1 Rule 10 (Cour t of Ap peals). Memorandum Op ini on. - This Court, with the concu rrence of all judges participati ng in t

he c as e, may affi rm, reverse or modify the act ions of the t

rial court by memorand um opinion when a formal opinion would have no precedential value. When a case is decided by memo randum opinion i t shal l be desi gnated “MEMORANDU M OPINION”, shal l not be p ublishe d, and shall not be ci ted or rel ied on for any rea son in a ny unr elat ed case. 

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE NOVE MBER 5, 2002 Session IN THE MATTER OF : TONY W. HEDGE Direct Appeal from the Juvenile Court for Dickson County No. 06-98-299-D; The Honorable A. Andrew Jackson, Judge

No. M2002-01218-COA-R3-CV - Filed January 7, 2003

This appeal arises from a contempt proceeding agains t Attorne y A ndrew J. Sho okhoff. T

he juveni le court he ld Mr. Shookhoff in co ntempt for his failur e to appe ar at a r

eview he aring involving

his minor client. This appeal ensued. For the following re asons, we reverse. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed
A LAN E. H IGHERS , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined. William H. Farmer, Nashville, TN, for Appellant Paul G. Summers, Attorney Gene ral & Reporter , Kim R. He lper, Ass istant Atto rney Genera l, Nashville, TN, for Appellee MEMORAN DUM OP

INION 1 Facts and Procedural History Andrew J. Shookh off (“Mr. Shookhoff”), a member of the Nashville bar , was pro-bono counsel for a juvenile, Tony W. Hedge. Mr. Shookhoff fa iled to ap pear at a December 5, 2001 rev iew he aring involving the juvenile. On December 7, 2001, the juvenile court judge entered a show cause order , order ing Mr. Shookhoff to appear and show cause w hy he should not be found in contempt.-2-

On December 7, 2001, Mr. Shookhoff filed a Motion to Reconsider

Show Cause Hearing or Reset Show Cause. I n this motion, Mr. Shookhoff stated that he did not realize a hearing was scheduled on December 5, 2001 and that his failure to appe ar was not intentional. Mr. Shookhoff also apologized to the court and all parties for his inadvertent fa ilure to appear. As a result of this motion, the show cause hearing was resc heduled to January 9, 2002.
At the show c ause hea

ring, th e court e ntered a review o rder finding Mr . Shookhoff in contempt for his failure to appear at the Dece mber 5, 2001 hearing, but reserved further ruling a s to sanction s. On January 22, 2002, Mr. Shookhoff filed a notic e of appeal to the Circuit Court of Dickson Co un ty. On March 6, 2002, the circuit court declined jurisdiction, finding that the matter was appealable to this Court. Despite a lack of jurisdiction, the circuit court judge issued a memorandum

opinion, finding that there was “no evidence of willful or intentional misconduct on the part of Mr. Shookhoff.” Therea fte r, on Fe bruary

7, 2002, Mr . Shookhof

f filed a notice of appeal with the juve

nile court. On appeal, Mr. Shookhoff asks this Court to reverse and dismiss the contempt charges. Issues 1. Did

the juvenile court err by

holding Mr. Shookhoff in contempt based on his failure to app ear at a sched uled h earing.
2. Whether the juvenile court’s failure to specify whether counsel was facing a criminal or civil c ontempt pr

oceeding invali dates the

court’sfinding

of conte mpt. 3. Whethe r, assumin g that the juvenile court intended to cite counsel with criminal contempt , the notice given to Mr. Shookhoff fail ed to comply with Tennessee Rules of Cr iminal Procedure 42(b) and due process require ments, thereby voiding

the juvenile court’sfinding

of conte mpt. Standard of Review The po we r o f t he co ur t t o f in d c on te mp t m ay a nd sh ou ld be us ed on ly w he n n ec es sa ry “ t o prevent actual, direct obstructionof, or interference with, the administration of justice.” Robinson v. Air Draulics Eng’g. Co., I nc. , 377 S.W.2d 908, 911-912 (Tenn. 1964) . In deciding if a finding of contempt is warranted, the court must use its sound discretion and its determination is final absent a “plain abuse of discretion.” Id . at 912 (citing 17 C.J.S. Contempt § 57). Law and Analysis
Tennessee Rules

of Ap pella te Pro cedu

re 3( a) pr ovide s in pe

rtine nt pa rt “[i ]n ci vil actions every final judgment entered by a trial court from whi ch an ap peal li es to the Supreme Court or Courtof Appeals is appealable as of right.”Te nn. R . App. P. 3(a). In the prese nt case, Mr.-3-

Shookhoff

appeals the juvenile co urt’s fin ding holding him in contempt for failure to appear. “A judgment of contempt fixing punishment is a final judgment from which an appeal will lie.” Hall v. Hall , 772 S.W. 2d 432 , 436 ( Tenn. Ct. A pp. 19 89) (ci ting State v. Green , 689 S.W.2d 189 (Tenn. Crim. App. 1984)). “However, a judgment of contempt without the de si gnation of punishm

ent is nota final appealable judgment.” Id . (citing T.R.A.P. Rule 3(a); 17 C.J.S. Contempt § 114, p. 301; 4 Am.Jur.2d Appeal and Error § 170, p. 683 and authorities cited therein).
In its order dated January 9, 2002, the juvenile court found Mr. Sho okhoff in contempt , but reserved any ruling

as to punishme

nt. On Janua

ry 22, 2002, M

r. Shookho ff appe aled this order to the Circuit Court of Dickson County pursuant to Tennessee Code Annotated Section 37-1-159(a). By order dated

March 6, 2002, the Circuit Court of Dickson County declined jurisdiction over the matter. In conjunction

with its order, the circuit court issued a memorandum opinion, stating that “[t]he Cou rt finds it

does not have jurisdiction for this appeal as the appeal lies to the Tennessee Courtof Appeals pursuant to Ten n. R. Juve nile P . 36(a ), T.C .A. § 3 7-1-1 59(g) and T.C.A. § 16-4- 108.” Rule 36(a) of

the TennesseeRules of Juvenile Procedure states that “appeals may be taken in accordance

withT.C.A. § 37-1-159.” Tenn. R. Juvenile P. 36(a). Section (g) of Tennessee Code Annotate d Section 3 7-1-59 isthe provi sion most ap plicable to the ca se at bar. This sect ion read s: “[a]ppea ls in all othe

r civil matters heard by

the juvenile court shall be governed by the Tennessee Rules of Appellate Procedure.” Tenn. Code Ann . § 37-1-15 9(g). Tennessee Code Annotated Section 16-4-108 states that “[t]he court of app eal s also has appellate jurisdiction over civil or criminal contempt arising out of a civil matter.” Tenn. Code Ann. § 16-4-108( b). While this Court does have jurisdiction over a contempt proceeding arising out of a juvenile court matter, this Court has jurisdic tion only over final judgments. See Tenn. R. App. P. 3(a). As previously stated, a finding of contempt “without the designation of punishment is no t a final appealable judgment.” Hall , 772 S.W.2d at 436. Our Supreme C ourt has recognizedthat “[u]nle ss an appe al from a n interloc utory order is providedby the rules or by statute, appellate courts have juri sdicti on over final judgments only .” Baybe rry Assocs. v. Jones , 783 S.W.2d 553, 559 (Te nn. 19 90) (ci ting Aetna Cas. & Sur. Co. v. Miller , 491 S.W.2d 85 (Tenn. 1973)). Rule 2 o f the Tennessee Rules of Appellate Procedure , however, allows this Court to suspend, for good cause, “the requirements or pr ovisions of a ny of these rules,” except for Rules 4, 11 and 12. See Tenn. R. A pp. P. 2. Therefore, there is “no bar

to the suspension of Rule 3(a).” Bay berry Assocs. , 783 S.W.2d at 559.
In order to suspend the requirements of Rule 3(a), this Court must affi rmativel y show that the rule is suspended and must give a “good re ason” for the suspension. See Bay

berry Assocs. , 783 S.W.2d at 559; see also

Tenn. R. App. P. 2. The stated purpose behind Rule 2 is to empowerthe courts “to relie

ve lit igants of the conse

quence s of nonco mpliance with the r

ules in tho se circumstances in which it is appropriate to do so.” Tenn. R. App. P. 2 (advisory commission comment). We find it a

ppropria te to do so h

ere. Th is Court, on

its own motio n and pur suant to Rul e 2, suspends Rule 3(a) in this case. See Tenn. R. App. 2.-4-

Almost an entire ye ar has passed

si nce th e ju ven il e co urt ’s fin di ng o f co nt emp t. It is highly unfair and prejudicial to Mr. Shookhoff to have the stigma of a contempt sanction hangin g over

his head. We fi nd this to be “good reason” to suspend the application of Rule 3(a) and address the merits of Mr. Shookhoff’s a

ppeal.
Mr. Shookhoff argu es that the juvenile court er red in finding him in contempt for his inadvertent

failure to appear at the December 5, 2001 review hea ring. The crux of Mr. Shookhoff’s argument is that the

juvenile court ma de no find

ing that his failur e to appe ar was intent ional or willful. Based on the record before this Court, we a gree. “An act of contempt is a willful or intentional act that offends the court and its administration of justice.” Ahern v. Ahern , 15 S.W.3d 73, 78 (Tenn. 2000) (citations omitted). Tennessee Code AnnotatedSection 29 -9-102 pr ovides fo r the pow er of the

courts to find contempt. This provision states that a court may punish a s contempt “[t]he willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice.” Tenn. Code Ann. § 29-9- 102(1). The court may

also find contempt where “[t]he willful disobedience or resistenc e of any officer of the such courts, party , juror, witness, or any othe r person, to any la

w ful wri t, proce ss, order, rule, decree, or command of such cour ts.” Tenn. Code Ann. § 29-9-102(3). “Thus, to find contempt under this statute, a court must find the mi sbehavior, disobedience, resistence or interference to be willful.” Ahern , 15 S.W.3d at 79. This Court has previously held that “finding of willful conduct must precede a judgment for contempt.” Haynesv. Haynes , 904 S.W.2d 1 18, 120 (Tenn. Ct. Ap p. 1995). In the

opinion of

this Court, the re is noth ing in the record to sugg est

that Mr. Shookhoff’ s failure to appear was willf ul. Instead, Mr. Shookhoff’s absence was predicated on a clerical error and was mere ly an unintentional oversig ht. With no evidence of willful contempt, we find that the juvenile court abused its discretion in hold Mr. Shookhoff

in contem

pt. Conclusion Ac co rd in gl y, we revers e the juve nile cour t’s f indin g of cont empt a nd dis miss t

he ca se. We find that the disposition of the first issue renders unnecessary any discussion of Mr. Shookhoff’s two remaining issues. Cos ts on appe al are taxed to the Appellee, the State of Tennessee, for which ex ec ut io n m ay i ss ue if

ne ce ss ar y.

___________________________________ ALAN E. HI

GHERS, JUDGE