Kathryn A. DUKE v. Harold W. DUKE, III.
No. M2012-01974-COA-10B-CV
Cоurt of Appeals of Tennessee, Middle Section, at Nashville.
Oct. 2, 2012.
Assigned Sept. 20, 2012. Application for Permission to Appeal Denied by Supreme Court Feb. 26, 2013.
398 S.W.3d 665
Moreover, application of the filed rate doctrine as urged by Blackburn & McCune does not advance the two purposes of nonjusticiability and nondiscrimination in the premiums charged to consumers. Blackburn & McCune seeks to apply the doctrine to the relationship between the provider of services and the insurance company, typically both sophisticated business entities. It has been observed that “[t]he Supreme Court ‘has not recently expressed an inclination to extend the filed rate doctrine beyond contexts clearly implicating the anti-discrimination or non-justiciability rationales for the rule.‘” U.S. Wats, Inc. v. AT & T Co., No. CIV. A. 93-1038, 1994 WL 116009, at *5 (E.D.Pa. Apr. 5, 1994) (quoting Gelb v. AT & T Co., 813 F.Supp. 1022, 1028 (S.D.N.Y. 1993)).
For these reasons, we agree with the trial court that the filed rate doctrine is not intended to prоtect the relationship between the regulated insurance company and its service providers. Rather, it is intended to protect the relationship between the regulated entity and the consumers who purchase goods or services from that entity. Finding in favor of Blackburn & McCune on this issue would be to apply the doctrine in a context not yet applied by any other court, state or federal, and in a manner that does not further the purposes of nonjusticiability or nondiscrimination. Therefore, we affirm the trial court‘s holding that the Pre-Paid Defendants are entitled to summary judgment on Blаckburn & McCune‘s claim under the filed rate doctrine. This holding pretermits all other issues on appeal related to this claim.
CONCLUSION
In sum, we reverse the trial court‘s grant of summary judgment in favor of the Pre-Paid Defendants on Blackburn & McCune‘s claim that the ASA was fraudulently induced, and on Blackburn & McCune‘s claim that the ASA is unenforceable as a violation of public policy. We remand for further proceedings related to these claims. We affirm the trial court‘s grant of summary judgment in favor of the Defendants on Blackburn & McCune‘s claim based on the filed rate doctrine.
The decision of the trial court is affirmed in part and reversed in part, as set forth above, and the cause is remanded for further proceedings consistent with this Opinion. Costs on appeal are to be taxed one-half to Appellant Blackburn & McCune and its surety, and one-half to Appellees Pre-Paid Legal Services, Inc. and Pre-Paid Legal Services of Tennessee, Inc., for which execution may issue, if necessary.
Helen Sfikas Rogers, Nashville, Tennessee, for the appellee, Kathryn A. Duke.
OPINION
FRANK CLEMENT, JR., J. delivered the opinion of the Court, in which RICHARD H. DINKINS, J., joined.
The father in this post-divorce action has filed a petition for recusal appeal seeking an accelerated interlocutory appeal as of right pursuant to
The parties, Kathryn A. Duke and Harold W. Duke, III, were divorced by a final decree entered on July 15, 2009. On appeal, this court affirmed the divorce decree in part and remanded the case for further proceedings. Duke v. Duke, No. M2009-02401-COA-R3-CV, 2012 WL 1971144 (Tenn.Ct.App. Jun. 1, 2012). While the appeal was pending, however, both parties filed post-divorce pleadings for contempt and for modification of the parenting plan.
On January 1, 2010, the case was assigned to the current trial judge. On January 20, 2010, the father filed a motion for recusal of the trial judge asserting, in part, that a former law partner of the judge had briefly represented the mother while the judge was still a partner in 2005. The court heard the motion for recusal on January 22, 2010. The trial court denied the motion for recusal from the bench, but no order reflecting the decision was entered. The trial court also informed Dr. Duke (hereinafter “Father“) that the court would grant him permission to seek an interlocutory appeal pursuant to
The post-divorce petitions were tried over several days beginning in May of 2011 and ending in March of 2012. Father filed a motion to reopen the proof based on newly discovered evidence on June 29, 2012, and a renewed motion to reopen the proof on July 13, 2012. The trial court denied the renewed motiоn to reopen the proof on August 3, 2012.
On August 13, 2012, Father filed a “Renewed Motion for Recusal” (hereinafter “the August 2012 motion“). The August 2012 motion relied on the same grounds as the 2010 motion for recusal but unlike the initial motion, the August 2012 motion relied on the new Rules of Judicial Conduct, which became effective July 1, 2012, this court‘s opinion in the first appeal of this matter filed June 1, 2012, and the trial court‘s post-divorce rulings, which Father asserts support “not only an appearance of
The trial court entered an order on August 31, 2012, denying the August 13, 2012 motion and setting forth with particularity the reasons for the denial in accordance with
TENNESSEE RULE OF APPELLATE PROCEDURE 10B APPEALS
Pursuant to
Having reviewed the petition and supporting documents, we have determined that an answer, additional briefing, and oral argument are unnecessary, and have elected to act summarily on the appeal in accordance with
ISSUES
In a
ANALYSIS
The trial judge denied Father‘s first motion for recusal in January of 2010. Father did not pursue an interlocutory appeаl or otherwise seek reconsideration of that decision for over two years. In that time, the issues surrounding the divorce were decided, the final decree was appealed, and this court filed our opinion regarding the first appeal in June 2012.
After the divorce was final, other disputes arose and various motions and petitions were filed, including a 124-page “Fourth Amended Petition for Civil/Criminal Contempt and For Other Relief,” filed by Ms. Duke (hereinafter “Mother“). Those post-divorce matters have been tried, but it does not appear that an order has been entered. Thereafter, Father filed a motion to reopen the proof; it was denied.
TENNESSEE SUPREME COURT RULE 10B
We acknowledge the dissent maintains the position that
Further, to refuse to consider the present appeal would defeat the purpose of
It is also important to recognize that a party may lose the right to challenge a judge‘s impartiality by engaging in strategic conduct. Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn.Ct.App.1998). Further, our “[c]ourts frown upon the manipulation of the impartiality issue to gain procedural advantage and will not permit litigants to refrain from asserting known grounds for disqualification in order ‘to experiment with the court . . . and raise the objection later when the result of the trial is unfavorable.‘” Id. (quoting Holmes v. Eason, 76 Tenn. 754 (Tenn.1882)); Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn.Ct.App.1988). “Thus, recusal motiоns must be filed promptly after the facts forming the basis for the motion become known, and the failure to assert them in a timely manner results in a waiver of a party‘s right to question a judge‘s impartiality.” Id. (internal citations omitted). In this case, Father filed a motion for recusal in 2010 on the same grounds relied upon here but under the then existing rule, which afforded the trial judge broad discretion to deny the motion. We also note that the standard of review in existence at that time was substantially more deferential to the decision of the trial court than it is now under
As a final comment on the issue of timeliness of this appeal and whether there has been a waiver by Father of his right to appeal the denial of his motion for recusal, we find it very significant that
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, an accelerated interlocutory appeal as of right lies from the order. Thе failure to pursue an accelerated interlocutory appeal, however, does not constitute a waiver of the right to raise any issue concerning the trial court‘s ruling on the motion in an appeal as of right at the conclusion of the case. The accelerated interlocutory appeal or an appeal as of right at the conclusion of the case 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.
For the reasons stated above, we shall consider the issues raised as they are based upon grounds that allegedly exist presently.
GROUNDS FOR RECUSAL
The primary basis upon which Father seeks recusal is that the trial judge and Cathy Speers, a lawyer who worked in the same law firm, Stites & Harbison, met with Mother one time on May 24, 2006, for approximately one hour each to discuss possibly representing her in an anticipated divorce proceeding. A second basis upon which recusal is sought is that the trial judge represented Jennifer Lineberger in 2006 in her divorce case and Ms. Line-
Father‘s motion for recusal relies upon two provisions of Rule 2.11 of the Rules of Judicial Conduct, which state:
(A) A judge shall disqualify himself or herself in any proceeding in which the judge‘s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or party‘s lawyer, or personal knowledge of facts that are in dispute in the proceedings.
. . . .
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; . . .
We start our analysis of the grounds for recusal understanding that a party challenging the impartiality of a judge “must come forward with some evidence that would prompt a reasonable, disinterested person to believe that the judge‘s impartiality might reasonably be questioned.” Eldridge v. Eldridge, 137 S.W.3d 1, 7-8 (Tenn.Ct.App.2002) (quoting Davis v. Dep‘t of Emp‘t Sec., 23 S.W.3d 304, 313 (Tenn.Ct.App.1999)).
Father asserts that the trial court‘s most recent rulings on the post-divorce mattеrs support an appearance of impropriety and bias; we find this assertion insufficient for recusal as a matter of law. “A trial judge‘s adverse rulings are not usually sufficient to establish bias.” 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.” Alley v. State, 882 S.W.2d 810, 821 (Tenn.Crim.App.1994). “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).
With regard to the other grounds asserted by Father, Mother testified during the August 2012 hearing on the motion for recusal stating that the trial judge had only one conference with her, which lasted one hour, on May 24, 2006, and at the conclusion of their meeting he advised her he was too busy to represent her but he introduced her to his partner Cathy Speers. Mother and Ms. Speers then met for one hour but Mother did not engage Ms. Speers to represent her. Mother stated that she did not provide any documents to the trial judge or Ms. Speers and that she never spoke with the trial judge after her one meeting with him on May 24, 2006. She also testified that she never met with Ms. Speers again and that the last time she spoke with Ms. Speers about representing her was August of 2006,4 but Mother never engaged Ms. Speers to represent her.5 Other than the one-hour
As for the contention the meeting with Ms. Speers may justify recusal, it is undisputed that the trial judge was a partner at Stites & Harbison when attorney Cathy Speers met with Mother in May 2006; however, that fact alone does not constitute grounds for recusal. “The fact that a judge was once professionally associаted with a lawyer for one of the parties in a case is not, without more, grounds for disqualification.” Kinard, 986 S.W.2d at 228 (citing ABA Comm. on Ethics and Professional Responsibility, Informal Op. 87-1524 (1987)). In the absence of other disqualifying circumstances, our courts have consistently concluded that a judge is not disqualified when the lawyer for one of the parties is a former law partner, associate, or co-counsel. Id. Furthermore, when a motion for disqualification is based on a judge‘s former association with a lawyer:
[T]he totality of the circumstances should be examined, including the following factors: (1) the nature and extent оf the prior association, (2) the length of time since the association was terminated, (3) the possibility that the judge might continue to benefit from the relationship, and (4) the existence of personal or social relationships springing from the professional relationship.
The record in this appeal is insufficient to establish that the trial judge‘s former association with Ms. Speers and Ms. Speers’ one-hour meeting with Mother justifies recusal. As for the trial judge‘s one-hour meeting with Mother on May 24, 2006, the trial judge stated, “I don‘t recognize Ms. Duke. I don‘t remember the conversations that occurred. I have no knowledge of the facts of the matters alleged in the petitions before the Court, . . .”
Beyond the above facts, there are few and relatively insignificant facts to be considered for purposes of the August 2012 recusal motion. The facts that are worthy of consideration are addressed by the trial judge in his detailed statement from the bench following the August 2012 motion for recusal.
THE COURT: Well, I have entered a number of orders referring cases to Judge Easter for reassignment based on recusal, and I do it pretty quickly because I don‘t want the appearance of this Court to be tarnished in any wаy. On the other hand, I don‘t want to just jump out of every case that somebody comes in and raises a concern about because I do have a responsibility to the docket that I have and otherwise Judge Beal will labor under a burden that he will never be able to lift.
I think the facts in this case are pretty clear in terms of the Court‘s involvement. The record from Stites & Harbison indicates that I apparently spent an hour and a half with Ms. Duke on May the 24th of 2005.
And then the other concern that has been raised was the fact that I represented Ms. Lineberger on a case that was concluded in September of 2006. The allegations in the current petition that relate to Ms. Lineberger involve an allegation of contempt in that Dr. Duke had Ms. Lineberger in the presence of the children in violation of the Court
order that Judge Easter entered, and that was after I was involved with Ms. Lineberger anyway in September of 2006. And then the other allegation is that the children were apparently told that Ms. Lineberger or her private investigator killed the dog is I think the two ways her names comes up in this proceedings.
The canon says—this is Rule 10 of Canon 3(E)(1). It says that a judge shall disqualify himself or herself in the proceеding in which the judge‘s impartiality might reasonably be questioned, including but not limited to, (a), the judge has a personal bias or prejudice concerning a party or a party‘s lawyer or personal knowledge of disputed evidentiary facts concerning the proceeding.
In this case I have no bias or prejudice concerning Dr. Duke, Ms. Duke, or either of the lawyers in this case. The record should reflect that in the 34 and a half years that I‘ve practiced, I‘ve had numerous cases with Ms. Dixon, Mr. Weatherly, who is seated at counsel table with Ms. Dixon, and Ms. Rogers, and I find all of those lawyers to be highly competent, ethical, and I have no—no feelings but good feelings about any of them. So for what it‘s worth in our record I feel very positive about the lawyers involved in this case and I have no bias against the parties or prejudice in any way.
Then it says concerning evidentiary facts in dispute. There‘s nothing involved in any of these proceedings that are currently before the Court of which I have any knowledge. I mean, I have no knowledge of these alleged contempts, and anything that involved Ms. Lineberger is long after my relationship with her ended in the fall of 2006.
Then it says the judge should recuse himself or hersеlf where the judge served as a lawyer in the matter in controversy or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter or the judge has been a material witness concerning it, meaning the matter.
The record in this case reflects that my partner, Cathy Speers, apparently met with Ms. Lineberger—I mean Ms. Duke on May the 19th, 2005, and then I was brought in to a conference six days or five days later on May the 24th, but all of the issues relating to whatever was discussed during that conference should have been resolved in the divorce.
Sо when I look at part (E) of this canon, I don‘t think it applies and requires this Court to recuse itself.
Then I look at the standard as discussed by the Supreme Court, and I am looking at the Bean versus Bailey case. That‘s a 2009 case. In—and the Court makes it clear, if the judge has any doubt as to his or her ability to preside impartially or if a person of ordinary prudence in the judge‘s position—so it‘s a subjective and an objective test that the Court is supposed to apply—then would there be a reasonable basis for questioning the judge‘s impartiality.
As I‘ve stated on this record, I don‘t recognize Ms. Duke. I don‘t remеmber the conversations that occurred. I have no knowledge of the facts of the matters alleged in the petitions before the Court, and I have no doubt in my own mind that I can hear this case impartially and rule on it.
The question then is would an objective standard, meaning a person of ordinary prudence, judging these facts draw a different conclusion, and I don‘t believe they would. My involvement with
Ms. Duke was limited and my involvement with Ms. Lineberger ended in September 2006.
So applying the canon, as well as the interpretation given to that canon by the Tennessee Supreme Court, the Court respeсtfully declines to recuse itself and overrules your motion.6
We have reviewed the grounds for recusal pursuant to the de novo standard under
IN CONCLUSION
We affirm the trial court‘s decision to deny the motion for recusal. This case is remanded to the trial court for further proceedings consistent with this opinion. Harold W. Duke, III is taxed with the costs for which execution, if necessary, may issue.
PATRICIA J. COTTRELL, P.J., M.S., filed a separate opinion concurring in part and dissenting in part.
PATRICIA J. COTTRELL, P.J., M.S., filed an opinion concurring in part and dissenting in part.
I agree with the majority‘s affirmance of the trial court‘s denial of Father‘s recusal motion. However, I would have held that the grounds previously raised by Father two years earlier were not subject to our review under
The reason I would dismiss the previously-raised grounds involves my interpretation of the Supreme Court‘s language regarding the prospective application of the new rule. The Court‘s order adopting
The father‘s original motion for recusal was filed in 2010, obviously prior to July 1, 2012. Consequently,
Since Father‘s initial motion to recuse could not be cоnsidered under
The father filed his “Renewed Motion for Recusal” after the trial of the post-divorce matters and the denial of his motion to reopen the proof. That motion stated that the father “renews his motion” and began the argument with “as previous-
The majority holds that
In the example given by the majority, the judge has continued in a business relationship since the first motion to recuse. The relationship persists. That presumably means that the judge has engaged in conduct since the original motion. Therefore, there are acts or conduct occurring after the ruling on the first motion that can be the basis of a new motion without simply renewing the original motion.
To the extent the August 13, 2012, motion for recusal is merely a renewal of the 2010 motion, it is my opinion that