                                                                                                           07/24/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                Assigned on Briefs June 15, 2018

     JUDY MORROW WRIGHT ET AL. v. MATTHEW G. BUYER ET AL.

                     Appeal from the Probate Court for Shelby County
                         No. PR-7275 Kathleen N. Gomes, Judge
                        ___________________________________

                               No. W2018-01094-COA-T10B-CV
                            ___________________________________


This is an accelerated interlocutory appeal as of right from the denial of a motion for
recusal. In their petition for recusal appeal, Petitioners admit that they did not promptly
file the recusal motion after the facts forming the basis for the motion became known. As
such, Petitioners waived their right to challenge the probate judge’s impartiality. The
record is also insufficient to support a finding of error on the part of the probate judge
because the motion for recusal was unaccompanied by an affidavit as required by the
rules. Thus, we affirm the probate court’s denial of the recusal motion.

 Tenn. Sup. Ct. R. 10B Accelerated Interlocutory Appeal as of Right; Judgment of
                 the Probate Court Affirmed and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON II and ARNOLD B. GOLDIN, JJ., joined.

Larry E. Parrish, Memphis, Tennessee, for the appellants, Judy M. Wright and David L.
Morrow.


                                               OPINION

                                                     I.

       Petitioners, Judy M. Wright and David L. Morrow, are first cousins of the late
John J. Goza, the son of Helen B. Goza. See Morrow v. SunTrust Bank, No. W2010-
01547-COA-R3-CV, 2011 WL 334507, at *1 (Tenn. Ct. App. Jan. 31, 2011). Petitioners,
along with the Estate of John J. Goza,1 filed what was entitled a “FIRST AMENDED
        1
          Although the first amended complaint included the Estate of John J. Goza as a party-plaintiff,
none of the other pleadings or orders in the supporting documents filed with this appeal list the Estate as a
COMPLAINT FOR CIVIL CONSPIRACY TO DEFRAUD AND TO CONVERT
PROPERTY OF NON COMPOS MENTIS[2] CESTUI QUE TRUST,[3] TO BREACH
INDIVISIBLE DUTY OF LOYALTY, FOR FRAUD, FOR BREACH OF
CONFIDENCE/CONFIDENTIAL RELATIONSHIP, FOR CONVERSION AND FOR
NEGLIENCE [sic]” against SunTrust Bank and Matthew G. Buyer in the Probate Court
for Shelby County, Tennessee.

       At ninety-one pages, all but one page of which is exhibited to the petition for
recusal appeal, the first amended complaint defies succinct description. The first
amended complaint does contain a two and one-half page “Preface,” which is somewhat
illuminating. The “Preface” provides as follows:

                This complaint seeks money damages from SunTrust Corporation, in
        its individual corporate capacity, as a tortfeasor which, though disqualified
        (paragraph 181f herein) as a trustee by a patent conflict of interests, usurped
        the role of trustee of the John Goza Lifetime Trust and took control
        (without any accountability to any duly authorized conservator or guardian
        answerable to a court of competent jurisdiction) of the financial affairs of
        the non compos mentis adult, John J. Goza, the decedent of plaintiff, The
        Estate of John J. Goza (hereinafter “Estate”). The purpose, Estate alleges,
        was to tortiously convert use and benefit of the assets of the John Goza
        Lifetime Trust to the use and benefit of SunTrust Corporation and others
        (e.g., Perpetual Charitable Trust) with interests in conflict to John J. Goza’s
        interests.

               Mr. Buyer is the agent of SunTrust Corporation who acted for and
        on behalf of SunTrust Corporation, to carry out SunTrust Corporation’s
        tortious wrongdoing, breaches of contract and conspiracy.

               Among other injuries, the complaint seeks recovery of compensatory
        damages for SunTrust Corporation and Mr. Buyer intentionally causing
        John J. Goza to suffer personal injury.

Later in the first amended complaint, we learn that Petitioners also seek “punitive
damages inuring to the benefit of Estate by virtue of the tortious acts/omissions causing

party. The Estate is also not a party to this appeal.
        2
        Non compos mentis is Latin for “not master of one’s mind.” Non compos mentis, BLACK’S LAW
DICTIONARY (10th ed. 2014).
        3
          Cestui que trust refers to “[s]omeone who possesses equitable rights in property” or, in other
words, a beneficiary. Cestui que trust, BLACK’S LAW DICTIONARY (10th ed. 2014).

                                                        2
. . . personal injury and economic injury to John J. Goza, during part of John J. Goza’s
life, more particularly from May 15, 2001 through the September 2[6], 2007 death of
John J. Goza.”

       The Preface also explains that the first amended complaint does not challenge the
creation or existence of either of the referenced trusts. The Preface begins as follows:

              The hereinafter complaint presupposes that the John Goza Lifetime
       Trust . . . and the Perpetual Charitable Trust . . . were created and the John
       J. Goza Lifetime Trust existed until terminated by the cessation of John J.
       Goza’s Lifetime [sic] and, in the case of the Perpetual Charitable Trust, has
       continued uninterruptedly to exist.

The Preface concludes as follows:

               The instant claims for relief are solely based on the fact that
       SunTrust Corporation and Mr. Buyer “committed a wrongful or tortious
       act” and not all [sic] on “whether or no [sic] not a trust in fact exists” or
       anything about “the proper court” to determine whether a “trust in fact
       exists.”

        Ultimately, the probate court granted SunTrust’s and Mr. Buyer’s motion to
dismiss based on lack of subject matter jurisdiction and the expiration of the statute of
limitations. The probate court concluded it had no “subject matter jurisdiction over an
unliquidated tort claim as an original cause of action.” See Tenn. Code Ann. § 16-16-107
(Supp. 2017). The court further concluded that the three-year limitations period for a tort
action had long expired because the cause of action accrued on September 26, 2007, upon
Mr. Goza’s death. See id. § 28-1-105 (2017).

       In response to the probate court’s order of dismissal, Petitioners filed a motion to
recuse, and later, a substituted and superseding motion to recuse. Among other things,
Petitioners sought recusal of the probate court judge because Matthew Thornton, one of
the attorneys for the defendants, previously served as substitute judge for the probate
court. According to Petitioners, this fact “evidence[d] a professional relationship
between [the probate court judge] and Mr. Thornton,” creating “the appearance that the
[probate court judge] is adjudicating the instant case being defended by a person in a
position as would be a colleague who serves . . . in the same court.”

        Petitioners also alleged that the probate court judge’s “long history . . . as a
practitioner” of trust and estate law involved performing tasks “associated with so-called
‘living trusts.’” As a result, Petitioners argued that the probate court judge’s prior legal
experience “has so ‘psychologically wedded’ [her] to the proposition that so-called
‘living trusts are lawful in Tennessee,” making “it impossible for [the probate court
                                              3
judge] to adjudicate claims for relief by [Petitioners] predicated on [Petitioners’]
contention that so-called ‘living trusts’ are outlawed by controlling Tennessee
precedent.”

       The probate court entered an order denying the motion for recusal. The court
found “[t]he fact that Mr. Thornton was appointed on one occasion to serve as a
Substitute Judge[ ] does not make a professional relationship” nor does it “make the
Court bias[ed] in his favor.” The court also denied that her history of “practic[ing] in the
area of Probate law and deal[ing] with many lawyers over the years” was a ground for
recusal because the validity of the trusts “has already been determined.” The court found
that Petitioners “failed to establish that this Court is biased or prejudiced in any way
against” Petitioners or their counsel. From this order, Petitioners seek an accelerated
interlocutory appeal.

                                                II.

                                                A.

       Rule 10B of the Rules of the Supreme Court of Tennessee governs the procedure
for “determin[ing] whether a judge should preside over a case.” TENN. SUP. CT. R. 10B.
Section 2 of that rule governs appeals from a trial court’s denial of a motion for
disqualification or recusal. The unsuccessful movant can either seek “an accelerated
interlocutory appeal as of right . . . or the ruling can be raised as an issue in an appeal as
of right . . . following the entry of the trial court’s judgment.” Id. § 2.01. These are “the
exclusive methods for seeking appellate review.” Id. In this instance, Petitioners
asserted that they filed a timely motion to alter or amend the order of dismissal under
Rule 59.04 of the Tennessee Rules of Civil Procedure; if so, 4 the order of dismissal is not
yet final. See TENN. R. APP. P. 4(b); see also Ball v. McDowell, 288 S.W.3d 833, 836
(Tenn. 2009).

       An accelerated interlocutory appeal as of right is initiated by the filing of “a
petition for recusal appeal.” Id. § 2.02. The petition for recusal appeal must contain
certain elements and be accompanied by certain documentation to facilitate appellate
review, which we are required to carry out “on an expedited basis.” Id. §§ 2.03, 2.06. In
a Rule 10B appeal, “the only order we may review is the trial court’s order that denies a
motion to recuse.” Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012). We
review a trial judge’s ruling on a recusal motion “under a de novo standard of review.”
TENN. SUP. CT. R. 10B § 2.01.


       4
         The motion to alter or amend under Rule 59 is not included in the record on appeal. But
whether we treat this as an accelerated interlocutory appeal or not, the outcome would be the same.

                                                4
      After a review of the petition and supporting documents, we have determined that
an answer, additional briefing, and oral argument are unnecessary. See id. §§ 2.05, 2.06.
Thus, we act summarily on the appeal.5 See id. § 2.05.

                                                    B.

        In Tennessee, litigants “have a fundamental right to a ‘fair trial before an impartial
tribunal.’” Holsclaw v. Ivy Hall Nursing Home, Inc., 530 S.W.3d 65, 69 (Tenn. 2017)
(quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)); see also TENN. CONST. art
VI, § 11. This right is not absolute, however; the party seeking recusal must file the
recusal motion “promptly after the facts forming the basis for the motion become
known.” Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). “It is a well
known and well accepted rule that a party must complain and seek relief immediately
after the occurrence of a prejudicial event and may not silently preserve the event as an
‘ace in the hole’ to be used in event of an adverse decision.” Gotwald v. Gotwald, 768
S.W.2d 689, 694 (Tenn. Ct. App. 1988) (quoting Spain v. Connolly, 606 S.W.2d 540, 543
(Tenn. Ct. App. 1980)). A party’s failure to take action “in a timely manner results in a
waiver of a party’s right to question a judge’s impartiality.” Kinard, 986 S.W.2d at 228.

        We conclude Petitioners waived their right to challenge the probate judge’s
impartiality in this case. Here, Petitioners admit in their petition for recusal appeal that,
even before the probate judge ruled on SunTrust’s and Mr. Buyer’s motion to dismiss,
they “kn[ew] [the probate judge’s] propensity to use result-oriented adjudication to defy
precedent and rule according to [the probate judge’s] self-centered predisposition.” But
Petitioners admittedly “withheld a motion to recuse in hopes that the absence of an issue
concerning the unlawful use of the H. Goza Revocable Trust would suppress [the probate
judge’s] propensity and allow principled precedent-controlled adjudication to determine
results.” According to them, the dismissal order “was the most result-oriented
adjudication Adjudicator had ever rendered . . . and withholding the Recusal Motion
could no longer be justified.”

       Even if the issue was not waived, we further conclude the record is insufficient to
support a finding that the probate court judge erred in its denial of the motion to recuse.
See, e.g., Elseroad v. Cook, No. E2018-00074-COA-T10B-CV, 2018 WL 576658, at *4-

        5
           While this case was pending on appeal, Petitioners filed a motion to dismiss their petition for
recusal appeal. According to Petitioners, “by oversight,” their substituted and superseding motion to
recuse did not quote “the precise and exact words” contained in § 1.01 of Rule 10B. The section requires
that any motion seeking disqualification or recusal of a trial judge to “affirmatively state that it is not
being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.” TENN. SUP. CT. R. 10B § 1.01. Petitioners seek dismissal for purpose
of filing a new motion to recuse, including any missing language. We deny the motion to dismiss the
petition for recusal appeal.

                                                    5
5 (Tenn. Ct. App. Jan. 26, 2018); Johnston v. Johnston, No. E2015-00213-COA-T10B-
CV, 2015 WL 739606, at *2 (Tenn. Ct. App. Feb. 20, 2015). Rule 10B § 1.01 provides
that the motion to recuse “shall be supported by an affidavit under oath or a declaration
under penalty of perjury on personal knowledge.” TENN. SUP. CT. R. 10B § 1.01
(emphasis added). We have interpreted this language as mandatory. Johnston, 2015 WL
739606, at *2. Here, despite arguing that the court’s order denying the recusal motion
“must be given less deference than the words of the Recusal Motion because the former
are unsworn, and the latter are sworn,” Petitioners did not support their recusal motion
with an affidavit or a declaration under penalty of perjury on personal knowledge.6 We
have previously stressed “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.” Id. “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.” Id.

                                                    III.

       Based on waiver and Petitioners’ failure to properly support their motion, we
conclude that the probate court did not err in its denial of the recusal motion. Thus, we
affirm the decision of the probate court. This case is remanded for such further
proceedings as may be necessary.


                                                           _________________________________
                                                           W. NEAL MCBRAYER, JUDGE




        6
         According to the probate court judge, “[t]he accusations and allegations [in the substituted and
superseding motion to recuse] are based on innuendo and suppositions, and not based on fact.” We agree,
and not just because of the lack of an affidavit or declaration. For example, in their memorandum in
support of the motion to recuse, Petitioners concede that “it is anticipated by probable cause, but not yet
known for certain, that [the probate court judge], in private practice, advised clients that living trusts are
an enforceable means by which a living trust settlor can control post-death distribution of the living trust’s
corpus.” Yet Petitioners describe this slender reed as their “[f]irst and foremost” basis for recusal.
                                                      6
