State ex re. Herbert S. Moncier v. Nancy S. Jones

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 10, 2013 Session

STATE EX REL. HERBERT S. MONCIER, ET AL.

v. NANCY S. JONES, ET AL.

Appeal from the Circuit Court for Davidson County

No. 12C502 Hamilton V. Gayden, Jr., Judge

No. M2012-01429-COA-R3-CV - Filed June 6, 2013

Attorney disciplined by the Board of Professional Responsibility filed suit against the

Board’s counsel seeking damages for her conduct of the disciplinary proceeding and her

removal from the position of Disciplinary Counsel; Attorney appeals the dismissal of his

action. Finding no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,

J R. and A NDY D. B ENNETT, JJ., joined.

Herbert S. Moncier, Knoxville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

and Janet M. Kleinfelter, Deputy Attorney General, for the Appellees, Nancy S. Jones and

unnamed officers of the State of Tennessee.

OPINION

This appeal arises from a disciplinary proceeding brought by the Board of Professional

Responsibility of the Tennessee Supreme Court (the “Board”) against attorney Herbert S.

Moncier. The petition for discipline was filed on July 30, 2008; a supplemental petition was

filed on September 28, 2009. Mr. Moncier responded to both petitions and, following a

hearing, was found to have committed violations of the Rules of Professional Conduct and

suspended from the practice of law for a period of eleven months and twenty-nine days, all

but forty-five days of which was probated. In addition, Mr. Moncier was required to have

a practice monitor and take additional hours of ethics continuing legal education. Following

proceedings relative to Mr. Moncier’s appeal of the Hearing Panel’s judgment, the Tennessee

Supreme Court issued an Order of Enforcement on June 1, 2011, inter alia, imposing the

discipline which had been previously ordered by the Hearing Panel.

On February 6, 2012, Mr. Moncier filed suit in Davidson County Circuit Court against

the Board’s Disciplinary Counsel, Nancy S. Jones, seeking damages and other relief arising

from her conduct of the disciplinary proceeding. The suit has produced a plethora of filings;

those pleadings germane to the issues presented in this appeal are the Amended Complaint

and the Second Amended Complaint (“the complaints”), Ms. Jones’ motion to dismiss 1 , two

motions for a declaratory judgment filed by Mr. Moncier, and a motion seeking leave to file

a third amended complaint.

A hearing was held on the pending motions and on June 12, 2012 the trial court

entered an order granting the motion to dismiss and denying Mr. Moncier’s motions to file

a third amended complaint and for declaratory judgments. Mr. Moncier appeals.2

DISCUSSION

I. IMMUNITY A VAILABLE TO M S. JONES

While Mr. Moncier acknowledges that Tenn. Sup. Ct. R. 9, § 27.1 grants Ms. Jones

immunity for conduct in the course of her duties as Disciplinary Counsel, he contends that

the rule violates the Tennessee Constitution.3 In Moncier v. Jones, et al., No. M2012-00778-

COA-R3-CV, a suit in which Ms. Jones is a party, we address Mr. Moncier’s contention

regarding the constitutionality of Tenn. Sup. Ct. R. 9, § 27, as well as the availability of

sovereign immunity and qualified immunity. Moncier v. Jones, et al., No. M2012-00778-

COA-R3-CV, 2013 WL ____ (Tenn. Ct. App. June 6, 2013). We adopt herein the discussion

and holding in that case relative to the immunity available to Ms. Jones pursuant to Tenn.

Sup. Ct. R. 9, § 27.

1

By agreement between the parties, the motion to dismiss applied to the first and second amended

complaints.

2

This appeal was argued along with two other cases arising out of Mr. Moncier’s suspension,

Moncier v. Jones, et al., No. M2012-00778-COA-R3-CV, 2013 WL ______ (Tenn. Ct. App. June 6, 2013),

and Moncier v. Board of Professional Responsibility, No. M2012-00779-COA-R3-CV, 2013 WL _______

(Tenn. Ct. App. June 6, 2013). Several of the issues presented in this appeal are also presented in No.

M2012-00778-COA-R3-CV; inasmuch as the same panel has participated in all three opinions, as appropriate

we shall adopt holdings in that case as dispositive of certain issues herein.

3

Tenn. Sup. Ct. R. 9, § 27.1 states in pertinent part that “[m]embers of the board, district committee

members, Disciplinary Counsel and staff shall be immune from civil suit for any conduct in the course of

their official duties.”

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In the motion to dismiss, Ms. Jones asserted that she was also entitled to absolute

and/or qualified immunity for actions taken in her official capacity. In Moncier v. Jones, et

al., No. M2012-00778-COA-R3-CV, we also hold that Ms. Jones is shielded from civil

liability for actions taken in the course of the disciplinary proceeding which were part of her

official duties; we likewise adopt herein the discussion and holding in regard to the other

immunities available to her. Id.

Mr. Moncier’s complaints stated that they were filed against Ms. Jones in her

individual capacity; in the order granting the motion to dismiss, the court held that the

complaints did not allege conduct which was outside the scope of Ms. Jones’ employment

as Disciplinary Counsel to the Board and accordingly dismissed Plaintiff’s claims for failure

to state a claim. Thus, we proceed to consider whether the complaints allege sufficient facts

to state a claim that Ms. Jones acted in her individual capacity such that she is not immune

from liability.

A motion to dismiss for failure to state a claim asserts that the facts alleged in the

complaint do not state a cause of action for which relief can be granted. Lyne v. Price, No.

W2000-00870-COA-R3-CV, 2002 WL 1417177, at *2 (Tenn. Ct. App. June 27, 2002)

(citing Humphries v. W. End Terrace, Inc., 795 S.W.2d 128, 130 (Tenn. Ct. App. 1990)).

The motion to dismiss tests the legal sufficiency of the claim, not the strength of a plaintiff’s

proof, and the court should construe all facts in favor of the plaintiff, taking the relevant and

material allegations as true. Id. (citing Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716

(Tenn. 1997)). Inferences drawn from the facts or any legal conclusions set forth in the

complaint are not required to be taken as true. Riggs v. Burson, 941 S.W.2d 44, 47-48 (Tenn.

1997) (citing Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. App. 1992)). A trial court

should grant a motion to dismiss only when it appears that the plaintiff can prove no set of

facts which would entitle him to relief. Lyne, at *2 (citing Cook v. Spinnaker’s of Rivergate,

Inc., 878 S.W.2d 934, 938 (Tenn. 1994)). On appeal, we similarly presume the factual

allegations to be true and review the trial court’s conclusions of law de novo with no

presumption of correctness. Sellick v. Miller, 301 S.W.3d 636, 639–40 (Tenn. Ct. App.

2009) (citing Leggett v. Duke Energy Corp., No. W2007-00788-COA-R3-CV, 2008 WL

4756653, at *2–3 (Tenn. Ct. App. M. S., filed October 29, 2008).

Tenn. Sup. Ct. R. 9, §§ 7.1-8.5, inter alia, establish the powers and duties of the

Disciplinary Counsel and the procedures under which the Disciplinary Counsel is to operate

when investigating a complaint of lawyer misconduct and in instituting a formal disciplinary

proceeding. The complaints allege facts relative to actions taken by Ms. Jones in the

performance of her duties as Disciplinary Counsel during the course of the disciplinary

proceeding; having reviewed both complaints we fail to see any facts alleged from which a

court could conclude that Ms. Jones had acted in anything but her official capacity and in

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furtherance of her official duties as Disciplinary Counsel.4 Accordingly, the trial court did

4

The Amended Complaint has a section labeled “Facts” which contains twenty-eight paragraphs;

the following paragraphs contain allegations of fact that are neither conclusory nor argumentative:

6. On July 30, 2008 Defendant Jones filed formal disciplinary charges against Plaintiff.

8. On September 28, 2009 Defendant Jones filed supplemental formal disciplinary charges

against Plaintiff.

10. Defendant Jones prosecuted Plaintiff for the July 30, 2008 and September 28, 2009

formal disciplinary charges she prepared.

11. Defendant Jones was the source of instruction and training Hearing Panel members

before whom Plaintiff was tried on the formal disciplinary charges.

14. On January 12, 2010 the Hearing Panel issued findings that Plaintiff committed five

violations of the Tennessee Rules of Professional Conduct.

16. On September 10, 2010 a Circuit Court reversed and dismissed two of findings of

violations of the RPC by the Hearing Panel and ordered a new hearing on discipline on

remaining charges. (hereinafter “Plaintiff’s Favorable Judgment”).

17. Plaintiff’s Favorable Judgment included findings that the impartiality of the Hearing

Panel has been interfered with by the Board.

19. Plaintiff’s Favorable Judgment included findings that Defendant Jones attempted to

interfere with the independence of Plaintiff’s attorney.

20. On February 7, 2011 Defendant Jones sought review of Plaintiff’s Favorable Judgment

to set aside the Favorable Judgment in the Circuit Court.

25. The probation terms dictated by Defendant Jones restricted and limited Plaintiff’s right

to practice law pursuant to the license granted by the State of Tennessee.

Similarly, the Second Amended Complaint includes a section labeled “Facts” containing thirty-four

paragraphs, the following of which are neither conclusory nor argumentative:

17. On July 30, 2008 Defendant Jones filed formal disciplinary charges against Plaintiff.

19. On September 28, 2009 Defendant Jones filed a supplemental formal disciplinary charge

against Plaintiff.

21. Defendant Jones prosecuted Plaintiff for the July 30, 2008 and September 28, 2009

formal disciplinary charges she had prepared.

22. Defendant Jones was the source of instruction and training Hearing Panel members

before whom Plaintiff was tried on the formal disciplinary charges.

26. On January 12, 2010 the Hearing Panel issued findings that Plaintiff committed five

violations of the Tennessee Rules of Professional Conduct.

28. On September 10, 2010 a Circuit Court reversed and dismissed two of findings of

violations of the RPC by the Hearing Panel and ordered a new hearing on discipline on

remaining charges. (hereinafter “Plaintiff’s Favorable Judgment”).

29. Plaintiff’s Favorable Judgment included findings that the impartiality of the Hearing

Panel has been interfered with by the Board.

31. Plaintiff’s Favorable Judgment included findings that Defendant Jones attempted to

interfere with the independence of Plaintiff’s attorney.

32. On February 7, 2011 Defendant Jones sought review of Plaintiff’s Favorable Judgment

to abate and set aside the Favorable Judgment in the Circuit Court.

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not err when it held that the Amended Complaint and the Second Amended Complaint did

not allege conduct which was outside the scope of Ms. Jones’ employment.5

II. D ECLARATORY JUDGMENT M OTIONS

Mr. Moncier assigns error to the trial court’s denial of his motions for a declaratory

judgment on the constitutionality of Tenn. Sup. Ct. R. 9, § 27.1, and for a declaration of his

rights relative to the application of the procedures before the Tennessee Claims Commission

to his claims against Ms. Jones.6

The statutes relating to declaratory judgments are contained at Tenn. Code Ann. §§

29-14-101–113. As noted in State v. Brown & Williamson Tobacco Corp.:

The primary purpose of the Declaratory Judgment Act is “to settle and

to afford relief from uncertainty and insecurity with respect to rights, status,

and other legal relations....” Tenn.Code Ann. § 29–14–113. Although the Act

is “to be liberally construed and administered,” id., we have acknowledged that

“certain limitations must be placed upon the operation of the statute.” Johnson

City v. Caplan, 194 Tenn. 496, 253 S.W.2d 725, 726 (1952). For example, a

declaratory judgment action cannot be used by a court to decide a theoretical

question, Miller v. Miller, 149 Tenn. 463, 261 S.W. 965, 972 (1924), render

an advisory opinion which may help a party in another transaction, Hodges v.

Hamblen County, 152 Tenn. 395, 277 S.W. 901, 902 (1925), or “allay fears as

to what may occur in the future,” Super Flea Mkt., 677 S.W.2d at 451. Thus,

in order to maintain an action for a declaratory judgment a justiciable

controversy must exist. Jared v. Fitzgerald, 183 Tenn. 682, 195 S.W.2d 1, 4

(1946). For a controversy to be justiciable, a real question rather than a

theoretical one must be presented and a legally protectable interest must be at

stake. Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 915 (1949). If

the controversy depends upon a future or contingent event, or involves a

theoretical or hypothetical state of facts, the controversy is not justiciable.

Story v. Walker, 218 Tenn. 605, 404 S.W.2d 803, 804 (1966). If the rule were

otherwise, the “courts might well be projected into the limitless field of

advisory opinions.” Id.

5

Mr. Moncier also asserts that the trial court erred in holding that Ms. Jones’ actions “were

committed in the course of the office of Disciplinary Counsel.” Our holding that the complaints did not

allege conduct other than that occurring in the course of Ms. Jones’ performance of her duties as counsel

pretermits our consideration of this issue.

6

The substance of this motion was also raised as a claim in the complaints.

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State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000). The

decision of whether to entertain a declaratory judgment action is discretionary with the trial

judge and this discretion is wide; courts should act with utmost caution when exercising the

discretion to make a declaration. State ex rel. Earhart v. City of Bristol, 970 S.W.2d 948,

954 (Tenn. 1998) (citations omitted); Tenn. Farmers Mut. Ins. Co. v. Hammond, 200 Tenn.

106, 111-12 (1956). Absent an abuse of discretion, a trial court’s decision to grant or deny

declaratory judgment should not be disturbed on appeal. Timmins v. Lindsey, 310 S.W.3d

834, 839 (Tenn. Ct. App. 2009).

In ruling on the motion relative to the constitutionality of Tenn. Sup. Ct. R. 9, § 27.1,

the trial court held that it was “without authority to rule upon the constitutionality of a rule

of the Tennessee Supreme Court in accordance with the ruling in Barger v. Brock[.]” As

noted above, the propriety of an inferior court’s consideration of a challenge to the

constitutionality of a Supreme Court rule is addressed in Moncier v. Jones, et al., No.

M2012-00778-COA-R3-CV; our holding that an inferior court could not entertain such a

challenge would include a challenge asserted in an action for a declaratory judgment.

In the other motion for declaratory judgment, Mr. Moncier contended that Tenn. Code

Ann. § 9-8-3077 required that he elect to file an action against the State in the Claims

Commission; that, if he did so, he would waive any claim arising against Ms. Jones arising

out of the same acts or omissions asserted in his suit; and that there was no statute to save his

claims against Ms. Jones in the event the state was not ultimately held liable for Ms. Jones

acts. In denying the motion the trial court held that Mr. Moncier sought “an advisory opinion

of this Court which this Court does not have the authority to grant under the Declaratory

Judgment Act . . . .” Mr. Moncier contends that a justiciable controversy existed, sufficient

to warrant a declaratory judgment, as to whether to file his claims with the Claims

Commission and that he could not make an “informed, voluntary, and meaningful election”

as to whether to do so without the declaration which he sought.

The issue before us is whether the trial court’s refusal to entertain the declaratory

judgment was arbitrary or otherwise an abuse of its discretion. In the motion, Mr. Moncier

clearly sought to have the court render an advisory opinion, one which could guide him in

the prosecution of his action. Moreover, in light of the numerous and varied claims of

liability and for relief, not only in this action but in the others, it is not clear that a declaration

of his rights in this action would have terminated the controversy. Viewed from this

7

The motion cited Tenn. Code Ann. § 9-8-103 in connection with the Claims Commission

procedure; that statute was repealed by 1984 Public Acts, chapter 972, § 19. Tenn. Code Ann. § 9-8-301–310

establishes the composition, powers and jurisdiction of the Claims Commission.

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perspective, we cannot hold that the trial court’s decision was arbitrary or an abuse; rather,

it was a reasonable one.8

III. P ROSECUTION OF C LAIMS A SSERTED P URSUANT TO T ENNESSEE C ODE A NNOTATED §§ 29-

35-101, ET SEQ. AND 8-47-101

Mr. Moncier included a claim in the name of the State of Tennessee as relator

pursuant to Tenn. Code Ann. § 29-35-110 for damages and to remove Ms. Jones from her

position, asserting that she was unlawfully exercising the office of Disciplinary Counsel

because of her failure to take the oath at Article 10, Section 1 of the Tennessee Constitution,

and that actions she took in the course of the disciplinary proceeding constituted misconduct.

The trial court dismissed the claim, holding that Mr. Moncier failed to follow the procedures

required under Tenn. Code Ann. § 29-35-101, et seq., and Tenn. Code Ann. § 8-47-101, et

seq., thereby failing to state a claim for relief.

In State ex rel. DeSelm v. Knox County Com’n, this court discussed the nature of and

procedure applicable to a proceeding brought under Tenn. Code Ann. § 29-35-101:

Tenn.Code Ann. § 29–35–101 et seq. is the codification of the common law

remedy of quo warranto. Jordan v. Knox County, 213 S.W.3d 751, 765 n. 5

(Tenn.2007). Tenn.Code Ann. § 29–35–101 provides:

(1) Whenever any person unlawfully holds or exercises any public office or

franchise within this state, or any office in any corporation created by the laws

of this state;

(2) Whenever any public officer has done, or suffered to be done, any act

which works a forfeiture of that officer's office;

(3) When any person acts as a corporation within this state, without being

authorized by law;

(4) Or if, being incorporated, they:

(A) Do or omit acts which amount to a surrender or forfeiture of their rights

and privileges as a corporation;

(B) Exercise powers not conferred by law; or

(C) Fail to exercise powers conferred by law and essential to the corporate existence.

A quo warranto action is typically brought by the attorney general for the

district or county as provided by Tenn.Code Ann. § 29–35–109 but under

Tenn.Code Ann. § 29–35–110 a quo warranto action may be filed on behalf

8

See Southern Fire & Cas. Co. v. Cooper, 292 S.W.2d 177, 178 (Tenn. 1956) (“the action of the

trial court in refusing a declaration should not be disturbed by this, an appellate court, unless such refusal

be arbitrary.”)

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of a private individual under certain circumstances. The Supreme Court

addressed the circumstance upon which private citizens may bring a quo

warranto suit in Bennett v. Stutts, 521 S.W.2d 575 (Tenn.1975).

Citizens who sue pursuant to a quo warranto action to rectify a public wrong

must serve a copy of the complaint on the District Attorney General. If the

District Attorney General refuses to bring the action the Trial Court is to

conduct an in limine hearing to determine whether to permit plaintiffs to

proceed. If the Trial Court determines that the District Attorney General's

refusal to bring the action, or to authorize the use of his name in its institution,

“was improper or unjustified, or that plaintiffs' case is prima facie meritorious,

the trial court shall permit the action to proceed.” Bennett v. Stutts, at 577.

However, the Court in Bennett held that the quo warranto action cannot be

maintained by a private citizen unless that private citizen can aver a special

interest or a special injury not common to the public generally. Id. at 576

(citing authorities).

State ex rel. DeSelm v. Knox County Com’n, 342 S.W.3d 1, 6-7 (Tenn. Ct. App. 2010).

Neither of the complaints allege that Mr. Moncier followed the procedure required to

properly institute an action as a private citizen pursuant to the quo warranto statute. Having

failed to do so, he failed to state a claim for relief.

Tenn. Code Ann. § 8-47-110, governing ouster proceedings initiated by relators,

states:

The petition or complaint shall be in the name of the state and may be

filed upon the relation of the attorney general and reporter, or the district

attorney general for the state, or the county attorney in the case of county

officers, and of the city attorney, or the district attorney general, in the case of

municipal officers; and in all cases it may be filed, without the concurrence of

any of such officers, upon the relation of ten (10) or more citizens and

freeholders of the state, county, or city, as the case may be, upon their giving

the usual security for costs

Both complaints were brought in Mr. Moncier’s name only and neither complied with the

statutory requirement that ten or more citizens be named as relators; consequently, the

complaints failed to state a claim for relief.9

9

Mr. Moncier raises as a separate issue on appeal the propriety of the trial court’s dismissal of his

(continued...)

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IV. C LAIM B ROUGHT P URSUANT TO T ENNESSEE C ONSTITUTION A RTICLE 1, S ECTION 17

The trial court held that there is no private cause of action for damages based on

violations of the Tennessee Constitution and accordingly dismissed the claims of violation

of the Tennessee Constitution. On appeal, Mr. Moncier argues that Article 1, Section 17 10

grants him a cause of action against Ms. Jones for “violations of other Bill of Rights in

Tennessee’s constitution; violation of Tennessee statutes; violations of Tennessee rules; and

violations of Tennessee established torts.” We have reviewed the cases cited by Mr. Moncier

and considered his argument and decline to hold that Article 1, Section 17 creates a

substantive cause of action to enforce other constitutional provisions or laws.

Article I, Section 17 was before the court in Staples v. Brown, an action involving the

contest of an election to the position of city attorney of Harriman; the initial challenge was

heard by the city council, which accepted the results and dismissed the contest. The

contestant’s appeal to the Roane County circuit court was dismissed because the statute

which vested the city council with jurisdiction to try the contest did not provide for an appeal.

On appeal, our Supreme Court reversed the trial court; with respect to Article I, Section 17,

the court stated:

The Constitution (article 1, § 17) provides that all courts shall be open, and

every man having an injury done him in his lands, goods, person, or reputation

shall have remedy by due course of law, and right and justice administered

without sale, denial, or delay.

The obvious meaning of this is that there shall be established courts

proceeding according to the course of the common law, or some system of well

established judicature, to which all of the citizens of the state may resort for

the enforcement of rights denied, or redress of wrongs done them.

9

(...continued)

claim that Ms. Jones had not taken the oath of office required by Article 10, Section 1 of the Tennessee

Constitution and, therefore, was “unconstitutionally and unlawfully” exercising her office and could not

claim the immunity at Tenn. Sup. Ct Rule 9, § 27.1. This claim was included as part of the quo warranto

action and our affirmance of the court’s dismissal of that action pretermits our consideration of this as a

separate issue.

10

Article 1, Section 17 of the Tennessee Constitution states:

That all courts shall be open; and every man, for an injury done him in his lands,

goods, person or reputation, shall have remedy by due course of law, and right and justice

administered without sale, denial, or delay. Suits may be brought against the State in such

manner and in such courts as the Legislature may by law direct.

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Staples, 113 Tenn. 639, 85 S.W. 254, 255 (1905). The court proceeded to discuss the

appropriate court and procedure to hear the appeal of the contest and remanded the case to

the circuit court for retrial on the merits. The case stands for the proposition that the

constitutional provision does not create a right but, rather, requires a mechanism by which

a citizen may redress grievances.

The record in this action clearly demonstrates that Mr. Moncier has been given access

to and taken advantage of the courts of this state; he has received “the judicial remedy for

rights and remedies recognized elsewhere in the law.” Team Design v. Gottlieb, 104 S.W.3d

512, 526 (Tenn. Ct. App. 2002). The cases cited by Mr. Moncier are not inapposite.11

V. M R. M ONCIER’S M OTION TO FILE A THIRD AMENDED COMPLAINT

The denial of a motion to amend the pleadings lies within the sound discretion of the

trial court and it will not be overturned unless it is shown that the trial court abused its

discretion. Hall v. Shelby County Retirement Bd., 922 S.W.2d 543, 546 (Tenn. Ct. App.

1995) (citing Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. App. 1979); Welch v. Thuan,

882 S.W.2d 792, 793 (Tenn. App. 1994)). “There are several considerations a trial judge

should evaluate in determining whether to grant or deny a motion to amend. Among these

factors are undue delay in filing, lack of notice to the opposing party, bad faith by the moving

party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the

opposing party, and futility of amendment.” Id.

Mr. Moncier was granted leave on two occasions to amend his complaints; in his brief

on appeal he states that the motion to file the second amendment and the motion to file the

third amendment were filed on the same day; the court granted the motion for the second

amendment but not for the third. At the time of the ruling Mr. Moncier had filed three

11

In Whisnant v. Byrd the court cited Article I, Section 17 as embodying the “clear and unequivocal

declaration[s] of the public policy of this State . . . that every man shall have a remedy by due course of law

for an injury sustained by him.” Whisnant v. Byrd, 525 S.W.2d 152, 153 (Tenn. 1975). The court in Estate

of Bell v. Shelby Cty. Health Care Corp. was called upon to consider the possible conflict between the

common law doctrine of sovereign immunity embodied in Article I, Section 17 and the prohibition against

retrospective laws in Article I, Section 20 with respect to an act of the legislature amending the

Governmental Tort Liability Act; the court harmonized the constitutional provisions. Estate of Bell v. Shelby

Cnty. Health Care Corp., 318 S.W.3d 823, 837 (Tenn. 2010). The court in Mercer v. HCA Health Services

of Tennessee, Inc., considered whether judicial or quasi-judicial immunity was available to a psychiatrist who

ordered a patient on suicide watch discharged from involuntary commitment the day before the person

committed suicide; the court held that public policy considerations, such as that embodied in Article I,

Section 17, “do not require a grant of judicial immunity for doctors involved in involuntary commitment

procedures.” Mercer v. HCA Health Services of Tennessee, Inc. 87 S.W.3d 500, 508 (Tenn. Ct. App. 2002).

None of these cases stand for the proposition that Article I, Section 17 creates a substantive right.

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complaints as well as two motions for declaratory judgments. We have reviewed the motion

to file the third amended complaint as well as the complaint and can discern no basis upon

which to hold that the court abused its discretion in denying the motion.

VI. C ONCLUSION

For all of the foregoing reasons, the judgment of the circuit court is affirmed.

___________________________________

RICHARD H. DINKINS, JUDGE

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