10/27/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned October 19, 2017
IN RE: ESTATE OF JOE MARCE ABBOTT
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
BRANDON O. GIBSON, J., delivered the opinion of the court, in which RICHARD H.
DINKINS, and THOMAS R. FRIERSON, II, J.J., joined.
Harold Ross Gunn, Humboldt, Tennessee, for the appellant, Marce Harvey.
OPINION
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therefore ordered that “the probate must be rescinded,” and that the “heirs must proceed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 states the issue as
1
Section 2.01 provides:
If the trial court judge enters an order denying a motion for the judge’s disqualification or
recusal, or for determination of constitutional or statutory incompetence, the trial court’s
ruling either can be appealed in an accelerated interlocutory appeal as of right, as
provided in this section 2, or the ruling can be raised as an issue in an appeal as of right,
see Tenn. R. App. P. 3, following the entry of the trial court’s judgment. These two
alternative methods of appeal—the accelerated interlocutory appeal or an appeal as of
right following entry of the trial court’s judgment—shall be the exclusive methods for
seeking appellate review of any issue concerning the trial court’s denial of a motion filed
pursuant to this rule.
Tenn. Sup. Ct. R. 10B, § 2.01
2
follows:
Can a Probate Judge order [a]n estate bond by the Executrix, when
the Will states to serve without bond and the statute Tennessee Code
Annotated [s]ection 30-1-201 states no bond if Will excuses?
However, in a Rule 10B appeal, the only appropriate issue before this Court is
whether the trial judge was required to recuse himself. See McKenzie v. McKenzie, No.
M2014-00010-COA-T10B-CV, 2014 WL 575908, at *1 (Tenn. Ct. App. Feb. 11, 2014)
(no perm. app. filed). In accordance with Rule 10B, we review the trial court’s recusal
decision “upon a de novo standard of review.” Tenn. Sup. Ct. R. 10B, § 2.07. The party
seeking recusal bears the burden of proof, and “any alleged bias must arise from
extrajudicial sources and not from events or observations during litigation of a case.”
McKenzie, 2014 WL 575908, at *3.
Appellant’s stated issue reveals that Appellant is dissatisfied with the legal ruling
of the trial court. In this appeal, we are not authorized to examine the validity of the trial
court’s underlying legal ruling. Rather, we are only concerned with whether the trial
court should have recused himself from the case. Appellant provides no “factual [or]
legal grounds supporting disqualification of the judge” other than an adverse legal ruling.
Tenn. Sup. Ct. R. 10B, § 1.01. Consistent adverse rulings may lead a party to wish for
another trial judge, but they do not provide a basis for requiring the trial judge’s recusal
from the case. Runyon v. Runyon, No. W2013-02651-COA-T10B, 2014 WL 1285729, at
*10 (Tenn. Ct. App. Mar. 31, 2014). Adverse rulings usually are not sufficient to
establish bias. Duke v. Duke , 398 S.W.3d 665, 671 (Tenn. Ct. App. 2012) (citing State v.
Cannon, 254 S.W.3d 287, 308 (Tenn. 2008)). “‘Rulings of a trial judge, even if
erroneous, numerous and continuous, do not, without more, justify disqualification.’” Id.
(citing Alley v. State of Tennessee, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994)).
While the trial court’s disqualification was unnecessary, we cannot agree that the
motion to disqualify was moot. Tennessee Supreme Court Rule 10B, Section 1.02
provides that while the motion to disqualify “is pending, the judge whose disqualification
is sought shall make no further orders and take no further action on the case, except for
good cause stated in the order in which such action is taken.” The record in this case
indicates that the motion to disqualify was originally the sole purpose of the October
2017 hearing. However, disqualification and the validity of the will were quickly
conflated both by Appellant’s counsel and the trial court. However, Rule 10B, Section
1.02 requires the trial court to first analyze the motion to disqualify before proceeding to
any substantive issues in the case. See In re Conservatorship of Tate, No. M2012-01918-
COA-10B-CV, 2012 WL 4086159 at *3 (Tenn. Ct. App. Feb. 17, 2012). Here, the trial
court seemingly determined that the will at issue was ineffective, thereby obviating the
3
probate and making the motion to recuse moot. Instead, Section 1.02 required the trial
court to analyze the motion to disqualify, which in this case would have required a denial
of that motion, before determining whether the will was effective. See Rodgers v. Sallee,
No. E2013-02067-COA-R3-CV, 2015 WL 636740 (Tenn. Ct. App. Feb. 13, 2015). As
such, we modify 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.
Conclusion
The trial court judge in this case was not required to recuse himself based on the
evidence presented to the trial court or to this Court. Therefore, we affirm, as modified,
the trial court’s decision and vacate the trial court’s order regarding the validity of the
will. This cause is remanded for further proceedings consistent with this Opinion. Costs
on appeal are to be taxed to Appellant, Marce Harvey, and her surety, for which
execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
4