# David Banks v. University Of Tennessee

> Court of Appeals of Tennessee · July 30, 2018

URL: https://www.frixlaw.com/law-library/cases/4299298

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** July 30, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Brandon O. Gibson
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4299298

## How later opinions describe it (automated extraction)

- holding that indigent civil litigants, as opposed to indigent criminal defendants, do not have a statutory or constitutional right to court-appointed counsel.
- holding that “[u]nder Tennessee law, issues raised for the first time on appeal are waived.”

## Opinion text

07/30/2018

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 24, 2018 Session

DAVID BANKS v. UNIVERSITY OF TENNESSEE

Appeal from the Chancery Court for Davidson County
No. 16-617-II William E. Young, Chancellor
___________________________________

No. M2017-01358-COA-R3-CV
___________________________________

The University of Tennessee at Knoxville terminated the employment of Appellant, a
tenured faculty member. Appellant appealed his termination to an administrative hearing
officer pursuant to the Tennessee Uniform Administrative Procedures Act. Following a
contested hearing, the hearing officer upheld the University’s termination of Appellant.
Appellant then petitioned the chancery court to reverse the decision of the hearing officer.
The chancery court upheld the hearing officer’s decision to affirm the termination of
Appellant’s employment and tenure. Discerning no error, we affirm the judgment of the
chancery court.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and KENNY W. ARMSTRONG, JJ., joined.

David Banks, Oak Ridge, Tennessee, Pro se.

Frank H. Lancaster, Knoxville, Tennessee, for the appellee, University of Tennessee.

OPINION

I. FACTS & PROCEDURAL HISTORY

Dr. David Banks was hired by the University of Tennessee at Knoxville (the
“University”) in 2006. Dr. Banks came to the University with a distinguished academic
and employment history. Prior to his tenure with the University, Dr. Banks earned his
Ph. D. in computer science from the University of North Carolina at Chapel Hill, held a
post-doctoral fellowship at NASA Langley Research Center, was an associate professor
at Mississippi State University, and was a tenured associate professor at Florida State
University. Dr. Banks’ academic background is in mathematics and computer science,
with a focus on applying 3D graphics to scientific and medical data. In 1994, Dr. Banks’
research paper called “Illumination in Diverse Co-dimensions” was published in one of
the top journals in his field, and the topic of this paper has become known as the “Banks
Illumination Model.” Dr. Banks won an award for the best paper in 2003 at the well-
respected Institute of Electrical and Electronics Engineers Visualization Conference. In
2004, Dr. Banks had five refereed journal articles in press or under review. While at
Florida State, Dr. Banks helped found the Visualization Laboratory and was nominated
for four teaching awards. He also brought in millions of dollars in external grant and
contract funding during the decade preceding his move to the University.

In 2004, Dr. Banks interviewed for a joint position with the University and Oak
Ridge National Laboratory. Dr. Banks began his employment with the University in
2006 and was awarded tenure in 2007. Dr. Banks’ position with the University required
that he spend 50% of his time working at the University and the other 50% of his time on
research matters at Oak Ridge. Although Dr. Banks was officially an employee of the
University, Oak Ridge contributed 50% of Dr. Banks’ salary for his work performed at
the Laboratory.

While Dr. Banks seemed to be on an upward trajectory early in his career, he took
a sudden and unexpected turn shortly into his tenure at the University. The record in this
case includes five performance reviews, which generally reveal the unraveling of Dr.
Banks’ employment with the University over the years. In 2007, Dr. Banks received a
rating of “meets expectations” overall but of “needs improvement” in the area of
teaching. The only source of external funding that Dr. Banks contributed to the
University that year was the portion of his salary paid by Oak Ridge. In 2008-2009, Dr.
Banks was rated as “meets expectations” overall and for teaching, but as “falls short of
meeting expectations” for his research, scholarship, and creative activity. Again, his
only source of external funding was from Oak Ridge. In 2009-2010, Dr. Banks was rated
as “needs improvement” and “falls short of meeting expectations” for teaching. The
students’ comments on Dr. Banks’ teaching performance were “very negative,” and he
was not adequately engaging with graduate students. He was also rated as “falls short of
meeting expectations” for his research, scholarship, and creativity. Of particular
importance to the University, Dr. Banks’ supervisor at Oak Ridge requested improved
performance from Dr. Banks on that front as well. The department head evaluating Dr.
Banks noted that he “needs to work with the department head and [Oak Ridge] on a plan
that addresses both UT and [Oak Ridge’s] concerns.” It appears Dr. Banks never
followed up with this plan.

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As Dr. Banks would later admit, during the fall of 2011, he simply stopped
reporting to work at Oak Ridge. In a meeting with University supervisors in February
2012, Dr. Banks attempted to explain his absence as being the result of a family situation
that required him to travel out of town frequently. This explanation, however, came
months after Dr. Banks stopped reporting to work at Oak Ridge and on the heels of
several years of complaints from supervisors at Oak Ridge regarding sub-par
performance. After this meeting with Dr. Banks, University officials made the decision
that, given Dr. Banks’ admission that he was not performing his duties at Oak Ridge, they
could not continue to accept payment from Oak Ridge for half of his salary. As a result,
University officials came up with a plan to pay for Dr. Banks’ entire salary for the next
two years. Shortly thereafter, Dr. Banks received his evaluation for 2011-2012, in which
his performance was rated as “unsatisfactory.” His evaluator noted that Dr. Banks was
“completely disengaged from department activities. He does not contribute to faculty
meetings, nor does he respond to emails or interact with his colleagues in a substantive
way.” His research program was deemed “inactive,” and teaching evaluations were
“poor to marginal.”

This last evaluation constituted Dr. Banks’ third evaluation of “needs
improvement” or worse in a period of five years, which triggered the University’s
“cumulative performance review process” pursuant to University policy. Over the next
several months, multiple levels of University faculty and administrators reviewed Dr.
Banks’ performance at the University, and all but one of these people came to the same
conclusion – Dr. Banks’ employment with the University should be terminated. In the
end, the University Chancellor is the ultimate decision-maker with regard to whether to
institute termination proceedings. See, University Faculty Handbook Section 3.12.1.1.
After his own review of the material related to Dr. Banks’ employment, the University
Chancellor determined that “the only conclusion you can reach [is] that since 2006, [Dr.
Banks] has not been productive at the University of Tennessee and tenure should be
revoked.” On June 17, 2014, the University Chancellor sent Dr. Banks a twelve page
letter detailing his termination for “adequate cause” under the University’s Faculty
Handbook, which included “failure to demonstrate professional competence in teaching,
research, or service,” “failure to perform satisfactorily the duties and responsibilities of
the faculty position,” and a “serious violation of professional responsibility in relations
with students, employees, or members of the community.” The University Chancellor
concluded his letter by stating that termination of Dr. Banks’ tenure with the University
was “the only academically acceptable course of action.”

Pursuant to the University’s handbook, Dr. Banks was afforded two options by
which to contest his termination – a hearing under the Tennessee Uniform Administrative
Procedures Act (“TUAPA”) or a hearing before a tribunal. See, University Faculty
Handbook §§3.12.1.1, 3.12.1.5. Dr. Banks, represented by counsel, chose to contest his
termination by way of a contested TUAPA hearing. To that end, a four-day

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administrative hearing was held, during which an administrative record of more than
4,000 pages accumulated. In that hearing, the University bore the burden of proof, by a
preponderance of the evidence, of establishing that Dr. Banks’ termination was justified
and appropriate. See Tenn. Comp. R. & Regs. 1720-01-05-.01(14)(j). On January 11,
2016, the appointed administrative law judge issued a comprehensive Initial Order, which
determined that the University had met its burden of proving that Dr. Banks was
terminated properly. This Initial Order was upheld in a Final Order by the University’s
Acting Agency Head on May 20, 2016.

Dr. Banks subsequently filed a petition for judicial review of the Final Order. In
his brief in support of his petition for review of agency action, Dr. Banks requested that
the chancery court reverse the decision to uphold the termination of his tenure and
employment after review of the following issues:

A. Did the Acting Agency Head fail to give appropriate weight to
Dr. Banks’ 50% appointment at the University in reviewing his
performance at University of Tennessee under the statutorily
required clear and convincing burden of proof?

B. Did the Acting Agency Head fail to adequately consider the
constructive denial of Dr. Banks’ Faculty Modified Duties
Assignment (FMDA) Request to Dean Davis and Dr. Tomsovic
under the statutorily required clear and convincing burden of
proof?

The chancery court held a hearing on Dr. Banks’ petition on November 9, 2016.
On that day, the court issued a ruling from the bench upholding the agency’s
determination that the University properly terminated Dr. Banks’ employment. The court
entered a written order to that effect on December 29, 2016. According to the chancery
court, “the two narrow issues” raised by Dr. Banks were without merit. The court
concluded that Dr. Banks was incorrect regarding the proper burden of proof relevant to
the University’s decision to terminate him. The chancery court noted that the “clear and
convincing evidence” standard proposed by Dr. Banks from Tennessee Code Annotated
section 49-8-301–304 related to schools governed by the Tennessee Board of Regents
system. However, the court found that the University is not a part of the Board of
Regents system but was created under Tennessee Code Annotated section 49-9-101, et
seq. According to the trial court, under this statutory scheme, the TUAPA applied, and
Tenn. Comp. R. & Regs. 1720-01-05-.01(12)(d) provided that in a contested case, the
Petitioner (here, the University) bore the burden of proof by a preponderance of the
evidence that an issue should be resolved in its favor. Further, the court determined that
there was “more than enough evidence in the record to support the [Agency Head’s]

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finding” upholding Dr. Banks’ termination.

With regard to Dr. Banks’ assertion that the Agency Head did not adequately
consider the University’s “constructive denial” of Dr. Banks’ request for a Faculty
Modified Duties Assignment (in light of his family situation that kept him away from the
University), the court held that Dr. Banks had waived this argument by not raising it
before the tribunal below. Even if the argument had not been waived, the court found
that whether or not to approve a Faculty Modified Duties Assignment was squarely
within the University’s discretion and Dr. Banks’ never even made a proper request for
such an assignment in the first place. In all, the chancery court affirmed the University’s
termination of Dr. Banks’ employment and tenure. Dr. Banks has now appealed that
decision to this Court.

II. ISSUES PRESENTED

Dr. Banks presents the following issues for review on appeal, which we have
restated as follows:

1. Whether Dean Katrice Jones Morgan was a proper administrative law
judge?

2. Whether Dean Morgan erred in neglecting to rule on the existence and
scope of Dr. Banks’ contract with the University?

3. Whether Dean Morgan erred in neglecting to consider Dr. Banks’ reports of
plagiarism?

4. Whether Dean Morgan’s initial order to terminate Dr. Banks’ tenured
employment is defective because it did not articulate any particular offense
that met the University’s grounds for termination of tenured employment or
that Dr. Banks committed any such offense.

5. Whether President Katherine High’s final order to terminate Dr. Banks’
tenured employment was defective because it did not articulate any
particular offense that met the University’s grounds for termination, or
because President High engaged in ex parte communications in violation of
the Rules of the University for conducting UAPA contested cases?

6. Whether the chancery court erred in failing to rule on numerous motions
filed by Dr. Banks?

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7. Whether the chancery court erred in determining the standard of review for
the appeal below?

8. Whether the chancery court erred in failing to rule on the existence and
scope of Dr. Banks’ contract with the University?

9. Whether the chancery court erred in determining the University’s
obligations to Dr. Banks pursuant to the Family Medical Leave Act?

10. Whether the chancery court erred in allowing Dr. Banks’ counsel to
withdraw?

11. Whether the chancery court erred by ruling on the case prior to the hearing?

III. STANDARD OF REVIEW

The process for judicial review of an agency decision begins in chancery court in
accordance with the Tennessee Uniform Administrative Procedures Act. See Tenn. Code
Ann. § 4-5–322(b)(1)(A). When an administrative agency is acting within its area of
specialized knowledge, experience, and expertise, a trial court’s review of the agency’s
decision “is governed by the narrow standard contained in Tennessee Code Annotated §
4-5-322(h) rather than the broad standard of review used in other civil appeals.” Publix
Super Mkts., Inc. v. Tenn. Dep’t of Labor & Workforce Dev., Labor Standards Div., 402
S.W.3d 218, 222 (Tenn. Ct. App. 2012) (citing Willamette Indust., Inc. v. Tenn.
Assessment Appeals Comm’n, 11 S.W.3d 142, 147 (Tenn. Ct. App. 1999)). Tennessee
Code Annotated section 4-5-322(h) sets forth the following standard for courts reviewing
an agency’s decision:

The court may affirm the decision of the agency or remand the case
for further proceedings. The court may reverse or modify the
decision if the rights of the petitioner have been prejudiced because
the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or

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clearly unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence that is both substantial and material
in light of the entire record.

(B) In determining the substantiality of evidence, the court shall
take into account whatever in the record fairly detracts from its
weight, but the court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of fact.

Furthermore, “[n]o agency decision pursuant to a hearing in a contested case shall be
reversed, remanded or modified by the reviewing court unless for errors that affect the
merits of such decision.” Tenn. Code Ann. § 4-5-322(i).

An aggrieved party may then appeal the decision of the chancery court to this
Court pursuant to Tennessee Code Annotated section 4-5-323:

(a) An aggrieved party may obtain a review of any final judgment of
the chancery court under this chapter by appeal to the court of
appeals of Tennessee.

(b) The record certified to the chancery court and the record in the
chancery court shall constitute the record in an appeal . . . .

(c) The procedure on appeal shall be governed by the Tennessee
Rules of Appellate Procedure.

When this Court is evaluating a trial court’s review of an agency’s decision, we must
determine “‘whether or not the trial court properly applied the . . . standard of review
found at Tennessee Code Annotated § 4-5-322(h).’” Wade v. Tenn. Dep’t of Fin. &
Admin., 487 S.W.3d 123, 126-27 (Tenn. Ct. App. 2015) (quoting Jones v. Bureau of
TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002)).

IV. DISCUSSION

A. Issues Presented for Review

As a preliminary matter, we note that Dr. Banks asserts a myriad of alleged errors
on appeal, most of which are not proper for this Court’s review. Dr. Banks appears to
fundamentally misunderstand the purpose of judicial review of an agency decision. Dr.

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Banks submitted close to 100 filings in the chancery court after the court entered its final
order affirming his termination. Dr. Banks essentially used the trial court, and is now
attempting to use this court, as a forum to air his grievances with the University. That,
however, is not the purpose of judicial review, and we reject any attempt to litigate issues
on appeal that were not properly raised in the tribunals below.

In his petition for judicial review of this matter in chancery court, Dr. Banks only
raised two fairly narrow issues for judicial review, which were recited in the chancery
court’s order as follows:

1. Did the Acting Agency Head fail to give appropriate weight to Dr.
Banks’ 50% appointment at the University in reviewing his
performance at University of Tennessee under the statutorily
required clear and convincing burden of proof [set forth in Tenn.
Code Ann. § 49-8-303(a)(4)]?

2. Did the Acting Agency Head fail to adequately consider the
constructive denial of Dr. Banks’s Faculty Modified Duties
Assignment (FMDA) Request to [UTK officials] Dean Davis and
Dr. Tomsovic under the statutorily required clear and convincing
burden of proof [set forth in Tenn. Code Ann. § 49-8-303(a)(4)]?

Now, however, in his appeal to this court, Dr. Banks raises a total of eleven issues, most
of which were ripe for appeal but, for reasons unknown to this Court, were not raised as
issues before the chancery court. The following issues raised by Dr. Banks on appeal to
this Court were ripe for appeal but were not raised for review in the chancery court:

1. Whether Dean Katrice Jones Morgan was a proper administrative
law judge?

2. Whether Dean Morgan erred in neglecting to rule on the existence
and scope of Dr. Banks’ contract with the University?

3. Whether Dean Morgan erred in neglecting to consider Dr. Banks’ reports of
plagiarism?

4. Whether Dean Morgan’s initial order to terminate Dr. Banks’ tenured
employment is defective because it did not articulate any particular offense
that met the University’s grounds for termination of tenured employment or
that Dr. Banks committed any such offense.

5. Whether President Katherine High’s final order to terminate Dr. Banks’

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tenured employment was defective because it did not articulate any
particular offense that met the University’s grounds for termination, or
because President High engaged in ex parte communications in violation of
the Rules of the University for conducting UAPA contested cases?

9. Whether the chancery court erred in determining the University’s
obligations to Dr. Banks pursuant to the Family Medical Leave Act?1

“It is axiomatic that parties will not be permitted to raise issues on appeal that they did
not first raise in the trial court.” Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511
(Tenn. 2010). Dr. Banks has, therefore, waived review of the foregoing issues. See,
Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996) (holding that “[u]nder Tennessee law,
issues raised for the first time on appeal are waived.”).

B. Motions Outstanding in Chancery Court

Dr. Banks asserts the following as reversible error by the chancery court:
“Appellant requested Chancery Court to rule on various motions, including motions to
determine whether some 100 instances of re-published works met the University’s
description of plagiarism, to determine the existence and scope of Appellant’s Contract,
and to provide injunctive relief under 42 U.S. Code § 1983. The Chancery Court
neglected to decide these questions or act on these motions.” Dr. Banks does not list the
specific motions to which he is referring or any harm he supposedly suffered by the trial
court’s alleged failure to rule on them. At any rate, we cannot determine any error on the
trial court’s part for failure to address his copious filings – motions or otherwise.

As we discussed above, Dr. Banks filed nearly 100 documents after entry of the
trial court’s final order. A review of the record suggests that he misunderstands the
finality of the trial court’s December 29, 2016 order. On March 3, 2017, the trial court
did in fact address the abundance of filings by Dr. Banks. The court appropriately
decided to treat all of his pleadings objecting to the final order as motions to alter or
amend pursuant to Tennessee Rule of Civil Procedure, Rule 59.04. The court then, with
great care and patience, discussed and denied each of the following motions:

1. Petition to Reconsider Withdrawal

1. Although this issue theoretically would have been ripe for review by the chancery
court, Dr. Banks did not properly raise it as an issue. Rather, he requested that the
chancery court review the agency’s determination regarding his request for a Faculty
Modified Duties Assignment – not a request for leave pursuant to the Family Medical
Leave Act.

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2. Notification Regarding Counsel

3. Motion for Declaratory and Injunctive Relief

4. Prayer for Ruling on Plagiarism and Academic Misconduct

5. Notice of Spoliation of Records

6. Question of Copyright

7. Notice of Defective Charges

8. Motion Regarding Fear Rally at the University of Tennessee

9. Question About Plagiarism and Copyright

10. Motion Regarding Aggravated Perjury Regarding Vote in Favor of
Creating the Department of Electrical Engineering and Computer
Science

11. Motion Regarding Aggravated Perjury During Deposition

12. Motion Regarding Aggravated Perjury in Court

13. Motion Regarding False Report

14. Question of Offenses Against Administration of Government

15. Question of Concealed Records

16. Question of Budget and Expenditure

17. Prayer for Injunctive Relief

The court also set the Motion to Alter or Amend for a hearing. This motion was
subsequently denied as well. The court then concluded with the following: “In addition
to the above motions, notices, prayers, petitions and questions, the Petitioner has filed
other documents that do not constitute motions. Accordingly, they need not be
addressed. All other motions or claims for relief not addressed in this order or in the
Court’s prior orders, apart from the above-mentioned motion to alter or amend, are
hereby denied.” We determine no error on the part of the trial court in ruling (or not
ruling) on these filings. Moreover, Dr. Banks’ failure to specify any alleged harm puts
this issue into the category of errors not affecting the merits of the decision in this case,
and is therefore not reversible error pursuant to Tennessee Code Annotated section 4-5-
322(i).

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C. Proper Standard of Review

Despite clear law to the contrary, Dr. Banks continues to assert that the proper
burden of proof that the University was required to carry was “clear and convincing
evidence” to support the validity of his termination. Our analysis of this issue mirrors the
analysis by the trial court. Dr. Banks simply misunderstands the law on this issue. The
“clear and convincing evidence” standard applies to schools that are part of the Board of
Regents system. See, Tenn. Code Ann. §§ 49-8-301–304. The University of Tennessee
at Knoxville is not part of the Board of Regents system but is rather created by a separate
statutory scheme. See, Tenn. Code Ann. §§ 49-9-101–1502. The standard of proof
required under these circumstances is whether the University proved its case by a
“preponderance of the evidence.” Tenn. Comp. R. & Regs. 1720-1-5-.01(12)(d). We
affirm the trial court on this issue.

D. Existence of a Contract between Dr. Banks and the University

Dr. Banks alleges that the Agency Head erred in concluding that he did not have a
“contract with the University.” It is difficult to discern what exactly he insists made up
this contract, or why he could never provide a copy of it himself. Dr. Banks was a
tenured professor with the University, and he was terminated pursuant to the guidelines
for revoking a faculty member’s tenure. We conclude that there is substantial and
material evidence in the record to support the Agency Head’s determination that Dr.
Banks did not have a contract with the University. We, therefore, affirm the trial court’s
decision regarding the non-existence of his alleged contract.

E. Withdrawal of Dr. Banks’ Counsel

Dr. Banks claims that he was denied due process because the trial court allowed
his counsel to withdraw. We disagree with this premise on several bases. Although the
specifics of the conundrum are not illuminated in the record, Dr. Banks’ attorney, Ms.
Fisher, apparently came to a point in her representation that she no longer found it
prudent to represent him and filed a motion with the court to withdraw. Not only did Ms.
Fisher herself feel compelled to withdraw, but she represented to the court that she
consulted with the Tennessee Board of Professional Responsibility on the matter and they
told her that she must withdraw. The court granted Ms. Fisher’s motion based on the
representation that the Board required her to withdraw.

Dr. Banks was given ample time to hire a new attorney after the withdrawal of his
previous one. His inability to procure counsel due, according to Dr. Banks himself, to the

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nature of his case, does not violate his right to due process. Dr. Banks was not entitled to
have counsel appointed by the court. Hessmer v. Miranda, 138 S.W.3d 241, 245 (Tenn.
Ct. App. 2003) (holding that indigent civil litigants, as opposed to indigent criminal
defendants, do not have a statutory or constitutional right to court-appointed counsel.)
Whether or not to permit the withdrawal of counsel is within the sound discretion of the
trial court.

The grant or denial of a request to withdraw as counsel is a matter
addressed to the court's discretion. Andrews v. Bechtel Power Corp., 780
F.2d 124, 135 (1st Cir. 1985); Washington v. Sherwin Real Estate, Inc., 694
F.2d 1081, 1087 (7th Cir. 1982); Devincenzi v. Wright, 882 P.2d 1263,
1265 (Alaska 1994); In re Franke, 55 A.3d 713, 720 (Md. Ct. Spec. App.
2012); Williams v. Bank One, Texas, N.A., 15 S.W.3d 110, 114 (Tex. App.
1999); Kingdom v. Jackson, 896 P.2d 101, 103 (Wash. Ct. App. 1995). Our
supreme court has explained what a trial court must consider in making a
discretionary decision and what constitutes an abuse of that discretion:

Discretionary decisions must take the applicable law and the
relevant facts into account. An abuse of discretion occurs
when a court strays beyond the applicable legal standards or
when it fails to properly consider the factors customarily used
to guide the particular discretionary decision. A court abuses
its discretion when it causes an injustice to the party
challenging the decision by (1) applying an incorrect legal
standard, (2) reaching an illogical or unreasonable decision,
or (3) basing its decision on a clearly erroneous assessment of
the evidence.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (internal
citations omitted).

In re Jamie B., No. M2016-01589-COA-R3-PT, 2017 WL 2829855, at *5 (Tenn. Ct.
App. June 30, 2017).

Based on our review of the record, it appears that Ms. Fisher, the trial court, and
even opposing counsel went to great lengths to protect Dr. Banks’ interest in this
situation. Ms. Fisher did not seek to withdraw until the hearing of this matter was
concluded, the court had orally ruled from the bench, counsel had submitted proposed
orders for the court to execute, and Ms. Fisher had also prepared a notice of appeal for
Dr. Banks to sign and file on his own behalf. Counsel for the University alerted the court
to potential issues with the deadline for the notice of appeal. The trial court went to great
lengths to give Dr. Banks sufficient time to procure new counsel while protecting his

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right to appeal. We conclude that the trial court acted well within its discretion to permit
Ms. Fisher to withdraw as counsel for Dr. Banks.

F. Chancery Court’s Oral Ruling

Finally, Dr. Banks alleges that he was prejudiced by the trial court’s oral ruling on
the day of the hearing of this matter, a ruling that he insists was pre-prepared. He cites no
authority for the proposition that the trial court erred in ruling from the bench, and our
review of the case law reveals none. To the contrary, there is an abundance of case law
in Tennessee in which trial courts rule from the bench. See, e.g., Brookins v. Tabor, No.
W2017-00576-COA-R3-CV, 2018 WL 2106652, at * 8 (Tenn. Ct. App. May 8, 2018);
Parigin v. Mills, No. E2016-00640-COA-R3-CV, 2017 WL 1032740, at *3 (Tenn. Ct.
App. Mar. 16, 2017), perm. app. denied (Tenn. Aug. 16, 2017). There is also nothing in
the record to support Dr. Banks’ assertion that the ruling was pre-prepared. Both parties
prepared and delivered extensive briefs on the issues to the court prior to the hearing.
The court may have properly made notes to prepare prior to or during the hearing. Again,
Dr. Banks has not given any support for this allegation of error, nor has he alleged any
particular harm caused thereby. We conclude the trial court did not err in ruling from the
bench and subsequently issuing a comprehensive written order reflecting that ruling.

IV. CONCLUSION

For the foregoing reasons, we affirm the judgment of the chancery court. Costs of
this appeal are taxed to the Appellant, for which execution may issue if necessary.

_________________________________
BRANDON O. GIBSON, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4299298. Public record. Not legal advice.