# FILED December 5, 1995 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) SHIRLEY ASHFORD, ) ) Plaintiff ) ) VS. ) ) JOSHUA C. BE NJAMIN, et al, )

) Defend ants. )

______________________________________________________________________________ DOROTHY WIS EMAN JAC KSON , ) ) Plaintiff

s, ) ) VS. ) ) JOSHUA C. BE NJAMIN, et al. , )

) Defend ants. )

______________________________________________________________________________ STEVAN L. BLA CK, as Amicus Curiae, ) Shelby County Circuit Court ) No. 44447 T.D & 44448 T.D. Petitioner/Appellee, ) ) VS. ) C.A. No. 02A01-9408-CV-00175 ) JAMES E. BLOU

NT, III , ) ) Responde

nt/Appell ant. )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis . Honorable D'Army Bailey, Judge Robert L. Green , Memphis, Tennessee Wilbur C. Ruleman, Jr. , Memphis, Tennessee Att orn eys for R esp ond ent /Ap pel lan t, Ja mes E. B lo unt , III. Stevan L. Black , BLACK, BOB ANGO & MORGAN, Memphis, Tennessee As Amicus Curiae for Petitioner/Appellee. OPINI ON FIL

ED: REVERSED A ND DISMISSED FARMER, J. CRAWFORD, P.J., W.S. : (Concur s) McLEMORE, Sp. J. : (Concur s)Appellan t, Ja mes E. B lo unt , II I, a

ppeals from the j udgmen t of the She

lby County Circuit Court holding him in criminal contempt on two separate accounts and imposing sentenc e.

This matter stems from Blount's re prese ntation of

certain plaintiff s, Mr. and

Mrs. Jackson, in personal injury litigation involving the consolidate d cases of Ashford v. Benjamin and Jackson v. Benjamin . Attorne y Stu art Bre akstone r

eprese nte d the d efenda nts. The tr ial j udge directed a verdict in favor of the Jacksons on the issue of liability and the case went to a jury on the issue of damages. The jury returned a verdict in favor of Mrs. Jackson in the amount of $35,000. The Jacksons' insurance

carrier had

paid $10,000 of Mrs. Jackson's medical bills prior to trial, but no amount had been paid by the defendants' liability

insurer.
After the jury verdict as to Mrs. Jackson was read, Blount directed a "thumbs down" gestureto the jury

and mu tte red words to the effect that the verdict as to his client wa s unjust or unfair. He then p

roceed ed to exit the courtroom in an abrupt manner, prior to the trial court excusing him or the jurors and before rendition of all the verdicts. According to one juror, as B lount exited, "[h]e had his hands in the air and . . . said this is a travesty of justice." Blount, however, was present in the courtroom when the jury foreman received his certifica te of service. La

ter, after disch arge of the jury, Bre akstone and various jurors were conversing in the courtroom hallway when Blount approached

and, in ra ised voic e, ang

rily expresse d his dissa

tisfacti on with the

verdict to the jurors by remarking that "he

hoped they could live with themselves f or what they did, that wha tthey did was a travesty of

justice and they must not have been at the same trial that he was . . . bec ause they would have given his clients more money . . . . that he'd been practicing la w for twenty- five yea

rs and this is the worst he's ever seen a jury do. . . . that he hoped tha

t if an ac cident ever happ ened like this,

. . . to them . . . or

their fa mily members, that they

would hav e the sam

e damn inj uries and the same jury."
Break stone tes tified tha t, following this incident: [Blount] walked away

after he said his piece to them and Istarted apologizing to the juro

rs, tellin g them th

is i s not professional behavior . . . . [Blount] came up from beh ind and pu shed my

right .

. . shoulder and said Breakstone, don't y ou apologize for me. You're the most unethical attorney I know, you defr

auded the Court

and jury1 The record indicates that Blount's beha vior was, in part, prompted by his overhearing Breakstone in form the jur ors that "all the medical bills had been or would be paid by insurance" in response to the jurors' inquires about the interplay between the plaintiffs' medical bills and insuranc e. I

t was during his expl anation, that Blou nt approa ched, " pushed [his ] shoulder " with his fingertips and informed the jurors that insurance had not pa id his client's medical bills and that Breakstone was ly

ing telling them otherwise. 2 The matter was prosecuted pursuant to Rule 42(b) T.R.Cr.P., indicating that the tria l judge did not directly

witness Blount's actions. It appe ars from the record that he was subsequently made a

ware in an in chambers meeting initiated by Breakstone. thro ughoutt his entire trial and you lied to the Court and jur y throughout

the trial , and he pushed me, I thin k there w as t

h ree occasions during that -- when he was making those sta tements to

me that he pushed me. 1
The conduct ab ov e described prompted the trial judge to enter a n order appointing Appellee, Stevan L . Black , as amicus curiae to the cou rt "to inv estiga

te, initi ate, and prosecute a contempt citation" agains t Blount. 2 The petition for criminal contempt alleged that Blount violated T.C.A. § 29 -9-102( 1), (2) a nd (4), w hich prov ides:

The power of

the seve ral cour ts to iss ue attachments, and inflict punishmen

ts for contempts of court, shall not be construed to extend to any except the

following

cases: (1) The willful misbehavior of any person in the pr

esenceof the court, or so near thereto as to obstruct the administration of justice. (2) The willful misbehavior of any of the officers of sai d courts, in their of

ficial tr ansacti ons.

. . . . (4) Abuse of, or unlawful interference w ith, the process or procee dings of

the cour t.
Bloun t's motion that the trial judge recuse himself from presiding ove r the contempt proceedings was denied.
The trial court found Blount guilty of two count s of criminal contempt, based upon separa te incidents, and expressly char acterized his conduct as "outrage ous a nd willful." The trial court fined Blount $50 and

sentenced him to serve 10 day s in the Shelby County jail on eachcount. The cour t also ord ered B lount to pa

y B lack $5,0 00 in attor

ney fees. Blount raises the following issues for our review:I. Did the trial court commit error in hearing the ch arges o f criminal contempt alleged again st the app ellant? I I. Did th e tr ial ju dge com mi t er ror in app oi nt in g St eva n L. Black, Esq., to prosecute the contempt charges a gainst the appella

nt? II I. Did the trial judge c ommit error in finding the appellant guilty of two counts of cr

iminal con

tempt? I V. Did the tr

ial cour t commit er

ror in se nte ncing th e appellant to two ten (10) days se

ntences, two Fifty

Dollar ($50 .00) fines and a Five Thousand Dollar $5,000.00) attorney fee?
We begin with discussion of the third issue raised. We are presented with two separa te incidents of contempt upon whic h the tria l court imp osed sepa

rate se ntences . The fir st conviction relatesto Blount' s conduc t before the juror s; the sec ond is basedupon his conduct toward opposing co un se l. We co ns id er ea ch co nv ic ti on se pa ra te ly. Our review is in acc ordance with Rule 13(e) T.R.A.P. which provides for reversal of the conviction(s) if the p roof adducedat trial is insufficient

to support the fi ndings by the trier of f act beyond a

reasonable doubt. See State v. Creasy , 885 S.W.2d 82 9, 831 (Tenn . Cr. App. 1994). We d o not rew eigh the

evidenc e and must afford the prosecution th e strong est leg itimate vie w of the p

roof in the recor

d as well a s all reasona ble inferences which may be drawn therefrom. Creasy , 885 S.W.2d at 831. We will disturb a finding of guilt for lack of suff

ic ient evi dence only if the facts in the record and any inferences therefrom are insufficient, as a matter of law, for a rational trier

of fact to find a defendant guilty beyond a reasonable doubt. Id . Having been found guilty beyond a re asonable doubt by the tria l court, Blount comes to this Court burdened with the presumption of g uilt. See Robinso n v. Air Draulics Eng'g Co. , 377 S.W.2d 908, 912 (Tenn. 1964).

The record is clear that Blount's actions were precipitated by what he perceived to be an inadequate damages awar d to his client. We consider first his conduct before the jurors. At the outset, we note that any

factual issues raised

by the evide nce are resolve d by

the trier of fact , not this Court, and an ad

judication o f guilt accredits the testimony of the prosecution's witnesses. See Creasy , 885 S.W.2d at 831. Thus, any discre pancy in the testimonies reg arding Blount's actual comments and behavior have been resolved by the trial court in fav or of t he pro secut ion. Bloun t's conduct consists of directing a " th um bs do wn " g es tu re to wa rd th e j ur y, muttering words to the effect that the verdict as to Mrs. Jackson was unfair and exiting the courtro om inan abrupt manner, prior3 The fed eral sta tute rea ds almost id

entical t o ours whe

n empowe

ring a f ederal court to punish for contempt, "misbehavior of any person in its presence or so near thereto as to obstruct the admini stration o f justice." Oberhellmann , 946 F.2d at 52.

4 Oberhellmann expressly held that the requ irement o f proving

an obstru ction of ju stice is not satisfied by proof of the contempt proceeding itself. Id . at 53. to being excused

by t he court . In a

ddition, he

angril y e xpressed h

is dissatisfaction with the verdict to ce rt ai n j ur or s, as he re in ab ov e d et ai le d, af te r t he tr ia l' s c on cl us io n a nd di sc ha rg e o f t he ju ry.
The power to punish for con te mpt derives solely from statute a nd the courts may punish, as contempt, only those acts and omissions expressly prescribed ther ein. See Sta te v. Galloway , 45 Tenn. 326, 329- 30 (1868) . It isclear from therecord that the trial court relied upon all three statutory g

rounds, as specified in the petiti on, in adju dging Blount in c ontempt. T o sustain a conviction under subsection (1), theevidence must show b eyond a reas onabl e doub t that Bloun t's conduct was "wi llful," " in the presence of the court, or so near thereto" and "[an obstruction to] the administration of justice." The foregoing language was construed by the court in United States v. Oberhellmann , 946 F.2d 50 (7th Cir. 1991), 3 which inv olved an a tto r ney cha

rged with criminal co ntemptfor forging another a ttorney' s signature to a notice of withdrawal of appe arance. Th e Oberhellmann court

refused to uphold the criminal contempt conviction where the evidence failed to show beyond a

reasonable doubt that theattorney' s conduct actually obstructed the administration of justice. Oberhellmann , 946 F.2d at 50-53. In reaching its decision, Oberhellmann reasoned that there must be an "actualobstruction" to the administration of justice which must be proven bey ond a reasonable doubt, such as a "delay [of the] proceedings, making more work for the judge, 4 inducing error, imposin g costs on part ies . . . ." Id . at 52. Oberhellmann concluded that, " whateve r exactly 'actua l' obstruct ion means , it requir

es at a min

imum, that the defendant's conduct have had an effect." Id . at 53.
The Supreme C ourt of Pe nnsylvania, in In re Campolongo , 435 A.2d 581 (Pa. 1981), reached a similar result wh en constr uing its criminal contempt statute, authorizing punishment for co ntempt, ". . . misbehavior of any pe rson in the presence of the court, thereby obstructing the administration of justice. " Campolongo , 435 A.2d at 583. Ca mpolongo held that an assistant districtattor ney's rhet orical quest ion t o the t rial c ourt d uring t he cou rse of h is ob jecti ng to the5 Counsel's direct comment was in response to defense c ounsel's question to a prosecution

witness a s to why

she was " so hostile" to him. The district a ttorney objecte d, stating

"[w]hy [is he] so hos tile to her ?" Campolongo , 435 A.2d at 584.

6 While we make no attempt to compare the misbehavior in Campolongo to that described in the instant case, we do find the court's rationale a pplicable when interpreting our own contempt statute. manner in which d

efense counsel q

uestione d a prose cution wit ness wasnot conte

mptuous. 5 Campolongo , 435 A.2d at 584. In addition to requiring an a ctual obstruction, the Campolongo court held that the conduct constituting such must "significantly disrupt" judicial proceedings. Id . The court reasoned that "although clea rly inappropriate

and ill advised," the remark did not signific antly disrupt the proceedings and, thus, did not obstruct the administration of justice. Id . In the instant matter, the rec ord is dev oid of any evidenc e sugg esting t

hat Blou nt's ac ti ons, however improper, disrupted the trial procee dings. 6 In fact, at least one ju ror te stif

ied th at she did n ot ob serve B loun t's antics ins ide the c ourtroom .

In Castellio v. State , 238 S.E.2d 746 (Ga. Ct. App. 1977), a case somewhat analogous to our own, the appellant had an indirect interest in a jury trial which resulted in a verdict contrary to his expectations. Following the jury' s discharge and as they exited into the hall, the appell ant approached

a female juror, shook her hand and stated in an a ngry or sarcastic voice that

he "hoped that [she] was satisfied ; [she] had someth ing to live w ith all of [ her] life. " Castellio , 238 S.E.2d at 746. The statute under

consideration in Castellio allowedthe Geor gia cou rts to punis h for con

tempt, "misbehavior

. . . in the presence of the court or so near thereto as to obstruct the administration of justice." Id . Caste llio heldthe appellant's actions not contemptuous, reasoning that his conduct could not have obstructed or impaired the administration of justice because " the trial had terminated and the jury had been di scharged." Id .

A distinguishing factor in our case, of course, is the fact that Blount is an attorney and was directly involved in the jury trial proceedings. This distinction, however, makes Blount, unlike the appellant in Castellio , subject to possible sanctions by the Disciplinary Board for any professional misconduct.

The Tennessee Supreme Court, in Winfree v. State , 135 S.W.2d 454 (Tenn. 1940),7 While there are holdings to the contrary , see Tanner v. United States , 62 F.2d 6 01 (10th

Cir. 1932), cert. denied, 289 U.S. 746 (1933). we believe the better line of reasoning is expressed in the cases herein discussed.

8 The federal counterpart to our conte mpt statute, authorizes the federal courts to punish as contempt "[ m]isbeh avior of any of its of ficers in th eir official transactio ns; . . ." Cammer , 350 U.S. at 399-400 & n. 1. held that the most familiar

forms of acts constituting contempt are those which "hinder , delay and obstructthe administration of justice," which ar e usually committed

in the course of an adjudication of some cau se or the execution of its judgment. Winfree , 135 S .W.2d at 45 5 (em

phas is add

ed). We find nothing in this record to indica te that Blount's actions before the jurors in any way dela yed, hindere d or other

wiseaffect ed the trial 's proceedings to conclusion. Furthermore , the record does not suggest that Blount's conduct af fected or influenced the decisions of any of the jurors as to the verdict rendered. Blount's antics did not begin u ntil after the verdict as to Mrs. Jackson was announced. All that re

mained wa s th e reading of t he verdicts as to the additional plaintiffs and acceptance thereof by

the trial judge. The record fails to establish that either of these events were interruptedby Blount' s behavior. Hence, we find insufficient evidenc e in the record to establi sh beyond a reaso nable dou

bt that Bl ount's c onduct be fore the jurors, both in and out of cou rt, obstructedthe administration of justice and concl ude that B lount cannot be held in contempt for violation of subsection (1). 7

In this same light, we do not find the proof to show bey ond a reasonable doubt that Blount abused or unlawfully

interfered w it h the process or proceedings of the c ourt. Thus, we conclude that ther

e is insuff icient ev idence t o sustain th

e contem pt c onviction as to a violation of subsection (4).
This brings us to conside ration of subsection (2), with our attention focused on whether Blount is a

n "offi cer of t

he court " for pu

rposes of th e co ntempt sta

tute and w

hether h is conduct involved "official transactions." Appellant directs our attention to the United States Supreme Court's decision in Cammer v. United States , 350 U.S. 399 (1956), to ar gu e t ha t a tt or ne ys are not considered off

icers of the court for purposes of the contempt statute. I ndeed, this was the holding in Cammer upon the Court's interpretation of the federal c ontempt statute. 8 We also reco gniz e that

some state courts do not include attorney s when defining an officer of the court forpurposesof their own conte

mpt statute s. See Campolongo , 435 A.2d at 583 n. 7. The Tennessee Supreme Court, however, has held to the co ntrary. I n R obinson v. Air Draulics Eng'g Co. , 377 S. W. 2d at 912, an attorney was cited for violating the contempt statute, including subsection (2) . In sustaining the conviction, our supreme courtacknowledged that "[i]t is hardly necessary

to say that attorne ys a re offic ers of the court. It is w ell known that they exercise the utmost g ood faith

in the discharge of

their duti es to the cou rt." Id.
We next consid

er wheth er Blount's conduct aro se from h is "official transac

tions" wi th the court. Our research has uncove red scant case law interpreting the foregoing phrase. Black's L aw Dictiona ry 1668 (4th

ed. 1951) defines "transaction" a s the "[a]ct of transacting or conducting any business; negotia

tions; management; proceedings; that whic h is done; an affair." I

n Robinson , 377 S.W.2d at 910-12, the attorney 's con tem pt convic tion aros e from hisuntrue st atementsdirectly communicatedto the court, both in open court and in chambers, pursuant to his representa tion of a client. The contempts occurred both before and a fter the commencement of thelawsuit, but prior to its c onc lusi on. In th e case at bar, t he evi dence i s ins uffic ient t o esta blis h that any of Blou nt's actions were pu

rsuant to his "off icial t ransa ctions." His misconduct did not occur during any transaction or dir

ect commu

nication withthe court and was not peculiar to the fact that he was an attorney and "officer of the court." Therefore, the contempt conviction for violation of subsection (2) cannot be sustained.

We now a d dress Blount's conduct toward opposing counse l, all of which occurred in the courtroom hallway

after discharge of the jury and conclusion of the tri al proceedings. Bloun t's mis conduct

includes pushing or jabbing Breakstone with his fingertips three times and accusing opposing counsel of being unethical and defra uding the cou rt a nd jury throug hout the trial, in the presenceof cert

ain juror s. Based upon our foregoing analysis of Tenne ssee's contempt statute, we are compelle d to conclude that the e vidence fails to e stablish

beyond a re asona ble do ubt t hat Bl ount 's actions toward opposing counsel obstructed the administration of justice, interfer e d with the procee dings of the court or were pursuant to official trans actio ns. As hereto fore m entio ned, Bl ount 's actions toward Breakstone occurred only after c onclusion of the personal injury c ase, with the jury having performed its sworn duty to the court and discharged.Our decision is in accord with State v. Creasy , wherein the cour t of criminal appe als reversed t he defend ant's contempt conviction for conduct exhibited toward an assistant district at torney prosecuting him for a criminal offense. Dur ing a recess awaiting the jur y's ve rdict, the defendant "verbally accosted" the assistant district attorney with snide and derog atoryremark s. Creasy , 885 S.W.2d at 833. Creasy reasoned that whe n the def endant ma

de his com

ments, the court was not in session, the prosecutor was not performing any prosecutorial du ties and a verdict was returned withoutincident . Thus, the defenda nt's conduct, "a

lthough inapprop

riate, d id not 'obstruct the admini stration o f justice' as t he statute r equires . . . ." Id . at 834.

In summary , we conc lu de t hat the contempt convictions as to both counts must be reversed. The record, even when aff ording the prosecution the strongest legitimate view of the proof, con tains in sufficient evidence to establish beyond a reasonable doubt that Blount violated subsections (1), (2) and (4) of the contempt statute.

Our decision in this matter

should notbe inter

preted t o condone

the actio ns of Blount. We find his conduct unwarranted and indeed, repr ehensible. An attorney

has an absol ute duty

to display an attitude of professional respect for the cour t and the judicial process. Rule 8, Rules of Supreme Court of Tenne ss ee. This conduct is required under the Code of Professional Re sp on si bi li ty. Not all professional misconduct is criminal, however. Oberhellmann , 946 F.2dat 53. We quote with approval the court in In re Bozorth , 118 A.2d 430, 436 (N.J. Super. Ct. Ch. Div. 1955), when sta

ting tha t "the po wer to punish [for c riminal c ontempt] sho

uldbe used o nly

in flagrant cases and with the utmost forbearance. I t is alwa ys b ett er to err on the side of tolerance and e ven withdisdainfu l indifferen ce." Bozorth , 118 A.2d at 436. Nor does our opinion render such behavior as that display ed by Blount tot

ally without consequence, for any professional misconduct is subject to sanction before the Disciplinary Board.
As to the a

ward of attorne y' s fees, T .C.A. § 29- 9-103 pro vides:
Punishment . -- (a) The punishment for contempt may be by

fine or by imprisonment, or both. (b) Where not

otherwis e specia

lly p rovided, the circuit, ch an ce ry, and appellate co urts are limited to a fine of fifty dollars ($50.00), and imprisonmentnot exceeding ten (10) day s, and, exceptas provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00).
Gen erally , attorne

y' s fees a re not recovera

ble in the absence of a statu

te or con tract specifically providing for such recovery , or a recognized ground o f equity. Pullman Standard, Inc. v. Abex Corp. , 693 S.W.2d 336, 338 (Tenn. A pp. 1985) . The puni shment fo r crimina l contemp t is clear

ly delineated

in the above statute. See Butler v. Butler , App. No. 02A01-9409-CH-00218 (Tenn. App. 11-21-95). The award of attorney 's fees is vacated.

Our holding rend

ers it unnecessa

ry to conside

r the re maining issues.
The judgment of the trial court is reversed and this c ause dism

issed. The

parties t o the underlying

case were in no way re sponsible for Mr. Blount's ac tions. Mr. Black e ntered t hese procee dings at the request of the trial judg e. Therefor e, althou gh we r everse , we belie

ve this is a proper case to exercise our discretion in taxing the costs of this app eal to Mr. Blount, for which ex ec ut io n m ay i ss ue if

ne ce ss ar y.

________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ McLE MORE, Sp. J. ( Concurs)