                                                                                                         06/25/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                Assigned on Briefs June 8, 2020

                ANTHONY D. HERRON v. STATE OF TENNESSEE

                  Appeal from the Tennessee Claims Commission
        No. T20180317 & T20180318 James A. Hamilton, III, Commissioner
                     ___________________________________

                               No. W2020-00776-COA-T10B-CV


This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme
Court Rule 10B, from the trial court’s denial of a motion for recusal. Having reviewed
the petition for recusal appeal, pursuant to the de novo standard as required under Rule
10B, § 2.01, we affirm the claims commissioner’s decision to deny the motion for
recusal.

             Tenn. Sup. Ct. R. 10B Accelerated Interlocutory Appeal;
       Judgment of the Tennessee Claims Commission Affirmed and Remanded

FRANK G. CLEMENT JR., P.J., M.S. delivered the opinion of the Court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.

Anthony D. Herron, Jr., Memphis, Tennessee, appellant, pro se.

E. Ashley Carter, Nashville, Tennessee, Assistant Attorney General, for the appellee
State of Tennessee.

                                              OPINION

       Anthony D. Herron Jr. (“Claimant”) filed claims with the Tennessee Claims
Commission for monetary damages, asserting that the State of Tennessee breached its
contract with Claimant.1 Although the Petition for Recusal Appeal provides little

        1
         The Petition for Recusal Appeal does not identify the dates or terms of the alleged contract(s) or
the damages Claimant is seeking. Some of the facts relied on in this opinion are derived from documents
attached to the Petition for Recusal including, inter alia, the Claimant’s Motion for Recusal, the
Claimant’s Rule 72 Declaration in support of his Motion for Recusal, the Order of the Claims
Commissioner denying the Motion for Recusal, and the Order of the Claims Commissioner denying the
State’s Motion to Dismiss the claims.
information concerning the nature of the claims at issue, it appears the breach of contract
action is before the Claims Commission on two dockets, T20180317 and T20180318, and
the cases were brought pursuant to Tenn. Code. Ann § 9-8-307(a)(1)(L). The order
denying the State’s Motion to Dismiss, which is attached to Claimant’s petition, indicates
that the claims arise from one or more contracts, which Claimant allegedly entered into
with the Tennessee Department of Human Services for vocational rehabilitation benefits.2
The State of Tennessee denied ever entering into a written contract with Claimant.

       Claimant’s Statement of Facts, which reads as though it were a Statement of the
Case, provides as follows:3

        On June 5, 2018[,] Commissioner Hamilton issued an Order Denying
        Defendant’s Rule 12 Motion to Dismiss claimant’s claim in cases
        T20180317 & T20180318. On or about July 18, 2018[,] Claimant filed his
        Motion to Strike Defendant’s Answer and the testimony of its employees.
        On August 21, 2018[,] Claimant filed an En Banc Motion for Judgement on
        the Pleadings or Summary judgment, in the alternative. Thereafter[,] on
        September 28, 2018, Commissioner Hamilton issued an “ORDER TO
        SHOW CAUSE”[] in response to the filing of Claimant’s en banc
        motion. . . .

                                                .    .    .

        Thereafter Claimant responded to the Claims Commission’s Order to Show
        cause between October 5, 2018[,] and October 8, 2018. On October 12,
        2018[,] Claimant filed a Motion for Protective Order and a Motion to
        Quash Order to Compel, supported by affidavit. On October 22, 2018[,]
        Claimant filed a Motion to Quash Order to Show Cause in both cases.

        On January 18, 2019[,] Claimant’s En Banc Motion was before the entire
        Claims Commission at a public hearing in Mt. [Juliet] Tennessee. At that
        time[,] Claimant presented the entire Commission with the Defendant’s
        confidentiality regulation regarding the disclosure of vocational
        rehabilitation records. Claimant also reminded the entire Commission that
        the Commission looked to the rules of the University of Tennessee in

        2
          The alleged contract(s) are not attached to the Petition for Recusal Appeal, and the filings with
this court indicate that Claimant never presented nor filed any written contract with the Claims
Commission.
        3
           Although Claimant provides information concerning the procedural history of his claims, he
fails to provide relevant information on the nature of his claim, the terms of the alleged contract, or the
acts or omissions that allegedly breached the contract.


                                                    -2-
granting the State of Tennessee’s Motion for Summary Judgment in case
T20121212. Claimant then asked the entire Commission to look to the
Defendant’s regulation in making its determination regarding vocational
rehabilitation records. The entire Commission refused to hear the motion or
apply the appellee’s regulation to the cases at bar.

On January 23, 2019, approximately 155 days after Claimant filed his
Motion for Summary Judgment, the Claims Commission ordered
Defendant to respond to Claimant’s Motion for Summary Judgment. On
January 24, 2019[,] Claimant filed a Judicial Notice Request and attached
the Defendant’s Confidentiality policy in both cases. On February 5,
2019[,] the Defendant finally responded to Claimant’s En Banc Motion for
Summary Judgment originally filed [on] August 21, 2018. On February 15,
2019[,] Claimant complied with the Commissioner’s Order to Show cause
by filling the signature page of the written instrument that forms the basis
of claimant’s claims because the Commissioner acted on his threat to hold
Claimant’s pending motions in abeyance. Thereafter[,] on March 1, 2019[,]
Defendant responded in opposition to claimant’s judicial notice request
filed on January 24, 2019.

On April 30, 2019[,] the Claims Commissioner informed Claimant that he
needed to file a response to the Defendant’s Motion to Dismiss Claimant’s
Claim for Failure to comply with the Commissioner’s Order(s) or in the
alternative Motion to Continue trial until he produces the written contracts
he claims is at issue. On May 10, 2019[,] Claimant, Defendant and
Commissioner conducted a telephonic conference. During the meeting[,]
Commissioner informed Claimant that he needed to re-file his motion for
Summary Judgment. Claimant informed all parties that he intended to re-
file the Motion for Summary Judgment as well as a Motion in Limine
and/or a request for Judicial Notice. Claimant responded to the Defendant's
Motion to Dismiss on May 22, 2019. Sometime thereafter, Claimant filed
his Motion in Limine and re-filed his motion for Summary Judgment. On
July 3, 2019[,] Defendant responded to Claimant’s Motion in Limine,
Claimant’s Motion for Summary Judgment and Claimant’s Undisputed
facts in both cases.

Sometime in November 2019, the Claims Commission denied Claimant’s
Motion in Limine. Thereafter[,] on November 26, 2019[,] Claimant filed a
Motion for Reconsideration for the Motion in Limine. Claimant’s Motion
for reconsideration was eventually denied. Thereafter, on February 11,
2020[,] Claimant asked the Claims Commission to take Judicial Notice of
Adjudicative Fact of the Tennessee Public Records Act 49-11-613. On


                                   -3-
      February 21, the Defendant responded to Claimant’s Judicial Notice
      Request. [footnote omitted].

      On February 21, Claimant objected to Defendant’s witness / may call list.
      [footnote omitted]. On March 9, 2020[,] Claimant filed a Rule 65 Motion
      for Injunctive relief. On March 13, 2020[,] Defendant filed its response to
      Claimant’s Rule 65 Motion. On April 3, 2020[,] the Claims Commission
      denied Claimant’s Rule 65 Motion on the grounds that the Commission
      lacks [the] power to issue injunctive relief. On April 8, 2020[,] Claimant
      filed a Motion for Recusal. On May 20[,] Claimant filed the letter that he
      wrote to the Commissioner dated May 9, 2020. On May 20, 2020[,] the
      Claims Commissioner denied Claimant’s Motion for Recusal.

      The grounds for recusal of Commissioner Jim Hamilton III, as alleged by
Claimant, are summarized in the first paragraph of Claimant’s motion as follows:

      Comes the Claimant, Anthony D. Herron Jr, Pro Se, and respectfully moves
      pursuant to Rule 10 of the Supreme Court, to recuse Commissioner Jim
      Hamilton III from the above entitled matters under Rule 10 of the
      Tennessee Supreme Court Rules. Claimant moves on the grounds of bias
      and the appearance of bias based on a pattern of comments, conduct and
      rulings contrary to Tennessee laws and statutes. Additionally, Claimant
      moves on the ground that Commissioner Hamilton cannot be impartial or
      fair based on his previous rulings denying Claimant equal protection of the
      law as prescribed by T.C.A. § 49-11-613 and consistent with Defendant’s
      regulations.

      The Motion for Recusal was denied pursuant to an order entered on May 22, 2020.
The Commissioner addressed and ruled on each ground raised by Claimant based on the
Commissioner’s understanding of the law and facts. He further stated:

      The Commissioner can fairly and impartially hear and decide these claims
      because he does not know either Claimant or counsel for Defendant other
      than in their respective capacities as litigant and attorneys and has no
      personal knowledge of the facts of either claim. The Commission has
      merely ruled upon various pre-trial motions. Since Claimant has not
      obtained the rulings from the Commission he desires, he now files this
      Motion to Recuse.
      This appeal followed.

      The issues Claimant raises in his Petition for Recusal Appeal read as follows:



                                          -4-
       1. Whether the Claims Commissioner erred in ruling that he did not
          possess the power to grant Claimant’s motion for injunctive relief
          pursuant to Rule 65 of the Tennessee Rules of Civil Procedure?

       2. Whether the Claims Commissioner erred in determining that Claimant
          waived his right to privacy, afforded vocational rehabilitation records,
          by filing a monetary claim for breach of contract?

       3. Whether the Claims Commissioner erred by ordering the release of
          Claimant’s privileged vocational rehabilitation documents, without a
          proper legal analysis to support a conclusion that Claimant has waived
          such privilege?

       4. Whether the Claims Commissioner erred when he determined that
          Claimant’s pending claims potentially place documents, which the
          department maintains, at issue?

       5. Whether the Claims Commissioner denied Claimant equal protection of
          the law in failing to protect Claimant’s information concerning his
          participation in the vocational rehabilitation program?

       6. Whether the Claims Commissioner should have recused himself from
          presiding over Appellant’s cases, because of the look of impropriety or
          bias?

                                  STANDARD OF REVIEW

      Although Claimant has raised numerous issues for us to consider, the only issue
we may consider in a Tenn. Sup. Ct. R. 10B appeal is whether the Claims Commissioner
should have granted the Motion to Recuse. See Duke v. Duke, 398 S.W.3d 665, 668
(Tenn. Ct. App. 2012).

        Tenn. Sup. Ct. R. 10B governs appeals from orders denying motions to recuse.
Pursuant to § 2.01 of Rule 10B, a party is entitled to an “accelerated interlocutory appeal
as of right” from an order denying a motion for disqualification or recusal. The appeal is
perfected by filing a “petition for recusal appeal” with the appropriate appellate court. Id.

       Our standard of review is de novo. See id. “De novo” is defined as “anew, afresh,
a second time.” Simms Elec., Inc. v. Roberson Assocs., Inc., No. 01-A-01-9011-CV-
00407, 1991 WL 44279, at *2 (Tenn. Ct. App. Apr. 3, 1991) (quoting Black’s Law
Dictionary 392 (5th ed. 1979)). Thus, we examine the factual record anew, with no
presumption of correctness, and reach our own conclusion.


                                            -5-
       If we determine after reviewing the petition and supporting documents that no
answer from the other parties is needed, we may act summarily on the appeal. Tenn. Sup.
Ct. R. 10B, § 2.05. Otherwise, this court may order an answer and may also order further
briefing by the parties. Id. We may also decide the appeal without oral argument. Id. §
2.06.

       Based upon our review of the petition and supporting documents, we have
determined that neither an answer, additional briefing, nor oral argument is necessary,
and we elect to act summarily on the appeal in accordance with Tenn. Sup. Ct. R. 10B, §§
2.05 and 2.06.

                                        ANALYSIS

       Generally stated, Claimant contends Commissioner Hamilton is biased against him
and that an appearance of bias exists based on a pattern of comments, conduct, and
rulings contrary to Tennessee laws and statutes.

        A motion to recuse should be granted when judges have any doubt about their
ability to preside impartially in a case or when “a person of ordinary prudence 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., 38 S.W.3d
560, 564 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App.
1994)). The relevant portion of the Code of Judicial Conduct provides:

       (A) A judge shall disqualify himself or herself in any proceeding in which
           the judge’s impartiality might reasonably be questioned, including but
           not limited to the following circumstances:

              (1) The judge has a personal bias or prejudice concerning a
                  party or party’s lawyer, or personal knowledge of facts
                  that are in dispute in the proceedings.

Tenn. Sup. Ct. R. 10, RJC 2.11(A).

       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, 882 S.W.2d at 821. 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. (quoting State ex rel
Wesolich v. Goeke, 794 S.W.2d 692, 697 (Mo. App. 1990)).



                                           -6-
       However, “[i]f 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. It is for
this reason that “[a] trial judge’s adverse rulings are not usually sufficient to establish
bias.” State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008) (citing Alley, 882 S.W.2d at
821). “Rulings of a trial judge, even if erroneous, numerous and continuous, do not,
without more, justify disqualification.” Id. (quoting Alley, 882 S.W.2d at 821).

      The rationale for this proposition has been explained by our Supreme Court as
follows:

       Given the adversarial nature of litigation, trial judges necessarily assess the
       credibility of those who testify before them, whether in person or by some
       other means. Thus, the mere fact that a witness takes offense at the court’s
       assessment of the witness cannot serve as a valid basis for a motion to
       recuse. If the rule were otherwise, recusal would be required as a matter of
       course since trial courts necessarily rule against parties and witnesses in
       every case, and litigants could manipulate the impartiality issue for
       strategic advantage, which the courts frown upon.

Davis, 38 S.W.3d at 565. Thus, the contention that an objective observer would have a
reasonable basis for questioning the Commissioner’s adverse ruling based on the
Commissioner’s adverse rulings, without more, fails as a matter of law. See Cannon, 254
S.W.3d at 308; Davis, 38 S.W.3d at 565; Alley, 882 S.W.2d at 821.

       Nevertheless, Claimant also asserts that a reasonable person would question the
Commissioner’s impartiality because the factual and legal errors in the Commissioner’s
rulings are egregious. “In rare situations, the cumulative effect of the ‘repeated
misapplication of fundamental, rudimentary legal principles that favor[] [one party]
substantively and procedurally’ can be the basis for recusal.” Krohn v. Krohn, No.
M2015-01280-COA-T10B-CV, 2015 WL 5772549, at *7 (Tenn. Ct. App. Sept. 22, 2015)
(quoting Hoalcraft v. Smithson, No. M2000-01347-COA-R10-CV, 2001 WL 775602, at
*16–17 (Tenn. Ct. App. July 10, 2001)). Because we may not rule on the merits of any
order other than the order denying the motion to recuse, see Duke, 398 S.W.3d at 668,
our examination of the challenged rulings is limited to determining whether a basis for
recusal exists, Krohn, 2015 WL 5772549, at *7.

       We have reviewed the rulings at issue and have determined that they do not
contain errors that rise to the level of “repeated misapplication[s] of fundamental,
rudimentary legal principles.” Id. We have also determined that these rulings do not
create the appearance of bias.

       Therefore, we find no factual basis upon which to conclude that a person of
ordinary prudence in Commissioner Hamilton’s position, “knowing all of the facts known

                                            -7-
to the judge, would find a reasonable basis for questioning his impartiality.” See Davis,
38 S.W.3d at 564; Tenn. Sup. Ct. R. 10, RJC 2.11(A). Accordingly, we affirm the denial
of the Motion for Recusal.




                                          -8-
                                IN CONCLUSION

      The judgment of the Claims Commissioner is affirmed, and this matter is
remanded with costs of appeal assessed against Claimant, Anthony D. Herron, Jr.


                                           ________________________________
                                           FRANK G. CLEMENT JR., P.J., M.S.




                                     -9-
