### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 2000 Session KENNETH L. STOREY v. RANDALL NICHOLS, ET AL 

### . Appeal from the Chancery Court for Knox County No. 135462-2 David H. Cate, Chancellor FILED AUGUST 14, 2000 No. E1998-00851-COA-R3-CV

An accused awaiting trial on a charge of agg ravated rape fil ed an action in the Chancery Court of Knox County aga

inst the district attorn

ey gener al and two of his as sistants. The complaint sought an injunction preventing the defendants from proceeding with his prosecution, a money judgment to compensate him for his mental and physical suffering, and the loss of over two years of va

luable time. The complaint also sought to disbar the defendants. The Chancery Court granted summary judgment to the de

fendants. We aff

irm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R
. and W ILLI

AM B. C AIN , JJ., joined. Kenneth L. Storey, Henning, Tennesse e, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor Genera l; and Meredith DeVault, Senior Counsel, for the appe l lees, Randall E. Nichols, Greg Harrison and Charles E. C erne y.

OPINION
I. The complaint in this action al lege s that the district attorney and his two assistants caused an excessive delay in the plaintiff’s prosecution, negligently misre present ed facts to the criminal courts and defa

med him, obstructed justice by making mi

srepresentatio

ns to the courts, suborned perj ury, and suppressed evidence relevant to his defense. The complaint soug ht a money jud

gment, an injunction against proceeding in the criminal trial, and that the defendants be disbarred pursuant to Tenn. Code Ann. § 23-3-201, et seq.-2-

Whilethe complaint

was pending Mr. Storey was convicted of aggravated rape and received a sen ten ce of twe nty- fiv e year s in sta te c ust ody. The defendants filed a motion to dismis s and/or for summary judgment on the following grounds: that the court lacked jurisdiction over criminal matters; that the complaint failed to allege a basis for disciplinary proceedings under Tenn. Code Ann. § 23-3-201; that they

had immunity from a money judgment; that the requested injunctive r elief was mo ot; and that the defendants were absolutely immune under Tenn. Code Ann. § 9-8-307. The trial court granted summary judgment to the defendants

. Mr. Storey appealed to the Supreme Court but that Court transferred th

e cause to this

court witha written opinion filed May 1, 2000. See Storey v. Nic hols , ____ S.W.3d ____ (Tenn. 2000). The opinion establishe d that the re are two ways to initiate a disciplinary proceeding against an att orn ey: (1) under Rule 9 of theSupreme Court’s rules, and (2) under Tenn. Code Ann. § 23-3-201, et seq. In either event an appeal lies to the Court of Appeals rather than the S upreme Court. The Supreme Court’s opinion disposed of one of the issues raised by the appellees -- that the statutory disciplinary proceeding had been pre-empted by Rule 9.
II. T HE I NJUNCTION We agree with

the defendants that the complaint for an injunction was properly dismissed. First, we think

it was moot since the criminal case had been tried. Badgett v. Broome , 409 S.W.2d 354 (Tenn. 1966). The onl y injunction sought by Mr. Storey for himself was an order preventing the defendants from proceeding with his prosecution. Since the function of an injunction is

to afford preventive relief, it can no longer aid Mr. Storey in his action against these defendants. See Kelton v. Vandervort

, 707 S.W.2d 517 (Tenn. Ct. App. 1985).
Sec ond ly, as a rule with very few exceptions, an equity court hasno jurisdiction to enjoin a pending or threatened c

riminal prose

cution. Earhart v. Young , 124 S.W.2d 693 (Tenn. 1939); Campbell v. Sundquist

, 926 S.W.2d 250 (Tenn.

Ct. App. 1996); State v. Osborne , 712 S.W.2d 488 (Ten n. C rim . Ap p. 1 986 ). W e are not awar e of a ny ex cept ion tha t wo uld app ly to Mr. Sto rey. III. M ONETARY R ELIEF In a supplemental brief in this Court Mr. Storey has disclaimed any attempt to obtain a money judgment against the app

ellees. In ou

r opinion it is just as w

ell because

of the immunity

granted prosecutors acting within the scope of their prosecutorial duties. Imbler v. Pachtman , 424 U.S. 409 (1976). The plaintiff in Imbler charged the prosecutors with presenting f alse evidence and concealing exculpatory evidence – the same charge Mr. Storey makes here. But the court held that the defendant was a

cting within the sc

ope of a prose

cu tor’s duties for w

hich he had an abs

olute imm uni ty.-3- IV. D ISBARMENT Unfortunately

for the defendants, the

immunity from civil liability does not shield them from disciplinary

action if they viol ate the disciplinary rules in carry

ing out their pros

ecutorial duties. Imbler , 424 U.S. at 429; In Re Rook , 556 P.2d 1351 (Or. 1976); S cho olfield v. Tennessee Bar Association , 353 S.W.2d 401 (Tenn. 1961)(judici al immunity did not prevent disbarment proceedings). Their motion to dismis s did, however, include theground that the complaint filed by Mr. Storey was n

ot filed under oat

h as required

by Tenn. Code

Ann. § 23-3-202(a

). The motion to dismiss was filed on November 1 2, 1997, and Mr. Storey did not attempt to amend his complaint beforethe chancellor granted the motion to dismiss on June 24, 1998. On that same date, Mr. Storey fileda pleading under oath that, it could be argued, attempted to verify the complaint. He did not file a motion to alter or amend the judgment based on his late attempt to comply with the statute.
A statute requiring an oath to an instrument is mandatory, and faithful compliance with the statute is absolutely necessary to the validity of the instrument. Lookout Bank v. Noe , 86 Tenn. 21 (1887). An oath is not a mere te chnicality . Where it is

required, an oath cannot be waived by the court. Pulaski Lumber Co. v . Harpeth South, Inc. , 501 S.W.2d 275 (Tenn. 1973). We think tha t is especially true in a statutory disbarment proceeding, where any individual may bring the action, and the court may launch an investigation on the complaint alone. Tenn.Code Ann. § 23-3-202(b)-(c). When proceedings ma

y result in su

ch drastic consequences, it is not an undue burden to require that the process be comme

nced with a solemn oath. We think the chancellor was correct in dismissing the complaint for d

isbarment. The appellant

has movedthis court for a default judgment against the appellees, and for the court to take judicial notice of adjudicative facts. Those motions are hereby ove rruled. The judgment of the c

ourt below is affi

rmed and the cau

se is rem anded for any further pro ceed ings nece ssa ry. T ax t he co sts on a ppe al t o th e app ell ant , Ke nne th L. Sto rey.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.