Attorney in Gloucester case says not so fast on paying fees and sanctions

By Matt Sabo, The Daily Press – 10/9/2009

An attorney has asked a judge to throw out $171,000 in attorney fees that Gloucester County is supposed to pay, in addition to sanctions of $2,000 apiece for 40 Gloucester citizens.

Citing a recent Virginia Supreme Court decision, the attorney for the 40 citizens claims that visiting Circuit Judge Westbrook J. Parker lacked the jurisdiction to order payment of the attorney fees and the sanctions.

If successful, the legal maneuver would mean Gloucester County would avoid paying a large bill, as would the citizens facing a cumulative $80,000 fine. But failure could result in more attorney fees piled onto Gloucester’s bill.

It also adds another chapter to a long-running saga in Gloucester that has its origins in an election nearly two years ago. A change in the power structure of the Board of Supervisors with the election of two new candidates ushered in two years of tumult that included indictments of four supervisors — Teresa Altemus, Bobby Crewe, Michelle Ressler and Gregory Woodard — and an attempt to remove them from office through a petition process.

Charges against the four supervisors were subsequently dismissed and the petitions were thrown out on technicalities.

Steve Emmert, an attorney representing the 40 Gloucester citizens who gathered the petitions, challenged the award of fees and sanctions in court documents filed Friday. Emmert wrote that in June and September, Parker issued an order requiring Gloucester County to pay attorney fees — which had swelled to $171,000 — and required the 40 petitioners to pay a cumulative $80,000 sanction to Gloucester for abusing the judicial system.

That was too late, Emmert says.

Emmert cited a Sept. 18 Virginia Supreme Court decision in a case called City of Suffolk v. Lummis Gin Co.

In that case, the Supreme Court ruled that a circuit court had no jurisdiction to award attorney fees and costs because that order was entered seven months after a circuit court granted the city’s motion for a nonsuit. Nonsuit is a legal term indicating that a case is dismissed.

The fees and costs are supposed to be awarded within 21 days that an order is entered in the court, otherwise the trial court loses jurisdiction, according to the Supreme Court opinion. In this case, Parker entered a nonsuit order on Nov. 19, and then held a hearing on Dec. 17 in which he ordered the attorney fees and sanctions, but didn’t sign the final orders until June and September.

But an attorney for two of the four supervisors scoffed at Emmert’s argument.

“Well, you know, here we go again,” said Tony Troy, who represents Gloucester supervisors Altemus and Ressler.

Troy said that since Emmert doesn’t represent the county, he can’t seek dismissal of the $171,000 in attorneys fees Parker ordered Gloucester to pay. As for the $80,000 sanction against 40 Gloucester petitioners, Troy said a judge always has jurisdiction to deal with those because they are sanctions and not attorney fees.

Also, Troy said, at the Nov. 19 nonsuit court hearing Parker made it clear he wasn’t issuing a final order. “If it’s not final, it’s always before him,” Troy said.

Gloucester supervisors have not said publicly how they expect to proceed and whether the Board of Supervisors intends to pay the attorney fees, appeal Parker’s ruling, do nothing, or take another course of action.

Supervisor Rick Allen has said the supervisors will discuss the matter at their meeting on Oct. 20.