cody-2758-9-sc-order.pdf (2018)

Original PDF Document

---

Download Official Record (cody-2758-9-sc-order.pdf)

Go to Top

Alternative Accessible HTML

04/19/2018
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
IN RE: HOMER L. CODY, BPR #10755
An Attorney Licensed to Practice Law in Tennessee
(Shelby County)
_________________________

No. M2017-01668-SC-BAR-BP
BOPR No. 2017-2758-9-WM
_________________________

ORDER

On July 27, 2015, Homer L. Cody was suspended from the practice of law for one
hundred eighty (180) days by a Judgment of this Court. On July 7, 2016, this Court
entered an Order of Enforcement which suspended Mr. Cody from the practice of law for
one year. Mr. Cody has not requested, nor been granted, reinstatement. Mr. Cody has
since been suspended for a period of two years by Order of Enforcement entered August
11, 2017.

On August 11, 2017, the Board of Professional Responsibility (“BPR”) filed a
Petition for Contempt, alleging that Mr. Cody had engaged in the practice of law during
his period of suspension, in contempt of this Court’s July 27, 2015 and July 7, 2016
Orders.

By Order entered August 25, 2017, this Court appointed Robert L. Childers to
serve as Special Master; directed the Special Master to serve Mr. Cody, pursuant to
Tennessee Rule of Criminal Procedure 42, with a notice of criminal-contempt hearing;
instructed the Special Master to conduct an evidentiary hearing on the Petition; and
directed the Special Master, upon completion of the hearing, to transmit the record of the
proceedings and a report of his findings of fact and conclusions of law to this Court.

The Hearing before the Special Master occurred on December 4, 2017, and on
February 1, 2018, the Special Master filed the record of the proceedings and a report of
his findings of fact and conclusions of law with this Court. The Special Master
determined the following:

Mr. Cody engaged in three separate acts of criminal contempt of both the
July 27, 2015 and the July 7, 2016 orders by filing two separate pleadings
in the Chancery Court of Shelby County on May 15, 2017, and filing a third
pleading on June 2, 2017. The Special Master finds that the violations were
willful and intentional and demonstrate a complete lack of respect for the
Supreme Court’s orders, considering that Mr. Cody received a Public
Censure, a 180-day suspension and a one-year suspension and yet still
continues to practice law. Mr. Cody had the ability to comply with the
orders of the Supreme Court of Tennessee. In light of the evidence and
totality of the circumstances the Special Master finds Mr. Cody’s conduct
to be egregious and, therefore, recommends that Mr. Cody be fined $50.00
for each of the three violations and, in addition, that he be sentenced to the
maximum of ten (10) days incarceration for each of the three violations.

This Court filed an order on February 8, 2018, requiring Mr. Cody to respond to
the Special Master’s report and show cause why this Court should not enter judgment
holding him in contempt of this Court’s July 27, 2015 and July 7, 2016 Orders. The
Court also ordered the BPR to respond to the Special Master’s report.

Upon our review of the transcript of the hearing and the report filed by the Special
Master in this matter, as well as the responses to the Special Master’s report filed by Mr.
Cody and the BPR, we adopt the findings of fact of the Special Master. Moreover, we
adopt the Special Master’s conclusion that Mr. Cody willfully and intentionally engaged
in three separate acts of criminal contempt. Therefore, Mr. Cody is adjudged to be guilty
of three counts of criminal contempt, and we must determine the appropriate punishment.

Tennessee Code Annotated section 29-9-102 (2012) provides the authority for this
Court to punish criminal contempt: “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: . . . . (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 . . . .” Tenn. Code Ann. § 29-9-102.
“This provision enables the courts to maintain the integrity of their orders.” Konvalinka
v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354 (Tenn. 2008).
“Criminal contempt . . . is designed ‘to preserve the power and vindicate the dignity and
authority of the law and the court as an organ of society.’” Baker v. State, 417 S.W.3d
428, 436 (Tenn. 2013) (quoting State v. Beeler, 387 S.W.3d 511, 520 (Tenn. 2012)).
“Sanctions for criminal contempt are generally both punitive and unconditional in nature,
designed to punish past behavior, not to coerce directly compliance with a court order or
influence future behavior.” Id.

Section 29-9-103 (2012) outlines the range of punishments for criminal contempt.
It states:

(a) The punishment for contempt may be by fine or by imprisonment, or
both.

(b) Where not otherwise specially provided, the circuit, chancery, and
appellate courts are limited to a fine of fifty dollars ($50.00), and
imprisonment not exceeding ten (10) days, and, except as provided in §
29-9-108, all other courts are limited to a fine of ten dollars ($10.00).

Tenn. Code Ann. § 29-9-103.

Thus, section 29-9-103(b) authorizes up to ten days incarceration, as well as a
fifty dollar ($50.00) fine, for each of Mr. Cody’s contempt convictions. The Special
Master determined that the maximum sentence for each count of criminal contempt was
appropriate in this case. Mr. Cody does not deny that he prepared and filed three filings,
two filed on May 17, 2017, and the third on June 2, 2017. Mr. Cody does not deny that
he was aware of his suspension from the practice law by Orders of this Court entered July
27, 2015, and July 7, 2016. Rather, Mr. Cody continues to argue, as he did before the
Special Master, that the Supreme Court Orders of suspension were void for lack of
jurisdiction.

Mr. Cody has made this argument multiple times, and this Court has previously
ruled on this issue. Cody v. Board of Professional Responsibility, 471 S.W.3d 420, 425
(Tenn. 2015). Moreover, regardless of Mr. Cody’s view of the rulings from this Court,
Rule of Professional Conduct 8.4(g) states that an attorney must comply with orders
entered in proceedings in which the lawyer is a party. Tenn. Sup. Ct. R. 8, RPC 8.4(g)
(“It is professional misconduct for a lawyer to: . . . (g) knowingly fail to comply with a
final court order entered in a proceeding in which the lawyer is a party . . . .”). There are
two exceptions to this rule, but neither are applicable. Id. Finally, this Court has outlined
the duty to follow orders, even though they are perceived to be erroneous, or even those
held to be erroneous: “[E]ven though the trial judge’s order is erroneous and is reversed
on appeal, an adjudication of contempt for failure to obey that order will be sustained.”
State v. Jones, 726 S.W.2d 515, 517 (Tenn. 1987) (citing Vanvabry v. Staton, 88 Tenn.
334, 12 S.W. 786 (1890)).

Thus, given the blatant and deliberate manner in which these violations occurred,
we find a ten-day sentence, as well as a fifty-dollar fine, for each of Mr. Cody’s contempt
convictions is appropriate. Therefore, we adopt the Special Master’s conclusion as to
sentencing and accordingly sentence Mr. Cody to ten days for each of his three criminal
contempt charges and order him to pay a fine of fifty dollars ($50.00) for each charge
totaling one hundred fifty dollars ($150.00).

Finally, we must determine the manner in which Mr. Cody shall serve his
sentences. Tennessee Code Annotated section 40-35-115 outlines the applicable criteria
for when “a defendant is convicted of more than one (1) criminal offense” and states that
the Court “shall order sentences to run consecutively or concurrently as provided by the
criteria in this section.” Tenn. Code Ann. § 40-35-115 (2014). The decision regarding
whether sentences are to be served concurrently or consecutively is left to the sound
discretion of the sentencing court. See State v. Nelson, 275 S.W.3d 851, 870 (Tenn.
Crim. App. 2008). The pertinent criteria for this case in section 40-35-115 states that a
defendant can be sentenced consecutively if “[t]he defendant is sentenced for criminal
contempt.” Tenn. Code Ann. § 40-35-115. Any single ground is a sufficient basis for the
imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 862 (Tenn.
2013). As Mr. Cody has been found guilty of criminal contempt, we find by a
preponderance of the evidence that the criteria is satisfied to impose consecutive service
for the three sentences of criminal contempt. See In re Sneed, 302 S.W.3d 825, 828
(Tenn. 2010) (ordering a partially consecutive sentence in an attorney criminal contempt
case). Moreover, we find that a total effective sentence of thirty days’ incarceration is “a
sentence justly deserved in relation to the seriousness of the offense[s],” Tenn. Code Ann.
§ 40-35-102(1), and “no greater than that deserved for the offense[s] committed.” Id. §
40-35-103(2).

Accordingly, pursuant to Tennessee Code Annotated section 29-9-103, we hereby
sentence Mr. Cody to ten days’ incarceration in Shelby County Jail for each count, to be
served consecutively, for a total effective sentence of thirty days’ incarceration. Mr.
Cody shall surrender himself to the Shelby County Sheriff’s Department within fifteen
days of the filing date of this Order. If Mr. Cody fails to report to the Shelby County
Sheriff’s Department within fifteen days of the filing date of this Order, any law
enforcement officer in this State is authorized to arrest Mr. Cody and transport him to the
Shelby County Sheriff’s Department to serve his sentence. Furthermore, Mr. Cody shall
pay a fine of fifty dollars ($50.00) for each of the three counts, for a total fine of one
hundred fifty dollars ($150.00). The Clerk of this Court is directed to forward a copy of
this order to Mr. Cody and the Sheriff of Shelby County. The Clerk also shall forward a
copy of this Order to the Board of Professional Responsibility.

Upon the filing of the Special Master’s declaration of costs in this matter, both
sides shall respond within ten days as to the assessment of costs.

PER CURIAM

HOLLY KIRBY, J., not participating.

Go to Top

Assistance Request

Request Accessibility Assistance

Name

Email

Phone

What do you need help with?

The HTML version is missing content

The HTML version contains errors

The reading order is incorrect or confusing

I need help understanding the content

I need a different alternative format

Other

Preferred format

Additional details

Urgency Urgent Soon Not urgent

Go to Top