IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 21, 2010 Session
JOSHUA TODD DANIELS v. KEVIN GRIMAC, ET AL.
Direct Appeal from the Circuit Court for Knox County
No. 1-386-06 Dale Workman, Judge
No. E2009-01510-COA-R3-CV - FILED NOVEMBER 9, 2010
This is an appeal from a judgment summarily holding attorney Herbert S. Moncier in direct,
criminal contempt of court. Because the trial court improperly exercised its summary
contempt authority several weeks after the cited conduct occurred, we vacate its judgment
and remand this case for additional proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J. and
J. S TEVEN S TAFFORD, J., joined.
Herbert S. Moncier, Pro se.
OPINION
I. Background and Procedural History
This appeal arises out of the citation of attorney Herbert S. Moncier (“Moncier”) for
direct, criminal contempt of court. On April 23, 2009, the trial court entered the following
order titled “CITATION FOR CONTEMPT”:
Mr. Herbert S. Moncier met with the court on a pretrial conference on
April 17, 2009. At that conference Mr. Moncier asked the court what he could
ask the jurors about insurance. Following the discussion with the court and
counsel[,] the court told Mr. Moncier the only questions appropriate to be
asked where [sic] if they did any work dealing with evaluation and settlement
of claims. Although, the court thought that the better way was to ask without
reference to insurance[;] the court could not say asking if they dealt with
claims for an insurance company was inappropriate.
On Monday, April 20, 2009[,] Mr. Moncier asked a juror questions
different from the instructions by the court, see attached transcript, Exhibit A.1
This matter shall be set on the courts [sic] motion docket on June 12,
2009 at 9:00 a. m. for a hearing as to whether Mr. Moncier is in contempt and
an appropriate punishment.
(Emphasis added). Moncier thereafter filed a number of pretrial motions with respect to the
citation for criminal contempt, which the trial court denied.
On June 12, 2009, the trial court commenced a hearing on the contempt citation.
Rather than provide Moncier an opportunity to present evidence in support of his position,
the trial court summarily held Moncier in direct, criminal contempt of court based on his
violation of the court’s ruling during voir dire. Moncier was not, in the court’s opinion,
entitled to any further notice or hearing:
Mr. Moncier: Your Honor, may I be heard?
The Court: No, sir.
Mr. Moncier: May I - -
1
The attached excerpt from voir dire contains the following exchange:
Mr. Moncier: Does anyone work for an insurance company? You are Ms. - -
Juror: Linda Borne.
Mr. Moncier: What insurance company do you work for?
Juror: I work at Travelers, just personal loans, auto and home.
Mr. Moncier: Do you have home premises insurance, like somebody injured in a home?
Juror: I just sell insurance over the phone when they call in, for auto and home.
Mr. Moncier: When a person says that somebody is injured in my home - -
The Court: Counsel, approach the bench.
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The Court: No, sir.
Mr. Moncier: You’ve given me no notice of any of this.
The Court: No, sir. I’ve already said my finding, and
that tells you, sir, what the Court found.
It’s found you in contempt. Try not to do
anything, sir, to cause a problem. [I]
[a]sked you not to insist that you be given -
- you insisted. I didn’t have to, sir. I’ve
made my ruling, and that’s it. This is not
a place - - if you want to talk to the press,
you can do so outside, sir.
Mr. Moncier: Sir, you gave me an order - -
....
The Court: The Court has clearly said, Mr. Moncier,
but read the Court’s ruling. This is a
summary finding of contempt. No hearing
is additionally necessarily [sic]. I do not
need to have anything else filed as
evidence. The Court has filed a record of
its findings, sir. Thank you, sir.
On June 18, 2009, the trial court entered an order finding Moncier in contempt.2 The
court explained:
As to the contempt, attached to the citation issued on Thursday, April
23, 2009 is the voir dire of Mr. Moncier of juror Linda Borne. The voir dire
occurred on Monday, April 20, 2009. The questions occurred in the court’s
presence so this is a matter of summary contempt and no further notice was
necessary and the court could have decreed any punishment immediately.
Correct[ly] or incorrectly, the court did not do so. Correctly or incorrectly, the
court believed until it imposed a punishment or made an official record then
no permanent finding was entered and no duty to report the matter to the
licensing board was required ethically of the court. As the court explained to
2
The record contains an identical order issued June 12, 2009.
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Mr. Moncier on the morning of Tuesday, April 21, 2009[,] the only reason the
court was going to hear this matter at a later date was that the court wanted to
make sure that “the punishment fit the crime” because the court did not know
if the Federal Court proceedings or a matter before the BPR would
automatically be triggered if he was found in contempt.
From that point on, the court tried not to put down a formal record . .
. , even after the court told Mr. Moncier “I suggest for your own benefit that
you wait until after the charge.” Mr. Moncier responded “I would like to have
the notice of charges filed immediately, Your Honor.”
With that, the court stopped trying to avoid an official record [and]
directed the court’s secretary to type a formal statement of the contempt and
sent a letter to the BPR. [citing attached transcript].
As to the contempt, Mr. Moncier is correct about one thing that at the
time the court was asked about what questions could potential jurors be asked
about insurance on Friday, April 17, 2009, Mr. Moncier had left the court’s
chambers and went to another hearing[,] but it does not change the nature of
his actions. How [sic] own notes reflect at page 80 of those notes and after
hearing various issues as to the evidence, the law applicable to the case and the
procedure to be used for 1 hour and 45 minutes, the following occurred:
Mr. Wigler: Yes, Herb needs clarification in voir dire about
permissible questions concerning insurance.3
Judge: I prefer it not be used at all.
After discussion about various aspects of insurance and potential questions the
following [occurred:]
Judge: . . . . Your [sic] blowing smoke. Now but about claims
that’s a whole different story. But I think the whole
3
The record indicates that “Mr. Wigler” is attorney David S. Wigler (“Wigler”). Wigler prepared
the complaint on behalf of the plaintiff in this case, conducted the discovery, and intended to try the case
until a conflict arose. The plaintiff thereafter agreed that Wigler’s colleague, Moncier, would try the case.
Moncier, however, developed a conflict that required him to leave the April 17 pretrial conference to attend
another proceeding. Moncier specifically requested that Wigler, who was also in attendance at the pretrial
conference, inquire about the trial court’s views on insurance-related questions during voir dire. Wigler
followed through on this request, ultimately leading to the ruling that Moncier allegedly violated.
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thing about insurance is totally . . . not appropriate unless
it relates to their qualifications of a juror and if your
saying that anybody that has insurance is bias[ed] and
prejudice then that’s everybody on the jury. Cause
everybody out there owns an interest [in an] insurance
company[;] they pay premiums.
On Monday[,] Mr. Moncier asks a juror is she familiar with insurance
that pays if someone is hurt on your property in a voir dire for a premises
liability case.
The court finds that obviously the question about insurance was
premediated [sic] because of the questions to the court on Friday[; it was] not
a [sic] off-the-cuff mistake or error made unintentionally.
It makes no difference if he was present[;] he has a duty . . . to follow
any direct decision by the court about this subject. To say I can get away with
asking the question since I was not there even if the question was asked by
another is ridiculous especially since it was asked “Herb needs clarification.”
Had there never been a hearing, any competent attorney should know
not [to] ask a juror such a question in a premises liability case, to put in front
of the rest of the jury that there is insurance that pays if someone is hurt on
your property, such action is a gross attempt to introduce bias and prejudice
into the case.
The court concluded that, although it had already summarily found Moncier in contempt, no
punishment for Moncier’s conduct would have effect. The court accordingly entered none.
The trial court entered a second order on June 25, 2009, which stated in part:
To satisfy Mr. Moncier’s most recent motion as to his contempt, if the
court’s findings attached to the order of June 18, 2009 were not specific
enough, it is hereby ORDERED:
1. The court found Mr. Moncier in contempt on Monday[,]
April 20, 2009 for his questions propounded to a
potential juror, Linda Borne, after the court had stated in
a hearing on Friday, April 17, 2009 what questions about
insurance could be propounded to a juror;
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2. The court in its findings of June 18, 2009 confirmed the
findings of Mr. Moncier’s actions being a contempt of
court;
3. For the reasons stated in the courts [sic] findings attached
to the order of June 18, 2009[,] the court accesses [sic]
no punishment on Mr. Moncier for his contempt.
On July 13, 2009, the trial court entered a third order denying various additional
motions that Moncier filed, including a motion to alter or amend the court’s June 25 order
and a motion for new trial on the issue of contempt. The court stated:
This matter came to be hearing [sic] on the 10th day of July 2009 on
motions of Herbert S. Moncier to grant various forms and types of relief from
this Court’s orders pertaining to contempt. The Court having considered the
motions and arguments of counsel is of the opinion that the motions are not
well taken from which it is
ORDERED that the motions of Herbert S. Moncier for relief from
contempt rulings be and the same are hereby DENIED.
Moncier timely appealed.
II. Issue Presented
Although Moncier has raised a litany of issues on appeal, the dispositive issue is
whether the trial court erred when it summarily held Moncier in direct, criminal contempt of
court more than three weeks after the alleged contempt occurred in the presence of the court.4
III. Standard of Review
Criminal contempt actions have long been used to protect the dignity
and authority of the court. E.g., Black v. Blount, 938 S.W.2d 394, 398 (Tenn.
1996). Criminal contempt proceedings “in a very true sense raise an issue
between the public and the accused.” Id. (quoting State ex rel. Anderson v.
Daugherty, 191 S.W. 974 (Tenn. 1917)); see also State v. Turner, 914 S.W.2d
951, 955 (Tenn. Crim. App. 1995). Criminal contempt should be imposed in
4
We note that neither the parties to the underlying civil case nor the State of Tennessee filed a brief
in opposition.
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appropriate cases “when necessary to prevent actual, direct obstruction of, or
interference with, the administration of justice.” Robinson v. Air Draulics
Engineering Co., 377 S.W.2d 908, 912 (Tenn. 1964). Thus, sanctions imposed
for criminal contempt generally are both punitive and unconditional. Black,
938 S.W.2d at 398.
A determination of contempt is within the sound discretion of the trial
court, subject to the provisions of the law. Robinson, 377 S.W.2d at 912.
Generally, the trial court’s decision will not be disturbed absent an abuse of
discretion. Id. One charged with criminal contempt is presumed innocent
until found guilty beyond a reasonable doubt. Id. On appeal following a
finding of contempt, however, the defendant must overcome the presumption
of guilt by demonstrating that the evidence preponderates against the trial
court's findings. Id. With respect to the trial court's determinations on
questions of law, however, our review is de novo with no presumption of
correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
Watkins, ex rel. Duncan v. Methodist Healthcare Sys., No. W2008-01349-COA-R3-CV,
2009 WL 1328898, at *3 (Tenn. Ct. App. May 13, 2009).
IV. Analysis
The courts’ inherent power to punish acts of contempt historically has
been regarded as essential to protect the authority and integrity of the courts.
Black v. Blount, 938 S.W.2d 394, 397 (Tenn. 1996). Although at common law
the court's power to punish contempt was “vast and undefined[,]” the court's
contempt authority now is governed by statute in this State. Id.; Tenn. Code
Ann. § 29-9-102 (2000). Contempt may be either civil or criminal in nature,
and may be either direct or indirect. Black, 938 S.W.2d at 398. While civil
contempt is remedial and coercive and designed to compel compliance with
the court's order, the purpose of criminal contempt is to safeguard the authority
of the court. It is therefore punitive in nature. Id. Indirect contempt arises
from acts committed out of the presence of the court, and cannot be punished
unless the accused has been given the due process protections of notice and an
opportunity to be heard. Id. Acts constituting direct contempt, on the other
hand, are acts committed in the presence of the court. Id. Direct contempt
may be punished summarily if the judge certifies that he or she saw or heard
the conduct constituting contempt. Turner, 914 S.W.2d at 956; Tenn. R. Crim.
P. 42(a). When the charged acts of contempt involve disrespect to the trial
court or criticism of the judge, that judge is disqualified from presiding over
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the contempt hearing unless the defendant consents. Black, 938 S.W.2d at
398. Recusal is preferred except where it would cause prejudicial or injurious
delay. State v. Turner, 914 S.W.2d 951, 961 (Tenn. Crim. App. 1995).
....
Clearly, a trial judge has the authority to punish direct contempt
summarily when necessary to protect the authority and integrity of the court
and to prevent obstruction of the administration of justice. State v. Turner, 914
S.W.3d 951, 956 (Tenn. Crim. App. 1995). The court's summary contempt
power “may be invoked when there is a need to ‘act swiftly and firmly to
prevent contumacious conduct from disrupting the orderly progress of a . . .
trial.’” Id. (quoting United States v. Wilson, 421 U.S. 309, 319 (1975)).
However, because the imposition of summary punishment often dramatically
departs from traditional concepts of due process, it should be used sparingly
and reserved for circumstances where it is essential. Id. at 957 (citations
omitted).
The determination of whether such exceptional circumstances exist is
generally left to the sound discretion of the trial court. Id. (citations omitted).
In exercising its discretion, the trial court must consider the nature of the
accused's conduct; the effect of the conduct on the administration of justice;
and the overall purpose of Tennessee Rule of Criminal Procedure 42(a), in
addition to its facial requirements. Id. at 958. Acts justifying a summary
contempt judgment include “acts threatening the judge or disrupting a hearing
or obstruction of court proceedings.” Id. at 957 (quoting Harris v. United
States, 382 U.S. 162, 164 (1965). They also include “unusual situations . . .
where instant action is necessary to protect the judicial institution itself.” Id.
(quoting Harris, 382 U.S. at 164). Tennessee courts have held that direct acts
of contempt include acts committed in the presence of the court that are
disrespectful, unreasonable, or contemptuous; use of violent or loud language
or noises; or “turbulent” conduct that disrupts the proceedings. Id. at 958
(citations omitted). Thus, the court's discretion must be balanced against the
preference for proceedings that include notice and a hearing, and in some
cases, particularly where the acts of the accused consist of acts directed against
the trial judge, a different judge. Id. at 959. When the trial judge defers the
imposition of punishment until the trial has concluded, the need for summary
proceedings diminishes and the preference for a hearing increases. Id. n. 11.
Watkins, 2009 WL 1328898, at *4-6 (footnote omitted).
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The question in this case is whether the trial court erred when it exercised its summary
contempt authority more than three weeks after it initially cited Moncier for contempt. This
Court addressed a nearly identical issue in Watkins, ex rel. Duncan v. Methodist Healthcare
System, No. W2008-01349-COA-R3-CV, 2009 WL 1328898 (Tenn. Ct. App. May 13, 2009).
In Watkins, a plaintiff’s attorney, Sadler Bailey (“Bailey”), made several remarks during the
course of proceedings before the trial court which the court deemed contemptuous. Watkins,
2009 WL 1328898, at *1. Thereafter, the court advised Bailey that it believed his conduct
rose to the level of criminal contempt, that the court had spoken to another attorney about
accepting the role of a special prosecutor on the contempt charge, and that the court believed
another judge should conduct the contempt proceeding. Id. at *2. A few days later, the trial
court entered an order setting the matter for hearing. Id. At the subsequent hearing,
however, the court denied Bailey’s request to present witnesses, as well as his request to “be
heard” on the issue of contempt. Id. The court instead announced that it had summarily cited
Bailey for direct, criminal contempt of court based on his language and conduct during the
prior proceeding, reviewed its written findings of fact and conclusion of law, imposed a $50
fine, sentenced Bailey to ten days in jail, and suspended nine days of the sentence pending
Bailey’s voluntary participation and completion of various programs provided by the
Tennessee Lawyers Assistance Program. Id.
Bailey’s counsel objected to the court’s exercise of summary contempt authority,
arguing that the court had deprived Bailey of due process where it had already announced
that a hearing would occur before a special judge with a special prosecutor. Id. The trial
court rejected this argument and stated in its order:
The [c]ourt initially indicated that this matter would be dealt with by
appointing a special prosecutor and having a special judge assigned to hear the
case. Upon further reflection, the [c]ourt decided that this was a direct
criminal contempt that should be dealt with summarily but through a written
finding of facts and law.
Id. at *3 (quoting the trial court). The court accordingly determined that Bailey was not
entitled to a hearing on the question of contempt. Id. Bailey appealed, arguing in part that
the trial court erred when it summarily held him in direct, criminal contempt of court. Id.
This Court vacated the trial court’s exercise of summary contempt authority because
the court impermissibly delayed its finding beyond the proceeding during which the contempt
occurred. We concluded that the trial judge had not merely waited to determine the
appropriate punishment at the subsequent hearing:
Although the trial court’s April 2, 2008, order on contempt states that the court
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“cited Mr. Bailey for direct criminal contempt of court” on March 27, the
record does not support this finding. As noted above, when it reconvened on
the afternoon of March 27, the court stated, “the Court feels that you are in
criminal contempt for your remarks.” The court then advised Mr. Bailey that
it had spoken with an attorney about accepting the role of special prosecutor.
The court additionally stated that it believed it was appropriate for another
judge to hear the contempt proceedings. The court advised Mr. Bailey that
there would be a charging document served on him informing him of the time
and place of the hearing. Despite that trial court’s comment that it “[thought]
that the dignity of the court was challenged in such a way [that] morning that
cannot be overlooked[,]” the court did not summarily hold Mr. Bailey in
contempt.
A punishment imposed summarily is one imposed “without ceremony
or delay.” Black’s Law Dictionary 1435 (6th ed. 1990). A summary
proceeding is a “[s]hort, concise, and immediate proceeding” and a summary
process is “[s]uch as is immediate or instantaneous, in distinction from the
ordinary course, by emanating and taking effect without intermediate
applications or delays.” Id. The trial court did not hold Mr. Bailey in
contempt on March 27. Rather, it scheduled a contempt hearing for April 2
and then sought to exercise its summary authority over acts of direct contempt.
Id. at *6-7.
This Court went on to hold that the trial court erred when it attempted to exercise its
summary contempt authority at a subsequent hearing:
Without opining on the merits of Mr. Bailey’s assertion that his acts did
not constitute acts of contempt, we must agree that the imposition of summary
contempt was not appropriate in this case where a hearing was scheduled and
held some six days after the alleged acts of contempt occurred. The trial court
did not exercise its permissive, discretionary authority on March 27. The April
2 hearing at which the trial court found Mr. Bailey to be in contempt simply
was not a summary proceeding as anticipated by the statutes or Rule 42(a).
The need for the imposition of summary punishment had greatly diminished
by April 2, and a hearing as originally anticipated by the trial court, including
an opportunity to be heard, was appropriate at this juncture. We accordingly
vacate the trial court’s order on contempt and remand for further proceedings.
Id. at *7.
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We reach a similar decision in this case. The record shows that the trial court did not
summarily hold Moncier in contempt when he allegedly violated the court’s ruling on the
permissible bounds of inquiry during voir dire. Rather, the court cited Moncier for contempt,
entered an order scheduling a contempt hearing for June 12 to determine whether Moncier
was guilty of contempt, and then exercised its summary authority at the subsequent hearing.
As in Watkins, the subsequent hearing at which the trial court exercised its summary
authority was not the type of summary proceeding authorized by our statutes or procedural
rules and the need for the imposition of summary punishment had greatly diminished.
Without opining on the merits of Moncier’s assertion that his conduct during voir dire did
not constitute contempt, we agree that the imposition of summary contempt was
inappropriate. We therefore vacate the trial court’s judgment of contempt and remand for
further proceedings. Because the record shows that the trial judge recused himself
subsequent to Moncier’s appeal of the contempt finding due to the development of a personal
bias, we find it unnecessary to address whether the judge should be disqualified from
presiding over the contempt hearing on remand.
V. Conclusion
For the foregoing reasons, we vacate the judgment of the trial court on contempt and
remand this case for further proceedings. We tax the costs of this appeal in our discretion
to the appellant, Herbert S. Moncier, for which execution may issue if necessary.
_________________________________
DAVID R. FARMER, JUDGE
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