ROBERT T. IRVIN,                  )
                                  )
       Plaintiff/Appellant,       )        Appeal No.
                                  )        01-A-01-9708-CV-00427
v.                                )
                                  )        Montgomery Circuit
FAITH JOHNSON, an employee of     )        No. C12-431C12-431
The Tennessee Management Company, )
Inc. (TAMCO); THE TENNESSEE       )
MANAGEMENT COMPANY, INC.
(TAMCO), a.d.b.a. THE SOUTH
                                  )
                                  )
                                                 FILED
CENTRAL VILLAGE APARTMENTS, )                    July 10, 1998
                                  )
       Defendants/Appellees.      )           Cecil W. Crowson
                                  )          Appellate Court Clerk




                   COURT OF APPEALS OF TENNESSEE


APPEAL FROM THE CIRCUIT COURT FOR MONTGOMERY COUNTY

                      AT CLARKSVILLE, TENNESSEE


              THE HONORABLE JAMES E. WALTON, JUDGE




ROBERT T. IRVIN, Pro Se
P. O. Box 1636
Clarksville, Tennessee 37041-1636



JAMES D. KAY, JR.
BRIDGETT A. WOHLPART
Suite 340M, Washington Square Two
222 Second Avenue North
Nashville, Tennessee 37069
       ATTORNEYS FOR DEFENDANTS/APPELLEES




                             AFFIRMED IN PART,
                             MODIFIED IN PART,
                              AND REMANDED
                                                      WILLIAM B. CAIN, JUDGE
                                      OPINION
            This case represents a pro se plaintiff's appeal from a trial court's order granting
defendant/appellee's motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(4)(5)(6). Appellant's
complaint asserted "perjury" as it's basis, alleging that defendants, Faith Johnson, Tamco, et
al., committed perjury in appellant's previous case in said trial court, Irvin v. Tamco, Inc., et
al., docket number C10-813.


             By making all allowances for the pro se representation, the court finds that
appellant presents three "issues" for review: (1) the refusal of the trial judge to recuse himself
from the case at bar; (2) the trial court's order granting defendant's Rule 12.06 motion to
dismiss on the basis that Tennessee does not recognize a civil action for "perjury", and (3) the
permanent injunction issued by the trial court pursuant to Tenn. R. Civ. P. 65.04, prohibiting
appellant from filing further lawsuits relative to the alleged perjury of Faith Johnson.


            Under the well-settled authorities cited, and for the reasons stated below, we affirm
the court's actions with regard to issues numbered (1) and (2). However we vacate the trial
court's permanent injunction, due to the trial court's failure to make specific findings of fact and
conclusions of law as its basis for granting extraordinary relief.


I.          Record Below
            Robert T. Irvin, an indigent acting pro se, filed suit against the defendants on May
30, 1997. Mr. Irvin sued for compensatory and punitive damages, alleging perjury of the
defendant Faith Johnson in a prior action before the Circuit Court of Montgomery County,
Tennessee, on March 15, 1996, Circuit Case Number C10-813. Among other averments in the
complaint not germane to our consideration here, Mr. Irvin asserted that he had filed suit in
United States District Court for the Middle District of the State of Tennessee, Civil Action No.
3-95-0673, in an attempt to prosecute a similar action in federal court. He was advised,
however, by Judge Thomas Higgins to submit the perjury case to " '. . . the lower court.' " We
can only assume that Judge Higgins sought to encourage the pro se litigant to pursue his
research further in an effort to discover a suitable "state" cause of action. From the complaint,
it appears that Michael L. Roden advised Mr. Irvin to seek out the State District Attorney in
Clarksville. With specific regard to "perjury", plaintiff alleges, "4. That plaintiff was harmed
by the perjury of Faith Johnson not only in losing the previous case [C10-813], but that
plaintiff's ' . . . character has been assassinated unjustly.' " It is on the basis of the foregoing
complaint that plaintiff sought damages in this case.


            On July 17, 1997, defendants filed their motion to dismiss because of failure to

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serve process on the defendants TAMCO or South Central Village Apartments in compliance
with Tenn. R. Civ. P. Rule 4; and among other grounds, for failure to state a claim upon which
relief can be granted. Defendants' argued at trial that Tennessee does not recognize a private
cause of action for "perjury." Defendants sought dismissal of the case pursuant to Tenn. R.
Civ. P. Rule 12(4), (5), and (6). Filed simultaneously with this motion were defendants'
application for a protective order pursuant to Tenn. R. Civ. P. 26, and application for injunctive
relief pursuant to Tenn. R. Civ. P. 65, "prohibiting the plaintiff from maintaining, pursuing, or
initiating any action in any court against these defendants for claims associated with, arising
out of, or relating to those claims which were raised or should have been raised in the plaintiff's
prior action styled Robert t. Irvin v. Tennessee Management Company, Inc., et al . . . ".


            On July 22, 1997, plaintiff filed a motion for the trial judge, Honorable James E.
Walton to recuse himself from the case, alleging " . . . that he has filed a complaint against
Judge Walton that is currently being investigated. Also, plaintiff will seek Judge Walton as a
witness in the hearing against Faith Johnson."


            Nothing further appears in the trial record relative to the motion to recuse until the
order of Judge Walton following the August 1, 1997 hearing.


II.         Recusal
            As to the recusal motion the court found:
            (1) This matter was previously presented to this court in Civil Action
            No. C10-813, which was tried on March 15, 1996, at which time this
            court assessed the credibility of witnesses and other evidence and made
            appropriate findings of fact and conclusions of law based on its
            evaluation and consideration of the evidence and testimony presented;
            (2) A final order was entered dismissing plaintiff's action; and
            (3) The plaintiff has shown no reasonable error that would prevent
            this court from hearing and resolving the motions presented according
            to the applicable rules of law.



            The foregoing constitutes the entirety of the record before the trial court on the
motion to recuse.


            In his brief, Mr. Irvin seeks to set "facts" before this court not appearing in the trial
record. While we acknowledge the liberal construction to be accorded to pro se pleadings, this
liberal construction does not allow us to consider facts not properly contained in the record on
appeal.


            It is well settled in Tennessee that the question of recusal rests in the sound
discretion of the trial judge and should not be reversed on appeal unless the record reveals a
clear abuse of that discretion. State, ex rel. Phillips v. Henderson, 220 Tenn. 701, 423 S.W.2d

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489 (1968). The question that must be considered, therefore, is whether, based on the record
before us, Judge Walton's refusal to recuse himself amounts to an abuse of discretion.


            This court can find no abuse of discretion on the part of the trial judge in refusing
to recuse himself. The whole basis of the recusal motion seems to be that the trial judge has
decided the issues in this case and the issues in the previous litigation against the appellant.
As further grounds, the appellant relies upon his own action in apparently filing a complaint
before the Court of the Judiciary against the trial judge. He further relies on his apparent desire
to call the trial judge as a witness. This latter point has been directly addressed by the Supreme
Court of Tennessee and is held not to be a basis for recusal. State, ex rel. Phillips v.
Henderson, 220 Tenn. 701, 707, 423 S.W.2d 489, 492 (1968).


            One of the leading cases in Tennessee on this subject provides a clear cogent and
convincing answer to recusal in this case.
                   It is also insisted that the trial judge was personally prejudiced
            against defendant because of the facts which had transpired during the
            trial of the case of State v. J. E. White; also on the motion for
            continuance, and the motion for new trial. Several of the states of the
            Union have statutes upon this subject, laying down the rule that this will
            make a judge incompetent. We have no such statute; moreover, we
            doubt the policy of such legislation. It is entirely conceivable that an
            upright and honest judge may decide justly and impartially as between
            his bitter personal enemy and his warm personal friend, administering
            the rules of law without fear or favor. Such a situation should be left to
            the personal delicacy of the judge, and not be a matter of absolute law.
            It is easy to conceive that under the opposite rule an upright and
            impartial judge would often be recused by affidavits as to his personal
            prejudices against one party or the other, to the great detriment,
            embarrassment, and delay of the administration of justice. It is
            exceedingly easy for litigants and counsel to imagine that a judge is
            prejudiced against a party, or against his counsel, who has failed to
            successfully prosecute, or successfully defend, any one or more cases.
            It is an infirmity of human nature that counsel, whose feelings and
            personal interests are deeply enlisted in every important case they try,
            are frequently unable to attribute want of success to the inherent
            weakness of the case, or to their own shortcomings in the management
            of it. It is a matter of general knowledge among lawyers that the refuge
            of defeated counsel is far too often abuse of the court, referred to pithily
            by lawyers as "cussin' the court." When the tide turns, and success
            crowns the effort of previously disappointed counsel, his opinion of the
            intelligence, learning, and probity of the court experiences a high,
            upward tendency. To allow personal feelings like these on the part of
            counsel to determine what judge shall try a case, it seems to us, would
            be disastrous. The new judge selected might not meet the approval of
            the counsel of the other side, and he would also have to be recused, and
            so on, resulting in a scramble, undignified and humiliating.

In re: Cameron, 126 Tenn. 614, 649, 51 S.W. 64, 74 (Tenn.1912).


            Under Tennessee Supreme Court Rule 10 Cannon 3 C, a judge should disqualify


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himself in a proceeding in which his impartiality might reasonably be questioned. The record
in this case discloses no basis on which the impartiality of the trial judge might reasonably be
questioned.


           Clearly the motion to recuse in this case is without merit and certainly the refusal
of the trial judge to recuse himself was not an abuse of discretion.


           It is also clear that just as in Wiseman v. Spalding, a recusal by the trial judge in this
case would be an exercise in futility. As in this case, Wiseman v. Spalding involved an appeal
from the action of a trial judge in sustaining a motion to dismiss because the complaint failed
to state a cause of action upon which relief could be granted. This is a pure question of law,
and on appeal the Wiseman court affirmed the trial judge. In answer to the complaint of the
appellant about the failure of the trial court to recuse itself, the court in Wiseman observed:
           The ruling of the trial judge was one of law in which this court concurs.
           It would not be in order for this court to set aside a correct ruling of law
           on grounds of alleged prejudice when to do so would be an exercise in
           futility. It would be an idle gesture to reverse and remand for a ruling
           by another judge when his ruling must, per force, be the same, else this
           court would reverse and correct on appeal.

Wiseman v. Spalding, 573 S.W.2d 490, 493 (Tenn.Ct.App.1978).



           While the record indicates that service of process on the appellee TAMCO was
insufficient under rule 4.04(4) of the Tennessee Rules of Civil Procedure, this issue was not
addressed by the trial court in the final judgment in this case as the trial court granted a rule
12.02(6) motion with no disposition made as to insufficiency of service of process under either
rule 12.02(4) or 12.02(5).


III.       Perjury
           Construed in the most liberal manner possible, the complaint of appellant purports
to be a civil action against defendants based solely upon alleged perjurious testimony of the
defendant Faith Johnson in previous litigation before the Circuit Court of Montgomery County.


           An action at law will not lie to recover damages for perjury alleged to have been
committed in a former case in which the plaintiff might have been interested. Felts v.
Paradise, et al, 178 Tenn. 421, 158 S.W.2d 727 (1942).


           It is a well-settled proposition of law in this jurisdiction that the
           testimony of a witness given in a judicial proceeding is absolutely
           privileged. Therefore, no civil action for damages may lie against a
           witness based upon his testimony in a case, though his testimony may
           have been damaging to one of the parties of the law suit in which he
           testified.

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Wilson v. Riccardi, 778 S.W.2d 450, 453 (Tenn.Ct.App.1989).


            Underlying this general doctrine of absolute immunity from liability in
            libel and slander for statements made in the course of a judicial
            proceeding is a policy decision by the courts that access to the judicial
            process, freedom to institute an action, or defend, or participate therein
            without fear of the burden of being sued for defamation is so vital and
            necessary to the integrity of our judicial system that it must be made
            paramount to the right of an individual to a legal remedy where he has
            been wronged thereby.

Jones v. Trice, 210 Tenn. 535, 541, 360 S.W.2d 48 (1912).



            The fact that cases of hardship may arise, and persons who have been defamed in
            the course of judicial proceedings may be left remediless is no reason why a
            wholesome legal principle, founded upon reasons of public policy, should be
            overthrown. A multitude of instances might be cited where the rights of the
            individual are required to be sacrificed for the public good."

Crockett v. McClanahan, 109 Tenn. 518, 530, 72 S.W. 950 (1903).



            Thus, the action of the trial court in sustaining the motion to dismiss under rule
12.02(6) of the Tennessee Rules of Civil Procedure because of failure of the complaint to state
a cause of action upon which relief can be granted was a correct action and is affirmed.


            While under the record in this cause, the action of the trial court in granting the
protective order to the defendant concerning discovery under Tennessee Rules of Civil
Procedure 26.03(1) and (4) was well within the discretion of the trial court; the propriety of
such action is rendered moot by the action of the trial court in sustaining the motion to dismiss.


IV.         Extraordinary Relief
            Of more concern is the action of the trial court reflected by the final paragraph of
its judgment in this case wherein it is stated:
            It is further ordered that the defendant's application for injunctive relief
            pursuant to Tennessee Rules of Civil Procedure 65 is granted and the
            plaintiff is forever enjoined and restrained from filing any further
            actions relating to the issues of whether Faith Johnson and/or Louise
            Irvin, the plaintiff's mother, committed perjury; the plaintiff is not
            otherwise barred from filing a new cause of action which he may have,
            if any.

            Defendants filed in the trial court an application for injunctive relief under Rule 65
seeking to prohibit the plaintiff ". . . from maintaining, pursuing, or initiating any action in any
court against these defendants for claims associated with, arising out of, or relating to those
claims which were raised or should have been raised in plaintiff's prior action styled Robert T.
Irvin v. Tennessee Management Co., Inc., et al, Circuit Court for Montgomery County, case


                                                  -6-
no. C10-813."


             There is no testimonial record before the court as to the matters occurring at the
August 1, 1997 hearing on the defendant's application for injunctive relief. As to this portion
of the case, the order of the trial court entered following the August 1, 1997 hearing states:
             Based upon this courts review of the record in this cause and related
             causes, and based upon statements of the parties in written motions and
             that the hearing of these motions, this court finds . . .
             (3) the plaintiff has filed numerous motions and petitions with this court
             in this case and in civil action no. C10-813, and the law suit filed in this
             matter has no basis under Tennessee law; and (4) the plaintiff is
             harassing these defendants;



             Based upon the foregoing recitation the court granted injunctive relief forever
prohibiting appellant from filing further actions relating to issues of whether Faith Johnson
and/or Louise Irvin committed perjury.


             There are no findings of fact and conclusions of law made by the trial court as
required by Tenn. R. Civ. P. 65.04(6) and 52.01.


             While this court is cognizant of previous actions taken by appellant that apparently
form the basis for the extraordinary injunctive relief granted by the trial court, there is no record
before the court sufficient to provide for a meaningful review. The injunction issued is a
permanent injunction albeit limited in its scope.


             Article I, section 17 of the Constitution of Tennessee provides: "That all courts
shall be open; and every man, or an injury done him in his lands, goods, person or reputation,
shall have remedy by due course of law, and right and justice administered without sale, denial,
or delay."


             In this case it is not necessary to attempt to establish the limitations on access to the
courts that in an individual case may be constitutionally imposed. It is only necessary to
address the question in the case at bar as to whether or not the record before the court supports
the grant of injunctive relief. It does not, and insofar as the judgment of the trial court granted
permanent injunctive relief against appellant, the order of the trial court is vacated.


             In all other respects the judgment of the trial court is affirmed and costs of appeal
are taxed against the appellant.


             The case is remanded for collection of costs and any other proceedings not
inconsistent with this opinion.


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                                          ______________________________
                                          WILLIAM B. CAIN, JUDGE



CONCUR:



_________________________________
BEN H. CANTRELL, JUDGE


_________________________________
WILLIAM C. KOCH, JR., JUDGE




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