# FILED Oct. 20, 1995 Cecil C rowson, Jr. Appellate Court Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

WILLIAM M. WOODSIDE, ) ) Plaintiff /Appella nt, )

) and ) ) Davidson P

robate BILLY E. and MARY AGNITA ) No. 89D -95 WOODSIDE, ) ) Plaintiff s, )

) ) Appeal N o. VS. ) 01-A-01- 9503-PB-0 0121 ) ) SUSAN E. WOODSIDE (G ILLEY), )

) Defendant/Appellee. )



## C O N C U R

R I N G O P I N

I O N

In 1987 the United States S uprem e Court pla

ced lim its on the use

of private lawyer s to p rosecute cr iminal contempt cas es in federal court. Young v. United States ex rel. Vuitto n et Fils, S.A. , 481 U.S . 787, 107 S. Ct. 2124 (1987). This appeal calls upon u s to decide whether simil ar lim

itations shou ld be place d on the
use of private lawyers to prosecute crim inal contempt cases in state c ourt. T he maj ority has declined to adopt the reasoning of the Y oung de cision based on an undulynarrow view of this court's responsibility. I cannot join the ma jorit y’s opinion. Instead, I would f ind that the

resolution of

this im portant question m

ust await another day because the appellant has waived his right to raise the issue by failing t o make a timely demand for anoth er prosecut or in the t rial court

.1 Tenn. Code Ann. § 36-5-104(a) provides that “[a]ny person, o rdered to provide

child support and maintenance for a minor child or children, who f ails to comply with the order o r decree, may , in the discr etion of th

e court, be punished by imprisonme

nt in the c ounty workhouse or county

jail for a period not to exceed six (6) months.”

2 Of course, the motion could not properly be for a new trial or for

post-conviction relief. The proper f

orm of a r

equest f or post-tr ial relief fo ll owing a bench trial would have been a (continued...) -2- I.
Susan Gilley

and Wil liam Woodside

were di vorced in

May 19 89. The

trial courtawarde d custody

of their t

wo childr

en to Mr . Woods ide’s pa rents and ordered both Ms. G

illey and Mr. W

oodside to pay $50 per wee k in child supp ort. In May 19 90, the trial

court tra nsferre d custody

of thetwo children to Ms. Gilley and direc ted Mr. W

oodside to pa

y her $118 in wee

kly chi ld support.

In March 1994 Ms. Gilleyfiled a petition seek ing to incre ase theamount of Mr. Woodside ’s child

support and t

o hold him

in contem

pt for fa iling to pay c hild sup port. She alle ged that Mr . Woods ide was $1 0,054 in ar rears in his chil d support paym

ents and re quested tha

t he be incarce

rated for six mon ths pursuant to Tenn. Code Ann. § 36-5-104(a) (1991). 1 Mr. W oodside res ponded with his
own petition se eking to hold Ms. Gill ey in c ontem pt for inte

rfering w ith his visitation.
The trial court heard the evidence with rega rd to both contem

pt petitions in September

1994. Ms. Gil ley’ s lawy er presented theproof aga inst Mr. W

oodside without objecti on. On O ctober 11, 1994, the t rial cour t filed an order fin ding that Mr. Woodside was able to pay child support and that he

was $10, 054 in arre ars in his child support payments. Accordingly, the trial court found Mr. Woodside in contem ptand sentenced him to serve six months in the Metro Workhouse. In addition to requiri ng Mr. Woodside to paydown the a rreara ge, the tr ial court a lso increase d his child support payments to $141 per w eek.

Mr. Woodside retained a new lawy er who filed a mot ion for a new tr ial and for post-conviction relief. 2 In addition to challenging the competency of Mr.2 (...continued)

motion to alter o

r amend t he judg ement pursuant toTenn. R. Civ. P. 59.04. Since we construe motions based on their substance, not on their title, Be mis Co. v. Hines , 585 S.W.2d 574, 576 (Tenn. 1979); Pickard v. Ferrell , 45 Tenn. App. 460, 471, 325 S.W.2d 288, 292-93 (1959), we have elected to treat Mr. Woodside’s motion as a Tenn. R. Civ. P. 59.04 motion.

-3- Wood side ’s trial lawyer, the motion asser ted that the

trial cour

t had abused

it s disc retio n by per mittin g Ms. Gi lley’s lawyer to prosecute the crim inal contem

pt claim “cont ra to the United States Suprem

e Court dir

ectives c ontained in

Young
v. U.S. . . .. ” The trial court deni ed the m otion, and M

r. Wo odside perfect

ed this appeal solely

to take issu e with the

tr ial court ’s deci sion to per mit Ms. Gi lley’s law yer t o p ros ecu te t he c rimi nal con temp t ch arg es a gai ns t h im.

II.

I turn first to two analyti cal fl aws in the major ity’s opinion. T he ma jority has declined to consider whether the Young decision sho uld be follo wed in Tennessee because i t i s not “binding” on T ennessee c ourts and be cause determ ining whether

the Young decision sho uld be follo wed is a “pub lic pol icy” matter that can only be determ ined by th e Te nnessee S uprem

e Court or

the General Assem

bly. This rea so ning r eflects an unduly narrow view of ou

r responsi bility and is inconsi stent with our other d ecisions

.
A.
Prior to 1987, m

any fe deral cou

rts follow ed Judge L earned H and’s dict a perm itting trial courts to us e a lawy er repr esenting an

intereste d party

to prosecute acriminal contempt ch arge arisin g out of th e civil pro ceeding. McCann v. New York Stock Ex change , 80 F.2d 211, 214 (2d Cir. 1935), cert. denied , 299 U.S. 603, 57 S. Ct. 233 (1936). The United States Suprem e C o urt parte d comp any w ith Judge Hand in Young v. United States ex rel. Vuitton et Fils, S.A. when it held that federal judges co uld no longer a ppoint a pri vate law yer r

epresent ing an interested party to prosecute a crim

inal conte mpt ac tion.3 Young v. United States ex rel. Vuitton et Fils, S.A. , 481 U.S. a t 803, 107 S. Ct. at 2135, quoting ABA Model Code of Professional Responsibility EC 7-13.

4 Young v. United States ex rel. Vuitton et Fi l s, S.A. , 481 U.S. at 802-06, 107 S. Ct. at 2135-37, quoting ABA Model Code of Professional Responsibility, DR 5-105 and EC 5-14, 5- 15, and 9-6.

-4- Th e Young Court did not establish a

constitution al right toa publi c prosecutor

in criminal con tempt proceedi ngs. Green v. Green , 64 2 A.2 d 1275, 1280-81 (D.C. 1994). W

hile thejustices unanimously prefer red referring criminal contem ptproceedings to public p r osecutor s, Terri R. Braswell , Comment , Crimina l Pro cedure - You ng v. Uni ted States e x rel. V uitton et F

ils S.A. : The Right to a Disinte rested Pr

osecutor in a

Federal C

riminal Co ntempt P roceeding Arising from the U

nderlying C

ivil Litig ation , 18 Mem . St. U .L. Rev. 143, 159 ( 1987), only f

our justic es found tha

t using priva

te lawy ers for i ntereste d partie s to prosecute

crim inal conte mpt ca ses was in consistent w ith the Due Process Clause of the Fourte enth Am

endment.
Rather than relying on constitutional grounds, the Young majority rested its decision on the Americ an Bar Association’s Model Code of Professional Responsibil ity (1969, revise d 198 0). The Court pointe d out that publ ic prosecutors represent the sover eign and tha

t they have a responsibility to seek justice, not me

rely to convict. 3 Accordi ngly, the Court r easoned th at lawyers already representing an inte

rested party

would have

an insurmountable conflict of interest if they

also undertook torepresent the sover eign in a cr

imina l contem pt case. 4 The Cour

t pointed out t

hat The Government’s interest is in dispas si onate assessm ent of the proprie ty of crim inal char ges for affronts to t he J udi ciar y. The pri vate p arty’s interest is in obtaining the

benefits o f the cou rt’s or der. W hile these concerns may so meti mes b e co ng rue nt , so meti me s they may not. Aprosecutor may be tempt ed to bring a tenuously supported pr

osecuti on if

such a cour se promises financial or legal rew ard s for the pr ivate client. Conver s ely, a prosecutor m ay be tempt ed to abandona me

ritorious p rosecution

if a settl emen

t providing benefits to the priva te client is conditioned

on a recom menda tion against

crim inal char ges.-5-

Young v. Unit

ed States e

x rel. V uitton et F

ils, S.A. , 481 U.S. at 805, 107 S. Ct. at 2136; see also United States v. Providen ce Journal C o. , 485 U. S. 693, 6 96 n.3, 108 S. Ct. 1502, 1505 n.3 (1988).
The Unit ed States Suprem

e Court w as exerc ising its “supervisory power ”
overlower federal courts when it decided the Young case. Young v. United States
exrel. Vu itt on et Fils, S .A. , 481 U.S. at 790 , 107 S. Ct. at 21 28. Thus, a s th e maj ority correctly points out, the Young decision is not “bi nding on the C ourts of Ten nessee.” Howeve

r, sim ply con cluding that

the decisi on is not “

binding ” cannot end the inquiry. The United States Suprem e Court relied heavi ly upon the Mod el Co de o f Pro fess ion al Re spo nsi bil ity. The Tennessee Suprem e Courthas adopted the very same

code, an d it currently gove rns the con duct of all

att orn eys in this s tate. See Tenn. S . Ct. R . 8.
The Tennessee Su preme Cou rt is the f inal arbit er of its o wn rules. Acco rdi ngl y, Tenne ssee’s courts must look first to the decisions of the Tennessee Sup reme Court for

controllin g i nt erpretations of these rules. The Tennessee Sup reme Court has, however, recogniz ed the valu e of unifor m inte rpretati ons of similar rules, State v. Jones , 598 S.W .2d 209, 21 9 (Tenn. 1980), and has h eld repeate dly that we may

look to other jurisdictions’ interpretations of similar rules for helpful gui danc e in inte rpreting o ur own rules

. Henderson v. Bush Bros. & Co. , 868 S.W .2d 236, 23 7 (Tenn. 1993); Byrd v. Hall , 847 S.W.2d 208 , 2 11 n .2 (Tenn. 1993); Continental Casualty C

o. v. Smit h , 720 S.W.2d 48, 49 (Tenn. 1986).
The Tennessee Supreme Court has n ot addresse d the propr iety of using private lawy ers to pros ecute cr

imina l conte mpt ca se s under Tenn. S. C t. R. 8. Thus, when this i ssue is pre sented to us in a proper case, w e should cer

tainly look not only to the Young decision but also to the deci sions of othe r jurisd ictions for helpful guid ance in determ ining wheth er Tenn. S. Ct. R. 8, DR 5-105 a nd EC 5- 14, 5-15, 7-1 3, and 9- 6 proh ibit private lawyers from prosecuting criminal contem pt cases a rising out of

a judgm ent in whic h their cli ents have a n interest

.
B.5 The Tennessee Supreme Court first adopted the American Bar Associa tion’s Canons of Professional and Judicial Ethics when it promulgated Tenn. S. Ct. R. 38 in 1967. In re Rules of the Supreme Court of Tennessee, Te nnessee Decisi ons, 418-424 S.W.2d at XLII I (order ef fective Dec. 4, 1967). The Court replac ed the sub stance o f Tenn. S. Ct. R. 38 with the American Bar Association’s Code of Professional Responsibility in 1975. I n re Rules of th e Supreme Court of T ennessee, 530-5 33 S.W.2d at XXVII (order effective Dec. 5, 1975) . Tenn. S. Ct. R. 38 became Tenn. S. Ct. R. 8 when the Court revised its rules in 1981. I n re Rulesof the Supr

eme Court of Tennessee, Tennessee Decisions, 609-614 S.W.2d at XXVII

(order effective Jan. 28, 1981). -6- The Tennessee Supreme Court derives its power directly fro m the Constitution

of Tennesse e. Clements v. Roberts , 144 Te nn. 15 2, 155 , 231 S .W. 902, 902 (1921). It is the s uprem e judici al tribuna

l of the state, Barger v. Brock , 535 S.W. 2d 337, 340 ( Tenn. 1976), and it has the inherent p ower to pr

omulga te anyrule gover

ning the pract

ice of law that is reasona

bly nec essary

to carry out its constitutional prerog atives. Petition of Tennessee Bar Assoc. , 532 S.W .2d 224, 227 (Tenn. 1975); In re Adop tion of Ruleof Court , 479 S.W .2d 225, 22 7 (Tenn. 1972); Cantor v. Brading , 494 S.W .2d 139, 14 3 (Tenn. Ct. App. 1973); Tenn. Code Ann. § 16-3-503 (1994). Only the Tenne ssee Supr

eme Court h a s the authority to promulgate rules governing the pract

ice of la w and the procedure

to be follow ed in all c ourts of the state. State v. B est , 614 S.W.2d 791, 793 (Tenn. 1981); Belmont v. Board of Law Examine rs , 511 S.W.2d 461 , 4 6 4 (Tenn. 1974); Tenn. Code A nn. § 16-3- 402 (1994). When the

Court prom

ulgates a r

ule, it ha s the forc e and

effect of law. See State v. Hodges , 815 S.W .2d 151, 155 (Tenn . 1991); Tennessee Dep’t of Human Servs. v. Vaugh n , 595 S.W. 2d 62, 63 (T enn. 1980) ; Crosslin v. Alsup , 594 S.W .2d 379, 380 (Tenn. 1980 ).

T he Tennesse e Suprem

e Court w as exerc ising its inhe rent jud icia l powe r when it prom

ulgated T enn. S. Ct. R. 8 in 1981. 5 Newton v. Cox , 878 S.W .2d 105, 11 1 (Tenn.), cert. denied ___ U.S. ___, 115 S. Ct. 1989 (1994). The C ode o f Professional Conduct i n Tenn. S. Ct. R. 8 provides the bench and bar w ith a guide to a lawyer’ s obliga tions to his or her cl ient und er various circumstances. Lazy Seven Coal Sales, Inc. v. Hinds , 813 S.W.2 d 400, 405 (Tenn. 1991); Wood v. Parker , App. No . 01-A- 01-9406-CH -00286, slip op. at 11, 20 T. A.M. 9 -10 (Tenn. Ct. App. Feb. 8, 199 5), perm. app. denied (Tenn. May 30, 19 95). Th e Code ’s-7-

disciplinary rules are mandatory , and the ethical consider ation s are aspirational andrepresent the obje ctives tow ard whic h every lawy er should st

rive . Tenn. S. Ct. R. 8, Prel imina

ry Statem ent.
Even though the Tennessee Su prem e Court ha s the exclu sive prer ogative to promu lgate rule s governing t he practi ce of law , all the courts have t he power andduty to apply these rules in appropriate circum stances. The i ntermedia te appellate courts have frequently based their decisions on the Code of Professional Responsibil ity. Accordi ngly, this court h as relie d on portions o f Tenn. S. Ct. R. 8 to res olve dispute s involv ing: (1) at torneys’ fees, Ligon v. L igon , 556 S.W .2d 763, 768 (Tenn. Ct. App. 1977); (2) attorn eys’ obl igation s to their clients, State
v. Brown , 64 4 S. W.2d 41 8, 4 21 (Te nn . Cr im. App. 1982) ; (3) attorneys ’ appearin g as witnesses , Winrow v . State , 649 S.W.2d 18, 2 0 (Tenn. Crim. App. 1983); (4) attorney s’ political endorsem ents, Taylor v. Nashville B a nner Publishing Co ., 573 S.W. 2d 476, 489 (T enn. Ct. App. 1978) (Todd, J., concurrin g), cert. denied , 441 U.S. 923, 99 S. Ct. 2032 (1979); (5) an attorney’s obligation to produce evidence, In re Estateof Perlbe rg , 694 S.W .2d 304, 306 (Tenn . Ct. App. 1984) ; and (6) t he propriety of closin g jury arguments, Scarbrough v. City of Le wisburg , 504 S.W .2d 377, 383-84 (Tenn. Ct. App. 1973).
The maj ority’ s professe d relucta nce to dec ide wheth er the ra tionaleof the Young case appl ies to prac tice in T ennessee’ s courts is i nconsistent wit h the posture that this court has taken in other cases. Whenaproper case presents itself, I would not he sit at e to use the Code of Pr

ofessional

Responsibil ity to de cide whether trial cour ts may use private lawyers to prosecute crim inal contempt cases arising out of orde

rs or jud gment s in which the attorney s’ clients have an interest.

III. Lawyers must call prejudicial errors to the tria l court’ s attention

in a time ly
manner in order to be able

to raise t hese err ors on appea

l. Unle ss an err

or affe cts the trial cour

t’s subj ect m atter j urisdiction , the fa ilure to raise an er

ror in a time ly
manner amounts to a wa

iver beca use appella

te courts w ill not perm

it pa rties to-8-

silently pre serve an error as an “a ce in the hole” to be used in the event of a n adverse decision

. Gotwald v . Gotwal d , 7 68 S.W. 2d 689, 694 ( Tenn. C t. App. 1988); Spain v. C

onnolly , 606 S.W.2d 540 , 543-44 (Ten n. Ct. App. 198 0).
Some errors must be called to the trialcourt’ s attention before t rial. T hus, objectio ns to the com

pet enc y of the trial judge are deeme d waived if not raised before trial. Dupuis v. Hand , 814 S.W .2d 340, 34 2 (Tenn. 1991); Grozier v. Goodwin , 69 Tenn. 125, 128 (18 78). Likewise, objecti ons to the fai lure to provide
ajurywhen one has been requested are deemed w aived if not asserted before the trial begi ns. Burnette v. Pickel , 858 S.W.2d 319 , 322 (Tenn. Ct . App. 1993).
Simil arly, lawyers have a duty to call er rors com mitte d during the courseof
atrial to th e trial c ourt’s a ttention for tim

elycorrect

ion. Thus , lawy ers m

ust ma ke timely objection s to (1) th e admissibili ty of evidence, Thompson v . Thomps on , 749 S.W.2d 468, 470 (Tenn. Ct. App. 1988), (2) improper conduct of the trial judge, Kir ksey v. Overton Pub, Inc. , 804 S.W .2d 68, 79 ( Tenn. C t. App. 199 0), or (3 ) improper comm ents of opposing c ounsel. Marress v. Carolina Direct Furniture, Inc. , 785 S.W .2d121, 126 (Tenn. Ct. App. 1989); Havron v. Page , 25 Tenn . App. 367, 370 , 157 S.W.2d 856 , 858 (194 2).

Itshouldhave been obvious before t he Septem

ber 1994 tr

ial began t

hat the trial courthad not

referr ed the cri minal

contem pt case ag ainst Mr. Woodside to the districtattorney general or to another disinter ested lawyer. T hus, from the very outset of t he trial, Mr. Woodside and his lawy er knew that Ms. Gilley’ s lawyer would be prosec uting thecriminalcontem pt charge s against hi m. Mr. Wo odside did not question the prosecutorial role of Ms. Gilley’s lawyer until the trial was finished andthe ju dgment rende red. Th e objec tion in Mr. Wo odsi de’s motion for
new trial ca

me too late. P ermitting Mr. Woodside to asser t this issue n ow, in effect, permits him to play his “ace in the hole” and at the same time p rovides a simila r trum p card to ot

her sim ilarly situated li tigants.

I would find

that Mr. Woodside

has waive d his right

to take issu e with the
use of Ms. Gilley’ s lawyer to prosecute the crim inal contempt case against h im-9-

because he did to raise

the issue in a timely m

anner. Accordingly, I would affirm the trial court’s decision but leave the question of the propriety of using lawyers for i nte rest ed p arti es t o pr ose cut e cri minal con tempt case s fo r ano the r day.

_________________

____ __________

__ _ WILLIAM C. KOCH, JR., JUDGE