Assigned October 19, 2017
Appeal from the Chancery Court for Gibson County No. 22375P
George R. Ellis, Chancellor No. W2017-02086-COA-T10B-CV
a Rule 10B appeal of the denial of a petition for recusal.
The trial court denied Appellant's motion to recuse, and
Appellant filed this accelerated interlocutory appeal
pursuant to Rule 10B of the Rules of the Tennessee Supreme
Court. We affirm in part, modifying the trial court's
order to deny the motion to recuse and vacate its order
regarding the validity of the will. We remand for further
hearing regarding the validity of the will at issue.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right;
Judgment of the Chancery Court Affirmed in part as Modified,
Vacated in part, and Remanded
Ross Gunn, Humboldt, Tennessee, for the appellant, Marce
Brandon O. Gibson, J., delivered the opinion of the court, in
which Richard H. Dinkins, and Thomas R. Frierson, II, J.J.,
BRANDON O. GIBSON, JUDGE.
Marce Harvey is the Executrix of the Will of her father, Joe
Marce Abbott, deceased. After her father's death,
Appellant successfully negotiated a financial settlement that
resulted in monies being paid to her father's estate. The
settlement check was payable to the Appellant but addressed
to the probate court. At a hearing on July 7, 2017, the
probate court determined that Appellant would need to post a
bond, despite the will purporting to relieve her of that
requirement. On July 21, 2017, Appellant filed a motion to
disqualify the probate court judge under Supreme Court Rule
10B. The motion to disqualify argued that "TCA 30-1-201
states that no bond is required if the decedent by will
excuses the personal representative from making bond."
The very next sentence of the motion to disqualify states
"[w]herefore, the Probate Judge should be disqualified
from this cause."
October 4, 2017, the trial court conducted a hearing and
entered an order finding the motion to disqualify moot. The
transcript of the hearing on the motion to recuse indicates
that the trial court determined that the motion to disqualify
was moot because the will at issue in the case was not
properly witnessed, and the trial court therefore ordered
that "the probate must be rescinded, " and that the
"heirs must proceed in this matter as an intestate
estate, which requires a bond." Appellant timely filed
an accelerated interlocutory appeal pursuant to Supreme Court
Rule 10B, Section 2.
under Rule 10B
10B of the Tennessee Supreme Court Rules authorizes an
aggrieved party to file "an accelerated interlocutory
appeal as of right" from an order denying a motion to
recuse or to disqualify the trial court judge. Tenn. Sup. Ct. R.
10B, § 2.01. The appeal is effected by filing a
"petition for recusal appeal" with the appropriate
appellate court. Id. at § 2.02. Under Rule 10B,
the appellant must file, along with the petition, "a
copy of the trial court's order or opinion ruling on the
motion, and a copy of any other parts of the trial court
record necessary for determination of the appeal."
Id. at § 2.03. The appellate court may order
the other parties to answer the appellant's petition and
file any necessary documents, but it is also authorized to
adjudicate the appeal summarily, without an answer from other
parties. Id. at § 2.05. Having reviewed
Appellant's petition and supporting documents, we have
determined that additional briefing is unnecessary, and we
have elected to act summarily on the appeal in accordance
with Tenn. Sup. Ct. R. 10B, § 2.05. Oral argument is
petition for recusal appeal filed in this court ...