FILED

Oct. 20, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

WILLIAM M. WOODSIDE, )

)

Plaintiff/Appellant, )

)

and )

) Davidson Probate

BILLY E. and MARY AGNITA ) No. 89D-95

WOODSIDE, )

)

Plaintiffs, )

)

) Appeal No.

VS. ) 01-A-01-9503-PB-00121

)

)

SUSAN E. WOODSIDE (GILLEY), )

)

Defendant/Appellee. )

C O N C U R R I N G O P I N I O N

In 1987 the United States Supreme Court placed limits on the use of private

lawyers to prosecute criminal contempt cases in federal court. Young v. United

States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 107 S. Ct. 2124 (1987). This

appeal calls upon us to decide whether similar limitations should be placed on the

use of private lawyers to prosecute criminal contempt cases in state court. The

majority has declined to adopt the reasoning of the Young decision based on an

unduly narrow view of this court's responsibility. I cannot join the majority’s

opinion. Instead, I would find that the resolution of this important question must

await another day because the appellant has waived his right to raise the issue by

failing to make a timely demand for another prosecutor in the trial court. 
1Tenn. Code Ann. § 36-5-104(a) provides that “[a]ny person, ordered to provide child

support and maintenance for a minor child or children, who fails to comply with the order or

decree, may, in the discretion of the court, be punished by imprisonment in the county

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

2Of course, the motion could not properly be for a new trial or for post-conviction relief.

The proper form of a request for post-trial relief following a bench trial would have been a

(continued...)

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I.

Susan Gilley and William Woodside were divorced in May 1989. The trial

court awarded custody of their two children to Mr. Woodside’s parents and

ordered both Ms. Gilley and Mr. Woodside to pay $50 per week in child support.

In May 1990, the trial court transferred custody of the two children to Ms. Gilley

and directed Mr. Woodside to pay her $118 in weekly child support.

In March 1994 Ms. Gilley filed a petition seeking to increase the amount of

Mr. Woodside’s child support and to hold him in contempt for failing to pay child

support. She alleged that Mr. Woodside was $10,054 in arrears in his child

support payments and requested that he be incarcerated for six months pursuant

to Tenn. Code Ann. § 36-5-104(a) (1991).1 Mr. Woodside responded with his

own petition seeking to hold Ms. Gilley in contempt for interfering with his

visitation.

The trial court heard the evidence with regard to both contempt petitions in

September 1994. Ms. Gilley’s lawyer presented the proof against Mr. Woodside

without objection. On October 11, 1994, the trial court filed an order finding that

Mr. Woodside was able to pay child support and that he was $10,054 in arrears in

his child support payments. Accordingly, the trial court found Mr. Woodside in

contempt and sentenced him to serve six months in the Metro Workhouse. In

addition to requiring Mr. Woodside to pay down the arrearage, the trial court also

increased his child support payments to $141 per week.

Mr. Woodside retained a new lawyer who filed a motion for a new trial and

for post-conviction relief.2

 In addition to challenging the competency of Mr.
2

(...continued)

motion to alter or amend the judgement pursuant to Tenn. R. Civ. P. 59.04. Since we construe

motions based on their substance, not on their title, Bemis 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.

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Woodside’s trial lawyer, the motion asserted that the trial court had abused its

discretion by permitting Ms. Gilley’s lawyer to prosecute the criminal contempt

claim “contra to the United States Supreme Court directives contained in Young

v. U.S. . . ..” The trial court denied the motion, and Mr. Woodside perfected this

appeal solely to take issue with the trial court’s decision to permit Ms. Gilley’s

lawyer to prosecute the criminal contempt charges against him.

II.

I turn first to two analytical flaws in the majority’s opinion. The majority

has declined to consider whether the Young decision should be followed in

Tennessee because it is not “binding” on Tennessee courts and because

determining whether the Young decision should be followed is a “public policy”

matter that can only be determined by the Tennessee Supreme Court or the

General Assembly. This reasoning reflects an unduly narrow view of our

responsibility and is inconsistent with our other decisions. 

A. 

Prior to 1987, many federal courts followed Judge Learned Hand’s dicta

permitting trial courts to use a lawyer representing an interested party to prosecute

a criminal contempt charge arising out of the civil proceeding. McCann v. New

York Stock Exchange, 80 F.2d 211, 214 (2d Cir. 1935), cert. denied, 299 U.S. 603,

57 S. Ct. 233 (1936). The United States Supreme Court parted company with

Judge Hand in Young v. United States ex rel. Vuitton et Fils, S.A. when it held that

federal judges could no longer appoint a private lawyer representing an interested

party to prosecute a criminal contempt action.
3Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. at 803, 107 S. Ct. at 2135,

quoting ABA Model Code of Professional Responsibility EC 7-13.

4Young v. United States ex rel. Vuitton et Fils, 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-

The Young Court did not establish a constitutional right to a public

prosecutor in criminal contempt proceedings. Green v. Green, 642 A.2d 1275,

1280-81 (D.C. 1994). While the justices unanimously preferred referring criminal

contempt proceedings to public prosecutors, Terri R. Braswell, Comment,

Criminal Procedure - Young v. United States ex rel. Vuitton et Fils S.A.: The

Right to a Disinterested Prosecutor in a Federal Criminal Contempt Proceeding

Arising from the Underlying Civil Litigation, 18 Mem. St. U.L. Rev. 143, 159

(1987), only four justices found that using private lawyers for interested parties

to prosecute criminal contempt cases was inconsistent with the Due Process

Clause of the Fourteenth Amendment.

Rather than relying on constitutional grounds, the Young majority rested its

decision on the American Bar Association’s Model Code of Professional

Responsibility (1969, revised 1980). The Court pointed out that public

prosecutors represent the sovereign and that they have a responsibility to seek

justice, not merely to convict.3 Accordingly, the Court reasoned that lawyers

already representing an interested party would have an insurmountable conflict

of interest if they also undertook to represent the sovereign in a criminal contempt

case.4 The Court pointed out that 

The Government’s interest is in dispassionate

assessment of the propriety of criminal charges for

affronts to the Judiciary. The private party’s interest is

in obtaining the benefits of the court’s order. While

these concernsmaysometimes be congruent, sometimes

they may not. A prosecutor may be tempted to bring a

tenuously supported prosecution if such a course

promises financial or legal rewards for the private

client. Conversely, a prosecutor may be tempted to

abandon a meritorious prosecution if a settlement

providing benefits to the private client is conditioned on

a recommendation against criminal charges.
-5-

Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. at 805, 107 S. Ct. at

2136; see also United States v. Providence Journal Co., 485 U.S. 693, 696 n.3,

108 S. Ct. 1502, 1505 n.3 (1988).

The United States Supreme Court was exercising its “supervisory power”

over lower federal courts when it decided the Young case. Young v. United States

ex rel. Vuitton et Fils, S.A., 481 U.S. at 790, 107 S. Ct. at 2128. Thus, as the

majority correctly points out, the Young decision is not “binding on the Courts of

Tennessee.” However, simply concluding that the decision is not “binding”

cannot end the inquiry. The United States Supreme Court relied heavily upon the

Model Code of Professional Responsibility. The Tennessee Supreme Court has

adopted the very same code, and it currently governs the conduct of all attorneys

in this state. See Tenn. S. Ct. R. 8.

The Tennessee Supreme Court is the final arbiter of its own rules.

Accordingly, Tennessee’s courts must look first to the decisions of the Tennessee

Supreme Court for controlling interpretations of these rules. The Tennessee

Supreme Court has, however, recognized the value of uniform interpretations of

similar rules, State v. Jones, 598 S.W.2d 209, 219 (Tenn. 1980), and has held

repeatedly that we may look to other jurisdictions’ interpretations of similar rules

for helpful guidance in interpreting our own rules. Henderson v. Bush Bros. &

Co., 868 S.W.2d 236, 237 (Tenn. 1993); Byrd v. Hall, 847 S.W.2d 208, 211 n.2

(Tenn. 1993); Continental Casualty Co. v. Smith, 720 S.W.2d 48, 49 (Tenn. 1986).

The Tennessee Supreme Court has not addressed the propriety of using

private lawyers to prosecute criminal contempt cases under Tenn. S. Ct. R. 8.

Thus, when this issue is presented to us in a proper case, we should certainly look

not only to the Young decision but also to the decisions of other jurisdictions for

helpful guidance in determining whether Tenn. S. Ct. R. 8, DR 5-105 and EC 5-

14, 5-15, 7-13, and 9-6 prohibit private lawyers from prosecuting criminal

contempt cases arising out of a judgment in which their clients have an interest.

B.
5The Tennessee Supreme Court first adopted the American Bar Association’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, TennesseeDecisions, 418-424 S.W.2d at XLIII (order effective

Dec. 4, 1967). The Court replaced the substance of Tenn. S. Ct. R. 38 with the American Bar

Association’s Code of Professional Responsibility in 1975. In re Rules of the Supreme Court

of Tennessee, 530-533 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. In re Rules of the Supreme

Court of Tennessee, Tennessee Decisions, 609-614 S.W.2d at XXVII (order effective Jan. 28,

1981).

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The Tennessee Supreme Court derives its power directly from the

Constitution of Tennessee. Clements v. Roberts, 144 Tenn. 152, 155, 231 S.W.

902, 902 (1921). It is the supreme judicial tribunal of the state, Barger v. Brock,

535 S.W.2d 337, 340 (Tenn. 1976), and it has the inherent power to promulgate

any rule governing the practice of law that is reasonably necessary to carry out its

constitutional prerogatives. Petition of Tennessee Bar Assoc., 532 S.W.2d 224,

227 (Tenn. 1975); In re Adoption of Rule of Court, 479 S.W.2d 225, 227 (Tenn.

1972); Cantor v. Brading, 494 S.W.2d 139, 143 (Tenn. Ct. App. 1973); Tenn.

Code Ann. § 16-3-503 (1994).

Only the Tennessee Supreme Court has the authority to promulgate rules

governing the practice of law and the procedure to be followed in all courts of the

state. State v. Best, 614 S.W.2d 791, 793 (Tenn. 1981); Belmont v. Board of Law

Examiners, 511 S.W.2d 461, 464 (Tenn. 1974); Tenn. Code Ann. § 16-3-402

(1994). When the Court promulgates a rule, it has the force and effect of law. See

State v. Hodges, 815 S.W.2d 151, 155 (Tenn. 1991); Tennessee Dep’t of Human

Servs. v. Vaughn, 595 S.W.2d 62, 63 (Tenn. 1980); Crosslin v. Alsup, 594 S.W.2d

379, 380 (Tenn. 1980). 

The Tennessee Supreme Court was exercising its inherent judicial power

when it promulgated Tenn. S. Ct. R. 8 in 1981.5 Newton v. Cox, 878 S.W.2d 105,

111 (Tenn.), cert. denied ___ U.S. ___, 115 S. Ct. 1989 (1994). The Code of

Professional Conduct in Tenn. S. Ct. R. 8 provides the bench and bar with a guide

to a lawyer’s obligations to his or her client under various circumstances. Lazy

Seven Coal Sales, Inc. v. Hinds, 813 S.W.2d 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, 1995), perm. app. denied (Tenn. May 30, 1995). The Code’s
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disciplinary rules are mandatory, and the ethical considerations are aspirational

and represent the objectives toward which every lawyer should strive. Tenn. S.

Ct. R. 8, Preliminary Statement.

Even though the Tennessee Supreme Court has the exclusive prerogative

to promulgate rules governing the practice of law, all the courts have the power

and duty to apply these rules in appropriate circumstances. The intermediate

appellate courts have frequently based their decisions on the Code of Professional

Responsibility. Accordingly, this court has relied on portions of Tenn. S. Ct. R.

8 to resolve disputes involving: (1) attorneys’ fees, Ligon v. Ligon, 556 S.W.2d

763, 768 (Tenn. Ct. App. 1977); (2) attorneys’ obligations to their clients, State

v. Brown, 644 S.W.2d 418, 421 (Tenn. Crim. App. 1982); (3) attorneys’ appearing

as witnesses, Winrow v. State, 649 S.W.2d 18, 20 (Tenn. Crim. App. 1983); (4)

attorneys’ political endorsements, Taylor v. Nashville Banner Publishing Co., 573

S.W.2d 476, 489 (Tenn. Ct. App. 1978) (Todd, J., concurring), cert. denied, 441

U.S. 923, 99 S. Ct. 2032 (1979); (5) an attorney’s obligation to produce evidence,

In re Estate of Perlberg, 694 S.W.2d 304, 306 (Tenn. Ct. App. 1984); and (6) the

propriety of closing jury arguments, Scarbrough v. City of Lewisburg, 504 S.W.2d

377, 383-84 (Tenn. Ct. App. 1973).

The majority’s professed reluctance to decide whether the rationale of the

Young case applies to practice in Tennessee’s courts is inconsistent with the

posture that this court has taken in other cases. When a proper case presents itself,

I would not hesitate to use the Code of Professional Responsibility to decide

whether trial courts may use private lawyers to prosecute criminal contempt cases

arising out of orders or judgments in which the attorneys’ clients have an interest.

III.

Lawyers must call prejudicial errors to the trial court’s attention in a timely

manner in order to be able to raise these errors on appeal. Unless an error affects

the trial court’s subject matter jurisdiction, the failure to raise an error in a timely

manner amounts to a waiver because appellate courts will not permit parties to
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silently preserve an error as an “ace in the hole” to be used in the event of an

adverse decision. Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn. Ct. App.

1988); Spain v. Connolly, 606 S.W.2d 540, 543-44 (Tenn. Ct. App. 1980). 

Some errors must be called to the trial court’s attention before trial. Thus,

objections to the competency of the trial judge are deemed waived if not raised

before trial. Dupuis v. Hand, 814 S.W.2d 340, 342 (Tenn. 1991); Grozier v.

Goodwin, 69 Tenn. 125, 128 (1878). Likewise, objections to the failure to provide

a jury when one has been requested are deemed waived if not asserted before the

trial begins. Burnette v. Pickel, 858 S.W.2d 319, 322 (Tenn. Ct. App. 1993). 

Similarly, lawyers have a duty to call errors committed during the course of

a trial to the trial court’s attention for timely correction. Thus, lawyers must make

timely objections to (1) the admissibility of evidence, Thompsonv. Thompson, 749

S.W.2d 468, 470 (Tenn. Ct. App. 1988), (2) improper conduct of the trial judge,

Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 79 (Tenn. Ct. App. 1990), or (3)

improper comments of opposing counsel. Marress v. Carolina Direct Furniture,

Inc., 785 S.W.2d 121, 126 (Tenn. Ct. App. 1989); Havron v. Page, 25 Tenn. App.

367, 370, 157 S.W.2d 856, 858 (1942). 

It should have been obvious before the September 1994 trial began that the

trial court had not referred the criminal contempt case against Mr. Woodside to the

district attorney general or to another disinterested lawyer. Thus, from the very

outset of the trial, Mr. Woodside and his lawyer knew that Ms. Gilley’s lawyer

would be prosecuting the criminal contempt charges against him. Mr. Woodside

did not question the prosecutorial role of Ms. Gilley’s lawyer until the trial was

finished and the judgment rendered. The objection in Mr. Woodside’s motion for

new trial came too late. Permitting Mr. Woodside to assert this issue now, in

effect, permits him to play his “ace in the hole” and at the same time provides a

similar trump card to other similarly situated litigants.

I would find that Mr. Woodside has waived his right to take issue with the

use of Ms. Gilley’s lawyer to prosecute the criminal contempt case against him
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because he did to raise the issue in a timely manner. Accordingly, I would affirm

the trial court’s decision but leave the question of the propriety of using lawyers

for interested parties to prosecute criminal contempt cases for another day.

__________________________________

WILLIAM C. KOCH, JR., JUDGE