Lufkin v. Board of Professional Responsibility

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 2, 2011 Session

DAVID A. LUFKIN, SR. v. BOARD OF PROFESSIONAL

RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Board of Professional Responsibility Hearing Panel

No. 2009-1865-2-SG(24)-R3-BP

No. M2010-00827-SC-R3-BP - Filed: March 22, 2011

An attorney who was suspended from the practice of law for two years and assessed

costs associated with the suspension proceedings appeals to this Court for relief from all or

a portion of the assessed costs. While this appeal was pending, the attorney filed a Chapter

7 bankruptcy petition, and his pre-bankruptcy debts were discharged by order entered by the

Bankruptcy Court on December 10, 2010. We hold that the assessment of costs of the

disciplinary proceeding was a debt that was discharged in the attorney’s bankruptcy case and

is, therefore, no longer due and owing. Accordingly, the attorney’s appeal to this Court is

moot.

Tenn. R. App. P. 3 Direct Appeal; Appeal Dismissed

S HARON G. L EE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,

J ANICE M. H OLDER, G ARY R. W ADE, and W ILLIAM C. K OCH, JJ., joined.

Thomas F. Mabry, Seymour, Tennessee, for the appellant, David A. Lufkin, Sr.

Sandy Garrett, Nashville, Tennessee, for the appellee, Board of Professional Responsibility

of the Supreme Court of Tennessee.

OPINION

On December 16, 1999, this Court granted attorney David A. Lufkin, Sr.’s application

to be placed on disability inactive status pursuant to Tennessee Supreme Court Rule 9,

section 21.3.1 In July of 2006, Mr. Lufkin was reinstated to active status. In September of

1

Section 21.3 of Rule 9 provides in pertinent part as follows:

(continued...)

2006, the Board of Professional Responsibility (“the Board”) filed a petition to temporarily

suspend Mr. Lufkin from the practice of law pursuant to Tennessee Supreme Court Rule 9,

section 4.3.2 We granted this petition by order of October 17, 2006. In April of 2007, the

Board filed an additional petition for discipline against Mr. Lufkin based on seven

complaints. Following a hearing by the Board Hearing Panel (“the Panel”) in June of 2009,

the Panel recommended that Mr. Lufkin be suspended for two years, retroactive to his

suspension on October 17, 2006; that he attend a specified amount of additional continuing

legal education within the next two years; and that his practice be subject to the supervision

of a practice monitor for one year should his law license be reinstated. Thereafter, on August

18, 2009, this Court entered an Order of Enforcement accepting the Panel’s

recommendations and assessing Mr. Lufkin with costs of the suspension proceedings in the

amount of $11,277.88, pursuant to Tennessee Supreme Court Rule 9, section 24.3.3

1

(...continued)

If, during the course of a disciplinary investigation or proceeding, the

respondent contends that the respondent is suffering from a disability by

reason of mental or physical infirmity or illness, or because of addiction to

drugs or intoxicants, which disability makes it impossible for the

respondent to respond to or defend against the complaint, such contention

shall place at issue the respondent’s capacity to continue to practice

law. The Court thereupon shall enter an order immediately transferring the

respondent to disability inactive status for an indefinite period and until the

further order of this Court.

2

Section 4.3 of Rule 9 provides in pertinent part as follows:

On petition of the Disciplinary Counsel and supported by an affidavit

demonstrating facts personally known to affiant, showing that an attorney

has misappropriated funds to the attorney’s own use, has failed to respond

to the Board or Disciplinary Counsel concerning a complaint of

misconduct, has failed to substantially comply with a contract entered into

with the Tennessee Lawyer Assistance Program, or otherwise poses a threat

of substantial harm to the public, the Supreme Court may issue an order

with such notice as the Court may prescribe imposing temporary conditions

of probation on said attorney or temporarily suspending said attorney, or

both.

3

Section 24.3 of Rule 9 allows for the assessment of costs against an attorney as follows:

In the event that a judgment of disbarment, suspension, public censure,

private reprimand, temporary suspension, disability inactive status,

reinstatement, or denial of reinstatement results from formal proceedings,

the Board shall assess against the respondent the costs of the proceedings,

including court reporter’s expenses for appearances and transcriptions of

(continued...)

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Mr. Lufkin subsequently filed a petition with the Board pursuant to section 24.3 4

requesting that the $11,277.88 cost assessment “be waived entirely, or the payment of [the

costs] be modified and that payment of such costs not be required prior to the Petitioner

having his license returned to active status,” in part, on the ground of “extreme financial

hardship.” By order of March 11, 2010, the Panel ruled that the cost assessment should be

reduced by $2,554 because a portion of the assessment was unwarranted. The Panel ordered

Mr. Lufkin to pay the $8,723.88 balance as a condition precedent to his reinstatement.

On April 12, 2010, Mr. Lufkin appealed to this Court pursuant to section 1.3 of

Supreme Court Rule 9 and requested that this balance be further reduced or waived for

financial hardship and other reasons. Thereafter, on September 1, 2010, Mr. Lufkin filed a

Chapter 7 bankruptcy petition under the federal Bankruptcy Code, codified at 11 U.S.C. §§

101-1532 (2006 & Supp. IV 2010). On December 10, 2010, the Bankruptcy Court for the

Eastern District of Tennessee entered an order granting Mr. Lufkin a discharge under section

727 of the Bankruptcy Code.

“A discharge in bankruptcy is an involuntary release by operation of law of asserted

and non-asserted claims by a creditor against a person” that has filed a bankruptcy

petition. Parnham v. Parnham, No. M1998-00915-COA-R3-CV, 2001 WL 120734, at *2

(Tenn. Ct. App. Feb. 14, 2001) (citing In re Dow Corning Corp., 255 B.R. 445, 476 (E.D.

Mich. 2000)); In re Arrowmill Dev. Corp., 211 B.R. 497, 503 (Bankr. D. N.J. 1997). A

discharge operates to void a debtor’s personal liability for any judgment obtained before the

debtor filed his or her bankruptcy petition with respect to any debt discharged under section

727. 11 U.S.C. § 524(a) (2006); Ford Consumer Fin. Co. v. Clay, 984 S.W.2d 615, 616

(Tenn. Ct. App. 1998) (citations omitted). Disciplinary proceeding costs assessed to an

attorney pursuant to section 24.3 are included among those debts discharged in a Chapter 7

bankruptcy. In re Love, __ B.R. __, 2011 WL 113524, at *11-12 (Bankr. M.D. Tenn. Jan.

12, 2011).

3

(...continued)

all hearings and depositions, the expenses of the hearing panel in the

hearing of the cause, and the hourly charge of Disciplinary Counsel in

investigating and prosecuting the matter.

4

Section 24.3 of Rule 9 allows an attorney to request relief from assessed costs as follows:

The respondent attorney may petition the Board for relief from costs within

thirty days of receipt of the final bill of costs or on the termination of any

action upon which the disciplinary proceeding was based, whichever occurs

last. In seeking relief, the respondent attorney shall have the opportunity

to appear and be heard before the Board or a duly constituted panel thereof.

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Without ruling or commenting on the merits of Mr. Lufkin’s petition, we hold that Mr.

Lufkin’s appeal to this Court is moot and should be dismissed because the costs for which

he seeks relief have been discharged in bankruptcy and are no longer owed. A case, such as

the one before us, that does not involve presently existing rights, “live issues that are within

a court’s power to resolve, and parties who have a legally cognizable interest in the

resolution of these issues,” is no longer justiciable. State ex rel. DeSelm v. Jordan, 296

S.W.3d 530, 534 (Tenn. Ct. App. 2009). A case may lose its justiciability and thereby

become moot as the result of a court decision, acts of the parties, or some other event that

occurs during the pendency of the case. Norma Faye Pyles Lynch Family Purpose LLC v.

Putnam Cnty., 301 S.W.3d 196, 204 (Tenn. 2009). If a case no longer serves as a means to

provide some sort of judicial relief to the prevailing party it will be considered moot. Id. Mr.

Lufkin’s liability for the costs and expenses of his disciplinary proceedings was nullified by

his discharge in bankruptcy, and he no longer requires relief in this Court from the

assessment of those costs and expenses. Therefore, this appeal is moot. See Clay, 984

S.W.2d at 616-17 (holding that personal money judgment against Chapter 7 debtor was

abrogated by debtor’s bankruptcy discharge).

While there are certain exceptional circumstances that offer a basis for not invoking

the mootness doctrine to dismiss a case,5 none of those circumstances are present in this case.

Conclusion

For the reasons stated, Mr. Lufkin is no longer liable for the disciplinary proceeding

costs assessed against him by the Panel from which he seeks relief on appeal to this

Court. This appeal, being moot, is therefore dismissed. All costs of this appeal are taxed to

David A. Lufkin, Sr., and his surety, for which execution may issue if necessary.

_________________________________

SHARON G. LEE, JUSTICE

5

For example, courts have declined to dismiss a case under the mootness doctrine when the issue

involved a matter of great public importance or importance to the administration of justice; when the conduct

in controversy was a matter capable of repetition and was of such short duration that it would evade judicial

review; when, despite the mootness of the primary subject of dispute, collateral consequences to the parties

persisted; and when the defendant voluntarily ceased the conduct complained of. Norma Faye Pyles Lynch

Family Purpose LLC, 301 S.W.3d at 204.

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