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Drayton v. Cooper Moving Services

Court of Appeals of Tennessee, Jackson

July 10, 2017


          Assigned April 10, 2017

         Appeal from the Chancery Court for Shelby County No. CH-16-1323 JoeDae L. Jenkins, Chancellor

         This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion for judicial recusal filed by Nedra B. Drayton ("Plaintiff") in her case against Cooper & Cooper Moving, Inc. dba J. Cooper Self-Storage, Inc., identified in the style of the case below as Cooper Moving Services ("Defendant"). Having reviewed the petition for recusal appeal filed by Plaintiff, and discerning no reversible error in the Chancellor's ruling, we affirm.

         Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Chancery Court Affirmed.

          Nedra B. Drayton, Memphis, Tennessee, appellant, pro se.

          Adam M. Nahmias, Memphis, Tennessee, for the appellee.

          John W. McClarty, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Brandon O. Gibson, J., joined.



         According to the petition filed in this Court, Plaintiff's motion seeking to recuse the Chancellor from presiding over the proceedings below was based on allegations that the Chancellor had shown a "pattern of bias and/or prejudicial decisions" against Plaintiff creating an "appearance of impropriety" that undermined her "confidence of the judiciary to be impartial and fair." In her motion, Plaintiff specifically alleged the following "factual and legal grounds" in support of her request for relief: (a) the Chancellor abused his discretion by requiring opposing counsel's consent to a hearing date on Plaintiff's petition for a temporary restraining order against Defendant; (b) Plaintiff's motions had been "either disregarded or dismissed" in favor of opposing counsel's "repeated misrepresentation of facts" without Plaintiff being afforded "the right to be heard or offer any evidence of rebuttal to correct or disprove stated misrepresentation of facts in open court" at hearings that took place on November 3, 2016, and March 3, 2017; (c) the Chancellor "verbally threatened" to dismiss Plaintiff's action in open court on November 3, 2016, because opposing counsel alleged that he had not received proper service of a motion to amend complaint filed by Plaintiff; (d) the Chancellor repeatedly has made "prejudicial" statements to Plaintiff in open court that she needs to hire or consult with a licensed attorney, even though Plaintiff has a "wealth of experience as a professional paralegal with several advanced degrees"; (e) the Chancellor has ignored Plaintiff's repeated attempts to advise him in open court that opposing counsel has "engaged in antagonistic, unprofessional, harassing behavior" since the initiation of the proceedings below; (f) the Chancellor has failed to take "appropriate action" against opposing counsel upon being advised that there is a "substantial likelihood" that opposing counsel "has committed a violation of the Rules of Professional Conduct"; and (g) the Chancellor engaged in "ex parte communication" by soliciting an attorney to assist Plaintiff, which he announced he had done in open court at the hearing on March 3, 2017, even though the solicited attorney was "the opposing counsel in a past and current pending legal matter against Plaintiff" resulting in Plaintiff and the attorney declining to enter into a representation relationship due to a conflict of interest. Plaintiff bolstered her assertions that she has been denied her right to be heard and present evidence with the following specific allegations. She alleged that she was not permitted to offer evidence at the hearing on November 3, 2016, to rebut opposing counsel's assertion that she failed to serve him with her motion to amend complaint. She also alleged that, upon asking for permission to speak after being denied the opportunity to address the court regarding a scheduling order at the hearing on March 3, 2017, the Chancellor "sighed with an impatient facial expression" before granting her permission to speak. She further alleged that her proposed scheduling order "was not considered nor was Plaintiff allowed to offer any rebuttal statements" to refute opposing counsel's statements about her proposed scheduling order, which statements by opposing counsel Plaintiff characterized as "untruthful" and showing "bias." Plaintiff alleged that her motion to strike opposing counsel's scheduling order was then set on the Chancellor's motion docket for March 24, 2017, without her consent.

         After hearing argument on the motion for recusal at the hearing held on March 24, 2017, the Chancellor entered a written order denying the motion on March 27, 2017. While this initial order violated the requirements of section 1.03 of Rule 10B of the Rules of the Supreme Court of Tennessee, which states that "the judge shall state in writing the grounds upon which he or she denies the motion, " the Chancellor entered an amended order on March 30, 2017, the purpose of which was to state the grounds upon which denial of the motion was based in accordance with section 1.03 of Rule 10B. The Chancellor's amended order contained the following explanation for the denial of Plaintiff's motion:

The basis for the denial of the motion for recusal is that the Plaintiff has fabricated the grounds cited in the motion and it appears that such request is merely for delay, harassment or some other improper motive. The Plaintiff's application for injunctive relief was denied by the previous Chancellor, James [Newsom]. As to matters brought before this court by Plaintiff and Defendant, each one of Plaintiff's or Defendant's motions, whether properly before the court or not, were set for argument and heard by the Court. The Court has not always granted the relief Plaintiff requested and Plaintiff therefore disagrees with the Court. While the court is sensitive to the Plaintiff's dilemma in being a pro se litigant, the court cannot be unfair to the opposing counsel. The Plaintiff's difficulty in the cause stems from her difficulty in understanding and following the procedure and processes of the Court. The Court has attempted to ameliorate this shortcoming without success and can go no further in assisting the Plaintiff without being unfair to the Defendant.
The allegations set out in the motion for recusal have no basis in fact and cannot support a request for recusal.

         Plaintiff timely filed her petition for recusal appeal in this Court pursuant to Rule 10B, including only the Chancellor's March 27, 2017 order in the appendix to her petition. Because, as already noted, that order violated the requirements of section 1.03 of Rule 10B, the Court directed counsel for Defendant to file an Answer to the Petition pursuant to section 2.05 of Rule 10B. Having reviewed Plaintiff's petition and appendix record submitted with the petition, together with Defendant's Answer to the Petition, which included as an attachment the March 30, 2017 order, we ...

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