Neil Friedman v. Lynn W. Brown

• Court: Court of Appeals of Tennessee
• Decided: May 14, 2003
• Docket: E2002-01615-COA-R3-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE April 1, 2003 Session

NEIL M. FRIEDMAN v. LYNN W. BROWN

Appeal from the Circuit Court for Carter County No. C8224

FILED MAY 14, 2003

No. E2002-01615-COA-R3-CV

CHARLES D. SUSANO, JR., J., concurring.

I concur in Judge Franks’ well-reasoned opinion because I believe it correctly states the controlling law and because I believe that when that law is applied to the facts of this case, the inescapable conclusion is that the plaintiff’s complaint “fail[s] to state a claim upon which relief can be granted.” Tenn. R. Civ. P. 12.02(6). Having said all of this, I feel constrained to state that given the allegations1 of the complaint pertaining to (1) the expiration of the plaintiff’s sentence when the judge re-incarcerated him; (2) the prosecutor’s agreement with defense counsel, apparently stated in open court, that the judge did not have the authority to send the plaintiff to jail for violating probation on a sentence that, by then, had expired; and (3) an alleged corrupt motive for the judge’s action in this case, persuade me that while the result in this case may be a correct one, it is far from what “the man or woman on the street” would perceive to be a just one. This troubles me. However, as a judge, I recognize that I must follow the law, regardless of my personal feelings with respect to the general concept of justice. Accordingly, I concur.

______________________________ CHARLES D. SUSANO, JR., JUDGE

1 Under Tenn. R. Civ. P. 12, a court is required to “tak[e] all of the allegations of fact [in the comp laint] as true .” Huckeby v. Spangler, 521 S.W .2d 568, 571 (Tenn. 1975 ).