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Boren v. Boren

Court of Appeals of Tennessee, Jackson

January 10, 2020


          Assigned on Briefs December 4, 2019

          Circuit Court for Madison County No. C-17-321

         Third-party defendants in a lawsuit moved to disqualify the trial judge, asserting that the judge is a material witness in the case and demonstrated bias and prejudice against one of the parties in another case; the trial court denied the motion and the parties filed an expedited interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B. Upon a thorough review of the petition for recusal appeal and supporting materials, we affirm the decision of the trial court denying the motion for recusal and remand for further proceedings.

         Tenn. S.Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded

          Tamara L. Hill, Jackson, Tennessee, Pro Se Appellant, and as attorney for Appellant, T and T Home Rentals, LLC.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Arnold B. Goldin, J., joined.



         I. Facts and Procedural History[1]

         In this Petition for Recusal Appeal, brought pursuant to Rule 10B of the Rules of the Tennessee Supreme Court, Appellants, Attorney Tamara Hill and her client, T and T Home Rentals, L.L.C. ("T and T"), appeal the order denying their motion to disqualify Senior Judge Robert E. Lee Davies from hearing the case. The underlying suit (referred to herein as "the Circuit Court suit") was filed by T. Robert Hill and Hill Boren Properties, against Ricky Lee Boren, the former co-owner of Hill Boren Properties and law partner of Mr. Hill in the firm known as Hill Boren, P.C. In due course Mr. Boren was granted leave to file a third-party complaint against Tamara Hill, who is Mr. Hill's wife, and T and T, and they were added to the suit as third-party defendants.[2]

         Appellants moved to disqualify Judge Davies on two grounds: first, that he was a material witness in the Circuit Court suit and, second, that he made certain statements and rulings in a Chancery Court suit in which Ms. Hill represented the defendants that demonstrated bias, prejudice and disrespect toward her.[3] To support the contention that Judge Davies is a material witness in the instant suit, Appellants relied on the occasion at the conclusion of the Chancery Court suit when, at the invitation of Mr. Hill, Judge Davies, along with the plaintiff's counsel and Mr. Hill and his then-counsel, toured the premises in which Hill Boren, P.C., was located; they asserted that this visit made Judge Davies a material witness because the condition of the property is at issue. As the factual basis for the allegation of bias and prejudice, Ms. Hill asserted that Judge Davies "made inappropriate and disparaging comments about and to her during the course of the Chancery Court case" and engaged in conduct that would "give the appearance of impropriety."[4]

         The court entered an order on November 14, 2019, in compliance with Tennessee Supreme Court Rule 10B, section 1.03, denying the motion and stating the grounds therefor; Appellants filed an accelerated interlocutory appeal on December 4, 2019, and raise the following issues:

1.Did the trial court err in denying the motion for disqualification/recusal in this case?
2.Should the issue of recusal be decided by an impartial judge?

         II. Standard of Review

         We review the denial of a motion for recusal under a de novo standard of review. Tenn. Sup. Ct. R. 10B section 2.01. The only issue we may consider in a Rule 10B appeal is whether the trial judge should have granted the motion for recusal. Elseroad v. Cook, 553 S.W.3d 460, 462 (Tenn. Ct. App. 2018); Boren v. Hill Boren, PC, 557 S.W.3d 542, 546 (Tenn. Ct. App. 2017).

         III. Analysis

         In an expedited interlocutory appeal pursuant to Rule 10B, the only record the appellate court generally has is the record provided by the appellant with the Petition for Appeal. Trigg v. Trigg, No. E2016-00695-COA-T10B-CV, 2016 WL 1730211, at *2 (Tenn. Ct. App. Apr. 27, 2016). Rule 10B requires the appellant's petition to "be accompanied by a copy of the motion and all supporting documents filed in the trial court, a copy of the trial court's order or opinion on the motion, and a copy of any other parts of the trial court record necessary for a determination of the appeal." Tenn. Sup. Ct. R. 10B, section 2.03. After this court received Appellants' petition, we entered an order on December 13, 2019, instructing them to supplement the petition with a complete copy of the order denying the Motion to Disqualify, specifically including the exhibits referenced therein. Appellants filed a Supplement to Petition for Recusal Appeal by Third Party Defendants on December 18, which did not comply with the order. This court entered another order again requesting a complete copy of the order being appealed, and a ...

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