                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 March 12, 2013 Session

   JOHN WESLEY GREEN, ET. AL. V. CHAMPS-ELYSEES, INC., ET. AL.

                Appeal from the Chancery Court for Davidson County
                 No. 052817IV Hon. Russell T. Perkins, Chancellor




                 No. M2012-01352-COA-R3-CV - Filed April 9, 2013




In this case, Plaintiff filed a petition for criminal contempt against Counsel, alleging that
Counsel allowed Defendant to portray herself as unrepresented when Counsel assisted her
with her testimony and pleadings. The court dismissed the petition, finding that it did not
have subject matter jurisdiction to consider the motion when Plaintiff had alleged an ethical
violation that did not rise to the level of criminal contempt. The court also denied a
subsequent motion to alter or amend its judgment and a motion for recusal. Plaintiff appeals.
We affirm the decision of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                  Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and T HOMAS R. F RIERSON, II, J., joined.

James D. R. Roberts, Jr. and Janet L. Layman, Nashville, Tennessee, for the appellant, John
Wesley Green, individually and as a shareholder of Champs-Elysees, Inc.

Mark A. Baugh and Nancy A. Vincent, Nashville, Tennessee, for the appellees, Estate of
Mark A. Green and Champs-Elysees, Inc.

Will Parsons, Nashville, Tennessee, for the appellee, Edna L. Green.

Arthur A. Fourier, Auburn, Alabama, appellee, pro se.

Thomas N. Pinckney, Nashville, Tennessee, for the appellee, Susan D. Bass.
                                          OPINION

                                     I. BACKGROUND

        This case has a long procedural history that ultimately led to an eight-day jury trial on
a complaint filed by John Wesley Green (“Plaintiff”) against his mother, Edna L. Green
(“Defendant”), and an intervening complaint filed by the family business, Champs-Elysees,
Inc. (“Champs”), against Plaintiff. See generally Green v. Green, 293 S.W.3d 493 (Tenn.
2009). Throughout the trial, Defendant maintained that she was appearing without the
benefit of counsel. The court advised the jury regarding her pro se status. However, it
became apparent that licensed attorneys, including Susan D. Bass (“Counsel”), assisted
Defendant in drafting documents and preparing her trial strategy. Additionally, Counsel was
present in the courtroom throughout the trial. When Plaintiff’s attorney learned that Counsel
was a licensed attorney, he cross-examined Defendant about Counsel’s assistance.
Defendant acknowledged that she had received assistance from Counsel. At the conclusion
of the trial, Plaintiff filed a petition for contempt against Counsel.

       Plaintiff alleged that Counsel had “willfully and intentionally orchestrated a fraud
upon the [c]ourt and upon opposing counsel” by conspiring with Defendant to hide her legal
assistance in an effort to “gain sympathy from the [j]ury and the [c]ourt.” Plaintiff alleged
that pursuant to Tennessee Code Annotated section 29-9-102, Counsel’s actions were
contemptuous in that she had exhibited “willful misbehavior,” had abused or unlawfully
interfered with the court proceedings, and had tampered with the jury.

       Shortly thereafter, the trial court issued a show cause order, which provided, in
pertinent part,

       The [p]etition is not supported by affidavits or other evidence and does not
       point to any court order that [Plaintiff] contends was willfully disobeyed, but
       instead points to conduct [Plaintiff’s] counsel believes is unethical. See Tenn.
       R. Civ. [P.] 65.06; Tenn. Code Ann. § 29-9-102. This court does not have
       jurisdiction to hear original complaints of professional misconduct against
       lawyers. Similarly, the [c]ourt’s contempt power does not extend to situations
       where an attorney is alleged to have secretly engaged in professional
       misconduct, particularly where there is no court order in place that has been
       willfully violated and there is no openly disruptive behavior alleged to have
       occurred in the presence of the [c]ourt. The [c]ourt, therefore, on its own
       initiative, hereby sets a hearing for [Plaintiff] to show why his [p]etition for
       [c]riminal [c]ontempt should not be summarily dismissed.



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        Plaintiff responded to the order by submitting affidavits in which several witnesses
alleged that Defendant appeared to have received legal assistance from Counsel throughout
the trial even though she claimed to be unrepresented. Plaintiff asserted that while Counsel’s
behavior violated the rules of professional responsibility, her behavior also rose to the level
of criminal contempt.

      Following the show cause hearing, the court dismissed the petition, by order, which
provided in pertinent part,

       After a review of the relevant portions of the record, the show cause hearing
       proceedings, and applicable law, the [c]ourt hereby DISMISSES, with
       prejudice, [Plaintiff’s] Petition for Criminal Contempt, as amended, in its
       entirety. The [c]ourt determines that the Petition for Criminal Contempt, as
       amended, is wholly without merit. The Petition does not point to any court
       order that Plaintiff contends was willfully disobeyed, but instead points to
       conduct Plaintiff’s counsel believes is unethical. See Tenn. Code Ann. § 29-9-
       102. This [c]ourt does not have jurisdiction to hear original complaints of
       alleged professional misconduct against lawyers. Similarly, the [c]ourt’s
       contempt power does not extend to situations where an attorney is alleged to
       have secretly engaged in professional misconduct, particularly where there is
       no court order in place that has been willfully violated and there is no openly
       disruptive behavior alleged to have occurred in the presence of the [c]ourt.
       There is no possibility here that [Counsel] will be found guilty of criminal
       contempt beyond a reasonable doubt on any of Plaintiff’s theories.

Plaintiff filed a motion to alter or amend the court’s judgment and a motion for recusal of the
trial court judge. The court summarily dismissed both motions. This timely appeal followed.

                                         II. ISSUES

       We consolidate and restate the issues raised on appeal as follows:

       A. Whether the trial court abused its discretion in denying the recusal motion.

       B. Whether the trial court erred in dismissing the criminal contempt petition.

       C. Whether Counsel and Champs are entitled to damages for defending
       against this appeal.




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                              III. STANDARD OF REVIEW

        The trial court’s dismissal of a case based on lack of subject matter jurisdiction or for
failure to state a claim is a conclusion of law. Blackburn v. Blackburn, 270 S.W.3d 42, 47
(Tenn. 2008); Button v. Waite, 208 S.W.3d 366, 369 (Tenn. 2006) (citing State v. Cawood,
134 S.W.3d 159, 163 (Tenn. 2004)). The trial court’s conclusions of law are subject to a de
novo review with no presumption of correctness. Blackburn, 270 S.W.3d at 47; Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

        With regard to the recusal issue, the trial court’s decision must be affirmed unless the
trial court abused its discretion. See Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564
(Tenn. 2001). A finding of an abuse of discretion is appropriate “only when the court that
made the decision applied incorrect legal standards, reached an illogical conclusion, based
its decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that
cause[d] an injustice to the complaining party.” See Konvalinka v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008).

                                     IV. DISCUSSION

                                               A.

       Plaintiff alleges that the court erred in denying his request for recusal when the court
witnessed the behavior at issue and when the behavior was in defiance of the judge’s
authority. Counsel and Champs respond that the court did not abuse its discretion in denying
the recusal motion. In his reply brief, Plaintiff asserts that the court engaged in ex parte
communications related to the underlying lawsuit that gave rise to the petition for criminal
contempt. He asserts that the court’s conduct lends further credence to his argument that the
court’s impartiality was questionable.

        Under Supreme Court Rule 10, “[a] judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned.” Tenn. Sup.
Ct. R. 10, Canon 2.11(A). A trial court should grant a recusal motion when “the judge has
any doubt as to his or her ability to preside impartially in the case” or “‘when a person of
ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would
find a reasonable basis for questioning the judge’s impartiality.’” Davis v. Liberty Mut. Ins.
Co., 38 S.W.3d 560, 564-65 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820
(Tenn. Crim. App. 1994)). Therefore, even if a judge believes that he or she can be fair and
impartial, the court should grant the motion for recusal when “the judge’s impartiality might
be reasonably questioned” because “the appearance of bias is as injurious to the integrity of
the judicial system as actual bias.” Id. (internal quotation omitted); see also Bean v. Bailey,

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280 S.W.3d 798, 805 (Tenn. 2009). Additionally, absent the defendant’s consent, the court
is disqualified from presiding over a contempt hearing when the charge involves “disrespect
to or criticism” of the court. Tenn. R. Crim. P. 42(b)(4).

        While arguably defiant of applicable ethical rules, the behavior implicated in the
contempt charge did not involve disrespect to or criticism of the trial court. Plaintiff asserts
the court would likely have been a necessary witness in a contempt proceeding. We disagree.
Counsel readily admitted that she provided assistance to Defendant throughout the trial. The
only issue left to rule upon was whether her behavior was actually contemptuous. The court
acknowledged that Counsel’s behavior may have violated the rules of professional
responsibility but ultimately found that her behavior simply did not rise to the level of
criminal contempt. Having carefully reviewed the record, it does not appear that there was
a reasonable basis to question the court’s impartiality. Accordingly, we conclude that the
trial court did not abuse its discretion in denying the recusal motion.

                                               B.

        As a threshold issue, Counsel and Champs assert that this case is not properly before
this court because the dismissal of the petition for criminal contempt operated as an acquittal,
which may not be appealed. See generally State v. Wood, 91 S.W.3d 769, 773 (Tenn. Ct.
App. 2002). Having reviewed the record, we conclude that the summary dismissal of the
petition was not an acquittal but was a sua sponte dismissal for lack of subject matter
jurisdiction and for failure to state a claim. Such a dismissal may be appealed to this court.

        A trial court must dismiss an action whenever it appears that it lacks jurisdiction of
the subject matter. Tenn. R. Civ. P. 12.08. Likewise, when “no claim for relief is stated by
a party, a court may properly dismiss the action, either on motion or sua sponte.” Donaldson
v. Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977) (citations omitted). Here, the court held that
it did not have jurisdiction to hear original complaints of professional misconduct and that
Plaintiff failed to set forth facts establishing that Counsel could be held in criminal contempt.

        The Supreme Court has held that a trial court may not hold a person in contempt for
unethical conduct unless that conduct “also ‘embarrasses, hinders, or obstructs a court in its
administration of justice or derogates the court’s authority or dignity, thereby bringing the
administration of law into disrepute.’” State v. Beeler, 387 S.W.3d 511, 522 (Tenn. 2012)
(quoting Black v. Blount, 938 S.W.2d 394, 399 (Tenn. 1996)). Thus, the trial court did not
err in stating that it could not hold Counsel in contempt for an ethical violation unless her
conduct also rose to the level of contempt.




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        Plaintiff argues that the trial court erred in summarily dismissing his petition for
criminal contempt because he presented facts sufficient to sustain his petition when
Counsel’s unethical conduct amounted to willful misbehavior rising to the level of criminal
contempt. Criminal contempt convictions are punitive in character, and their primary
purpose is to vindicate the court’s dignity and authority. Doe v. Bd. of Prof’l Responsibility,
104 S.W.3d 465, 474 (Tenn. 2003). Punishment for criminal contempt is “unconditional in
nature” and serves to adjudicate “an issue between the public and the accused.” Black, 938
S.W.2d at 398 (citations omitted). A trial court may hold a person in contempt of court for
his or her willful misbehavior in the following cases:

       (1) The willful misbehavior of any person in the presence of the court, or so
       near thereto as to obstruct the administration of justice;

       (2) The willful misbehavior of any of the officers of such courts, in their
       official transactions;

       (3) The willful disobedience or resistance of any officer of the such courts,
       party, juror, witness, or any other person, to any lawful writ, process, order,
       rule, decree, or command of such courts;

       (4) Abuse of, or unlawful interference with, the process or proceedings of the
       court;

       (5) Willfully conversing with jurors in relation to the merits of the cause in the
       trial of which they are engaged, or otherwise tampering with them; or

       (6) Any other act or omission declared a contempt by law.

Tenn. Code Ann. § 29-9-102.

        Counsel’s conduct may be characterized as unethical in that she failed to ensure that
her legal assistance was recognized by the trial court. See generally Tenn. Formal Ethics Op.
No. 2007-F-153. However, we agree that Plaintiff failed to set forth sufficient facts to
establish that her conduct rose to the level of criminal contempt. Aiding an unrepresented
person in a limited advisory capacity does not obstruct the administration of justice.
Examples of behavior that may be characterized as an obstruction of the administration of
justice “include disrespectful, unreasonable, or ‘turbulent’ conduct; ‘clamorous and violent
language;’ and ‘direct personal misbehavior, for example, loud speaking or making any noise
in the courtroom . . . as to interfere with the procedure of the court.’” State v. Whetstone, No.
E2010-02333-CCA-R3-CO, 2011 WL 5147795, at *10 (Tenn. Crim. App. Oct. 31, 2011),

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perm. app. denied (Apr. 11, 2012) (quoting State v. Turner, 914 S.W.2d 951, 958 (Tenn.
Crim. App. 1995)). Such was not the case here. Counsel also did not tamper with the jury,
violate a court order, or derogate the court’s authority or dignity; her presence in the
courtroom was not abusive or unlawful; and she could not have been found to have willfully
misbehaved in an official transaction because she was not listed as an attorney of record or
a party to the proceedings. Accordingly, we conclude that the trial court did not err in
summarily dismissing the petition for criminal contempt.

        Having determined that the trial court did not err in summarily dismissing the petition,
we decline to address a second issue raised by Champs, namely that Plaintiff’s counsel was
never properly appointed to pursue the contempt petition and lacks standing to bring this
appeal. The court may have appointed Plaintiff to prosecute the petition if it had found that
Plaintiff was able to show cause why his petition should not be dismissed. Tenn. R. Crim.
P. 42(b)(2). In any event, this issue is pretermitted.

                                              C.

        Counsel and Champs assert that Plaintiff’s appeal was frivolous and that they are
entitled to damages for having to defend against the appeal. Tennessee Code Annotated
section 27-1-122 provides for an award of damages, including attorney fees, when an appeal
is determined to be frivolous. To find an appeal frivolous, the appeal must be wholly without
merit and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586
(Tenn. 1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct.
App. 1995). An appellate court’s decision on this issue is discretionary, and this court is
generally reluctant to award such damages because we do not want to discourage legitimate
appeals. Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006). Following
our review, we respectfully deny the request for damages on appeal.


                                     V. CONCLUSION


      The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, John Wesley
Green, individually and as a shareholder of Champs-Elysees, Inc.




                                            ______________________________________
                                            JOHN W. McCLARTY, JUDGE


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