                                                                                         07/10/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                Assigned April 10, 2017


          NEDRA B. DRAYTON v. COOPER MOVING SERVICES

                 Appeal from the Chancery Court for Shelby County
                 No. CH-16-1323    JoeDae L. Jenkins, Chancellor


                           No. W2017-00718-COA-T10B-CV



This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the
Supreme Court of Tennessee, from the denial of a motion for judicial recusal filed by
Nedra B. Drayton (“Plaintiff”) in her case against Cooper & Cooper Moving, Inc. DBA J.
Cooper Self-Storage, Inc., identified in the style of the case below as Cooper Moving
Services (“Defendant”). Having reviewed the petition for recusal appeal filed by Plaintiff,
and discerning no reversible error in the Chancellor’s ruling, we affirm.


               Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right;
                     Judgment of the Chancery Court Affirmed

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and BRANDON O. GIBSON, J., joined.

Nedra B. Drayton, Memphis, Tennessee, appellant, pro se.

Adam M. Nahmias, Memphis, Tennessee, for the appellee.


                                       OPINION

       According to the petition filed in this Court, Plaintiff’s motion seeking to recuse
the Chancellor from presiding over the proceedings below was based on allegations that
the Chancellor had shown a “pattern of bias and/or prejudicial decisions” against Plaintiff
creating an “appearance of impropriety” that undermined her “confidence of the judiciary
to be impartial and fair.” In her motion, Plaintiff specifically alleged the following
“factual and legal grounds” in support of her request for relief: (a) the Chancellor abused
his discretion by requiring opposing counsel’s consent to a hearing date on Plaintiff’s
petition for a temporary restraining order against Defendant; (b) Plaintiff’s motions had
been “either disregarded or dismissed” in favor of opposing counsel’s “repeated
misrepresentation of facts” without Plaintiff being afforded “the right to be heard or offer
any evidence of rebuttal to correct or disprove stated misrepresentation of facts in open
court” at hearings that took place on November 3, 2016, and March 3, 2017; (c) the
Chancellor “verbally threatened” to dismiss Plaintiff’s action in open court on November
3, 2016, because opposing counsel alleged that he had not received proper service of a
motion to amend complaint filed by Plaintiff; (d) the Chancellor repeatedly has made
“prejudicial” statements to Plaintiff in open court that she needs to hire or consult with a
licensed attorney, even though Plaintiff has a “wealth of experience as a professional
paralegal with several advanced degrees”; (e) the Chancellor has ignored Plaintiff’s
repeated attempts to advise him in open court that opposing counsel has “engaged in
antagonistic, unprofessional, harassing behavior” since the initiation of the proceedings
below; (f) the Chancellor has failed to take “appropriate action” against opposing counsel
upon being advised that there is a “substantial likelihood” that opposing counsel “has
committed a violation of the Rules of Professional Conduct”; and (g) the Chancellor
engaged in “ex parte communication” by soliciting an attorney to assist Plaintiff, which
he announced he had done in open court at the hearing on March 3, 2017, even though
the solicited attorney was “the opposing counsel in a past and current pending legal
matter against Plaintiff” resulting in Plaintiff and the attorney declining to enter into a
representation relationship due to a conflict of interest. Plaintiff bolstered her assertions
that she has been denied her right to be heard and present evidence with the following
specific allegations. She alleged that she was not permitted to offer evidence at the
hearing on November 3, 2016, to rebut opposing counsel’s assertion that she failed to
serve him with her motion to amend complaint. She also alleged that, upon asking for
permission to speak after being denied the opportunity to address the court regarding a
scheduling order at the hearing on March 3, 2017, the Chancellor “sighed with an
impatient facial expression” before granting her permission to speak. She further alleged
that her proposed scheduling order “was not considered nor was Plaintiff allowed to offer
any rebuttal statements” to refute opposing counsel’s statements about her proposed
scheduling order, which statements by opposing counsel Plaintiff characterized as
“untruthful” and showing “bias.” Plaintiff alleged that her motion to strike opposing
counsel’s scheduling order was then set on the Chancellor’s motion docket for March 24,
2017, without her consent.

      After hearing argument on the motion for recusal at the hearing held on March 24,
2017, the Chancellor entered a written order denying the motion on March 27, 2017.
While this initial order violated the requirements of section 1.03 of Rule 10B of the Rules
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of the Supreme Court of Tennessee, which states that “the judge shall state in writing the
grounds upon which he or she denies the motion,” the Chancellor entered an amended
order on March 30, 2017, the purpose of which was to state the grounds upon which
denial of the motion was based in accordance with section 1.03 of Rule 10B. The
Chancellor’s amended order contained the following explanation for the denial of
Plaintiff’s motion:

              The basis for the denial of the motion for recusal is that the Plaintiff
       has fabricated the grounds cited in the motion and it appears that such
       request is merely for delay, harassment or some other improper motive. The
       Plaintiff’s application for injunctive relief was denied by the previous
       Chancellor, James [Newsom]. As to matters brought before this court by
       Plaintiff and Defendant, each one of Plaintiff’s or Defendant’s motions,
       whether properly before the court or not, were set for argument and heard
       by the Court. The Court has not always granted the relief Plaintiff requested
       and Plaintiff therefore disagrees with the Court. While the court is sensitive
       to the Plaintiff’s dilemma in being a pro se litigant, the court cannot be
       unfair to the opposing counsel. The Plaintiff’s difficulty in the cause stems
       from her difficulty in understanding and following the procedure and
       processes of the Court. The Court has attempted to ameliorate this
       shortcoming without success and can go no further in assisting the Plaintiff
       without being unfair to the Defendant.
              The allegations set out in the motion for recusal have no basis in fact
       and cannot support a request for recusal.

       Plaintiff timely filed her petition for recusal appeal in this Court pursuant to Rule
10B, including only the Chancellor’s March 27, 2017 order in the appendix to her
petition. Because, as already noted, that order violated the requirements of section 1.03 of
Rule 10B, the Court directed counsel for Defendant to file an Answer to the Petition
pursuant to section 2.05 of Rule 10B. Having reviewed Plaintiff’s petition and appendix
record submitted with the petition, together with Defendant=s Answer to the Petition,
which included as an attachment the March 30, 2017 order, we conclude that additional
briefing and oral argument are unnecessary.1 As such, we proceed to decide this appeal in
accordance with sections 2.05 and 2.06 of Rule 10B.

                                               ISSUES

       Of the four issues raised by Plaintiff in her petition, only one can be considered in
       1
          We have not considered Plaintiff’s unauthorized pleading in rebuttal to Defendant’s Answer to
the Petition and hereby deny Plaintiff’s Motion to Strike Defendant’s Answer.

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this accelerated interlocutory appeal as of right pursuant to Rule 10B as the remaining
issues challenge the Chancellor’s rulings on matters other than Plaintiff’s motion for
recusal. See Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012) (noting that
appellate court “may not review the correctness or merits of the trial court’s other
rulings” in an interlocutory appeal as of right pursuant to Rule 10B). Thus, the only issue
raised by Plaintiff in her petition that properly can be considered in this appeal is:

       Did the Trial Court violate Tenn. Sup. Ct. R. 10B, § 1.03 by denying the
       Motion for Recusal on reasons inconsistent with the factual and legal
       grounds supporting recusal?

                                           ANALYSIS

        Without question, “[t]he right to a fair trial before an impartial tribunal is a
fundamental constitutional right.” Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009)
(quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)); see also Tenn. Const. Art.
VI, ' 11. This constitutional right “is intended ‘to guard against the prejudgment of the
rights of litigants and to avoid situations in which the litigants might have cause to
conclude that the court had reached a prejudged conclusion because of interest, partiality,
or favor.’” Id. (quoting Austin, 87 S.W.3d at 470). “[P]reservation of the public’s
confidence in judicial neutrality requires not only that the judge be impartial in fact, but
also that the judge be perceived to be impartial.” Kinard v. Kinard, 986 S.W.2d 220, 228
(Tenn. Ct. App. 1998); see also Offutt v. United States, 348 U.S. 11, 14 (1954) (holding
that Ajustice must satisfy the appearance of justice@). As such, Rule 2.11(A) of the Code
of Judicial Conduct as set forth in Rule 10 of the Rules of the Supreme Court of
Tennessee requires a judge to recuse himself or herself “in any proceeding in which the
judge=s impartiality might reasonably be questioned.” See also Smith v. State, 357 S.W.3d
322, 341 (Tenn. 2011) (noting that recusal is required, even if a judge subjectively
believes he or she can be fair and impartial, whenever “‘the judge’s impartiality might be
reasonably questioned because the appearance of bias is as injurious to the integrity of the
judicial system as actual bias’”)(quoting Bean, 280 S.W.3d at 805).

       The terms “bias” and “prejudice” generally “refer to a state of mind or attitude that
works to predispose a judge for or against a party”; however, “[n]ot every bias, partiality,
or prejudice merits recusal.” Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App.
1994). 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.’” Id. “If the bias is based upon actual observance of witnesses
and evidence given during the trial, the judge’s prejudice does not disqualify the judge.”
Id. “However, if the bias is so pervasive that it is sufficient to deny the litigant a fair trial,
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it need not be extrajudicial.” Id. That said, “[a] trial judge’s adverse rulings are not
usually sufficient to establish bias.” State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008);
see also Alley, 882 S.W.2d at 821. In fact, “[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; see also State v. Reid, 313 S.W.3d 792, 816 (Tenn. 2006). In other words,
“if the bias is alleged to stem from events occurring in the course of the litigation, the
party seeking recusal has a greater burden to show bias that would require recusal, i.e.,
that the bias is so pervasive that it is sufficient to deny the litigant a fair trial.” McKenzie
v. McKenzie, No. M2014-00010-COA-T10B-CV, 2014 WL 575908, * 3 (Tenn. Ct. App.,
filed Feb. 11, 2014).

        We cannot conclude that the record provided by Plaintiff demonstrates error on the
part of the Chancellor in denying her motion for judicial recusal. First, the Chancellor had
no duty to recuse himself simply because Plaintiff is dissatisfied with the rulings against
her. Second, we do not have a sufficient record before us upon which to conclude that the
Chancellor erred in finding as a matter of fact that Plaintiff fabricated the allegations
supporting her motion for recusal. A trial court’s findings of fact are always entitled to a
presumption of correctness, even when the legal conclusions resulting from those
findings are subject to the nondeferential de novo standard of review. See Fields v. State,
40 S.W.3d 450, 456-58 (Tenn. 2001); see also Tenn. Sup. Ct. R. 10B, ' 2.06 (stating that
a Rule 10B interlocutory appeal as of right “shall be decided by the appellate court on an
expedited basis upon a de novo standard of review.”). In a Rule 10B expedited
interlocutory appeal as of right, the only record available for the Court’s review is the
record provided by the appellant with the petition. See In re Samuel P., No. W2016-
01592-COA-T10B-CV, 2016 WL 4547543, * 3 n. 3 (Tenn. Ct. App., filed Aug. 31,
2016); Trigg v. Trigg, No. E2016-00695-COA-T10B-CV, 2016 WL 1730211, * 2 (Tenn.
Ct. App., filed Apr. 27, 2016); Johnston v. Johnston, No. E2015-00213-COA-T10B-CV,
2015 WL 739606, * 1 (Tenn. Ct. App., filed Feb. 20, 2015). In this case, Plaintiff did not
provide this Court with transcripts of any of the hearings at which she alleges the
Chancellor engaged in the conduct she asserts supports recusal. As such, the record does
not support the conclusion that the Chancellor erred in denying Plaintiff’s motion for
recusal on grounds that she “fabricated the grounds cited in the motion,” i.e., “on reasons
inconsistent with” the grounds asserted by Plaintiff in her motion as she contends on
appeal. See In re Samuel P., 2016 WL 4547543 at * 3 (concluding that deficiencies in
record provided with petition for recusal appeal precluded appellate court from
concluding that denial of recusal motion was erroneous).

                                        CONCLUSION

       Having determined that the record provided by Plaintiff does not demonstrate
error, we affirm the Chancellor’s denial of the motion for judicial recusal. Plaintiff is
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taxed with the costs of this appeal, for which execution may issue. This case is remanded
for further proceedings.



                                               ______________________________
                                               JOHN W. MCCLARTY, JUDGE




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