Suzanne Gibson v. James Prokell ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
MARCH 20, 2001 Session
SUZANNE W. GIBSON, ET AL v. JAMES E. PROKELL
Direct Appeal from the Chancery Court for Shelby County
No. 103880-1; The Honorable Walter L. Evans, Chancellor
No. W2000-01236-COA-R3-CV - Filed August 15, 2001
DAVID R. FARMER , J., concurring.
I concur in the result reached by the majority opinion. I write separately on the issue of
recusal by the trial judge because I would rule that the motion for recusal was not timely. As noted
in the majority opinion, the motion to recuse was filed over six (6) months after the conclusion of
the trial. In her brief, Mrs. Gibson complains of various statements and actions of the chancellor
made throughout the course of the hearings. She states that the chancellor showed bias and prejudice
towards her and “prejudged many issues throughout the proceedings” and made statements “before
the presentation of any evidence” which she perceived to exhibit bias. She further complains of
statements made by the trial court “before any proof had been submitted other than some initial
testimony regarding the qualification of Mr. Prokell’s supposed expert witness . . . ”
As this court said recently in Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998):
Courts 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.” Holmes v. Eason, 76 Tenn. (8 Lea)
754, 757 (1882); see also Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn. Ct. App.
1988). Thus, 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); Hunnicutt v. Hunnicutt, 248 Ga. 516, 283 S.E.2d 891, 893
(1981), 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. See In re Cameron, 126 Tenn. at
663, 151 S.W. at 78; Radford Trust Co. v. East Tennessee Lumber Co., 92 Tenn.
126, 136-37, 21 S.W. 329, 331 (1893); Holmes v. Eason, 76 Tenn. (8 Lea) at 761.
Even more recently in Davis v. Department of Employment Security, 23 S.W.3d 304, 313 (Tenn.
Ct. App. 1999), this court noted that recusal motions must be filed promptly after the facts upon
which the motion is based become known and failure to seek recusal in a timely manner results in
a waiver.
_____________________________________
DAVID R. FARMER, JUDGE
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