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IN RE: APPEAL FROM THE ORDER SANCTIONING BENJAMIN SMALL, ATTORNEY
AT LAW
NO. COA09-485
(Filed  8 December  2009)
1.                                                                   Attorneys; Pleadings  - sanctions  - filing motions in
violation of court rules and for improper purpose
The superior court did not err by ordering respondent
attorney to pay  $500 as a sanction for filing motions in
violation of court rules because respondent did not
challenge any of the court’s findings of fact that served as
the bases for its decision to sanction him and conceded that
the trial court had the inherent authority to sanction him.
2.                                                                   Constitutional Law  - due process  - notice
The Court of Appeals exercised its discretion under
N.C. R. App. P. and concluded that respondent attorney’s due
process rights were not violated where respondent was put on
notice that sanctions may be imposed for filing his motions
to recuse and continue, had notice of the grounds upon which
those sanctions were imposed against him, and    had an
opportunity to address those grounds throughout the entire
hearing on defendant’s motions.
Appeal by respondent from order entered  18 December  2008 by
Judge W. Erwin Spainhour in Cabarrus County Superior Court.
Heard in the Court of Appeals  7 October  2009.
Roy Cooper, Attorney General, by Grady L. Balentine, Jr.,
Special Deputy Attorney General, for the State.
Michael E. Casterline, for respondent-appellant.
MARTIN, Chief Judge.
Attorney Benjamin S. Small appeals from an order entered in
Cabarrus County Superior Court which ordered him to pay  $500 as a
sanction for filing motions that the trial court found were filed
in violation of court rules and were  “vexatious and totally




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without merit and  .  .  . filed for the improper purpose of
harassing  [the ADA].”    For the reasons stated, we affirm.
Small was appointed to serve as counsel for defendant James
Neal Halley, Jr., who was charged with the Class C felonious
offense of child abuse resulting in serious bodily injury in
violation of N.C.G.S.  §  14-318.4(a3).    On  26 November  2008, on
behalf of defendant Halley, Small filed a Motion to Recuse for
Conduct Prejudicial to the Administration of Justice  (“Motion to
Recuse”) in which he sought to recuse the Office of the District
Attorney from further proceedings related to the prosecution of
defendant Halley.    The motion alleged, in part, that the Office
of the District Attorney made allegations against defendant
Halley without probable cause and failed to disclose evidence in
violation of several North Carolina Rules of Professional
Conduct, and thus  “demonstrate[d] a lack of professional
objectivity, an abuse of prosecutorial discretion, and the
pursuit of a conviction rather than the pursuit of justice for
the  [d]efendant.”    On  4 December  2008, Small filed a Motion to
Continue in which he sought to continue defendant Halley’s
case——set for trial just over a month later on  19 January
2009——so that he could attend a continuing legal education
program on  21-23 January  2009.
The State filed responses to each of defendant’s motions.
The State’s Response to defendant’s Motion to Recuse alleged that
“defense counsel is merely being vindictive by filing this
frivolous Motion since this  [ADA] will not agree to the




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counteroffer and defense counsel is therefore acting
unprofessionally, unethically and not in the best interest of his
client.”    The State also alleged that  “defense counsel has become
too personally involved in this case to the extent that all
reasonableness and professionalism has been skewed.”    After
alleging that Small had violated Rules  3.3(1),  4.1(1), and  8.4 of
the Rules of Professional Conduct, the State requested, among
other things, that:                                                    (1)  “defense counsel be removed from the
court-appointed list until such time as this Court finds that
defense counsel can conduct himself in a professional, objective
and rationale  [sic] manner in representing his clients” and
(2)  “defense counsel be sanctioned for blatant violations of
[Rules of Professional Conduct]  3.3(1),  4.1(1) and  8.4.”
The State’s Response to defendant’s Motion to Continue
alleged that, on  23 September  2008, the State notified Small that
defendant’s trial was set to begin on  19 January  2009.    Since
Small did not file his Designation of Secure Leave until
4 December  2008, the State further alleged that Small did not
comply with Rule  26(F)(1)-(2) of the General Rules of Practice
for the Superior and District Courts, which requires that
designations for secure leave shall be filed no later than
90 days before the beginning of the secure leave period and
before any trial has been regularly scheduled.    Accordingly, the
State requested that  “defense counsel  [Small] be sanctioned for
failing to disclose” to the trial court that he was notified of




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the  19 January  2009 trial date on  23 September  2008 and not on
12 November  2008, as Small alleged in his motion.
On  18 December  2008, the trial court conducted a hearing in
which it considered defendant’s motions and the State’s responses
to those motions.    On the same day, the trial court entered an
order in which it made the following findings of fact and
conclusions of law, none of which are challenged on appeal:
7.                                                                   On  4 December  2008 counsel for the
defendant filed a Designation of Secure
Leave for the dates of  21-23 January
2009.    The filing of this secured leave
designation by counsel was in violation
of the statutes and rules that require
such designations to be filed no later
than  90 days before the beginning of the
leave period and before any trial has
been noticed for trial during the secure
leave period.
8.                                                                   The defendant’s Motion to Recuse is
vexatious and totally without merit and
was filed for the improper purpose of
harassing  [the ADA].
9.                                                                   There is no factual basis for the
contention that the  [ADA] has violated
any of the Rules of Professional
Conduct.    Indeed, all of the evidence
available to this court points to the
fact that the she  [sic] has properly
discharged her duties in accordance with
the law.    She has prepared the case for
trial after evaluating all of the
available evidence, extended a plea
offer to the defendant  (that she was not
required by law to do) which has been
rejected by the defendant, provided
discovery to the defendant’s attorney
and she has scheduled the case for trial
within the period initially requested by
the attorney for the defendant in his
motion for speedy trial.    Merely because
the defendant’s attorney disagrees with
the assistant district attorney as to
the strength of the State’s case is no




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indication whatsoever that the assistant
district attorney is guilty of
professional misconduct.    If the State
fails to offer evidence sufficient to
submit the case to the jury, then the
defendant’s remedy is to move the trial
court for dismissal at the close of the
State’s evidence——not to attempt to
recuse the district attorney and her
staff.
Based on the foregoing Findings of Fact, the
court makes the following  [Conclusions of
Law]:
1.                                                                     The defendant has filed a motion to
recuse  .  .  .                                                        . There is no basis in law
or in fact for this motion.    There is no
evidence of any actual conflict of
interest on the part of the district
attorney, or any member of her staff.
There is no evidence before this court
to indicate that the defendant will be
unfairly prosecuted in this case.  .  .
2.                                                                     This court has the inherent authority to
sanction an attorney who signs and files
a pleading without any factual or legal
basis whatever and that is vexatious, as
in this case.    Accordingly, the
defendant’s attorney, should be
sanctioned as hereinafter ordered.
The court then denied defendant’s Motions to Recuse and Continue,
and ordered that Small pay  $500 on or before  31 March  2009  “as a
sanction in this matter.”    On  19 December  2008, Small filed a
Notice of Appeal from the trial court’s order.
[1]  “All courts are vested with inherent authority to do all
things that are reasonably necessary for the proper
administration of justice.”    Couch v. Private Diagnostic Clinic,
146 N.C. App.  658,  665,  554 S.E.2d  356,  362  (2001)  (internal
quotation marks omitted), appeal dismissed and disc. review




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denied,  355 N.C.  348,  563 S.E.2d  562  (2002).    Consequently, a
court has the  “inherent power to deal with its attorneys.”    Id.
“This power is based upon the relationship of the attorney to the
court and the authority which the court has over its own officers
to prevent them from, or punish them for, acts of dishonesty or
impropriety calculated to bring contempt upon the administration
of justice.”    In re Nw. Bonding Co.,  16 N.C. App.  272,  275,
192 S.E.2d  33,  35, cert. denied and appeal dismissed,  282 N.C.
426,  192 S.E.2d  837  (1972).    Moreover, it is well recognized that
“a Superior Court, as part of its inherent power to manage its
affairs, to see that justice is done, and to see that the
administration of justice is accomplished as expeditiously as
possible, has the authority to impose reasonable and appropriate
sanctions upon errant lawyers practicing before it.”    In re
Robinson,  37 N.C. App.  671,  676,  247 S.E.2d  241,  244  (1978), on
reh’g,  39 N.C. App.  345,  250 S.E.2d  79  (1979); see also Ivarsson
v. Off. of Indigent Def. Servs.,  156 N.C. App.  628,  632,
577 S.E.2d  650,  653, disc. review denied,  357 N.C.  250,
582 S.E.2d  269  (2003)  (“[T]he judiciary holds the power to
supervise, punish and regulate the attorneys that appear before
it.”).    This  “inherent power of the court to discipline attorneys
[also] includes the imposition of monetary sanctions.”    Couch,
146 N.C. App. at  666,  554 S.E.2d at  363  (citing Robinson,  37 N.C.
App. at  676,  247 S.E.2d at  244).
In the present case, Small concedes that  “[t]here is no
question courts have inherent authority over attorneys as




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officers of the court”  “to take disciplinary action against
attorneys practicing therein,”  (internal quotation marks
omitted), and does not dispute that the trial court had the power
to sanction him pursuant to its inherent authority.    However,
Small claims that the trial court did not impose its sanction
pursuant to its inherent authority, but rather imposed its  $500
sanction pursuant to Rule  11 of the North Carolina Rules of Civil
Procedure.    Thus, Small argues that the trial court sought to
impose its sanction pursuant to a rule of civil procedure while
he was representing his client in a criminal matter, and so
contends the trial court lacked jurisdiction to impose the
sanction at issue.
In support of his claim, Small draws this Court’s attention
to the following statement made by the trial court at the end of
the hearing on defendant’s motions:                                   “Cou[r]t finds that there’s
no legal  [sic] for the filing of this motion, therefore, pursuant
to Rule  11 of the North Carolina Rules of Civil Procedure and the
authority of——the inherent authority of the Court, the Court will
weigh and consider appropriate——an appropriate sanction.”
(Emphasis added.)    In other words, Small suggests that the trial
court’s mention of Rule  11 during the rendition of its order to
impose sanctions requires a finding by this Court that the trial
court did not act pursuant to its inherent authority.    Small also
suggests that the language used in the court’s order which
imposed the sanction  “track[s] the statute’s language closely




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enough to infer that the court believed it was acting under the
authority of Rule  11.”
However, Small does not dispute that, during the rendition
of its order in open court, the trial court did state that it was
sanctioning him pursuant to its inherent authority.    In addition,
in the order entered on  18 December  2008, the court concluded:
“This court has the inherent authority to sanction an attorney
who signs and files a pleading without any factual or legal basis
whatever and that is vexatious, as in this case.    Accordingly,
the defendant’s attorney, should be sanctioned as hereinafter
ordered.”                                                              (Emphasis added.)    Since Small does not challenge any
of the court’s findings of fact that served as the bases for its
decision to sanction him and concedes the trial court had the
authority to sanction him pursuant to its inherent authority, and
since the order entered by the court plainly states that it
sanctioned Small pursuant to such authority, we conclude this
argument is without merit and overrule this assignment of error.
[2] Small next contends he was deprived of his due process
rights when the trial court imposed its  $500 sanction because he
was not provided with  “adequate advance notice that sanctions
might be imposed.”    Although Small concedes he failed to raise
his objection to this issue before the trial court and has not
properly preserved the issue for appeal, see N.C.R. App.
P.  10(a)(1)  (amended Oct.  1,  2009), we nevertheless exercise our
discretion to consider this issue.    See N.C.R. App. P.  2.




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“Notice and an opportunity to be heard prior to depriving a
person of his property are essential elements of due process of
law which is guaranteed by the Fourteenth Amendment of the United
States Constitution.”    Griffin v. Griffin,  348 N.C.  278,  280,
500 S.E.2d  437,  438  (1998)  (internal quotation marks omitted).
Accordingly, prior to the imposition of sanctions,  “a party has a
due process right to notice both  (1) of the fact that sanctions
may be imposed, and  (2) the alleged grounds for the imposition of
sanctions.”    Zaliagiris v. Zaliagiris,  164 N.C. App.  602,  609,
596 S.E.2d  285,  290  (2004)  (citing Griffin,  348 N.C. at  280,
500 S.E.2d at  438-39), disc. review denied,  359 N.C.  643,
617 S.E.2d  662, appeal withdrawn,  360 N.C.  180,  625 S.E.2d  114
(2005).
Small directs this Court’s attention to Griffin v. Griffin,
348 N.C.  278,  500 S.E.2d  437  (1998), as instructive in this case.
However, we conclude that Small’s reliance on Griffin is
misplaced.    In Griffin, during the course of a custody action, an
attorney for a non-party filed an adoption petition without
providing notice to any of the parties to the action.    See
Griffin,  348 N.C. at  278-79,  500 S.E.2d at  438.    Because one of
the parties contended  “the adoption proceeding was filed to
harass  [the parties] and disrupt the orders of the court in th[e]
custody case,” that party filed a Rule  11 motion seeking
sanctions against the attorney who filed the petition.    See id.
at  279,  500 S.E.2d at  438.    Nevertheless, after hearing the
Rule  11 motion, the trial court decided to impose sanctions on




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the attorney, but did not do so based on the allegations in the
Rule  11 motion before it.    See id.    Instead, on its own motion,
the court  “impose[d] sanctions for the filing of pleadings for
which  [the attorney] had not received notice that such sanctions
would be sought.”    See id. at  280,  500 S.E.2d at  438.    Thus,
although the attorney  “was notified that sanctions were proposed
for filing the adoption proceeding,  .  .  . sanctions were
[actually] imposed for something else.”    Id. at  280,  500 S.E.2d
at  439.    Since the Supreme Court concluded that,  “[i]n order to
pass constitutional muster, the person against whom sanctions are
to be imposed must be advised in advance of the charges against
him,” the Griffin Court remanded to vacate the order imposing
sanctions on the attorney.    See id.
However, in the present case, unlike Griffin, the record
before us indicates that Small had prior notice of the grounds
upon which the trial court was asked to consider sanctions
against him, and that those grounds served as the bases for the
sanctions imposed.    In its Response to defendant’s Motion to
Recuse, which was properly served upon Small, the State alleged:
9.                                                                     That defense counsel has requested that
the Defendant receive a plea arrangement
whereby the defendant will receive  “time
served” and the State has denied that
request;
10.   That defense counsel has disagreed with
the State on the merits of the case, as
well as the strengths and weaknesses of
the case, and does not believe the State
can prove its case and has therefore
filed this frivolous Motion;




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11.   That defense counsel is merely being
vindictive by filing this frivolous
Motion since this Assistant District
Attorney will not agree to the
counteroffer and defense counsel is
therefore acting unprofessionally,
unethically and not in the best interest
of his client;
19.   That defense counsel has become too
personally involved in this case to the
extent that all reasonableness and
professionalism has been skewed  .  .  .
In its Response to defendant’s Motion to Continue, which was also
properly served upon Small, the State alleged:
6.                                                                  That on September  23,  2008 and not
November  12,  2008, as alleged in this
Motion, the State notified the defendant
of the January  19,  2009 trial date as
referenced in the attached copy of
State’s letter dated September  23,  2008;
10.   That at no time did defense counsel,
prior to filing this Motion contact this
Assistant District Attorney and notify
her of a  “Mediation and Continuing Legal
Education Training” that was scheduled
for January  21-23,  2009 and that this
trial takes precedent over any type CLE
training;
12.   That pursuant to Rule  26(F)(1) and  (2)
of the General Rules of Practice for
Superior and District Courts, for
secured leave  “to be effective, the
designation shall be filed  (1) no later
than ninety  (90) days before the
beginning of the secure leave period;
and  (2) before any trial, hearing,
deposition or other matter has been
regularly scheduled, peremptorily set or
noticed for a trial during the
designated secure leave period”;




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13.   That defense counsel has not complied
with Rule  26(F)(1) and  (2) of the
General Rules for Practice for Superior
and District Courts since the
designation was not filed  90 days or
more prior to the beginning of this
scheduled trial, therefore defense
counsel’s secured leave for a CLE is not
effective.
The State then specifically requested in its Responses to
defendant’s Motions to Continue and Recuse that the trial court
impose sanctions against Small.
Small does not dispute that the State’s Responses to
defendant’s Motions to Continue and Recuse requested that the
court impose sanctions against Small, or that the State’s
Responses were properly served upon defendant Halley through
Small.    Small only argues that he did not have sufficient notice
that sanctions  “were to be addressed that day,” and so could not
“meaningfully contest the charges against him.”    However, the
purpose of the  18 December  2008 hearing was to address defendant
Halley’s motions and the State’s responses to those motions.
Since the grounds for the State’s request for sanctions arose
from its allegations that the motions filed by Small had no merit
and violated the General Rules of Practice for the Superior and
District Courts and Rules of Professional Conduct, Small
unquestionably was put on notice that he would need to address
these issues at the hearing on defendant’s motions.    Thus, we
conclude that Small had notice that sanctions may be imposed for
filing defendant’s Motions to Recuse and Continue, had notice of
the grounds upon which those sanctions were imposed against him,




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and had an opportunity to address those grounds throughout the
entire hearing on defendant’s motions.    Therefore, this argument
is also without merit.
Affirmed.
Judges MCGEE and ERVIN concur.

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