                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                     NOVEMBER 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 against Attorney Andrew J. Shookhoff. The juvenile
court held Mr. Shookhoff in contempt for his failure to appear at a review hearing involving his
minor client. This appeal ensued. For the following reasons, we reverse.

      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

William H. Farmer, Nashville, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General,
Nashville, TN, for Appellee

                                       MEMORANDUM OPINION1

                                       Facts and Procedural History

        Andrew J. Shookhoff (“Mr. Shookhoff”), a member of the Nashville bar, was pro-bono
counsel for a juvenile, Tony W. Hedge. Mr. Shookhoff failed to appear at a December 5, 2001
review hearing involving the juvenile. On December 7, 2001, the juvenile court judge entered a
show cause order, ordering Mr. Shookhoff to appear and show cause why he should not be found
in contempt.



         1
           Rule 10 (Court of Appeals). Memorandum Op inion. - This Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorand um opinion when a
formal opinion would have no precedential value. When a case is decided by memo randum opinion it shall be designated
“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated
case.
       On December 7, 2001, Mr. Shookhoff filed a Motion to Reconsider Show Cause Hearing or
Reset Show Cause. In this motion, Mr. Shookhoff stated that he did not realize a hearing was
scheduled on December 5, 2001 and that his failure to appear was not intentional. Mr. Shookhoff
also apologized to the court and all parties for his inadvertent failure to appear. As a result of this
motion, the show cause hearing was rescheduled to January 9, 2002.

        At the show cause hearing, the court entered a review order finding Mr. Shookhoff in
contempt for his failure to appear at the December 5, 2001 hearing, but reserved further ruling as to
sanctions. On January 22, 2002, Mr. Shookhoff filed a notice of appeal to the Circuit Court of
Dickson County. 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.”

       Thereafter, on February 7, 2002, Mr. Shookhoff filed a notice of appeal with the juvenile
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 appear at a scheduled hearing.

        2.     Whether the juvenile court’s failure to specify whether counsel was facing a criminal
               or civil contempt proceeding invalidates the court’s finding of contempt.

        3.     Whether, assuming that the juvenile court intended to cite counsel with criminal
               contempt, the notice given to Mr. Shookhoff failed to comply with Tennessee Rules
               of Criminal Procedure 42(b) and due process requirements, thereby voiding the
               juvenile court’s finding of contempt.

                                        Standard of Review

        The power of the court to find contempt may and should be used only when necessary “to
prevent actual, direct obstruction of, or interference with, the administration of justice.” Robinson
v. Air Draulics Eng’g. Co., Inc., 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 Appellate Procedure 3(a) provides in pertinent part “[i]n civil actions
every final judgment entered by a trial court from which an appeal lies to the Supreme Court or
Court of Appeals is appealable as of right.” Tenn. R. App. P. 3(a). In the present case, Mr.


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Shookhoff appeals the juvenile court’s finding 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. App. 1989) (citing State v. Green, 689 S.W.2d 189 (Tenn.
Crim. App. 1984)). “However, a judgment of contempt without the designation of punishment is
not a 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. Shookhoff in contempt, but
reserved any ruling as to punishment. On January 22, 2002, Mr. Shookhoff appealed 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 Court finds it does not have jurisdiction for this appeal as the appeal lies to the Tennessee
Court of Appeals pursuant to Tenn. R. Juvenile P. 36(a), T.C.A. § 37-1-159(g) and T.C.A. § 16-4-
108.”

        Rule 36(a) of the Tennessee Rules of Juvenile Procedure states that “appeals may be taken
in accordance with T.C.A. § 37-1-159.” Tenn. R. Juvenile P. 36(a). Section (g) of Tennessee Code
Annotated Section 37-1-59 is the provision most applicable to the case at bar. This section reads:
“[a]ppeals in all other civil matters heard by the juvenile court shall be governed by the Tennessee
Rules of Appellate Procedure.” Tenn. Code Ann. § 37-1-159(g). Tennessee Code Annotated
Section 16-4-108 states that “[t]he court of appeals 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 jurisdiction only over final judgments. See Tenn. R. App. P. 3(a). As previously stated, a
finding of contempt “without the designation of punishment is not a final appealable judgment.”
Hall, 772 S.W.2d at 436.

        Our Supreme Court has recognized that “[u]nless an appeal from an interlocutory order is
provided by the rules or by statute, appellate courts have jurisdiction over final judgments only.”
Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (citing Aetna Cas. & Sur. Co. v.
Miller, 491 S.W.2d 85 (Tenn. 1973)). Rule 2 of the Tennessee Rules of Appellate Procedure,
however, allows this Court to suspend, for good cause, “the requirements or provisions of any of
these rules,” except for Rules 4, 11 and 12. See Tenn. R. App. P. 2. Therefore, there is “no bar to
the suspension of Rule 3(a).” Bayberry Assocs., 783 S.W.2d at 559.

        In order to suspend the requirements of Rule 3(a), this Court must affirmatively show that
the rule is suspended and must give a “good reason” for the suspension. See Bayberry Assocs., 783
S.W.2d at 559; see also Tenn. R. App. P. 2. The stated purpose behind Rule 2 is to empower the
courts “to relieve litigants of the consequences of noncompliance with the rules in those
circumstances in which it is appropriate to do so.” Tenn. R. App. P. 2 (advisory commission
comment). We find it appropriate to do so here. This Court, on its own motion and pursuant to Rule
2, suspends Rule 3(a) in this case. See Tenn. R. App. 2.


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        Almost an entire year has passed since the juvenile court’s finding of contempt. It is highly
unfair and prejudicial to Mr. Shookhoff to have the stigma of a contempt sanction hanging over his
head. We find this to be “good reason” to suspend the application of Rule 3(a) and address the
merits of Mr. Shookhoff’s appeal.

        Mr. Shookhoff argues that the juvenile court erred in finding him in contempt for his
inadvertent failure to appear at the December 5, 2001 review hearing. The crux of Mr. Shookhoff’s
argument is that the juvenile court made no finding that his failure to appear was intentional or
willful. Based on the record before this Court, we agree.

         “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
Annotated Section 29-9-102 provides for the power of the courts to find contempt. This provision
states that a court may punish as 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 resistence 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.” Tenn. Code Ann. § 29-9-102(3). “Thus, to find
contempt under this statute, a court must find the misbehavior, 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.” Haynes v. Haynes, 904 S.W.2d 118, 120 (Tenn. Ct. App. 1995). In the opinion of this
Court, there is nothing in the record to suggest that Mr. Shookhoff’s failure to appear was willful.
Instead, Mr. Shookhoff’s absence was predicated on a clerical error and was merely an unintentional
oversight. With no evidence of willful contempt, we find that the juvenile court abused its discretion
in hold Mr. Shookhoff in contempt.

                                              Conclusion

        Accordingly, we reverse the juvenile court’s finding of contempt and dismiss the case. We
find that the disposition of the first issue renders unnecessary any discussion of Mr. Shookhoff’s two
remaining issues. Costs on appeal are taxed to the Appellee, the State of Tennessee, for which
execution may issue if necessary.




                                                         ___________________________________
                                                         ALAN E. HIGHERS, JUDGE



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