SHERRIE L. DURHAM
TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, ET AL.
Session January 27, 2015
Appeal from the Circuit Court for Davidson County No. 06C95, 07C1141, 07C2251, 08C1991 Donald P. Harris, Senior Judge
Sherrie L. Durham, Pro se, appellant.
William J. Marett, Jr., and Jay C. Ballard, Nashville, Tennessee, for the appellees, Tennessee Department of Labor and Workforce Development, Linda McDaniel, Michael Thomason, Don Ingram, Tennessee Department of Personnel and Tennessee Board of Professional Responsibility.
Arnold B. Goldin, J., delivered the opinion of the Court, in which Brandon O. Gibson, J., and Kenny Armstrong, J., joined.
ARNOLD B. GOLDIN, JUDGE
This appeal arises from four separately-filed actions consolidated in the trial court. Plaintiff/Appellant Sherrie L. Durham ("Ms. Durham") is an attorney and was employed as a hearing officer by the Tennessee Department of Labor and Workforce Development ("the Department"). In January 2006, she filed a complaint alleging violations of Tennessee Code Annotated § 8-50-116, violation of 42 U.S.C. § 1983, negligent failure to supervise and train employees, negligence per se for violations of unspecified state and federal statutes, retaliatory supervisory harassment, retaliatory discharge in violation of public policy, and intentional and negligent infliction of emotional distress. She named as Defendants the Department, James Neeley ("Mr. Neeley"), Commissioner; the State of Tennessee, by and through Phil Bredesen, Governor ("Governor Bredesen"), and Paul Summers, Attorney General ("Attorney General Summers"); Lynda McDaniel ("Ms. McDaniel"), in her individual capacity and in her official capacity as chief unemployment appeals hearing officer; Michael Thomason ("Mr. Thomason"), in his individual capacity and in his official capacity as director of appeals operations; and Don Ingram ("Mr. Ingram"), in his individual capacity and in his official capacity as the Department's administrator of employment security (collectively, "Defendants").
After years of protracted litigation and an inactive period of more than two years, on March 12, 2013, the trial court issued notice that the matter would be dismissed absent entry of an order to set for trial within thirty days. On March 28, Ms. Durham filed a motion to set; on May 13, 2013, Defendants filed a motion to dismiss for failure to prosecute. The trial court granted Ms. Durham's motion to set, held Defendants' motion to dismiss in abeyance, and the matter eventually was set to be tried by a jury in February 2014. On the morning of the pre-trial conference held on January 21, 2014, Ms. Durham moved to continue the matter and for recusal of the trial judge. She also moved the trial court to declare the statutes governing the appointment of special judges unconstitutional and to strike the trial court's pre-trial order setting the conference. By order entered January 29, 2014, the trial court granted Defendants' motion to dismiss for failure to prosecute and denied Ms. Durham's motion to recuse.
In its January 29, 2014, order, the trial court found that Ms. Durham's motion to recuse was not timely filed, that the grounds Ms. Durham asserted as a basis for recusal "[had] long been known to her, " that there was no basis for recusal, and that Ms. Durham was attempting to "force" the trial court to continue the matter. The trial court stated:
Despite the untimeliness of her recusal motion and the lack of a legal basis for recusal, plaintiff insists in her argument that if the court were to deny her motion she would appeal. The court considers the late filing of the Motion to Recuse and plaintiff's insistence that she will appeal denial of her motion as a blatant attempt by plaintiff to force the court to again continue the trial of this matter. This action, coupled with the record in this cause, evidences a persistent failure by plaintiff to prosecute this action which warrants dismissal of these consolidated cases in their entirety.
Ms. Durham filed a timely notice of appeal to this Court. After a number of delays and the adjudication of several motions in this Court, oral argument was heard by the Western Section sitting in Nashville in January 2015. We reverse in part, affirm in part, and remand for further proceedings.
In her brief, Ms. Durham raises eight issues for our review. The issues presented by this appeal, as we consolidate and perceive them, are:
1) Whether the trial court erred by denying Ms. Durham's motion to recuse.
2) Whether the trial court erred by dismissing the matter for failure to prosecute.
3) Whether the trial court erred by dismissing Defendant James Neeley, in his individual capacity, from the matter.
We begin our discussion by observing that, notwithstanding dismissal of this matter for failure to prosecute, the technical record in this case contains seven volumes consisting of more than 700 pages. However, although it is apparent from the orders entered by the trial court that a number of hearings were held in the matter, the record transmitted for our review includes only one transcript volume, which is a partial transcript of the January 21, 2014, hearing in the trial court. Further, the partial transcript is limited to the trial court's ruling on Ms. Durham's motion to recuse. Because of the long procedural history and the nature of the ultimate disposition of this matter in the trial court, the issues presented by this appeal require a detailed recitation of the trial court record. We accordingly first review the long procedural history of this matter in the trial court.
In her original complaint, as amended in February 2006, Ms. Durham asserted seven causes of action, including: 1) violation of Tennessee Code Annotated § 8-50-116; 2) violation of 42 U.S.C. § 1983; 3) negligent failure to supervise and train employees under the Governmental Tort Liability Act, codified at Tennessee Code Annotated §§ 29-20-101-404; 4) violations of state and federal statutes, regulations, and rules; 5) retaliatory supervisory harassment; 6) violation of public policy; and 7) intentional and negligent infliction of emotional distress. She prayed for injunctive relief, including an injunction prohibiting Defendants from retaliating against her and from instructing her to violate state or federal law; for compensatory damages in the amount of $500, 000; punitive damages in the amount of $500, 000; pre-judgment and post-judgment interest; and reasonable attorney's fees and costs.
Upon Defendants' motion, the trial court dismissed Ms. Durham's claim for compensatory damages on her federal Section 1983 claim in June 2006. The trial court denied a motion for default judgment filed by Ms. Durham and also denied Defendants' motion to dismiss Ms. Durham's claim for injunctive relief on her Section 1983 claims.
In August 2006, Defendants filed a motion to dismiss Ms. Durham's claims for relief pursuant to the Governmental Tort Liability Act ("GTLA") for lack of jurisdiction. Defendants also moved for dismissal of Ms. Durham's claims for violations of unspecified state and federal statutes, regulations, rules, and public policies; her common-law claim of retaliatory supervisory harassment; her claims against Defendants in their individual capacities; and her claims for intentional and negligent infliction of emotional distress. In September 2006, the trial court granted Defendants' motion to dismiss Ms. Durham's claims under the GTLA and her claim for the negligent infliction of emotional distress.
Following a hearing on September 1, 2006, the trial court also denied a motion to recuse filed by Ms. Durham on August 18, 2006. In September 2006, the trial court entered a scheduling order and set the case to be tried on July 16, 2007. Following stalled discovery, Defendants filed a motion to amend the scheduling order in November 2006, which the trial court granted following a hearing in January 2007. Ms. Durham filed another motion to recuse the trial judge, Barbara Haynes ("Judge Haynes") in April 2007, which the trial court ...