COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

REGINA ROBERTS 

 MEMORANDUM OPINION* BY 

v. Record No. 2096-97-1 JUDGE NELSON T. OVERTON 

 FEBRUARY 24, 1998 

CHAD HAIAR 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 Manolita A. Marmol (Joynes & Marcari, P.C., 

on brief), for appellant. 

 (Robert A. Boester; Hawkins, Burcher & 

Boester, P.C., on brief), for appellee.1

 The law firm of Joynes & Bieber, P.C.2 (appellant) appeals 

an order of the Circuit Court of the City of Newport News holding 

it in summary civil contempt for violation of a court order. 

Because we agree with the result, but find the amount of the fine 

to be excessive, we modify and affirm. 

 On September 25, 1995 appellant filed a motion for judgment 

on behalf of its client, Regina Roberts. On November 18, 1996 

the trial court entered a "scheduling order," pursuant to Rule 

4:13, which required counsel for each party to meet with the 

court on March 5, 1997. The purpose of this pre-trial conference 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1Counsel for appellee waived oral argument. 

 2Joynes & Marcari is the successor in interest to Joynes & 

Bieber, the law firm that was held in contempt. 
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was to identify issues, discuss exhibits, approve witnesses and 

consider any matters that would facilitate the orderly progress 

of the trial. The attorney representing appellant, Manolita 

Marmol, signed the order as "SEEN & AGREED." In spite of this, 

she did not appear for the pre-trial conference as ordered. 

 On March 27, 1997 the case was tried before a jury. At that 

time, appellant objected to the testimony of an expert witness as 

primarily containing hearsay statements. The trial court 

sustained the objection, but held that it was more properly the 

subject for a motion in limine which should have been settled at 

the pre-trial conference. Subsequently, the trial court held 

appellant in summary civil contempt and fined it twelve hundred 

dollars, an amount equal to the fee paid by appellee to the 

expert witness. 

 "The courts and judges may issue attachments for contempt, 

and punish them summarily, only in the following cases: 

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

to obstruct or interrupt the administration of justice . . . ." 

Code § 18.2-456(1). The record indicates that appellant had full 

and complete notice of the conference and yet did not appear. 

The trial court found that this action greatly inconvenienced the 

parties and the court. Under these circumstances, we cannot say 

that this finding is plainly wrong or without evidence to support 

it. See Code § 8.01-680. 

 We must, however, correct the amount of the fine. The trial 
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court issued the summary contempt order under the auspices of 

Rule 4:12, which allows the court to punish a party for failing 

to comply with discovery. There is nothing on the record before 

us which indicates that appellant failed to comply with any 

discovery order issued by the court, only that it failed to 

appear for a conference which was to discuss subjects which 

impacted the course of trial. Therefore, the court's summary 

contempt power flowed not from Rule 4:12, but from Code 

§ 18.2-457, which restrains a court from "imposing a fine 

exceeding fifty dollars." See Robbins v. Grimes, 211 Va. 97, 

100, 175 S.E.2d 246, 248 (1970). "A sentence in excess of one 

prescribed by law is not void ab initio because of the excess, 

but is good insofar as the power of the court extends, and is 

invalid only as to the excess." Deagle v. Commonwealth, 214 Va. 

304, 305, 199 S.E.2d 509, 510-11 (1973) (citing Royster v. Smith, 

195 Va. 228, 77 S.E.2d 855 (1953)). Consequently, we now modify 

the order so as to bring it in line with the statutory limit. 

 Because the trial court did not err by holding appellant in 

contempt, but only had the power to punish monetarily up to fifty 

dollars, we now reduce the fine to fifty dollars and affirm. 

 Affirmed.