Sunday, August 7, 2022

No Ace In The Hole

The Tennessee  Court of Appels affirmed the denial of a recusal motion in a contentious domestic relations matter

The incident giving rise to the recusal motion was an alleged conversation between Petitioner and Ms. Morgan, Mr. Baker’s counsel, that occurred on May 30, 2021; however, Petitioner took no action until her motion for recusal was filed on June 8, 2022. In her affidavit filed in support of the motion for recusal, Petitioner alleged that Ms. Morgan told
her that she had influence over the judge, that she had “pull” with the judge. In the affidavit Ms. Morgan filed in response to the allegations, she denied making any such statements to Petitioner or anyone else. Further, at the hearing on the motion for recusal, Judge Benningfield categorized Petitioner’s allegations as “outlandish.” He also stated, “Ms. Morgan has appealed any number of my cases over the years, so if we were in cahoots, that wouldn’t have been necessary.”

The salient fact before this court is that Petitioner failed to file her motion for recusal for more than one year after she learned of the facts forming the basis for the motion. Whether she did so to await a favorable decision from the trial court or to preserve the event as an “ace in the hole” is insignificant. See Gotwald, 768 S.W.2d at 694. What is significant is that the failure to assert those facts in a timely manner “results in a waiver of a party’s right to question a judge’s impartiality.” Kinard, 986 S.W.2d at 228. Based on the foregoing, we hold that Petitioner has waived the issue of bias.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/08/no-ace-in-the-hole.html

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