Francis L. Johnston v. Charles Glen \"Chuck\" Johnston ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on February 12, 2015
FRANCIS L. JOHNSTON, as Trustee of the Mae Charlayne Johnston
Revocable Family Trust and as Personal Representative of the Estate of Mae
Charlayne Johnston v. CHARLES GLEN “CHUCK” JOHNSTON
Appeal from the Chancery Court for Bradley County
No. 2012CV33 Jerri Bryant, Chancellor
No. E2015-00213-COA-T10B-CV-FILED-FEBRUARY 20, 2015
This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B
from the Trial Court’s denial of a Motion to Recuse filed during post-judgment proceedings
in a case involving a dispute over the validity of a check written against the revocable living
trust of the decedent. Having reviewed the petition for recusal appeal filed by the
Defendant/Appellant, Charles Glen Johnston (“Defendant”), pursuant to Rule 10B of the
Rules of the Tennessee Supreme Court, we affirm the Trial Court.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right;
Judgment of the Chancery Court Affirmed
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which J OHN W. M CC LARTY,
and T HOMAS R. F RIERSON, II, J.J., joined.
Charles Glen Johnston, Cleveland, Tennessee, appellant, pro se.
Sally C. Love, Cleveland, Tennessee, for the appellee, Francis L. Johnston.
OPINION
The Trial Court entered its final judgment in the proceedings below on February 13,
2013, and an order of clarification on March 11, 2013. The Trial Court found by clear and
convincing evidence, following a bench trial conducted on two non-consecutive days in
January of 2013, that the $80,000 check at issue was a forgery and that no proof existed to
show that the decedent had given permission for Defendant to sign the check in her name.
The Trial Court also denied Defendant’s counterclaim for damages and assessed court costs
to Defendant. Defendant timely appealed to this Court and the judgment was affirmed in all
respects. The case was remanded to the Trial Court for enforcement of the judgment and
collection of court costs assessed by the Trial Court. See generally Johnston v. Johnston, No.
E2013-00525-COA-R3-CV, 2014 WL 890758 (Tenn. Ct. App., Eastern Section, Mar. 6,
2014), perm. to app. denied (Tenn. Jun. 20, 2014).
During the remand proceedings, Defendant filed a Motion to Recuse the Chancellor
asserting as grounds that the Chancellor never had jurisdiction to hear the case from its
inception. Following a hearing, the Chancellor denied the motion by written order entered
on January 23, 2015.
Analysis
Appeals from orders denying motions to recuse or disqualify a trial court judge from
presiding over a case are governed by Rule 10B of the Rules of the Supreme Court of
Tennessee. Pursuant to section 2.01 of Rule 10B, a party is entitled to an “accelerated
interlocutory appeal as of right” from an order denying a motion for disqualification or
recusal of a trial court judge. The appeal is effected by filing a “petition for recusal appeal”
with the appropriate appellate court. Tenn. Sup. Ct. R. 10B, § 2.02. The petition for recusal
appeal “shall be accompanied by copies of any order or opinion [of the trial court] and any
other parts of the record necessary for determination of the appeal.” Tenn. Sup. Ct. R. 10B,
§ 2.03. “If the appellate court, based upon its review of the petition and supporting
documents, determines that no answer from the other parties is needed, the court may act
summarily on the appeal. Otherwise, the appellate court shall order that an answer to the
petition be filed by the other parties. The court, in its discretion, also may order further
briefing by the parties within the time period set by the court.” Tenn. Sup. Ct. R. 10B, §
2.05. Rule 10B goes on to provide that “[t]he appeal shall be decided by the appellate court
on an expedited basis upon a de novo standard of review. The appellate court’s decision, in
the court’s discretion, may be made without oral argument.” Tenn. Sup. Ct. R. 10B, § 2.06.
While not explicitly stated as such in the rule, it is clear that the only record the appellate
court generally will have in expedited appeals under Rule 10B is the record provided by the
appellant with his or her petition pursuant to the mandatory language of section 2.03 of the
rule.
We have determined in this case after a review of the petition and supporting
documents submitted with the petition that an answer, additional briefing, and oral argument
are unnecessary to our disposition because the record provided by Defendant is insufficient
to support a finding of error on the part of the Trial Court. As such, we have elected to act
summarily on this appeal in accordance with sections 2.05 and 2.06 of the rule.
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The record submitted by Defendant with his petition for recusal appeal does not
include any affidavit filed in support of the Motion to Recuse, which Rule 10B makes
mandatory. See Tenn. Sup. Ct. R. 10B, § 1.01 (“The motion shall be supported by an
affidavit under oath or a declaration under penalty of perjury on personal knowledge and by
other appropriate materials.”). Without this necessary part of the record, we cannot conclude
that the Trial Court erred in denying the Motion to Recuse.
We emphasize to Defendant that the accelerated nature of these interlocutory appeals
as of right requires meticulous compliance with the provisions of Rule 10B regarding the
content of the record provided to this Court so as to allow this Court to meet its obligations
under section 2.06 of the rule, which requires this Court to decide these appeals “on an
expedited basis.” As such, it is imperative that litigants file their petitions for recusal appeal
in compliance with the mandatory requirements of Rule 10B in the first instance.
In any event, the primary basis for Defendant’s claim that the Chancery Court did not
have subject matter jurisdiction because, Defendant argues, this suit could have been brought
in a United States District Court given the diversity of the parties, lacks any valid legal
support. Even if Defendant is correct and this matter could have been brought in a federal
court, the Chancery Court still had subject matter jurisdiction. Moreover, even if it might
have been error for the Chancery Court to have exercised jurisdiction in this case, any such
error would not require recusal of the Chancellor. To merit disqualification of a trial judge,
“prejudice must be of a personal character, directed at the litigant, ‘must stem from an
extrajudicial source and result in an opinion on the merits on some basis other than what the
judge learned from . . . participation in the case.’” Alley v. State, 882 S.W.2d 810, 821
(Tenn. Crim. App. 1994). “Rulings of a trial judge, even if erroneous, numerous and
continuous, do not, without more, justify disqualification.” Id.; see also State v. Reid, 313
S.W.3d 792, 816 (Tenn. 2006).
Conclusion
Having determined that the record provided by Defendant is insufficient to support
a finding of error on the part of the Trial Court, we affirm the Trial Court’s denial of the
Motion to Recuse. This case is remanded for further proceedings consistent with this
Opinion. Defendant is taxed with the costs of this appeal, for which execution may issue.
_________________________________
D. MICHAEL SWINEY, JUDGE
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