Friday, December 22, 2017
The Tennessee Court of Appeals affirmed the denial of a motion to recuse.
The underlying dispute arises from an Agreement for Future Transfer of Controlling Interest of Hill Boren, PC, a law firm in Jackson, Tennessee. The plaintiffs are attorneys Ricky L. Boren and Jeffrey P. Boyd. The defendants are attorney T. Robert Hill and Hill Boren, PC, (“Petitioners”).
At the inception of this case, the Chancellor for Madison County, Tennessee, James F. Butler, voluntarily recused himself due to his familiarity with the parties. Senior Judge Robert E. Lee Davies of Williamson County, Tennessee was assigned to the case and has presided over this matter ever since. This appeal arises from Judge Davies’ decision to deny Petitioners’ motion to recuse.
Although a number of issues were raised, the court considered only recusal
Petitioners’ contention is that Chancellor Butler said something to Judge Davies while they had lunch on December 20, 2016, to prejudice him against Petitioners. The record, however, contains no facts to support a finding that Chancellor Butler and Judge Davies discussed this case, the parties, or the attorneys. Stated another way, the accusation that Chancellor Butler said something to Judge Davies that caused Judge Davies to become prejudiced against Petitioners or their lawyers is solely based on a supposition, not a fact, and Rule 10B requires parties to present specific facts that support their motion for recusal.
The record reveals that Chancellor Butler is a former partner at Spraggins, Barnett and Cobb, PLC, the firm representing Plaintiffs Boren and Boyd, and that Chancellor Butler’s brother is a partner in that firm. While this fact reveals why Chancellor Butler recused himself from this case, it fails to show that Chancellor Butler would attempt to prejudice Judge Davies against Petitioners. Not only is there no evidence in this record to support the accusations by Petitioners, Judge Davies states unequivocally in his order denying the motion for recusal that
[t]he Court did go to lunch with Chancellor Butler after the hearing on December 20, 2016; however, Chancellor Butler never discussed the proceedings in this case or in any way insinuated to the Court how the Court should rule. Chancellor Butler was nothing more than a gracious host to an out of town judge.
Judge Davies also correctly states in his order that “[t]he code of judicial conduct does not require judges to remain isolated from other members of the bar and from the
community.” See State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008).
We also find it significant that Judge Davies also disclosed in open court, at the commencement of his involvement in this case, that he had a telephone conversation with Chancellor Butler that merely pertained to a scheduling issue, which is permitted.
The timing was also suspect
Having addressed the merits of the accusation, we also note that Petitioners waited ten months after learning of the luncheon to claim that an inappropriate ex parte communication took place. A motion for recusal should be filed when the facts forming the basis of that motion become known. Davis v. Tenn. Dept. of Employment Security, 23 S.W.3d 304, 313 (Tenn. Ct. App. 1999). The failure to seek recusal in a timely manner may result in the waiver of any complaint concerning the judge’s impartiality. Id. Stated another way, “[o]ne cannot know of improper judicial conduct, gamble on a favorable result by remaining silent as to that conduct, and then complain that he or she guessed wrong and does not like the outcome.” Id. (quoting State v. Lotter, 586 N.W.2d 591, 610 (Neb. 1998)).
Instead of promptly seeking recusal, Petitioners waited until an adverse ruling on civil contempt was handed down, almost ten months after the luncheon at issue, to brandish the ex parte communication sword. Accordingly, we hold that Petitioners’ failure to seek recusal in a timely manner constitutes a waiver of this issue. See id.
For the foregoing reasons, we find no merit to the contention that an inappropriate ex parte communication transpired between Chancellor Butler and Judge Davies.
As to alleged bias
Earlier in this opinion we ruled that there was no evidence of an improper ex parte communication. Therefore, the alleged bias against Petitioners must stem from events occurring in the course of the litigation of the case and “[i]f the bias is alleged to stem from events occur[r]ing in the course of the litigation of the case, the party seeking recusal has a greater burden to show bias that would require recusal, i.e., that the bias is so pervasive that it is sufficient to deny the litigant a fair trial.” Runyon, 2014 WL 1285729, at *6.