TBA Law Blog

Posted by: Donald Paine on Sep 26, 2008

Journal Issue Date: Oct 2008

Journal Name: October 2008 - Vol. 44, No. 10

My favorite contempt opinion is Dargi v. Terminix, 23 S.W.3d 342 (Tenn. Ct. App. 2000). Steven Dargi sued Terminix and others for termite damage to his home. Good friends of mine represented the plaintiff and the principal defendant. The latter lawyer somehow incurred the plaintiff's wrath, exacerbated by another defense lawyer.

During cross-examination at a videotaped deposition (which I have viewed), Dargi went off. You can read the opinion for his exact words, which I shall attempt to sanitize for the Journal. He described defense counsel's ancestry. He gave a scatological assessment of counsel's current status in life. And he commanded counsel to perform an anatomically impossible autoerotic act. The videotape was played during trial.

Two issues arise in contempt litigation. Civil or criminal? Direct or indirect? Judge Walter Kurtz imposed four $50 fines for direct criminal contempt.

Have a look at Tenn. Code Ann.  §29-9-102(1). It condemns "the willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice." The Court of Appeals affirmed based on this language, finding Dargi's misbehavior to have been "in the presence of the court." Judge Kurtz had commented: "I know what happened; I was here."

I have told my law students that videotaping depositions usually results in better behavior by lawyers and deponents. Obviously Mr. Dargi created an exception to this generality.

Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.