limit motions reconsid had to court added additional defendants Appellants would thus have eration. case, name of Dr. days but did not include the file motion ten after June their within well, (D.C.1990) (”[a]n noted, nevertheless, n. 1 "al- A.2d 14. The court it attorney’s when the trial award fees is final ready of the issues raised considered most quantum attorney's previous 'determined in its has defendants’ motion reconsider ‘merely paid,’ the trial court not when fees be orders." attorney’s fees an entitlement established ” (citation additionally later determined’ omit- that the June amount to be Appellees contend ted)). appealable, 26 order final order, appealed appellants from that because is treated as they 16.Even if the motion to reconsider file a motion for reconsidera- could also judgment under Civil They only partially to amend the correct. The June motion tion. 59(e), appellants would still have had to file punitive damages, it Rule as to but order final February days 7. Because respect it within ten after final fees was not costs, not, untimely under appeal- did the motion was it was not and thus to that extent Condominium, 59(e). Inc. McDo- Rule Marlyn able. See Jemison in its order. Nor was Dr. Jemison of the factual circumstances differed some However, in from the case before us.1 party in plaintiffs’ identified as amended any authority, unwilling absence of I am complaint. Despite appellees’ argument that affirm inherent the exercise of the court’s Dr. Jemison acted like a and did not power damages, in to award addition challenge jurisdiction the court’s after receiv- against non-party. ing sought notice that sanctions would be Supreme us that “[b]e- Court has reminded him, nothing I find in the record very potency, powers cause of their inherent showing Jemison was ever made a discre- must exercised with restraint and party to the suit in capacity. his individual Chambers, supra, tion.” 501 U.S. *14 Hence, I can regard him non-party. as a S.Ct. 2123. A double award of sanctions against non-party, solely the in- based agree I that Corder v. Howard Johnson & court, power herent an awe- creates Co., (9th Cir.1994), 53 F.3d 225 which relied weapon. join in prepared some I am not NASCO, Inc., on Chambers v. 501 U.S. weapon the creation of such an awesome (1991), 111 S.Ct. sup L.Ed2d 27 this time. ports the exercise of the court’s inherent power sanctions, to award in the form of fees, against non-party for the

filing of a collusive agree lawsuit. I also Cir.1992), (9th

Lockary Kayfetz, 974 F.2d 1166 denied, rt. 508 U.S.

2397, 124 (1993), L.Ed.2d permitted sanc

tions, attorneys’ fees, in the form of

non-party misconduct, although based on Lockary, supra, $136,434.50. corporation involved a "al- in the amount of Id. at leg[ing] regulatory takings, pro- substantive and imposed 1169. Because sanctions were errone- process equal protec- cedural due violations and ously respect procedural process ato due tion ... [as violations well' as] antitrust claims” motion, claim and an abstention and because plaintiffs "sought damages $30 mil- there were errors calculation of the attor- ($10 lion million trebled under the Sherman neys’ the matter was remanded to the dis- Act), declaratory injunctive relief.” 974 trict court for recalculation of the amount of the magistrate appointed spe- F.2d at 1168. The sanctions. Id. at 1179. imposed non-profit cial master sanctions on the