Daniels v. Grimac
| Decision Date | 09 November 2010 |
| Citation | 342 S.W.3d 511 |
| Parties | Joshua Todd DANIELSv.Kevin GRIMAC, et al. |
| Court | Tennessee Court of Appeals |
OPINION TEXT STARTS HERE
Denied by Supreme Court
April 13, 2011.
Herbert S. Moncier, Knoxville, Pro se.
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.
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?
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 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 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;
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.
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
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 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. R...
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