Ben C. Adams v. Buchanan D. Dunavant v. Watson Burns PLLCBen C. Adams v. Buchanan D. Dunavant v. Watson Burns PLLC
Before his election to the bench, the probate judge in this interpleader action served as an expert witness in a 2017 case involving one of the defendants, Watson Burns, PLLC. In the current case, Watson Burns, PLLC and another law firm defendant moved for the probate judge‘s recusal based on the expert opinions the judge expressed in the 2017 case. The probate judge deniеd the motion, and the law firms filed an accelerated interlocutory appeal as of right to the Court of Appeals pursuant to
Tenn. Sup. Ct. R. 10B Accelerated Appeal by Permission; Judgment of the Court of Appeals Reversed; Judgment of the Probate Court Reinstated.
PER CURIAM.
Jeremy G. Alpert and George Joseph Nassar, Jr., Memphis, Tennessee, for the appellants, Lillian Dunavant and Mary Douglas Dunavant.
Lynn Wilhelm Thompson, Memphis, Tennessee, for the appellee Ben C. Adams.
John S. Golwen, Memphis, Tennessee, for appellee Bass, Berry & Sims PLC.
Patrick Glenn Walker, Memphis, Tennessee, for appellees Buchanan D. Dunavant and Harris Shelton Hanover Walsh, PLLC.
William F. Burns, William Edward Routt, III, and Frank Lee Watson, III, Memphis, Tennessee, for appellee Watson Burns, PLLC.
OPINION
I. BACKGROUND
Buchanan D. Dunavant is a beneficiary of two trusts established by his father and is due certain distributions from those
The trust distributions due Mr. Dunavant are not sufficient to satisfy the claims of the Law Firms and of the Dunavant children; therefore, the attorney trustee3 for the trusts filed an interpleader action in probate court on November 29, 2022, seeking to deposit the funds with the Shelby County Probate Court. The trustee also requested an award of attorneys’ fees and costs and an order discharging him from liability and dismissing him from the cаse.
On December 6, 2022, the Law Firms moved for disqualification and recusal of the probate judge. The Law Firms asserted that in 2017, before taking the bench, the probate judge served as an expert witness for a petitioner in another trust dispute in which one of the Law Firms, Watson Burns, PLLC (“Watson Burns“), represented the respondent. The trial court in the earlier case granted the respondent‘s motion to dismiss, ruled the petitioner‘s challenge was frivolous, and awarded sanctions and attorneys’ fees to the respоndent. When Watson Burns (and another law firm not involved in this action) filed their fee applications, the petitioner opposed the fee application and hired the probate judge, who was a private attorney at that time, to review it.
The Law Firms point out that, in his 2017 expert affidavit, the probate judge opined that the attorneys’ fee request of $1,933,767.95 was “outrageous and clearly excessive” under
The Law Firms asserted that the opinions the probate judge expressed in the 2017 affidavit created an actual and apparent bias against Watson Burns, which detrimentally impacted the interests of Bass, Berry & Sims PLC in the interpleader action.
On December 7, 2022, the day after the Law Firms moved for disqualification, the probate judge, unaware of their motion, granted the trustee‘s request to interplead the funds, awardеd the trustee his attorneys’ fees and court costs, and dismissed him from the case.
The Law Firms raised the probate judge‘s failure to address their recusal motion in the interpleader action in an interlocutory recusal appeal as of right to the Court of Appeals. See Adams v. Dunavant, No. W2022-01747-COA-T10B-CV, 2023 WL 1769356, at *2 (Tenn. Ct. App. Feb. 3, 2023) [hereinafter Adams I]. The Court of Appeals in Adams I vacated the probate judge‘s order on the interpleader petition and remanded with instructions for the probate judge to decide the recusal motion promptly and, if the judge denied thе motion, to “state in writing the grounds upon which he denied the motion.” Id. at *4; see
Following the remand, on February 8, 2023, the probate judge denied the Law Firms’ December 6, 2022, recusal motion.4 The probate judge first explained the various reasons and processes that culminated in his being unaware of the pendency of the recusal motion. He then turned to evaluating the merits of the recusal motion, reasoning as follows:
The 10B motion makes specific factual and legal arguments regarding [the probate judge‘s] deсisions in the four related Shelby County Probate Cases. These factual and legal arguments are moot based upon [Adams I] that denied the motions to recuse in the four related Shelby County Probate Cases. Even if the decisions in the four related cases were not moot, case law makes it clear that the mere fact that a judge has ruled
adversely to a party is not grounds for recusal. Berg v. Berg, [No. M2018-01163-COA-T10B-CV,] 2018 WL 3612845[,] at *5 (Tenn. Ct. App. [July 27,] 2018) (quoting McKenzie v. McKenzie, [No. M2015-00010-COA-T10B-CV,] 2014 WL 575908[,] at *4 (Tenn. Ct. App. [Feb. 11,] 2014)). []In fact, [“r]ulings of a trial judge, even if erroneous, numerous and continuous, do not, without more, justify disqualification.[“] Id. (quoting[] McKenzie, 2014 WL 575908, at *4). Consistent adverse rulings mаy 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). “If the rule were otherwise, recusal would be required as a matter of course since trial courts
necessarily rule against parties and witnesses in every case, and litigants could manipulate the impartiality issue for strategic advantage, which the courts frown upon.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001).
The only other specific fact alleged in the 10B motion for recusal concerns a 2017 opinion in an affidavit by [the probate judge,] then [a] private attorney[,] involving Watson Burns and other attorneys regarding the reasonableness of fees as a basis for sanctions against a trust beneficiary in the amount of approximately 1.9 million dollars. The amount appeared to exceed the amount of fees related to [an] action for which the trust beneficiary was being sanctioned. The issue regarding the sanctions was resolved by the trial court, the appellate сourts, and the parties years ago. [When the probate judge was an attorney, he] did not represent a party in that action. These facts do not appear to be a basis for recusal. A judge‘s prior participation in other litigation as a private attorney adverse to a party in current litigation does not necessitate disqualification from presiding over different litigation involving one of the same parties. See[] Balmoral Shopping [Ctr.], LLC v. City of Memphis, et al., [No. W2022-01488-COA-T10B-CV,] 2022 WL 17075631[, at *3] (Tenn. Ct. App. [Nov. 18,] 2022).
On February 13, 2023, the probate judge again granted interpleader and ordered the trustee to deposit the funds due Mr. Dunavant with the Shelby County Probate Court Clerk.5 The probate judge directed the Clerk to pay the Dunavant children from the funds the trustee deposited according to the previously approved settlement agreements. He also ordered the Clerk to pause distribution of any funds remaining after the settlements were satisfied, pending further orders of the probate judge.
The probate judge made additional findings as well, including that the Law Firms forfeited their attorney charging lien against Mr. Dunavant. Despite this finding, the probate judge assumed jurisdiction over a petition for the Law Firms’ attorneys’ fees for services rendered to Mr. Dunavant in the circuit court proceeding, and declared:
The Firms shall file a Petition for Attorney Fees within Thirty (30) days of the Trustee‘s notice to the Court and the parties that the funds have been deposited with the Shelby County Probate Court Clerk. If the Firms do not file a Petition for Attorney Fees within the Thirty (30) day period, the Court will issue an order directing the Shelby
County Probate Clerk to disperse the balance of funds to Buchanan D. Dunavant.
The Law Firms then filed a second accelerated interlocutory appeal as of right in the Court of Appeals pursuant to
As the probate judge correctly noted, a judge is generally not required to recuse simply because he advocаted against one of the parties while in private practice. Balmoral Shopping Ctr., LLC [], 2022 WL 17075631, at *3 [] (holding recusal unnecessary even though the judge, before taking the bench, served as opposing counsel against one of the parties); see also Hon. Virginia A. Phillips & Hon. Karen L. Stevenson, Rutter Group Practice Guide: Federal Civil Procedure Before Trial-National Edition, Ch. 16-D, (The Rutter Group 2022) (recognizing “[a] judge‘s prior career is generally not ground for disqualification in cases in which the judge has no knowledge of the facts оr interest“). But serving as a lawyer in a case is not the same as serving as an expert witness in a case. A lawyer‘s “duty [is] to advance a client‘s objectives diligently through all lawful measures.” ABA Comm. on Ethics & Pro. Resp., Formal Op. 407 (1997) [hereinafter Formal Op. 407]. The lawyer‘s representation “does not constitute an endorsement of the client‘s political, economic, social, or moral views or activities.”
Tenn. Sup. Ct. R. 10, Rule 1.2(b) . The expert witness offers his own views. A “testifying expert provides evidence that lies within his special knоwledge by reason of training and experience and has a duty to provide the court . . . truthful and accurate information.” Formal Op. 407.We presume the judge‘s prior expert testimony about Watson Burns‘[] billing statements and fees was truthful. Of course, the judge‘s prior opinions might be assumed to be limited to the billing statements submitted and fees requested in the case for which he was hired as an expert. And the circumstances under which the [Law] Firms are seeking recovery of a fee are different here. This is an interpleаder action; the [Law] Firms are not seeking an award of fees from the court. So the opinions the judge offered as expert witness might be insufficient alone to justify recusal.
Here, the [Law] Firms also point to other actions of the probate court judge that they claim indicate bias. Among other things, they complain that the court‘s order on their motion for disqualification and recusal “does not address or explain how or whether he can act with impartiality in connection with Watson Burns’ lien and claim for legal fees in light of the inflammatory opinions he lodged against Watson Burns just a few years ago in connection
with a fee request.” They also complain that the court‘s order “summarily extinguish[ed] [the Firms‘] liens by finding that . . . such liens are forfeited.” The court did so “without allowing any party to file answers and preserve defenses and without holding any hearings.”
Taking all these facts together, we find “a reasonable basis for questioning the judge‘s impartiality.” Davis, 38 S.W.3d at 564 (citation omitted). We agree that the court‘s order does not аddress the probate judge‘s prior opinion testimony. Instead, it summarily concludes that opinion testimony is not a proper basis for recusal. And, under the circumstances,
the relief the probate court granted on the petition for interpleader provides an additional basis for questioning impartiality. Usually, adverse rulings alone do not establish bias. [State v.] Cannon, 254 S.W.3d [287,] 308 [(Tenn. 2008)]. But here the court forfeited the [Law] Firms’ “charging lien” in its initial order even though no party had answered the petition for interpleader and the trustee had not requested that relief in his petition. The court seemingly made factual findings without holding an evidentiary hearing. And it ordered distribution of the interpleaded funds to some claimants without hearing from all the competing claimants.
Id. at *3–4 (some alterations in original) (emphasis in original).
After the Court of Appeals decision, the Dunavant children then filed a Rule 10B application for permission to appeal in this Court. Having thoroughly reviewed the Rule 10B application, the Law Firms’ response, all appendices, and the applicable law, we grant the Rule 10B application, dispense with additional briefing and oral argument, and hold that the probate judge‘s denial of the recusal motion was appropriate in this case.
II. STANDARD OF REVIEW
De novo review applies to our resolution of this Rule 10B appeal.
III. ANALYSIS
“Tennessee litigants are entitled to have cases resolved by fair and impartial judges.” Cook v. State, 606 S.W.3d 247, 253 (Tenn. 2020) (citing Davis, 38 S.W.3d at 564); see also State v. Griffin, 610 S.W.3d 752, 757–58 (Tenn. 2020). To preserve public confidence
in judicial neutrality, judges must be fair and impartial, both in fact and in perception. Cook, 606 S.W.3d at 253; Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). To these ends, the Tennessee Rules of Judicial Conduct (“RJC“) declare that judges must “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
To act “impartially” is to act in “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”
Rule of Judicial Conduct 2.11 “incorporates the objective standard Tennessee judges have long used to evaluate recusal motions.” Cook, 606 S.W.3d at 255. “Under this objective test, recusal is required if ‘a person of ordinary prudence in the judge‘s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge‘s impartiality.‘”
The intermediate appellate courts have explained that the proponent of a recusal motion bears the burden of establishing
Furthermore, rulings adverse to the proponent of a recusal motiоn are not, standing alone, grounds for recusal. Cannon, 254 S.W.3d at 308; Davis, 38 S.W.3d at 564; Duke v. Duke, 398 S.W.3d 665, 671 (Tenn. Ct. App. 2012). “Rulings of a trial judge, even if erroneous, numerous and continuous, do not, without more, justify disqualification.” Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994). “[T]he mere fact that a judge has ruled adversely to a party or witness in a prior judicial proceeding is not grounds for recusal.” Davis, 38 S.W.3d at 565 (citing State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995)). The “adversarial nature of litigation” makes it necessary for trial judges to “assess the credibility of those who testify before them, whether in person or by some other means,” and “the mere fact that a witness takes offense at the court‘s assessment of the witness cannot serve as a valid basis for a motion to recuse.” Id. “If the rule were otherwise,
recusal would be required as a matter of course since trial courts necessarily rule against parties and witnesses in every case, and litigants could manipulate the impartial[it]y issue for strategic advantage, which the courts frown upon.” Id.
Applying these standards de novo to the facts of this case, we cannot conclude that a person of ordinary prudence in the probate judge‘s pоsition, knowing all the facts known to him, would find a reasonable basis for questioning his impartiality. The opinions he expressed in the 2017 affidavit concerned a different case and distinct legal questions, specifically whether the fees requested in that unrelated case were reasonable and whether the fee application was sufficiently detailed and specific to enable the trial judge in that case to determine if the work for which fees were claimed related to the matter for which fees had been awarded. This matter involves neither the reasonableness of fees nor the sufficiency of any fee application. Even assuming that expressing an opinion on a matter as an expert witness could constitute grounds for recusal in some situations, the 2017 affidavit does not indicate bias because it is not sufficiently related to the issues in this case.
The Court of Appeals seemed to suggest that expressing an opinion as an expert witness is more problematic than acting in a representative capacity as a lawyer. But the fact remains that the expert opinion at issue did not constitute evidence of actual or perceived bias. In any event, the Rule of Judicial Conduct that requires disqualification for previous public statements applies only to statements made “while a judge or judicial candidate . . . other than in a court proceeding, judicial decision, or opinion.”
Davis v. Liberty Mutual Insurance Company is instructive. In Davis, the trial judge previously resolved a workers’ compensation
The Davis Court declared: “the mere fact that a judge has ruled adversely to a party or witness in a prior judicial proceeding is not grounds for recusal.” Id. The Davis Court opined that the trial court‘s statements in the prior case concerning the expert witness‘s credibility were not “an objectively reasonable basis for questioning the judge‘s impartiality” in a subsequent case. Id.
Although Davis involved a previous ruling made by a trial judge, rather than statemеnts made by an expert witness, we reach the same conclusion here. The opinions the probate judge expressed in the 2017 affidavit about the fee application at issue in the 2017 case are not an objectively reasonable basis for questioning the probate judge‘s impartiality. The probate judge‘s 2017 opinions related specifically to the fee application and legal issues in that separate case. His opinions were not inherently hostile to or biased аgainst Watson Burns6 but were his assessment of the particular fee application in that case.
The probate judge‘s adverse rulings in the interpleader action and in the four probate cases the Dunavant children filed do not create an objectively reasonable basis for questioning the probate judge‘s impartiality. As noted in Davis, Alley, and many other Tennessee decisions, “[r]ulings of a trial judge, even if erroneous, numerous and continuous, do not, without more, justify disqualification.” Alley, 882 S.W.2d at 821. “If the rule were otherwise, recusal would be required as a matter of course since trial courts necessarily rule against parties and witnesses in every case, and litigants could manipulate the impartial[it]y issue for strategic advantage, which the courts frown upon.” Davis, 38 S.W.3d at 565.
In a Rule 10B appeal, the only order properly before the reviewing court is the recusal order. Therefore, we express no opinion on the legal propriety of the probate judge‘s rulings in the interpleader action or in the four othеr probate actions. We simply hold that these adverse rulings are not sufficient to support a conclusion that “a person of ordinary prudence in the judge‘s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge‘s impartiality.” Cook, 606 S.W.3d at 255 (quoting Davis, 38 S.W.3d at 565–65 (quoting Alley, 882 S.W.2d at 820)).
IV. CONCLUSION
For the reasons stated herein, the judgment of the Court of Appeals is reversed, and the judgment of the probate judge denying the recusal motion is reinstated.
PER CURIAM