Due Process is due for sanctions under Va. Code § 8.01-271.1

In a February 18, 2025 unpublished opinion overruling the Circuit Court of Loudon County, the Court of Appeals of Virginia confirmed that under Va. Code § 8.01-271.1, an attorney facing sanctions must be afforded notice and the opportunity to be heard before the trial court may award sanctions against him.

In AQM Golam Faruque, et al. v. Fazle Bhuiyan, et al., No. 1682-22-4, the Court of Appeals vacated the entry of attorneys’ fees sanctions against attorney Joshua Grossman for his motion to disqualify defendant’s counsel. The Court of Appeals reasoned that, because the circuit court raised the issue of sanctions sua sponte at a hearing at which Mr. Grossman was not present, and because no written motion for sanctions had been submitted prior to the hearing, Mr. Grossman had not been afforded notice and the opportunity to be heard on the issue. Accordingly, the Court of Appeals reversed and vacated the imposition of $5,719.50 in attorneys’ fees against Mr. Grossman by the trial court.

Though Faruque presented an issue of first impression for oral sanctions motions, the Court of Appeals built upon its earlier opinion in Henry v. Dominion Towing & Recovery, No. 1060-22-4, slip op. at 7, 2023 Va. App. LEXIS 212, at *9-10 (Apr. 4, 2023) to generally flesh out the due process rights afforded a party facing sanctions. In Henry, the Court of Appeals held that the requirements of due process were satisfied for the purpose of imposing § 8.01-271.1 sanctions where a plaintiff had written notice of defendant’s intent to request sanctions and that the request was made in writing two months before the initial hearing on the issue. The Court in Henry gave a caveat that a sanctions motion does not have to be in writing and, therefore, left open the question of what due process must be afforded to a party facing sanctions without the notice of a written motion.

In Faruque, the Court of Appeals addressed the issue left open by Henry: what happens when a motion for sanctions is made from the well of the court (upon the court’s invitation), and the party to be sanctioned is not present? In evaluating what due process must be provided in this situation, the Court relied upon a survey of sanctions case law from other jurisdictions, including the interpretation of Fed. R. Civ. P. 11(c), upon which Virginia’s sanctions statute is largely modeled. Ultimately, the Court of Appeals found that the trial court “failed to provide Grossman with the necessary opportunity, that he was entitled to, to argue against the imposition of sanctions in his own right,” which must be accompanied by notice prior to the time at which sanctions are imposed.

What does the Faruque opinion mean for litigants moving forward? For parties seeking sanctions, the best practice is to file a written motion to ensure the opposing party cannot argue they did not have notice of the potential sanction. If you make an oral motion under § 8.01-271.1, sanctions may be ordered only against a party physically present and capable of arguing against that motion. Be mindful that § 8.01-271.1(B) governs the signing of pleadings. So, if you make an oral motion for sanctions based on a written pleading, Faruque instructs that the specific party against whom sanctions are sought for their signing of a pleading —not another attorney from their office—must be present to respond.

For more information, please contact:

• Colin Neal (colin.neal@carrmaloney.com),

• Sarah Conkright (sarah.conkright@carrmaloney.com) or

• Dennis Quinn (dennis.quinn@carrmaloney.com). By: Colin Neal and Sarah Conkright.