Herbert S. Moncier v. Board of Professional Responsibility of the Supreme Court of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 10, 2013 Session

HERBERT S. MONCIER v. BOARD OF PROFESSIONAL

RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Appeal from the Chancery Court for Davidson County

No. 11-218-IV Russell T. Perkins, Chancellor

No. M2012-00779-COA-R3-CV - Filed June 6, 2013

An attorney disciplined by the Board of Professional Responsibility brought suit against the

Board asserting violations of the Open Meetings Act and the Public Records Act. We have

concluded that the trial court properly determined that the Open Meetings Act does not apply

to the Board. Furthermore, we find no error in the trial court’s determination regarding the

attorney’s right to records from certain Board meetings.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.,

and R ICHARD H. D INKINS, 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; Nashville, Tennessee, for the appellee,

Board of Professional Responsibility of the Supreme Court of Tennessee.

OPINION

F ACTUAL AND P ROCEDURAL B ACKGROUND

Herbert Moncier is an attorney licensed to practice law in Tennessee. Some time prior

to July 30, 2008, United States District Judge Ronnie Greer filed a complaint of attorney

misconduct against Mr. Moncier with the Board of Professional Responsibility of the

Supreme Court of Tennessee (the “Board”), the agency charged with the regulation and

discipline of attorneys licensed in Tennessee. At a meeting on July 13, 2008, the Board

considered the results of disciplinary counsel’s investigation and recommendation concerning

the complaint; the Board voted to institute formal disciplinary proceedings against Mr.

Moncier by filing a formal petition for discipline.

Sometime prior to September 28, 2009, Knox County Circuit Court Judge Dale

Workman filed a complaint of attorney misconduct against Mr. Moncier with the Board. The

Board met on September 11, 2009, heard the investigation results and recommendations of

disciplinary counsel, and voted to filed a supplemental petition for discipline against Mr.

Moncier.

On January 22, 2010, Mr. Moncier made a request under the Public Records Act for

copies of the following records:

1. Public notice of the meeting of the Board that acted on and approved a

Petition for Discipline in In Re Herbert S. Moncier, 2008-1766-2-SG filed

June 30, 2008;

2. Minutes of the meeting of the Board that acted on and approved a Petition

for Discipline in In Re Herbert S. Moncier, 2008-1766-2-SG filed June 30,

2008;

3. Public notice of the meeting of the Board that acted on and approved a

Supplemental Petition for Discipline in In Re Herbert S. Moncier, 2008-1766-

2-SG filed on September 28, 2009;

4. Minutes of the meeting of the Board that acted on and approved a

Supplemental Petition for Discipline in In Re Herbert S. Moncier, 2008-1766-

2-SG filed September 28, 2009;

5. Public notice of the meeting of a hearing panel of the Board in In Re

Herbert S. Moncier, 2008-1766-2-SG held beginning December 5, 2009;

6. Any statute, rule, policy, regulation or operating procedure of the Board

that authorizes a hearing panel of the Board to meet privately;

7. Any statute, rule, policy, regulation or operating procedure of the Board

that authorizes a hearing panel of the Board to deliberate privately.

The Board responded to Mr. Moncier’s public records request with two letters dated

February 1, 2010. In one letter, the Board denied Mr. Moncier’s request for the public

notices described in items #1 and #3 on the basis that no such records existed. With respect

to items #5, #6, and #7, the Board further stated that a hearing panel of the Board was not a

governing body under the Open Meetings Act and, therefore, was not subject to the

requirements of that act. With the second letter, the Board provided Mr. Moncier with a copy

of the “public portion” of the minutes of the Board meetings on June 13, 2008 and September

11, 2009.

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Mr. Moncier initiated the present lawsuit against the Board on February 16, 2011. He

asserted that the Board violated the Open Meetings Act at its meetings on June 13, 2008 and

September 11, 2009 by meeting in private, failing to give public notice, and failing to keep

minutes, including a record of the members’ votes. Mr. Moncier also alleged that the Board

violated the Public Records Act by refusing to provide him with all of the minutes from these

two meetings. Mr. Moncier sought a declaratory judgment that a Board hearing panel was

a “governing body” under Tenn. Code Ann. § 8-44-102(b) and was therefore subject to the

Open Meetings Act. He also sought an award of attorney fees under the Equal Access to

Justice Act, the Open Meetings Act, and the Public Records Act.

Mr. Moncier subsequently filed several amended complaints. He added allegations

that the Board violated the Open Meetings Act and the Public Records Act at a meeting on

March 12, 2012. In a second amended complaint, Mr. Moncier added his law office as a

plaintiff and asserted a claim under the Declaratory Judgment Act as to whether the Board

was a “governing body” under Tenn. Code Ann. § 8-44-102(b) and was therefore required

to comply with the Open Meetings Act. In a third amended complaint, Mr. Moncier

requested additional declarations under the Declaratory Judgment Act concerning the legality

of the Board’s actions under the Open Meetings Act and the Public Records Act. The court

denied Mr. Moncier’s request to file a fourth amended complaint.

The Board filed its initial motion to dismiss for failure to state a claim and lack of

jurisdiction in April 2011. In May 2011, the parties agreed that Mr. Moncier would be

allowed to file his third amended complaint and the Board’s amended motion to dismiss

would apply in full to that complaint. The Board argued that Mr. Moncier’s claims for

declaratory relief were barred by sovereign immunity and that he had failed to state a claim

for relief under either the Open Meetings Act or the Public Records Act.

The trial court held a hearing on the Board’s amended motion to dismiss on May 27,

2011. In a memorandum and order entered on September 23, 2011, the trial court dismissed

Mr. Moncier’s declaratory judgment action and his claims under the Open Meetings Act and

the Equal Access to Justice Act. The court reserved ruling on the Public Records Act claims.

In accordance with a scheduling order, Mr. Moncier filed a supplement to his petition

for access to public records. On September 26, 2011, the Board submitted for in camera

inspection the minutes of the June 13, 2008 and September 11, 2009 meetings; a copy of the

portion of the disciplinary counsel’s quarterly reports regarding Mr. Moncier; and other

exhibits referenced in the minutes. The court held a hearing on the remaining issues on

September 29, 2011; the court requested additional briefing and a transcript of the hearing.

After this hearing, Mr. Moncier filed a supplemental petition for access to records in which

he included constitutional claims raised at the hearing.

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On February 1, 2012, the trial court entered a memorandum and order in which it

concluded that the Board was “not required to produce the records in question under the

Public Records Act because the records in question are confidential and privileged, except

that redacted portion of the minutes will be produced.” The court dismissed Mr. Moncier’s

claim under the Public Records Act “except as applied to the redacted portion of the

minutes.” Incorporating its previous memorandum and order, the court dismissed Mr.

Moncier’s complaint in its entirety and denied his request for attorney fees under the Public

Records Act because the Board “did not willfully withhold any documents.”

Mr. Moncier filed a motion to revise, alter or amend the court’s orders of September

23, 2011 and February 1, 2012, and the trial court denied the motion. The court also denied

Mr. Moncier’s motion for Rule 11 sanctions against the attorney representing the Board.

ISSUES ON A PPEAL

Mr. Moncier has raised a multitude of issues on appeal. We have summarized and

condensed them to the following:

1. Whether the trial court erred in holding that the Board is not a public body

under the Open Meetings Act.

2. Whether the trial court erred in holding that the trial court did not have

subject matter jurisdiction to render a declaratory judgment regarding the

Board.

3. Whether the trial court erred in dismissing the petition for access to public

records.

4. Whether the trial court erred in failing to find merit in Mr. Moncier’s

constitutional arguments.

5. Whether the trial court erred in denying Mr. Moncier’s request for attorney

fees.

6. Whether the trial court erred in denying Mr. Moncier’s motion to file a

fourth amended complaint.

7. Whether the trial court erred in denying Mr. Moncier’s motion for sanctions

under Rule 11.

A NALYSIS

This case presents unique issues concerning the application of the Open Meetings Act

and the Public Records Act to the Judicial Branch of Tennessee. Despite the uniqueness of

the issues, we are convinced that prior Tennessee Supreme Court cases, by which we are

bound, dictate our decisions.

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The Tennessee Supreme Court has inherent authority to license and regulate attorneys

who practice law in this state. Smith Cnty. Educ. Ass’n v. Anderson, 676 S.W.2d 328, 333

(Tenn. 1984). It can make rules to implement this authority. Petition of Tenn. Bar Ass’n,

539 S.W.2d 805, 807 (Tenn. 1976). Tennessee Supreme Court Rule 8 establishes the ethical

rules to which attorneys must adhere and Rule 9 establishes the mechanism by which the

ethical rules are enforced. Rule 9, section 5 creates the Board of Professional Responsibility.

Tenn. Sup. Ct. R. 9, § 5. The Board derives all of its powers and functions from the Supreme

Court. Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 472 (Tenn. 2003). The Board

is an agent of the Supreme Court. Id.

Open Meetings Act

Mr. Moncier maintains that the Tennessee Open Meetings Act,1 Tenn. Code Ann. § 8-

44-101 et seq., applies to the meetings of the Board of Professional Responsibility at which

the Board determined to institute formal disciplinary proceedings against him. The Open

Meetings Act, enacted in 1974, requires that meetings of any governing body are to be “open

to the public at all times, except as provided by the Constitution of Tennessee.” Tenn. Code

Ann. § 8-44-102(a). As pertains to this lawsuit, “governing body” is defined as “[t]he

members of any public body which consists of two (2) or more members, with the authority

to make decisions for or recommendations to a public body on policy or administration . . .

.” Tenn. Code Ann. § 8-44-102(b)(1)(A). The term “public body” is not defined in the act,

but the Tennessee Supreme Court has stated:

It is clear that for the purpose of this Act, the Legislature intended to include

any board, commission, committee, agency, authority or any other body, by

whatever name, whose origin and authority may be traced to State, City or

County legislative action and whose members have authority to make

decisions or recommendations on policy or administration affecting the

conduct of the business of the people in the governmental sector.

Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976)(emphasis added).

Mr. Moncier argues that the Board of Professional Responsibility was created by

legislative action pursuant to Tenn. Code Ann. § 16-3-404 2 when the General Assembly

1

The Open Meetings Act is often referred to as the “Sunshine Law.” See Mayhew v. Wilder, 46

S.W.3d 760, 768 (Tenn. Ct. App. 2001).

2

Tenn. Code Ann. § 16-3-404 states:

The supreme court shall fix the effective date of all its rules; provided, that the rules shall

(continued...)

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approved the Supreme Court rule that established the Board (now Tenn. Sup. Ct. R. 9). Mr.

Moncier does not point to a specific legislative resolution adopting Tenn. Sup. Ct. Rule 9

and, indeed, he cannot. The forerunner of what is now Rule 9 was adopted by the Supreme

Court on December 18, 1975. Petition of Tenn. Bar Ass’n, 532 S.W.2d 224, 230 (Tenn.

1975) (“On the date this opinion is released, this Court has adopted a new Rule, Rule

42—Rules of Disciplinary Enforcement—that requires annual registration of lawyers and

payment of an annual license fee to support the Office of Disciplinary Counsel and staff.”).3

What was then Rule 42 went into effect on January 1, 1976. Id. at 245. The rule was not

submitted to the legislature for approval. We also note that the last comprehensive revision

of Rule 9 occurred in 2003 to 2006. The compiler’s notes to Rule 9 state: “In its order of

April 25, 2006, the Court ordered that the amendments to Rule 9 be adopted effective July

1, 2006.” These revisions were not submitted to the legislature.

It is abundantly clear that the Tennessee Supreme Court has never considered rules

governing the disciplining of attorneys to be covered by Tenn. Code Ann. § 16-3-404.

Statutes should be read in context and in conjunction with related statutory provisions.

Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004); State v. Allman, 68

S.W.2d 478, 479 (Tenn. 1934) (“It is, of course, well settled that statutes forming a system

or scheme should be construed so as to make that scheme consistent in all its parts.”). See

also Wells v. Tenn. Bd. of Regents, 231 S.W.3d 912, 917 (Tenn. 2007) (“Statutes may be

construed in pari materia in order to ascertain their purpose or intent.”). The only rules

mentioned in Tennessee Code Annotated, chapter 16, section 3, part 4 are “rules of

practice,”4 and “general rules” regarding “the forms of process, writs, pleadings and motions,

and the practice and procedure in all of the courts of this state in all civil and criminal suits,

actions and proceedings.”5 These references do not encompass rules governing the discipline

2

(...continued)

not take effect until they have been reported to the general assembly by the chief justice at

or after the beginning of a regular session of the general assembly, but not later than

February 1 during the session, and until they have been approved by resolutions of both the

house of representatives and the senate.

3

The Supreme Court found that, “The present disciplinary procedures of investigation and disposition

of charges are inadequate to do justice to the public and the profession.” Petition of Tenn. Bar, 532 S.W.2d

at 229.

4

Tenn. Code Ann. § 16-3-401.

5

Tenn. Code Ann. § 16-3-402.

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of attorneys.6

Because the Board of Professional Responsibility was not created by legislative

action, it cannot be a public body. Therefore, it cannot be a governing body. Consequently,

the Open Meetings Act does not apply to the Board.

Declaratory Judgment Act

Mr. Moncier asserts that the trial court erred in ruling that it lacked subject matter

jurisdiction to render a declaratory judgment regarding the application of the Open Meetings

Act to the Board of Professional Responsibility. According to Mr. Moncier, it was “critical”

that he be able to proceed under both the Open Meetings Act and the Declaratory Judgment

Act because of the different remedies provided under the two statutes. In light of our

conclusion that the Open Meetings Act does not apply to the Board, however, we need not

consider Mr. Moncier’s argument regarding the Declaratory Judgment Act.

Public Records Act

Mr. Moncier makes several different arguments under the Public Records Act. He

asserts that the trial court erred in ruling that some of the records submitted for in camera

viewing by the court were not public records. Mr. Moncier also argues that the trial court

erred in dismissing his petition under the Public Records Act and declining to tax costs

against the Board.

We begin with a review of the record requests at issue. In his January 2010 letter, Mr.

Moncier requested: “Minutes of the meeting of the Board that acted on and approved a

Petition for Discipline in In Re Herbert S. Moncier, 2008-1766-2-SG filed June 30, 2008,”

and “Minutes of the meeting of the Board that acted on and approved a Supplemental

6

Interpreting Tenn. Code Ann. § 16-3-404 to apply to Supreme Court rules on attorney discipline

would raise serious constitutional concerns under the separation of powers doctrine:

It is well settled that the licensing and regulation of attorneys practicing law in courts of

Tennessee is squarely withing the inherent authority of the judicial branch of government.

Belmont v. Board of Law Examiners, 511 S.W.2d 461 (Tenn. 1974). Furthermore, the

“Supreme Court has original and exclusive jurisdiction to promulgate its own Rules. Its rule

making authority embraces the admission and supervision of members of the Bar of the

State of Tennessee.” Petition of Tennessee Bar Ass’n, 539 S.W.2d 805, 807 (Tenn. 1976).

Smith Cnty. Educ. Ass’n, 676 S.W.2d at 333 (application of the open meetings act to discussions between

a public body and its attorney regarding pending litigation violates the separation of powers doctrine).

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Petition for Discipline in In Re Herbert S. Moncier, 2008-1766-2-SG filed September 28,

2009.” On appeal, Mr. Moncier alleges that he did not request all of the records submitted

to the court for its inspection, but only the minutes themselves. In its description of the items

submitted for inspection, the court stated that they included the minutes of the two meetings

as well as the quarterly reports of disciplinary counsel attached to those minutes and any

other exhibits referenced in the minutes. Because all of the documents submitted to the court

were incorporated with the minutes, the court reasonably concluded that it needed to make

a determination as to whether Mr. Moncier was entitled to them. Mr. Moncier argues that

even the quarterly reports, which include the results of the disciplinary counsel’s

investigation and his or her recommendation regarding each case, are public records and

should be released.

The Public Records Act provides that “[a]ll state, county and municipal records shall,

at all times during business hours . . . be open for personal inspection by any citizen of this

state, and those in charge of the records shall not refuse such right of inspection to any

citizen, unless otherwise provided by state law.” Tenn. Code Ann. § 10-7-503(a)(2)(A).

The term “state record or records” means “all documents, papers, letters, maps, books,

photographs, microfilms, electronic data processing files and output, films, sound recordings

or other material, regardless of physical form or characteristics, made or received pursuant

to law or ordinance or in connection with the transaction of official business by any

governmental agency.” Tenn. Code Ann. § 10-7-503(a)(1)(A). Under the Public Records

Act, there is a presumption in favor of access to public records. Konvalinka v. Chattanooga-

Hamilton Cnty. Hosp. Auth., 249 S.W.3d 349, 360 (Tenn. 2008). Thus, the records in

question are open to public inspection “unless otherwise provided by state law.” Tenn. Code

Ann. § 10-7-503(a)(2)(A).

The disciplinary rules, as adopted by the Tennessee Supreme Court, have the force

and effect of law. The Tennessean v. Tenn. Dep’t of Pers., No. M2005-02578-COA-R3-CV,

2007 WL 1241337, at *7 (Tenn. Ct. App. Apr. 27, 2007); Coats v. Smyrna/Rutherford Cnty.

Airport Auth., No. M2000-00234-COA-R3-CV, 2001 WL 1589117, at *6 (Tenn. Ct. App.

Dec. 13, 2001); Clinard v. Blackwood, No. 01A01-9801-CV-00029, 1999 WL 976582, at *6

(Tenn. Ct. App. Oct. 28, 1999), aff’d, 46 S.W.3d 177 (Tenn. 2001). Thus, Supreme Court

Rule 9 is a law within the meaning of the exception to public inspection of records found at

the end of Tenn. Code Ann. § 10-7-503(a)(2)(A). It is a direction by the Supreme Court, the

entity with inherent authority to regulate the conduct of lawyers, as to how complaints of

ethical violations against lawyers are addressed.

Section 25 of Rule 9 governs confidentiality:

25.1. All matters, investigations, or proceedings involving allegations of

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misconduct by or the disability of an attorney, including all hearings and all

information, records, minutes, files or other documents of the Board, district

committee members and Disciplinary Counsel shall be confidential and

privileged, and shall not be public records, until or unless:

(a) a recommendation for the imposition of public discipline, without the

initiation of a formal disciplinary proceeding pursuant to Section 8.2, is filed

with the Supreme Court by the Board; or

(b) a petition to initiate a formal disciplinary proceeding is filed pursuant to

Section 8.2; or

(c) the respondent-attorney requests that the matter be public; or

(d) the investigation is predicated upon conviction of the respondent-attorney

for a crime; or

(e) in matters involving alleged disability, this Court enters an order

transferring the respondent-attorney to disability inactive status pursuant to

Section 21.

Tenn. Sup. Ct. R. 9, § 25.1. Pursuant to subsection 25.3, “[a]ll work product and work files

(including internal memoranda, correspondence, notes and similar documents and files) of

the Board, district committee members, and Disciplinary Counsel shall be confidential and

privileged and shall not be public records.” Tenn. Sup. Ct. R. 9, § 25.3. Furthermore, under

section 25.8, “[n]othing in this Section is intended to limit or repeal any confidentiality or

privilege afforded by other law.” Tenn. Sup. Ct. R. 25.8.

Section 25.1 of Supreme Court Rule 9 provides that all Board records regarding

allegations of attorney misconduct are confidential and privileged, and not public records,

unless one of the enumerated exceptions applies. In arguing that the portions of the quarterly

reports regarding his case should be public, Mr. Moncier emphasizes the provisions of

subsection 25.1(b) of Tenn. Sup. Ct. Rule 9, which makes Board records public upon the

filing of a petition to institute formal disciplinary proceedings. We reject Mr. Moncier’s

position that subsection 25.1(b) trumps all of the other subsections of section 25. Rather, all

of the parts of section 25 must be read together, and other provisions of this section are

relevant here. See Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d at 469. Subsection 25.3

makes “[a]ll work product and files” confidential and privileged; and subsection 25.8 makes

clear that Section 25 does not limit “confidentiality or privilege afforded by other law.”

Tenn. Sup. Ct. R. 9, §§ 25.3, 25.8.

In the court’s memorandum and opinion entered on February 1, 2012, the court

described the documents presented by the Board for in camera inspection: the minutes of the

two Board meetings at issue and, “as an attachment to these minutes, a copy of the

corresponding written quarterly report submitted by disciplinary counsel, along with any

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other exhibits referenced in the minutes.” The court clarified that the Board submitted for

inspection only those portions of the quarterly reports regarding Mr. Moncier. Later in its

opinion, the court described the contents of the quarterly reports as including “detailed

accounts of disciplinary counsel’s analysis and impressions, which were communicated to

the Board during the non-public disciplinary portion of the meeting.”

The trial court concluded that the quarterly reports “are wholly confidential under both

the work product doctrine and the attorney client privilege.” We agree with the trial court’s

analysis and conclusion. The attorney-client privilege protects communications regarding

the subject matter of representation “made with the intention that the communication be kept

confidential.” State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Grp. Trust, 209 S.W.3d

602, 616 (Tenn. Ct. App. 2006) (citing Tenn. Code Ann. § 23-3-105). The work product

doctrine more broadly protects “any document prepared in anticipation of litigation by or for

the attorney.” Id. Subsections 25.3 and 25.8 of Rule 9 of the Supreme Court Rules provide

that such records are confidential and are not public records.

Mr. Moncier also argues that the trial court erred in dismissing his petition under the

Public Records Act and declining to tax costs to the Board. This argument is based upon the

fact that the Board was required to produce some documents that it had previously refused

to produce—namely, that portion of the minutes themselves related to Mr. Moncier’s case.

Based upon his successful attempt to obtain those minutes, Mr. Moncier asserts that his claim

under the Public Records Act should not have been dismissed and that the costs should have

been taxed against the Board.

The trial court’s dismissal of Mr. Moncier’s claims under the Public Records Act

specifically excepted his claim as to “the redacted portion of the minutes.” Because the trial

court did not dismiss that portion of Mr. Moncier’s claim that was found to have merit, the

trial court’s disposition was appropriate.

As to the issue of costs, the Public Records Act provides that a court “may, in its

discretion” award a requesting party “all reasonable costs involved in obtaining the record”

if it finds that the governmental entity “knew that such record was public and willfully

refused to disclose it.” Tenn. Code Ann. § 10-7-505(g); see generally Memphis Publ’g Co.

v. City of Memphis, 871 S.W.2d 681, 689 (Tenn. 1994). Courts have interpreted this

language to require a showing of bad faith. See Arnold v. City of Chattanooga, 19 S.W.3d

779, 789 (Tenn. Ct. App. 1999). Mr. Moncier’s third amended complaint contains no

allegations that the Board’s refusal to produce the minutes was in bad faith. We find no error

in the trial court’s decision not to award Mr. Moncier his costs.

Constitutional claims

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In this appeal, Mr. Moncier raises a number of constitutional challenges. He argues

that the trial court erred in failing to hold that he had a constitutionally protected right to

practice law once licensed by the state; that the trial court’s ruling that the Supreme Court

has exclusive jurisdiction over the discipline of attorneys deprives him of remedies under the

Declaratory Judgment Act and the Open Meetings Act in violation of the Tennessee

Constitution; that the trial court erred in failing to apply the principles of due process; and

that the trial court erred in failing to recognize his right to petition the courts for Open

Meetings Act violations and a declaratory judgment pursuant to the Tennessee and United

States Constitutions.

In making these arguments, Mr. Moncier focuses on the reasoning applied by the trial

court in rejecting his claims under the Open Meetings Act and the Declaratory Judgment Act.

We note, however, that these constitutional issues were not raised by Mr. Moncier in his third

amended complaint and that the record does not reflect that these issues were otherwise

raised by Mr. Moncier in the proceedings below. We, therefore, decline to address these

constitutional arguments for the first time on appeal. Moreover, to the extent that Mr.

Moncier challenges the constitutionality of Tennessee Supreme Court Rule 9, we note that

this court is without jurisdiction to rule upon the validity of the Supreme Court’s rules. See

Smith Cnty. Bd. of Educ., 676 S.W.2d at 333; Barger v. Brock, 535 S.W.2d 337, 342 (Tenn.

1976).7

Attorney fees

Mr. Moncier argues that the trial court erred in declining to award him attorney fees

under the Open Meetings Act, the Public Records Act, and the Equal Access to Justice Act.

The award of attorney fees is within the trial court’s discretion and will not be

overturned absent an abuse of discretion. Wright ex rel. Wright v. Wright, 337 S.W.3d 166,

176 (Tenn. 2011). In reviewing the award, we look at the evidence in the light most favorable

to the trial court’s decision. Id. Thus, we are required to uphold the trial court’s ruling “as

long as reasonable minds could disagree about its correctness,” and “we are not permitted

to substitute our judgment for that of the trial court.” Caldwell v. Hill, 250 S.W.3d 865, 869

(Tenn. Ct. App. 2007).

7

The trial court did address constitutional issues raised by Mr. Moncier in a supplemental petition

for access to records filed in October 2011. Mr. Moncier asserted that he was entitled to the requested

records under the First, Fifth, and Fourteenth Amendments to the United States Constitution and Article 1,

sections 1, 2, 17, 18, 19 and 23 of the Tennessee Constitution. It does not appear that Mr. Moncier assigns

error on appeal to the trial court’s decision to reject these constitutional arguments. We note, however, that

we find no error in the trial court’s finding that Mr. Moncier failed to overcome the presumption of

constitutionality. See Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009).

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Tennessee abides by the “American rule” regarding the payment of attorney fees. See

Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009).

Thus, for a court to award attorney fees, there must be statutory authority or a contractual

agreement. Id. Otherwise, each party to a lawsuit bears the expense of his or her own attorney

fees. Id. at 309.

Mr. Moncier’s claims under the Open Meetings Act failed because the act does not

apply to the Board. Moreover, our Supreme Court has recently held that the Open Meetings

Act does not provide for the award of attorney fees to a successful litigant. Fannon v. City

of LaFollette, 329 S.W.3d 418, 433 (Tenn. 2010). The trial court did not err in declining to

award Mr. Moncier attorney fees.

As previously discussed with respect to costs, the Public Records Act authorizes a

court to award attorney fees only if there was a willful refusal to disclose, which requires a

showing of bad faith. There is no allegation of bad faith in this case. The trial court acted

within its discretion in declining Mr. Moncier’s request for an award of attorney fees.

Under the Equal Access to Justice Act, a court “may award reasonable and actual fees

and other expenses not to exceed ten thousand dollars ($10,000) to the prevailing party unless

the prevailing party is a state agency.” Tenn. Code Ann. § 29-37-104(a)(1). The act applies

with regard to civil actions brought by a state agency or actions for judicial review pursuant

to Tenn. Code Ann. § 4-5-322, the Administrative Procedures Act. Tenn. Code Ann. § 29-

37-104(a)(1). This action was brought by Mr. Moncier, not by a state agency, and is not a

suit for judicial review under the Administrative Procedures Act. Moreover, as the trial court

found, Mr. Moncier did not prevail in this case. We find no abuse of discretion in the trial

court’s decision to dismiss Mr. Moncier’s claim for attorney fees under the Equal Access to

Justice Act.

Fourth amended complaint

Mr. Moncier further argues that the trial court erred in denying him permission to file

a fourth amended complaint. We find no merit in this argument.

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

trial court and will not be disturbed on appeal absent an abuse of discretion. Hawkins v. Hart,

86 S.W.3d 522, 532 (Tenn. Ct. App. 2001). In ruling on a motion to amend, a trial court

should consider several factors including any lack of notice to the opposing party, the

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

opposing party, and the futility of amendment. Kincaid v. S. Trust Bank, 221 S.W.3d 32, 42

(Tenn. Ct. App. 2006). A trial court does not abuse its discretion in denying a motion to

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amend where the grant of the motion would be futile. Forsythe v. Gibbs, No. M2001-02055-

COA-R3-CV, 2002 WL 1869415, at *5 (Tenn. Ct. App. Aug.15, 2002).

Mr. Moncier filed his fourth request for permission to amend his complaint to plead

that, if the Board was found to be created by the judiciary and not the legislature, the open

courts clause of Article 1, section 17 of the Tennessee Constitution and the common law

right to access to judicial records made the Board’s records public. In denying Mr. Moncier

permission to amend his complaint on the ground of futility, the trial court stated:

Defendant is not a court under Tennessee law generally or specifically within

the meaning of Art. 1, § 17 of the Tennessee Constitution, even if disciplinary

proceedings against attorneys in Tennessee are construed to be quasi-criminal

in nature. See In Re Ruffalo, 390 U.S. 544, 550-51 (1968). Given the

language of the constitutional provision, it appears that it is the nature of the

tribunal, not the nature of the proceedings, that determines whether the

Tennessee Constitution’s Open Courts guarantee applies. See Staples v.

Brown, 113 Tenn. 639, 85 S.W. 254, 255 (1905). The Court determines,

therefore, that neither Defendant nor its panels are courts. Additionally, it

appears that Plaintiff’s claim under Art. 1, § 17 of the Tennessee Constitution

is barred by the doctrine of sovereign immunity. See Greenhill v. Carpenter,

718 S.W.2d 268, 270 (Tenn. Ct. App. 1986).

We find no abuse of discretion in the trial court’s decision. Mr. Moncier had already

been permitted multiple amendments to his complaint, and the proposed amendment did not

rely upon new information. Moreover, there is no legal basis to support Mr. Moncier’s

contention that the Board should be considered a court under the open courts clause of the

Tennessee Constitution.

Rule 11 sanctions

Mr. Moncier filed a motion for sanctions against the Board’s attorney pursuant to

Tenn. R. Civ. P. 11.03 on the basis that the attorney signed a certificate of service in violation

of Tenn. R. Civ. P. 11.02(2) and (3). The trial court denied the motion, finding that it was

without merit.

A trial court’s ruling on a Rule 11 motion is reviewed under the deferential abuse of

discretion standard. Brown v. Shappley, 290 S.W.3d 197, 200 (Tenn. Ct. App. 2008). Such

a determination requires the court to make a determination regarding the reasonableness of

the attorney’s conduct. Id.

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The factual basis for Mr. Moncier’s motion is as follows: After a hearing on

September 29, 2011, the trial court ordered that a transcript of the hearing be filed with the

court. The Board’s attorney filed the transcript with the court on October 14, 2011 and

served notice on Mr. Moncier. The notice stated: “The Board of Professional Responsibility

of the Supreme Court of Tennessee hereby gives notice of the filing of the attached transcript

of the telephonic hearing before this Court on Thursday, September 29, 2011.” On

November 22, 2011, Mr. Moncier served the Board with a motion for Rule 11 sanctions on

the basis that the Board did not provide him with a copy of the transcript along with the

notice. On December 13, 2011, the Board filed a corrected notice of filing of transcript,

which read as follows: “The Board of Professional Responsibility of the Supreme Court of

Tennessee hereby gives notice of the filing of the transcript of the telephonic hearing before

this Court on Thursday, September 29, 2011.”

Under Tenn. R. Civ. P. 11.03(1), a motion for sanctions shall not be filed with the

court unless, “within 21 days after service of the motion (or such period as the court may

prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not

withdrawn or appropriately corrected.” In this case, the Board’s attorney corrected the

alleged error within 21 days of being served with the motion for sanctions. Thus, the trial

court acted within its discretion in rejecting Mr. Moncier’s request for Rule 11 sanctions.

C ONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed in all respects.

Costs of appeal are assessed against Mr. Moncier, and execution may issue if necessary.

______________________________

ANDY D. BENNETT, JUDGE

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