Benjamin McCurry v. Agness McCurry

                                                                                                        12/28/2022
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                           Assigned on Briefs December 19, 2022

                  BENJAMIN MCCURRY v. AGNESS MCCURRY

                  Appeal from the Circuit Court for Washington County
                     No. 38147 Thomas J. Wright, Senior Judge
                        ___________________________________

                              No. E2022-01708-COA-T10B-CV
                           ___________________________________

The Appellant takes issue with the trial judge’s refusal to recuse himself from the litigation
assigned to him pursuant to designation by the Chief Justice of the Supreme Court of
Tennessee. Discerning no error, we affirm.

   Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgments of the Trial
                          Court Affirmed and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and ANDY D. BENNETT, J., joined.

Agness McCurry, Johnson City, Tennessee, Pro Se.1

                                  MEMORANDUM OPINION2

       In the present accelerated interlocutory appeal pursued pursuant to Rule 10B of the
Rules of the Supreme Court of Tennessee,3 Ms. McCurry challenges Senior Judge Thomas
Wright’s denial of her request that he recuse himself from three cases assigned to him by
Chief Justice Roger Page of the Tennessee Supreme Court: case No. 38147 in the
        1
        Other parties have not participated in this appeal due to this appeal being considered solely on
Ms. McCurry’s submissions and without oral argument.
      2
        Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

         This Court, with the concurrence of all judges participating in the case, may affirm, reverse
         or modify the actions of the trial court by memorandum opinion when a formal opinion
         would have no precedential value. When a case is decided by memorandum opinion it
         shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not
         be cited or relied on for any reason in any unrelated case.
         3
           Although Ms. McCurry originally sought to pursue her accelerated interlocutory appeal in the
Supreme Court, the appeal was transferred to this Court by order of the Supreme Court, with it noting that
“[i]f a case is appealed to this Court that should have been appealed to another court, the case shall be
transferred to the proper court.”
Washington County Circuit Court, case No. 22-CV-0611 in the Washington County
Chancery Court, and case No. 22-CV-0618 in the Washington County Chancery Court.
We proceed to address the appeal summarily based on Ms. McCurry’s submissions alone
and without oral argument. See Tenn. Sup. Ct. R. 10B, § 2.05 (providing that the appellate
court may act summarily on the appeal if it determines that no answer is needed); Tenn.
Sup. Ct. R. 10B, § 2.06 (providing that the accelerated interlocutory appeal shall be decided
on an expedited basis and, in the court’s discretion, without oral argument).

      The only order this Court may review in an appeal pursued under Tennessee
Supreme Court Rule 10B is the trial court’s order denying the motion to recuse. Dougherty
v. Dougherty, No. W2021-01014-COA-T10B-CV, 

, at *2 (Tenn. Ct.
App. Sept. 29, 2021) (citing Duke v. Duke, 

 (Tenn. Ct. App. 2012)).
The general principles undergirding recusal issues are well settled:

              “The right to a fair trial before an impartial tribunal is a fundamental
       constitutional right.” Bean v. Bailey, 

 (Tenn. 2009)
       (quoting State v. Austin, 

 (Tenn. 2002)). Preserving
       public confidence in judicial neutrality, however, requires more than
       ensuring that a judge is impartial in fact. Kinard v. Kinard, 

 (Tenn. Ct. App. 1998). It is also important that a judge be perceived to
       be impartial. 

 In keeping with this principle, Tennessee Supreme Court
       Rule 10, Code of Judicial Conduct Rule 2.11 provides that “[a] judge shall
       disqualify himself or herself in any proceeding in which
       the judge’s impartiality might reasonably be questioned[.]” Even when
       a judge sincerely believes that he or she can preside over a matter in a fair
       and impartial manner, recusal is nonetheless required where a reasonable
       person “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.” Davis v. Liberty Mut. Ins. Co., 

, 564-
       65 (Tenn. 2001) (quoting Alley v. State, 

 (Tenn. Crim.
       App. 1994)).

Hawthorne v. Morgan & Morgan Nashville PLLC, No. W2020-01495-COA-T10B-CV,

, at *2 (Tenn. Ct. App. Dec. 17, 2020). We review the trial court’s ruling
under a de novo standard of review. See Tenn. Sup. Ct. R. 10B, § 2.01.

       In her motion seeking recusal and its accompanying affidavit, Ms. McCurry, who is
proceeding pro se, placed criticism on Judge Eddie Lauderback and Chancellor John
Rambo for the manner in which they had recused themselves in the above-cited three cases
involving her and suggested that Judge Wright may not be impartial due to Judge
Lauderback’s alleged role in Judge Wright’s appointment.4 She also noted that “Judge

       4
           Curiously, in connection with her complaint about this matter, Ms. McCurry also prefaced her
                                                  -2-
Wright originates from the same jurisdiction as the attorney . . . for Defendant[.] . . .
Therefore, there is a high probability that [counsel] has had cases involving Judge Thomas
Wright.”

       As noted, Judge Wright had been designated to preside over the cases involving Ms.
McCurry by Tennessee Supreme Court Chief Justice Roger Page. Judge Wright responded
to Ms. McCurry’s concerns by noting that Chief Justice Page’s designation of him “was
not an action in which Judge Lauderback or Chancellor Rambo provided any input.” In
elaborating on this explanation, he noted that

       [t]hese judges recused themselves. Chancellor Rambo referred the cases to
       Judge Lauderback as the presiding judge. Apparently no other judges in the
       judicial district or nearby districts [were] able to interchange and the cases
       were referred to the Administrative Office of the Courts for designation of a
       judge by the Chief Justice. This was the correct procedure. The undersigned
       is the nearest senior judge and the logical judge for the Chief Justice to
       designate to hear these cases. Judge Lauderback and Chancellor Rambo had
       no input in the Chief Justice’s selection and designation of the undersigned.

In further explaining why there was no basis for his recusal, Judge Wright noted that he
had neither bias nor knowledge of the cases or the parties. He also rejected Ms. McCurry’s
reliance on the fact that one of the opposing attorneys had previously practiced before him
and was from the same geographic area, holding that this was not a ground for recusal;
Judge Wright astutely noted that, if it was, judges could never hear cases in judicial districts
where they are elected when local attorneys are involved. We discern no error in Judge
Wright’s denial of Ms. McCurry’s motion for recusal and therefore affirm his decision and
remand these cases for further proceedings.



                                                             s/ Arnold B. Goldin
                                                          ARNOLD B. GOLDIN, JUDGE




argument with the following introductory phrase: “Although Judge Wright may appear to be ‘impartial.’”
                                                 -3-