*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. heаring, 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 delеgates 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 а 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 thаt 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 оf 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 prоb- 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 delеgates 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 wеre 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 apрellants’ 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 forgеd 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 exchаnge 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
sanсtions
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 prаctices.” 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
example, nothing that she had to do with the that Nixon claims his role minimal, selection Mundy of Mr. as counsеl 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 officiаls 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 allеga- 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 allеgations 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 tiоn 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
III. Punitive
why
may
punitive
reason
a court
not award
Appellants assert
Seе,
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.
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, аccompanied 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
outrageоus
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
settlеd. 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.
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.
Appellаnts
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).
filing of a collusive agree lawsuit. I also Cir.1992), (9th
Lockary Kayfetz,
ce
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