Davis v. Tennessee Department of Employment Security

OPINION ON PETITION FOR REHEARING

Harold Davis has filed a timely and courteous Tenn.R.App.P. 39 petition requesting this court to reconsider its opinion filed in this case on December 10,1999. The petition raises two issues. First, Mr. Davis questions the impartiality of a member of this court. Second, Mr. Davis asserts that the court should have reinstated his civil rights claim that had been dismissed by the trial court. We have determined that Mr. Davis has not presented grounds entitling him to further relief.

I.

This appeal involves procedural issues arising out of Mr. Davis’s efforts to remove from his personnel file a written reprimand for repeatedly filing grievances involving matters that were not grievable.1 After the Tennessee Civil Service Commission definitively informed him that he had not stated a grievable matter under the law as it existed at the time, Mr. Davis, contrary to well-established case law,2 filed suit in the Chancery Court for Davidson County seeking legally inconsistent remedies — -judicial review of the Civil Service Commission’s refusal to entertain his grievance and equitable relief and legal expenses for the alleged violation of his civil rights. The parties and the courts have consumed the past four years attempting to straighten out this procedural morass.

At the outset, the trial court requested Mr. Davis to elect which of the two inconsistent remedies he desired to pursue. When Mr. Davis refused to elect between the requested remedies, the trial court dismissed his civil rights claim without prejudice.3 Later, the trial court dismissed the remainder of Mr. Davis’s suit when it discovered that the petition for judicial review had not been filed within the time required by Tenn.Code Ann. § 4-5-322(b)(l). Mr. Davis appealed to this court, and on December 10,1999 we filed an opinion affirming the trial court.

II.

The Impartiality Claims

We first take up Mr. Davis’s challenge to Judge Koch’s participation in this case. After knowing for many months that Judge Koch was a member of the panel considering his appeal, Mr. Davis waited until the court had filed its December 10, 1999 decision to question Judge Koch’s impartiality based upon a long-since concluded, unrelated federal case. Using the objective tests applicable to issues of this sort, we have concluded (1) that Mr. Davis lost his opportunity to question Judge Koch’s impartiality by waiting until after the case had been decided to raise the issue and (2) that even had Mr. Davis properly raised this claim, no reasonable, disinterested person knowing all the relevant facts would question Judge Koch’s impartiality in this case.

A.

Mr. Davis has provided few facts to support his argument regarding Judge *312Koch’s impartiality.4 We gather from his petition that Mr. Davis now asserts that Judge Koch, who was Tennessee’s Commissioner of Personnel from 1979 to 1981,5 cannot impartially adjudicate the procedural issues on this appeal because he was one of several defendants in an action in federal court styled Minority Employees of the Tenn. Dep’t of Employment Sec., Inc. v. State of Tennessee, Dep’t of Employment Sec. which was filed in March 19816 and concluded in the defendants’ favor some time after April 1990.7

Minority Employees of the Tennessee Department of Employment Security, Inc. (“METDES”), according to its original complaint in federal court, had seventy-eight members who were employees of the Department of Employment Security.8 The federal lawsuit naming then Commissioner Koch as one of the defendants was filed in the name of the corporation and three of its individual members.9 Mr. Davis was not one of the individually named plaintiffs. The complaint sought monetary and injunctive relief on behalf of a class of employees of the Department of Employment Security. The United States District Court first declined to certify the action as a class action;10 then held that the corporation could not seek monetary damages in its representative capacity,11 and finally dismissed the action altogether for failure to establish a prima facie case of racial discrimination.12 The United States Court of Appeals for the Sixth Circuit, sitting en banc, ultimately dismissed the individual parties’ appeal on procedural grounds and affirmed the district court’s conclusion that METDES had failed to make out a prima facie case of disparate impact. See Minority Employees of the Tenn. Dep’t of Employment Sec., Inc. v. State of Tennessee, Dep’t of Employment Sec., 901 F.2d at 1334, 1337.

*313B.

The Timeliness of Mr. Davis’s Impartiality Complaint

We turn first to the question of the timeliness of Mr. Davis’s questions regarding Judge Koch’s impartiality. Parties may lose the right to question a judge’s impartiality if they attempt to manipulate the impartiality issue to gain procedural advantage. See Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App.1998). Accordingly, recusal motions must be filed promptly after the facts forming the basis for the motion become known, see United States v. Baker, 441 F.Supp. 612, 616 (M.D.Tenn.1977), and the failure to seek recusal in a timely manner results in a waiver of a party’s right to question a judge’s impartiality. See In re Cameron, 126 Tenn. 614, 663, 151 S.W. 64, 78 (1912); Radford Trust Co. v. East Tenn. Lumber Co., 92 Tenn. 126, 136-37, 21 S.W. 329, 331 (1893); Holmes v. Eason, 76 Tenn. 754, 761 (1882).

Mr. Davis and his lawyer have known since oral argument that Judge Koch is a member of the panel of judges deciding the present controversy. They must also have been aware of Judge Koch’s connection with the Minority Employees litigation. Unlike Mr. Davis, Judge Koch was a named party in that action. Accordingly, we can only conclude that Mr. Davis and his lawyer, knowing of Judge Koch’s connection with the Minority Employees litigation, purposely decided to use the impartiality issue as their “ace-in-the-hole” in the event that they lost the appeal on the merits.

Tenn.R.App.P. 36(a) provides that parties who are responsible for an error or who fail to take reasonably available steps to prevent an error, are not entitled to appellate relief based on the error. As other courts reviewing similar circumstances have held: “One cannot know of [allegedly] 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.” State v. Lotter, 255 Neb. 456, 586 N.W.2d 591, 610 (1998). Based on these authorities, Mr. Davis waived his opportunity to question Judge Koch’s impartiality by failing to raise the question as soon as practicable after discovering that Judge Koch had been assigned to the case.

C.

The Substance of Mr. Davis’s Impartiality Complaint

Even though we have concluded that Mr. Davis’s challenge to Judge Koch’s participation in this case comes too late, we choose to address his claim because of the importance of preserving the public’s confidence in judicial neutrality. All litigants have a right to have their cases heard by fair and impartial judges. See Kinard v. Kinard, 986 S.W.2d at 227-28. Based on the facts Mr. Davis has brought forward, he has had the benefit of the “cold neutrality of an impartial court.” Leighton v. Henderson, 220 Tenn. 91, 98, 414 S.W.2d 419, 421 (1967).

Parties who challenge a judge’s impartiality must come forward with some evidence that would prompt a reasonable, disinterested person to believe that the judge’s impartiality might reasonably be questioned. See Tenn.S.Ct.R. 10, Canon 3(E)(1); Chumbley v. People’s Bank & Trust Co., 165 Tenn. 655, 659, 57 S.W.2d 787, 788 (1933); Holley v. Holley, No. E1998-00438-COA-R3-CV, 1999 WL 1131322, at *4 (Tenn. Ct. App. Dec.10, 1999) perm, to appeal denied, (Tenn. July 24, 2000). Impartiality concerns involve a judge’s personal bias or prejudice against a litigant, not a judge’s general opinion about the legal or social issues involved in a pending case. See Caudill v. Foley, No. M1999-02006-COA-R3-CV, 1999 WL 976597, at *10 (Tenn. Ct. App. Oct. 28, 1999), perm, to appeal denied, (April 17, *3142000) (quoting Jeffrey M. Shaman et al. Judicial Conduct and Ethics § 4.04, at 101-02 (2d ed.1995)).

The appellate record in this case, together with the opinions in the Minority Employees litigation in federal court, support the following conclusions: (1) the judicial review of this case commenced sixteen years after Judge Koch served as Commissioner of Personnel and seven years after the Minority Employees litigation was concluded in the defendants’ favor; (2) pri- or to Mr. Davis’s petition for rehearing, the appellate record did not indicate that Mr. Davis was a member of METDES or that he played any cognizable role in the Minority Employees litigation;13 (3) the record does not show that Judge Koch had any personal knowledge of Mr. Davis or of Mr. Davis’s connection with METDES or the Minority Employees litigation; and (4) Mr. Davis’s membership in METDES is irrelevant to any of the issues raised on this appeal.

In addition to these facts, the most significant gap in Mr. Davis’s argument is that he has failed to demonstrate any substantive connection between the legal or factual issues involved in the Minority Employees litigation and the issues in this case. This lack of proof is not coincidental. The facts giving rise to this case — the Department of Employment Security’s decision to issue a written reprimand for repeatedly attempting to grieve matters that were not grievable at the time — did not occur until five years after the Minority Employees litigation had been concluded. Accordingly, the facts involved in this case were not, and could not have been, part of the Minority Employees litigation. In addition, grounds upon which the trial court dismissed Mr. Davis’s claims in this case were not at issue in the Minority Employees litigation.

Mr. Davis has failed to present any evidence that Judge Koch is or was biased or prejudiced against him personally or against METDES. Based on the undisputed facts in this record, we conclude that reasonable, disinterested persons would conclude that Judge Koch’s involvement in the Minority Employees litigation in federal court does not provide grounds to question his impartiality in this case. Accordingly, the portion of Mr. Davis’s petition for rehearing that questions Judge Koch’s impartiality is without merit.

III.

The Reinstatement of Mr. Davis’s Civil Rights Claim

Mr. Davis’s second argument is that this court should have held that the trial court erred by failing to reinstate his civil rights claim after it dismissed his petition for judicial review. In our December 10, 1999 opinion, we declined to hold the trial court in error based on our conclusion that Mr. Davis had not properly requested this relief in the trial court or on appeal. Mr. Davis now questions this conclusion by pointing out that he requested the reinstatement of this civil rights claim as an “alternative” remedy both in the trial court and on appeal.

A.

Mr. Davis filed only one post-judgment motion after the trial court dismissed his petition for judicial review of the Civil Service Commission’s refusal to consider his grievance. This motion did not request reinstatement of Mr. Davis’s civil rights claim. Rather, it requested the trial court (1) to make additional findings of fact and conclusions of law, (2) to amend the final order by including a provision remanding the case to the Civil Service Commission for entry of a proper order, and (3) to address the merits of his claim that Civil Service Commission’s decision was not supported by substantial and material evidence. It was only in a “reply” to the Civil Service Commission’s opposition to his post-judgment motion that Mr. Davis, seemingly as an after-thought, asked for *315the reinstatement of his civil rights action as an alternative to the remedies sought in his post-judgment motion. The record does not indicate whether the trial court actually considered this alternative prayer for relief.

Mr. Davis then raised four issues on his appeal to this court. These issues involved (1) the trial court’s interpretation of Tenn. Code Ann. § 4-5-318(f)(3), (2) the trial court’s reliance on Goodwin v. Metropolitan Bd. of Health as precedent for dismissing his civil rights claim, (3) the trial court’s refusal to remand the case to the Civil Service Commission for a hearing on his grievance, and (4) the evidentiary foundation for the Civil Service Commission’s action. The principal relief Mr. Davis requested on appeal was a reversal of the trial court’s dismissal of his petition for review and an order directing the Civil Service Commission to conduct a hearing on his grievance. As an alternative, Mr. Davis suggested that the case could be remanded for a trial on his civil rights claim.

B.

Our original decision that the trial court did not err by failing to reinstate Mr. Davis’s civil rights claim rested on our conclusion that the manner in which Mr. Davis requested this relief did not comply with Tenn.R.Civ.P. 7.02(1). This rule requires that motions “state with particularity the grounds therefor” and “set forth the relief or order sought.” Mr. Davis’s post-judgment motion does not request reinstatement of his civil rights claim.

Post-judgment motions must specify the relief sought and must also set forth the grounds warranting that relief. See Droen v. Wechsler, 271 Ill.App.3d 332, 208 Ill.Dec. 59, 648 N.E.2d 981, 983 (1995). They are construed like pleadings, see Evers v. Holtman, 196 Tenn. 364, 368, 268 S.W.2d 97, 99 (1954), and accordingly, they should contain a demand for the specific relief sought, including any requests for relief in the alternative. See Tenn.R.Civ.P. 7.02(1) and 8.01. While these rules do not require any particular form for motions, Tenn. R.Civ.P. 7.02(l)’s particularity requirement obliges parties to inform the court what relief they want and to give the court enough information to process the motion correctly. See Registration Control Sys., Inc. v. Compusystems, Inc., 922 F.2d 805, 807 (Fed.Cir.1990).

The rules governing appeals contain similar particularity requirements. Tenn. R.App.P. 27(a)(4) requires the appellant’s brief to include a statement of issues presented for review, and Tenn.R.App.P. 13(b) states that appellate review, as a general matter, will extend only to the issues presented for review. Thus, the appellate courts have held consistently that issues not included in the appellant’s brief will not be considered on appeal. See Fite v. State, 925 S.W.2d 543, 545 (Tenn. Ct. App.1996).

Mr. Davis did not request the reinstatement of his civil rights claim in his post-judgment motion and did not amend this motion to add this prayer for relief. Rather, he alluded to reinstatement of his civil rights claim as an alternative remedy in his reply to the Civil Service Commission’s opposition to his post-judgment motion. Mr. Davis’s handling of the reinstatement issue on appeal is similar. He never took direct issue with the trial court’s failure to reinstate his civil rights claim. Rather, he argued, in the alternative, we should reinstate his civil rights claim if we were not going to order the trial court to remand the case to the Civil Service Commission. Only by the most liberal, elastic construction of the rules can we conclude that Mr. Davis appropriately sought the reinstatement of his civil rights claim both in the trial court and on appeal.

C.

In our December 10, 1999 opinion, we declined to consider Mr. Davis’s request for the reinstatement of his civil rights claim because he had not requested this relief at trial or on appeal in the manner envisioned by the procedural rules. For the purpose of this petition for rehearing, we will give Mr. Davis the bene*316fit of the most liberal construction of Tenn. R.Civ.P. 7.02(1) and Tenn.R.App.P. 13(b) and 27(a)(4), and we will presume that he has properly raised the issue. This brings us squarely back to the question whether the trial court should have reinstated Mr. Davis’s civil rights claim after it dismissed his petition for judicial review.

We stated in our December 10, 1999 opinion that had Mr. Davis properly raised the issue, we would have held that the trial court erred by denying his request to reinstate his civil rights claim. Upon reconsideration, we have determined that our original conclusion is incorrect and that the trial court did not err by declining to reinstate Mr. Davis’s civil rights claim after it dismissed his petition for judicial review. A contrary holding would only encourage litigants like Mr. Davis to continue to pursue inconsistent remedies in the same case in contravention of State ex rel. Byram v. City of Brentwood, 838 S.W.2d 500 (Tenn. Ct. App.1991) and Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383 (Tenn. Ct. App.1983).

We see no basis for departing from settled case law simply because the trial court was forced to dismiss one of Mr. Davis’s inconsistent remedies when he refused to elect a remedy or because the surviving remedy proved to be procedurally defective. The principle vindicated in this case is that parties in circumstances like Mr. Davis’s must pursue their claims for judicial review of administrative decisions and their claims for original relief in separate proceedings. Doing so will avoid the procedural morass from which the parties and the courts in this case have been trying to extricate themselves ever since 1996.

Our review of the record leads us again to the inescapable conclusion that Mr. Davis is the author of his own misfortune. His persistent pursuit of inconsistent remedies in the same action has frustrated and delayed judicial consideration of his claim that the Department of Employment Security violated his civil rights by issuing a written reprimand for attempting to grieve matters that were not grievable at the time. Nothing in either our December 10, 1999 opinion or in this opinion prevents Mr. Davis from pursuing his claim in a appropriate forum if he so chooses. However, neither of our decisions should be construed to reflect an opinion concerning the merits of Mr. Davis’s civil rights claim or its likelihood of success.

IV.

Mr. Davis’s petition for reconsideration of our December 10,1999 opinion is denied for the reasons stated herein. The costs associated with the petition for rehearing are taxed to Harold Davis and his surety for which execution, if necessary, may issue.

/&/ Samuel L. Lewis Samuel L. Lewis, Judge

/s/ Ben H. Cantrell Ben H. Cantrell, Judge

/s/ William C. Koch, Jr. William C. Koch, Jr., Judge

. We have not been asked on this appeal to address the merits of any of Mr. Davis’s grievances.

. See State ex rel. Byram v. City of Brentwood, 833 S.W.2d 500, 502 (Tenn. Ct. App.1991); Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 386-87 (Tenn. Ct. App.1983).

.Unfortunately, Mr. Davis’s decision to engage in this procedural wrangling has prevented the prompt resolution of his civil rights claim. He could have refiled the claim in a separate proceeding any time after May 10, 1996, the date on which it was dismissed without prejudice. Instead, he chose to appeal the trial court’s decision to dismiss the claim in this case.

. These assertions, quoted in their entirety, are:

Judge William Koch, in his former capacity as Commissioner of [t]he Tennessee Department of Personnel, was named as a defendant in the case of Minority Employees of the Tennessee Department of Employment Security, Inc., et at. v. State of Tennessee Department of Employment Security et al., in the U.S. District Court for the Middle District of Tennessee (Nashville Division, no. 81-3114). Mr. Davis was one of the participants in this federal lawsuit through his involvement and participation with Minority Employees of the Tennessee Department of Employment Security, Inc. Further said federal lawsuit raised allegations of racial discrimination in the Department of Employment Security (relating to attempts to change the personnel system maintained by the Department of Personnel and used by the Department of Employment Security) just as allegations of racial discrimination in the same department are being raised in this case.

. See Riley C. Darnell, Tennessee Blue Book 1999-2000, at p. 269.

. See Minority Employees of the Tenn. Dep’t of Employment Sec., Inc. v. State of Tennessee, Dep’t of Employment Sec., No. 88-5429, 1989 WL 74523, at *1 (6th Cir. July 10, 1989) (unpublished table decision).

. See Minority Employees of the Tenn. Dep't of Employment Sec., Inc. v. State of Tennessee, Dep’t of Employment Sec., 901 F.2d 1327 (6th Cir.1990) (en banc).

. See Minority Employees of the Tenn. Dep’t of Employment Sec., Inc. v. State of Tennessee, Dep’t of Employment Sec., 573 F.Supp. 1346, 1348 (M.D.Tenn.1983).

. The individual plaintiffs included Rosetta N. Davis, Alma C. Oliver, and Hazel Perry. See Minority Employees of the Tenn. Dep’t of Employment Sec., Inc. v. State of Tennessee, Dep't of Employment Sec., 901 F.2d 1327 (6th Cir.1990).

. See Minority Employees of the Tenn. Dep’t of Employment Sec., Inc. v. State of Tennessee, Dep’t of Employment Sec., 573 F.Supp. at 1348.

. See Minority Employees of the Tenn. Dep’t of Employment Sec., Inc. v. State of Tennessee, Dep’t of Employment Sec., 573 F.Supp. at 1349-50.

. See Minority Employees of the Tenn. Dep’t of Employment Sec., Inc. v. State of Tennessee, Dep't of Employment Sec., No. 88-5429, 1989 WL 74523, at *1.

. Mr. Davis apparently concedes that his only connection with the Minority Employees litigation was through his “involvement and participation with Minority Employees of the Tennessee Department of Employment Security, Inc.”