James M. Flinn v. Jon K. Blackwood

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned On Briefs March 15, 2011

JAMES M. FLINN v. JON K. BLACKWOOD

Direct Appeal from the Circuit Court for Anderson County

No. A7LA0601 Donald P. Harris, Senior Judge

No. E2010-00667-COA-R3-CV - Filed April 13, 2011

Plaintiff filed a cause of action against Defendant judge, alleging Defendant wrongfully

refused to grant his petition for writ of habeas corpus. The trial court dismissed the action.

We affirm.

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

Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD, J.,

and J OHN W. M CC LARTY, J., joined.

James M. Flinn, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary M. Bers, Senior Counsel,

for the appellee, Jon K. Blackwood.

MEMORANDUM OPINION 1

This appeal arises from a complaint filed by Appellant James M. Flinn (Mr. Flinn)

against Jon K. Blackwood (Judge Blackwood) in the Circuit Court for Anderson County on

October 29, 2007. In his complaint, Mr. Flinn alleged Judge Blackwood wrongfully and

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Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

willfully refused to grant his petition for writ of habeas corpus, resulting in great emotional

harm to Mr. Flinn. Mr. Flinn prayed for compensatory damages in the amount of $280,000,

punitive damages in the amount of $560,000, and costs. On December 10, 2007, the

Honorable Donald P. Harris, Senior Judge, was assigned to hear the matter by order of the

Chief Justice of the Supreme Court of Tennessee.

In December 2008, Judge Blackwood filed a motion to dismiss for failure to state a

claim. In his motion, Judge Blackwood asserted that Mr. Flinn’s complaint failed to allege

the presence of any legal grounds for a writ of habeas corpus under Tennessee Code

Annotated § 29-21-101 in the underlying criminal case against Mr. Flinn; failed to state a

claim for any wrongful and willful refusal to grant a writ of habeas corpus under Tennessee

Code Annotated § 29-21-108(b); and that the doctrine of judicial immunity barred all

monetary damages prayed for in the matter. Judge Blackwood further stated that he “[did]

not waive any of the other defenses available to him” including, but not limited to, “the

insufficiency of service of process.”

Mr. Flinn filed a motion in opposition to Judge Blackwood’s motion to dismiss in

January 2009. In his opposition, Mr. Flinn asserted that Judge Blackwood was subject to suit

under Tennessee Code Annotated 29-21-108(b), and that disputed material facts existed that

precluded dismissal of the action. Mr. Flinn contended that the motion should be construed

as a motion for summary judgment, and denied.

In December 2009, Judge Blackwood filed a notice of continued insufficiency of

service of process. The trial court granted Judge Blackwood’s motion to dismiss on February

3, 2010, and Mr. Flinn filed a timely notice of appeal to this Court.

Issues Presented

Mr. Flinn raises the following issue for our review:

Did the trial court err in granting the Defendant’s motion to dismiss?

Standard of Review

A Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state

a claim tests only the legal sufficiency of the complaint itself. Cook v. Spinnakers of

Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). The grounds for such a motion are that

the allegations of the complaint, if considered true, are not sufficient to constitute a cause of

action as a matter of law. Id. A motion to dismiss should be granted only if it appears that

the plaintiff cannot establish any facts in support of the claim that would warrant relief. Doe

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v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999). We review a trial court’s award of a motion

to dismiss de novo, with no presumption of correctness. Stein v. Davidson Hotel Co., 945

S.W.2d 714, 716 (Tenn. 1997).

Discussion

This lawsuit arises under section 29-21-108 which provides, with respect to a writ of

habeas corpus:

(a) It is the duty of the court or judge to act upon such applications instanter.

(b) A wrongful and willful refusal to grant the writ, when properly

applied for, is a misdemeanor in office, besides subjecting the judge to

damages at the suit of the party aggrieved.

Tennessee Code Annotated § 29-21-108 (2000).

In his complaint for relief under section 29-21-108, Mr. Flinn alleged that, in February

2006, an Anderson County grand jury indicted him for first degree murder; a capias was

issued for his arrest and he was arrested on the afternoon of February 7, 2006; Judge

Blackwood, senior judge, was appointed as trial court judge in the mater; he was arraigned

on March 3, 2006; bond was set at $125,000 and the trial court entered an order outlining the

conditions of his release; and that he was released on March 8, 2006 on $125,000 bail-bond.

Mr. Flinn asserted that he was represented by a private attorney, Mr. Ritter, during these

proceedings; that the trial court granted a motion to withdraw filed by Mr. Ritter on April 12,

2006; that the trial court appointed a public defender to serve as counsel on April 24, 2006;

that a private attorney, Robert Vogel, was retained by a third party on his behalf and filed a

notice of appearance on June 2, 2006; that the pubic defender was dismissed and Mr. Vogel

appointed as counsel without Mr. Flinn’s knowledge on August 3, 2006; and that on August

17, 2006, Mr. Flinn sent written correspondence to the trial court expressing dissatisfaction

with Mr. Vogel and the public defender. Mr. Flinn asserted that he received an email from

Mr. Vogel on August 22, 2006, advising him that Mr. Vogel had scheduled a meeting with

Judge Blackwood on September 1, 2006. Mr. Flinn further asserted that no summons was

issued, but that he received a phone call from Judge Blackwood’s office on August 23, 2006,

informing him of the September 1 hearing. Mr. Flinn asserted he expressed concern that he

might not be able to attend the September 1 hearing, and that he was told to call Judge

Blackwood’s office if he could not attend. Mr. Flinn additionally asserted that, on August

25, he received a letter from Judge Blackwood’s office confirming the September 1 hearing.

Mr. Flinn asserted that on the afternoon of August 31, he faxed Judge Blackwood’s office

stating that he would not be able to attend the September 1 hearing because of transportation

problems. Mr. Flinn alleged that Judge Blackwood then “called Plaintiff’s appointed

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counsel, Mr. Vogel, and ordered Mr. Vogel not to appear on September 1.” He asserted that

Judge Blackwood then “conduct[ed] an ex parte trial”; that the circuit court issued a second

capias for his arrest; and that he was arrested on September 1, 2006. Mr. Flinn asserted that

on September 6, 2006, he received an order dated September 1 and stamped September 5,

stating that his bond was revoked for failure to attend a hearing on a motion, and that bail

was now set at $1,000,000. He asserted that the order had not been signed by Judge

Blackwood, but that Judge Blackwood’s name was printed on the order “with permission”

by District Attorney General Clark. Mr. Flinn stated that a bail reduction hearing was held

on September 13; that he was represented against his wishes by Mr. Vogel; that Judge

Blackwood stated that his office had not telephoned Mr. Flinn on August 23 and that he had

not revoked and raised Mr. Flinn’s bail for failure to appear at the hearing; and that bail was

reduced to $500,000. Mr. Flinn stated that he sought relief from the Court of Criminal

Appeals under Rule 10 and Rule 8, and that his applications for relief were denied. Mr. Flinn

asserted that Mr. Vogel was permitted to withdraw on October 6, 2006, and that Judge

Blackwood appointed Alexander Brown to represent him on October 9. He asserted that a

second bond reduction hearing was held on October 25, 2006; that bond was set at $300,000;

and that he was released on October 27, 2006, after posting a bail-bond in the amount of

$300,000.

In his complaint, Mr. Flinn also asserted,

[o]n September 29, 2006 a petition for writ of habeas corpus was served on

Defendant. The petition met the requirements of Tennessee Code Annotated

§ 29-21-107 and the writ was properly applied for. There is nothing in the

record to indicated that after the filing of the petition the Defendant followed

the procedures outlined at Tennessee Code Annotated § § 29-21-108 to 110.

Mr. Flinn alleged that Judge Blackwood “wrongfully and willfully breached his statutory

duty[,]” and that as a result of Judge Blackwood’s wrongful refusal to grant the writ, he spent

an additional 28 days in jail.

In the memorandum of law attached to his motion to dismiss, Judge Blackwood

asserted, inter alia, that although Mr. Flinn refers to a number of court documents, none were

attached to his complaint as required by Rule 10.03 of the Tennessee Rules of Civil

Procedure. Rule 10.03 provides:

Whenever a claim or defense is founded upon a written instrument other than

a policy of insurance, a copy of such instrument or the pertinent parts thereof

shall be attached to the pleading as an exhibit unless the instrument is (1) a

matter of public record in the county in which the action is commenced and its

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location in the record is set forth in the pleading; (2) in the possession of the

adverse party and this fact is stated in the pleading; (3) inaccessible to the

pleader or is of such nature that attaching the instrument would be unnecessary

or impracticable and this fact is stated in the pleading, together with the reason

therefor. Every exhibit so attached or referred to under (1) and (2) shall be a

part of the pleading for all purposes.

Tenn. R. Civ. P. 10.03. Judge Blackwood further asserted that, although Mr. Finn claimed

to have “served” a petition for writ of habeas corpus on him on September 29, 2006, no

petition was attached to the complaint. Judge Blackwood attached a copy of the court’s Case

Docket History for the relevant time frame to illustrate that no petition was ever filed with

the court.

In his motion in opposition to Judge Blackwood’s motion to dismiss, Mr. Flinn

reasserted his claim that he was wrongfully arrested in September 2006, but did not attach

a copy of the petition for writ of habeas corpus. Mr. Flinn also did not address Judge

Blackwood’s assertion that the petition was never filed in the circuit court.

In his brief to this Court, Mr. Flinn asserts that the trial court erred in granting Judge

Blackwood’s motion to dismiss because the motion was procedurally inadequate where the

motion failed to state the grounds for dismissal with particularity. Mr. Flinn relies on Willis

v. Tennessee Department of Corrections, 113 S.W.3d 706 (Tenn. 2003) for the proposition

that “[s]imply moving for dismissal by alleging the plaintiff has failed to state a claim, and

then stating the grounds in the accompanying memorandum of law, does not meet the rule’s

requirement.” However, we note that, unlike the motion to dismiss in Willis, Judge

Blackwood stated the grounds upon which he asserted dismissal was proper with

particularity. The motion stated on its face that it was a motion to dismiss, and that it was

predicated on Mr. Flinn’s failure to allege legal grounds for a writ of habeas corpus in the

underlying criminal case; the failure to state a claim for wrongful and willful refusal to grant

a writ of habeas corpus under Tennessee Code Annotated § 29-21-108(b); and the doctrine

of judicial immunity. Moreover, we note that Mr. Flinn did not raise this issue in the trial

court. A “cardinal principle of appellate practice” is that an issue not raised in the trial court

cannot be raised for the first time on appeal. Waters v. Farr, 291 S.W.3d 873, 918 (Tenn.

2009) (citations omitted). This argument is without merit.

Having reviewed the record, we find nothing to indicate that Mr. Flinn properly filed

a petition for writ of habeas corpus in the trial court. The official Case Docket History

attached to Judge Blackwood’s motion is devoid of any history of the filing of a petition for

writ of habeas corpus on September 29, 2006, or thereabouts. No petition was attached to

Mr. Flinn’s complaint; Mr. Flinn has not challenged the accuracy of the Case Docket History;

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and Mr. Flinn does not assert that the petition was, in fact, filed in the trial court.

A lawsuit may be maintained under Tennessee Code Annotated § 29-21-108(b) only

where a petition has been “properly applied for.” Thus, whether we construe the trial court’s

order as one granting a motion to dismiss or as one awarding summary judgment where the

court has considered matters outside the pleadings, we agree that Judge Blackwood is entitled

to a judgment as a matter of law. There is nothing in this record to assert Mr. Flinn properly

filed a writ of habeas corpus in the trial court.

Holding

In light of the foregoing, the judgment of the trial court is affirmed. Costs of this

appeal are taxed to the Appellant, James M. Flinn.

_________________________________

DAVID R. FARMER, JUDGE

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