FILED

December 5, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT JACKSON

_______________________________________________________

)

SHIRLEY ASHFORD, )

)

 Plaintiff )

)

VS. )

)

JOSHUA C. BENJAMIN, et al, )

)

 Defendants. )

______________________________________________________________________________

DOROTHY WISEMAN JACKSON, )

)

 Plaintiffs, )

)

VS. )

)

JOSHUA C. BENJAMIN, et al., )

)

 Defendants. )

______________________________________________________________________________

STEVAN L. BLACK, 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. BLOUNT, III, )

)

 Respondent/Appellant. )

______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.

Honorable D'Army Bailey, Judge 

Robert L. Green, Memphis, Tennessee

Wilbur C. Ruleman, Jr., Memphis, Tennessee

Attorneys for Respondent/Appellant, James E. Blount, III.

Stevan L. Black,

BLACK, BOBANGO & MORGAN, Memphis, Tennessee

As Amicus Curiae for Petitioner/Appellee.

OPINION FILED:

REVERSED AND DISMISSED

FARMER, J.

CRAWFORD, P.J., W.S. : (Concurs)

McLEMORE, Sp. J. : (Concurs)
Appellant, James E. Blount, III, appeals from the judgment of the Shelby County

Circuit Court holding him in criminal contempt on two separate accounts and imposing sentence.

This matter stems from Blount's representation of certain plaintiffs, Mr. and Mrs.

Jackson, in personal injury litigation involving the consolidated cases of Ashford v. Benjamin and

Jackson v. Benjamin. Attorney Stuart Breakstone represented the defendants. The trial judge

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"

gesture to the jury and muttered words to the effect that the verdict as to his client was unjust or

unfair. He then proceeded 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 Blount 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 certificate of service. Later, after discharge of

the jury, Breakstone and various jurors were conversing in the courtroom hallway when Blount

approached and, in raised voice, angrily expressed his dissatisfaction with the verdict to the jurors

by remarking that "he hoped they could live with themselves for what they did, that what they did

was a travesty of justice and they must not have been at the same trial that he was . . . because they

would have given his clients more money. . . . that he'd been practicing law for twenty-five years and

this is the worst he's ever seen a jury do. . . . that he hoped that if an accident ever happened like this,

. . . to them . . . or their family members, that they would have the same damn injuries and the same

jury."

Breakstone testified that, following this incident: 

[Blount] walked away after he said his piece to them and I started

apologizing to the jurors, telling them this is not professional

behavior . . . . [Blount] came up from behind and pushed my right .

. . shoulder and said Breakstone, don't you apologize for me. You're

the most unethical attorney I know, you defrauded the Court and jury
1The record indicates that Blount's behavior was, in part, prompted by his overhearing

Breakstone inform the jurors 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

insurance. It was during his explanation, that Blount approached, "pushed [his] shoulder" with

his fingertips and informed the jurors that insurance had not paid his client's medical bills and

that Breakstone was lying telling them otherwise.

2The matter was prosecuted pursuant to Rule 42(b) T.R.Cr.P., indicating that the trial

judge did not directly witness Blount's actions. It appears from the record that he was

subsequently made aware in an in chambers meeting initiated by Breakstone. 

throughout this entire trial and you lied to the Court and jury

throughout the trial, and he pushed me, I think there was three

occasions during that -- when he was making those statements to me

that he pushed me.1

The conduct above described prompted the trial judge to enter an order appointing

Appellee, Stevan L. Black, as amicus curiae to the court "to investigate, initiate, and prosecute a

contempt citation" against Blount.2 The petition for criminal contempt alleged that Blount violated

T.C.A. § 29-9-102(1), (2) and (4), which provides: 

The power of the several courts to issue attachments, and inflict

punishments 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 presence of

the court, or so near thereto as to obstruct the administration of

justice.

(2) The willful misbehavior of any of the officers of said

courts, in their official transactions.

. . . . 

(4) Abuse of, or unlawful interference with, the process or

proceedings of the court.

Blount's motion that the trial judge recuse himself from presiding overthe contempt proceedings was

denied.

The trial court found Blount guilty of two counts of criminal contempt, based upon

separate incidents, and expressly characterized his conduct as "outrageous and willful." The trial

court fined Blount $50 and sentenced him to serve 10 days in the Shelby County jail on each count.

The court also ordered Blount to pay Black $5,000 in attorney fees.

Blount raises the following issues for our review:
I. Did the trial court commit error in hearing the charges of

criminal contempt alleged against the appellant?

II. Did the trial judge commit error in appointing Stevan L.

Black, Esq., to prosecute the contempt charges against the appellant?

III. Did the trial judge commit error in finding the appellant

guilty of two counts of criminal contempt?

IV. Did the trial court commit error in sentencing the

appellant to two ten (10) days sentences, 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

separate incidents of contempt upon which the trial court imposed separate sentences. The first

conviction relates to Blount's conduct before the jurors; the second is based upon his conduct toward

opposing counsel. We consider each conviction separately. Our review is in accordance with Rule

13(e) T.R.A.P. which provides for reversal of the conviction(s) if the proof adduced at trial is

insufficient to support the findings by the trier of fact beyond a reasonable doubt. See State v.

Creasy, 885 S.W.2d 829, 831 (Tenn. Cr. App. 1994). We do not reweigh the evidence and must

afford the prosecution the strongest legitimate view of the proof in the record as well as all

reasonable inferences which may be drawn therefrom. Creasy, 885 S.W.2d at 831. We will disturb

a finding of guilt for lack of sufficient evidence 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 reasonable doubt by the trial

court, Blount comes to this Court burdened with the presumption of guilt. See Robinson 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 award to his client. We consider first his conduct before the jurors. At the

outset, we note that any factual issues raised by the evidence are resolved by the trier of fact, not this

Court, and an adjudication of guilt accredits the testimony of the prosecution's witnesses. See

Creasy, 885 S.W.2d at 831. Thus, any discrepancy in the testimonies regarding Blount's actual

comments and behavior have been resolved by the trial court in favor of the prosecution. Blount's

conduct consists of directing a "thumbs down" gesture toward the jury, muttering words to the effect

that the verdict as to Mrs. Jackson was unfair and exiting the courtroom in an abrupt manner, prior
3The federal statute reads almost identical to ours when empowering a federal court to

punish for contempt, "misbehavior of any person in its presence or so near thereto as to obstruct

the administration of justice." Oberhellmann, 946 F.2d at 52.

4Oberhellmann expressly held that the requirement of proving an obstruction of justice is

not satisfied by proof of the contempt proceeding itself. Id. at 53.

to being excused by the court. In addition, he angrily expressed his dissatisfaction with the verdict

to certain jurors, as hereinabove detailed, after the trial's conclusion and discharge of the jury.

The power to punish for contempt derives solely from statute and the courts may

punish, as contempt, only those acts and omissions expressly prescribed therein. See State v.

Galloway, 45 Tenn. 326, 329-30 (1868). It is clear from the record that the trial court relied upon

all three statutory grounds, as specified in the petition, in adjudging Blount in contempt. To sustain

a conviction under subsection (1), the evidence must show beyond a reasonable doubt that Blount's

conduct was "willful," "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 involved an attorney charged with criminal

contempt for forging another attorney's signature to a notice of withdrawal of appearance. The

Oberhellmann court refused to uphold the criminal contempt conviction where the evidence failed

to show beyond a reasonable doubt that the attorney'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 "actual obstruction" to the administration of justice which must be proven beyond

a reasonable doubt, such as a "delay [of the] proceedings, making more work for the judge,4

 inducing

error, imposing costs on parties . . . ." Id. at 52. Oberhellmann concluded that, "whatever exactly

'actual' obstruction means, it requires at a minimum, that the defendant's conduct have had an effect."

Id. at 53.

The Supreme Court of Pennsylvania, in In re Campolongo, 435 A.2d 581 (Pa. 1981),

reached a similar result when construing its criminal contempt statute, authorizing punishment for

contempt, ". . . misbehavior of any person in the presence of the court, thereby obstructing the

administration of justice." Campolongo, 435 A.2d at 583. Campolongo held that an assistant

district attorney's rhetorical question to the trial court during the course of his objecting to the
5Counsel's direct comment was in response to defense counsel's question to a prosecution

witness as to why she was "so hostile" to him. The district attorney objected, stating "[w]hy [is

he] so hostile to her?" Campolongo, 435 A.2d at 584.

6While we make no attempt to compare the misbehavior in Campolongo to that described

in the instant case, we do find the court's rationale applicable when interpreting our own

contempt statute.

manner in which defense counsel questioned a prosecution witness was not contemptuous.5

Campolongo, 435 A.2d at 584. In addition to requiring an actual obstruction, the Campolongo court

held that the conduct constituting such must "significantly disrupt" judicial proceedings. Id. The

court reasoned that "although clearly inappropriate and ill advised," the remark did not significantly

disrupt the proceedings and, thus, did not obstruct the administration of justice. Id. In the instant

matter, the record is devoid of any evidence suggesting that Blount's actions, however improper,

disrupted the trial proceedings.6

 In fact, at least one juror testified that she did not observe Blount's

antics inside the courtroom.

InCastellio 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 appellant

approached a female juror, shook her hand and stated in an angry or sarcastic voice that he "hoped

that [she] was satisfied; [she] had something to live with all of [her] life." Castellio, 238 S.E.2d at

746. The statute under consideration in Castellio allowed the Georgia courts to punish for contempt,

"misbehavior . . . in the presence of the court or so near thereto as to obstruct the administration of

justice." Id. Castellio held the 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 discharged." 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),
7While there are holdings to the contrary, see Tanner v. United States, 62 F.2d 601 (10th

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

in the cases herein discussed.

8The federal counterpart to our contempt statute, authorizes the federal courts to punish as

contempt "[m]isbehavior of any of its officers in their official transactions; . . ." 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

obstruct the administration of justice," which are usually committed in the course of an adjudication

of some cause or the execution of its judgment. Winfree, 135 S.W.2d at 455 (emphasis added). We

find nothing in this record to indicate that Blount's actions before the jurors in any way delayed,

hindered or otherwise affected the trial's proceedings to conclusion. Furthermore, the record does

not suggest that Blount's conduct affected or influenced the decisions of any of the jurors as to the

verdict rendered. Blount's antics did not begin until after the verdict as to Mrs. Jackson was

announced. All that remained was the reading of the verdicts as to the additional plaintiffs and

acceptance thereof by the trial judge. The record fails to establish that either of these events were

interrupted by Blount's behavior. Hence, we find insufficient evidence in the record to establish

beyond a reasonable doubt that Blount's conduct before the jurors, both in and out of court,

obstructed the administration of justice and conclude that Blount cannot be held in contempt for

violation of subsection (1).7

In this same light, we do not find the proof to show beyond a reasonable doubt that

Blount abused or unlawfully interfered with the process or proceedings of the court. Thus, we

conclude that there is insufficient evidence to sustain the contempt conviction as to a violation of

subsection (4).

This brings us to consideration of subsection (2), with our attention focused on

whether Blount is an "officer of the court" for purposes of the contempt statute and whether his

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 argue that attorneys

are not considered officers of the court for purposes of the contempt statute. Indeed, this was the

holding in Cammer upon the Court's interpretation of the federal contempt statute.8 We also

recognize that some state courts do not include attorneys when defining an officer of the court for
purposes of their own contempt statutes. See Campolongo, 435 A.2d at 583 n. 7. The Tennessee

Supreme Court, however, has held to the contrary. In Robinson 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 court acknowledged that "[i]t is hardly necessary to say

that attorneys are officers of the court. It is well known that they exercise the utmost good faith in

the discharge of their duties to the court." Id.

We next consider whether Blount's conduct arose from his "officialtransactions"with

the court. Our research has uncovered scant case law interpreting the foregoing phrase. Black's Law

Dictionary 1668 (4th ed. 1951) defines "transaction" as the "[a]ct of transacting or conducting any

business; negotiations; management; proceedings; that which is done; an affair." In Robinson, 377

S.W.2d at 910-12, the attorney's contempt conviction arose from his untrue statements directly

communicated to the court, both in open court and in chambers, pursuant to his representation of a

client. The contempts occurred both before and after the commencement of the lawsuit, but prior

to its conclusion. In the case at bar, the evidence is insufficient to establish that any of Blount's

actions were pursuant to his "official transactions." His misconduct did not occur during any

transaction or direct communication with the 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 address Blount's conduct toward opposing counsel, all of which occurred

in the courtroom hallway after discharge of the jury and conclusion of the trial proceedings. Blount's

misconduct includes pushing or jabbing Breakstone with his fingertips three times and accusing

opposing counsel of being unethical and defrauding the court and jury throughout the trial, in the

presence of certain jurors. Based upon our foregoing analysis of Tennessee's contempt statute, we

are compelled to conclude that the evidence fails to establish beyond a reasonable doubt that Blount's

actions toward opposing counsel obstructed the administration of justice, interfered with the

proceedings of the court or were pursuant to official transactions. As heretofore mentioned, Blount's

actions toward Breakstone occurred only after conclusion of the personal injury case, with the jury

having performed its sworn duty to the court and discharged.
Our decision is in accord with State v. Creasy, wherein the court of criminal appeals

reversed the defendant's contempt conviction for conduct exhibited toward an assistant district

attorney prosecuting him for a criminal offense. During a recess awaiting the jury's verdict, the

defendant "verbally accosted" the assistant district attorney with snide and derogatory remarks.

Creasy, 885 S.W.2d at 833. Creasy reasoned that when the defendant made his comments, the court

was not in session, the prosecutor was not performing any prosecutorial duties and a verdict was

returned without incident. Thus, the defendant's conduct, "although inappropriate, did not 'obstruct

the administration of justice' as the statute requires . . . ." Id. at 834.

In summary, we conclude that the contempt convictions as to both counts must be

reversed. The record, even when affording the prosecution the strongest legitimate view of the

proof, contains insufficient 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 not be interpreted to condone the actions of Blount.

We find his conduct unwarranted and indeed, reprehensible. An attorney has an absolute duty to

display an attitude of professional respect for the court and the judicial process. Rule 8, Rules of

Supreme Court of Tennessee. This conduct is required under the Code of Professional

Responsibility. Not all professional misconduct is criminal, however. Oberhellmann, 946 F.2d at

53. We quote with approval the court in In re Bozorth, 118 A.2d 430, 436 (N.J. Super. Ct. Ch. Div.

1955), when stating that "the power to punish [for criminal contempt] should be used only in flagrant

cases and with the utmost forbearance. It is always better to err on the side of tolerance and even

with disdainful indifference." Bozorth, 118 A.2d at 436. Nor does our opinion render such behavior

as that displayed by Blount totally without consequence, for any professional misconduct is subject

to sanction before the Disciplinary Board.

As to the award of attorney's fees, T.C.A. § 29-9-103 provides:

Punishment. -- (a) The punishment for contempt may be by fine or by

imprisonment, or both.

(b) Where not otherwise specially provided, the circuit,

chancery, and appellate courts are limited to a fine of fifty dollars

($50.00), and imprisonment not exceeding ten (10) days, and, except
as provided in § 29-9-108, all other courts are limited to a fine of ten

dollars ($10.00).

Generally, attorney's fees are not recoverable in the absence of a statute or contract specifically

providing for such recovery, or a recognized ground of equity. Pullman Standard, Inc. v. Abex

Corp., 693 S.W.2d 336, 338 (Tenn. App. 1985). The punishment for criminal contempt is clearly

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 renders it unnecessary to consider the remaining issues.

The judgment of the trial court is reversed and this cause dismissed. The parties to

the underlying case were in no way responsible for Mr. Blount's actions. Mr. Black entered these

proceedings at the request of the trial judge. Therefore, although we reverse, we believe this is a

proper case to exercise our discretion in taxing the costs of this appeal to Mr. Blount, for which

execution may issue if necessary.

________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

McLEMORE, Sp. J. (Concurs)