        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE

                                                          FILED
                                                           February 1, 2000
STEVEN B. DARGI,                              )
                                              )           Cecil Crowson, Jr.
      Plaintiff/Appellant,                    )          Appellate Court Clerk
                                              )
ANDREA L. DARGI,                              )
                                              )
      Plaintiff,                              )      Appeal No.
                                              )      M1999-00145-COA-R3-CV
VS.                                           )
                                              )      Davidson Circuit
THE TERMINIX INTERNATIONAL                    )      No. 97C-1269
COMPANY, L.P.; DICK L. DOAK,                  )
NCARB ARCHITECT, d/b/a CENN-                  )
TENN BUILDING CONSULTANTS;                    )
EARLE DuRARD, d/b/a ResCOMM;                  )
and AMICA MUTUAL INSURANCE                    )
COMPANY,                                      )
                                              )
      Defendants,                             )
                                              )
STATE OF TENNESSEE,                           )
                                              )
      Defendant/Appellee.                     )

  APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
               AT NASHVILLE, TENNESSEE

             THE HONORABLE WALTER C. KURTZ, JUDGE


FOR THE APPELLANT:                            FOR THE APPELLEE:

JOHN E. HERBISON                              PAUL G. SUMMERS
Nashville, Tennessee                          Attorney General & Reporter

                                              ELIZABETH T. RYAN
                                              Assistant Attorney General
                                              Nashville, Tennessee


                       AFFIRMED AND REMANDED


                                              BEN H. CANTRELL,
                                              PRESIDING JUDGE, M.S.

                               OPINION


             The plaintiff repeatedly cursed and insulted the defendant’s attorney

during a taped deposition. The attorney played portions of the tape during the
trial. The trial court found that the plaintiff’s utterances constituted criminal

contempt. We affirm.



                       I. AN UNPLEASANT DEPOSITION



             Steven Dargi sued the Terminix Company for termite damage to his

home. The defendant’s attorney took the plaintiff’s videotaped deposition on

February 16, 1999.     During the deposition, Mr. Dargi refused to answer

questions, repeatedly used foul language, and uttered numerous insults to the

attorney. Among other things, he called him “a son of a bitch,” and a “piece of

low-life s--t,” and told him to “go f--k yourself” and to “shut the f--k up.” The

attorney requested recesses twice in order to calm the situation.



             The case went to trial on March 4, 1999. During the trial, the

defendant played portions of the videotape for the court. One juror was so upset

upon hearing it that she wrote a note to the judge asking why she had to be

subjected to such language. The trial court charged Mr. Dargi with criminal

contempt for his use of the offending language, and ordered a hearing on March

26, 1999.



             Mr. Dargi secured the services of attorney John Herbison to

represent him during the contempt hearing. Mr. Herbison filed a copy of his

notice of appearance on the Tennessee Attorney General stating that he planned

to raise a constitutional challenge to the contempt statutes. During the hearing,

Mr. Dargi admitted using the language in question and apologized to the court.

He claimed that because of physical ailments and financial worries, he had been

unable to sleep for two and a half days before the deposition, and that this

contributed to his outbursts. The court found Mr. Dargi guilty of four counts of

criminal contempt, and fined him $50 for each count. This appeal followed.



                                      -2-
                        II. THE CONTEMPT STATUTE



             The power to punish parties for misconduct in the courtroom is

absolutely essential to the smooth functioning of the judicial system. “Criminal

contempts . . . are intended to preserve the power and vindicate the dignity and

authority of the law, and the court as an organ of society.” Black v. Blount, 938

S.W.2d 394 (Tenn. 1996).



             The power of the court to punish contempts, while known at

common law, is now derived from statute:

             29-9-102. Scope of Power – The power of the several
             courts to issue attachments, and inflict punishments
             for contempts of court, shall not be construed to
             extend to any except 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 said courts, in their official transactions.

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

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


             The trial court did not specify under which provisions of the

contempt statute it was proceeding. Appellant argues that none of them are

applicable to Mr. Dargi’s conduct. While it is undisputed that sections (2), (3),

(4) or (5) of Tenn. Code. Ann. § 29-9-102 do not apply, we believe that section

(1) does.



                                       -3-
             Appellant argues that Mr. Dargi’s misbehavior cannot be deemed

to be “in the presence of the court, or so near thereto as to obstruct the

administration of justice.” Appellant argues that he made his statements outside

the presence of the court, and that the court would not have been affected by

them in any way if the defendants themselves had not chosen to play the excerpts

from the tape.



             We must note at the outset the critical role oral depositions play in

civil litigation. Because of their importance, depositions are conducted under

conditions designed to resemble those in the courtroom. See generally Rules 30

and 32 of the Rules of Civil Procedure. The attendance of witnesses may be

compelled by subpoena; the proceedings are under oath; examination and cross

examination are carried out under the Tennessee Rules of Evidence; witnesses

are obligated to answer all questions put to them, except under very limited

circumstances.



             One reason for the solemnity and formality surrounding the taking

of depositions is the possibility that deposition testimony will be introduced into

court. Under Rule 32.01 of the Rules of Civil Procedure, deposition testimony

may be used in court under a variety of different circumstances, “as though the

witness were then present and testifying.”



             It is especially significant that the deposition of a party is admissible

for any purpose. Nelms v. Tennessee Farmers Mutual Insurance Co., 613

S.W.2d 481 (Tenn. Ct. App. 1978). Mr. Dargi thus should have been aware that

any statement he made at deposition could have been presented to the court, and

that for all intents and purposes he cursed and insulted the opposing attorney in

the presence of the court, just as if he were on the witness stand.




                                        -4-
             Even if we ruled that the contempt was not committed in the

presence of the court, we would still have to find that it was “so near thereto as

to obstruct the administration of justice.” While Mr. Dargi’s taped outbursts did

not bring the proceedings to a halt, the reaction of the juror who wrote the note

shows that they were an unwelcome distraction from the claims under

consideration. There can thus be no doubt that his conduct constituted criminal

contempt under Tenn. Code. Ann. § 29-9-102(1).



                         III. MR. DARGI’S LANGUAGE



             It is also possible that the trial court could have found Mr. Dargi

guilty of contempt under Tenn. Code. Ann. § 29-9-102(6). This catch-all

provision gives the court power to punish “any act or omission declared a

contempt by law,” and thus incorporates by implication Tenn. Code. Ann. §

29-9-107, which reads:

             Profanity; fines and penalties – Any person who
             profanely swears or curses in the presence of any court
             of record commits a Class C misdemeanor.


             The trial court’s order of March 26 stated that Mr. Dargi was found

in contempt “for four (4) separate uses of obscene/profane language.”

Appellant’s attorney argues that Mr. Dargi’s language, while vulgar, cannot be

considered obscene or profane as a matter of law, and that application of Tenn.

Code. Ann. § 29-9-107 to the facts at hand amounts to a violation of

constitutional due process, because Mr. Dargi was not given fair warning that his

conduct was forbidden. We do not reach this issue, however, since we have

already found that Mr. Dargi’s conduct constituted criminal contempt under

Tenn. Code. Ann. § 29-9-102(1).




                                       -5-
                   IV. DIRECT AND INDIRECT CONTEMPTS



             An act of criminal contempt that is committed in the actual presence

of the court is considered to be a direct contempt. Rule 42(a) of the Rules of

Criminal Procedure permits the court to summarily punish a direct contempt if

the judge certifies that he or she saw or heard the conduct constituting the

contempt.



             If the contempt is committed outside of court, or is unwitnessed by

the judge, it is considered to be an indirect contempt. Rule 42(b) provides that

an indirect contempt may only be prosecuted on notice, and after a hearing at

which the contemnor has the right to defend himself. Summary punishment of

an indirect contempt would violate constitutional due process guarantees.



             Appellant argues that in this case, the contempt must be considered

indirect, because it was committed sixteen days before trial in the offices of the

defendant’s attorney, and thus that the procedures followed by the trial court

offended constitutional due process. However, as we stated in Section II of this

opinion, we have found that the conduct constituting Mr. Dargi’s contempt must

be deemed to have been committed in the presence of the court, and there can be

no doubt that the judge heard it.



             At the hearing of March 26, the trial judge stated that although he

found the situation a little bit odd, he was dealing with it as a direct contempt.

He said, “the Judge heard what he heard. It’s not like I need to have a hearing

about what was said, or who hit who, or who did what. I mean, I know what

happened. I was here.”



             The judge explained that he ordered a hearing so Mr. Dargi could

explain his conduct, and possibly mitigate the punishment coming to him.

                                       -6-
Perhaps the court was also acting out of an abundance of caution, because of the

unusual circumstances. In any case, we believe that Mr. Dargi received all the

due process that he was entitled to.



                                       V.



             The order of the trial court is affirmed. Remand this cause to the

Circuit Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant, Steven Dargi.




                                       _______________________________
                                       BEN H. CANTRELL,
                                       PRESIDING JUDGE, M.S.


CONCUR:




____________________________
WILLIAM C. KOCH, JR., JUDGE



____________________________
WILLIAM B. CAIN, JUDGE




                                       -7-
