                    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


       1
           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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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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