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In re Estate of Abbott

Court of Appeals of Tennessee, Jackson

October 27, 2017

IN RE: ESTATE OF JOE MARCE ABBOTT

          Assigned October 19, 2017

         Interlocutory Appeal from the Chancery Court for Gibson County No. 22375P George R. Ellis, Chancellor No. W2017-02086-COA-T10B-CV

         This is 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

          Harold Ross Gunn, Humboldt, Tennessee, for the appellant, Marce Harvey.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Richard H. Dinkins, and Thomas R. Frierson, II, J.J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE.

         Background

         Appellant 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."

         On 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.

         Appeals under Rule 10B

         Rule 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.[1] 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 likewise unnecessary.

         Analysis

         Appellant's petition for recusal appeal filed in this court ...


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