The opinion
04/30/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 6, 2018 Session
CANDES PREWITT V. KAMAL BROWN
Appeal from the Circuit Court for Davidson County
No. 13C2894 Kelvin D. Jones, III, Judge
No. M2017-01420-COA-R3-CV
This is a personal injury action in which the plaintiff seeks to recover damages incurred
in an automobile accident. Although several issues are raised, the principal issues on
appeal are whether the trial court erred by ordering the plaintiff to submit to an
independent medical examination, and whether the court erred by sanctioning the
plaintiff for refusing to submit to the examination by prohibiting her from offering any
evidence at trial regarding medical bills or medical records related to future pain and
suffering, future loss of enjoyment of life, and/or permanent impairment. The case was
tried before a jury with the sanctions in place, and the plaintiff was awarded damages in
the amount of $500.00 for her past pain and suffering. This appeal followed. Finding no
reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which W. NEAL
MCBRAYER and KENNY W. ARMSTRONG, JJ., joined.
Candes V. Prewitt, Brentwood, Tennessee, pro se.1
Jay R. McLemore and Donald R. Ferguson, Franklin, Tennessee, for the appellee, Kamal
Brown.
OPINION
Candes Prewitt (“Plaintiff”) was involved in an automobile accident with Kamal
Brown (“Defendant”) on Interstate 24 in Nashville, Tennessee on June 1, 2013.2 Plaintiff
1
Although Ms. Prewitt is proceeding pro se, she is an attorney, licensed in Tennessee.
commenced this action on July 19, 2013, alleging Defendant caused the crash through the
negligent operation of his vehicle and that Plaintiff “suffered serious bodily injuries in the
collision . . . as a direct and proximate result of the negligent, reckless, wanton, and
unlawful conduct of [Defendant]. . . .” Plaintiff sought damages for her past and future
medical expenses, pain and suffering, severe mental distress, and loss of enjoyment of
life.3 Defendant filed an amended answer in which he accepted fault for the accident but
disputed the nature and extent of Plaintiff’s injuries.
On September 4, 2015, following the initial phase of discovery, Defendant filed a
Tenn. R. Civ. P. 35 motion for an Independent Medical Examination (“IME”) of Plaintiff.
When the court granted the motion, Defendant made several attempts to schedule the
IME at a time convenient to Plaintiff but received no response. Thereafter, Defendant
scheduled the IME on December 1, 2015, and provided notice of the IME to Plaintiff on
October 22, 2015. Plaintiff never responded, and more importantly, failed to appear. As a
consequence, Defendant was forced to pay a $750 “no-show” fee to the physician.
On December 7, 2015, Defendant filed a motion to compel Plaintiff to submit to
the IME. Plaintiff responded by filing a motion for protective order in which she sought a
different method of discovery. The trial court denied Plaintiff’s motion for protective
order and granted Defendant’s motion to compel. The trial court did not specify a date for
the IME, stating instead that the IME was “to be scheduled by the parties.” Following the
denial of her motion for protective order, Plaintiff sought interlocutory relief under Tenn.
R. App. P. 9, which the trial court denied. Thereafter, Plaintiff filed an application
pursuant to Tenn. R. App. P. 10 for permission to appeal on May 5, 2016, which this
court denied on May 16, 2016.
Armed with the trial court’s order compelling Plaintiff to submit to the IME,
Defendant again attempted to coordinate the IME with Plaintiff’s schedule, and again,
Plaintiff refused to cooperate. Fearing another $750 “no-show” fee, Defendant elected
not to unilaterally schedule another IME. Instead, Defendant sent Plaintiff four letters,
2
AllState Insurance Company and Eugene Brown, the named insured under the Allstate policy,
were also named as defendants, but they have been dismissed from the case and are not involved in this
appeal.
3
There were originally two plaintiffs in this action, the other being Sandra Prewitt, Plaintiff’s
mother, who owned the vehicle Plaintiff was driving. The complaint additionally sought to recover
damages incurred by Sandra Prewitt for damage to her car, including the value of the car and damages
resulting from the loss of use of the vehicle. Upon the defendant’s motion, the trial court bifurcated the
claims of Sandra Prewitt for property damage from those of Candes Prewitt for personal injuries. The
case by Sandra Prewitt went to trial, and an appeal has already concluded involving her property damage
claims. See [Sandra] Prewitt v. Brown, 525 S.W.3d 616 (Tenn. Ct. App. 2017), appeal denied (May 18,
2017). Only Plaintiff’s personal injury claims are at issue in this appeal.
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listing the physician’s availability and requesting that Plaintiff choose one of the
available dates and times.4 Plaintiff never responded.
Following Plaintiff’s refusal to cooperate in scheduling the IME, Defendant filed a
motion to dismiss the complaint. After a hearing on July 22, 2016, the trial court ruled
that Plaintiff was in willful violation of its March 2 order. However, instead of dismissing
the complaint, the trial court imposed discovery sanctions by prohibiting Plaintiff from
offering any testimony or evidence at trial regarding medical damages, medical bills, or
medical records related to future pain and suffering, future loss of enjoyment of life
and/or permanent impairment.
Following a two-day jury trial held on February 28 and March 1, 2017, the jury
awarded Plaintiff $500.00 for past pain and suffering. Thereafter, Plaintiff filed a motion
challenging, inter alia, the denial of her pre-trial motion to delay the trial as well as the
jury instructions. She also asked for a new trial and asked that the trial judge be recused
from the case. When the trial court denied relief, this appeal followed.
ISSUES
Plaintiff raises nine issues on appeal.5 We have rephrased the issues as follows:
4
Defendant sent letters to Plaintiff on April 11, 2016, April 18, 2016, May 3, 2016, and May 20,
2016.
5
Plaintiff presents the following issues for our review:
(1) Whether the trial court erred and abused its discretion upon entering the
March 2, 2016, Order compelling the physical examination of Plaintiff, because
the subject motion compelling said examination was granted absent compliance
with all requirements of Tennessee Rule of Civil Procedure 35.01 and Tennessee
Law?
(2) Whether the trial court erred and abused its discretion upon entering the
March 2, 2016, Order finding Plaintiff in willful contempt of court, because said
finding was made by the trial outside of the rules of court and Tennessee law, and
greatly negatively impacted the trial for this matter, as well as the ultimate
outcome of the case?
(3) Whether the trial court erred and abused its discretion in admitting
Defendant’s expert testimony at trial, because Plaintiff was denied the
opportunity to challenge said expert’s qualifications to testify as such and said
testimony was admitted in violation of rules of court?
(4) Whether the trial court erred and abused its discretion in the admission of a
selection of Plaintiff’s medical records into evidence by Defendant, because said
medical records entered had been altered by the defense?
(continued…)
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1. Whether the trial court erred by compelling an IME of Plaintiff?
2. Whether the trial court erred by imposing sanctions due to Plaintiff’s refusal to
submit to an IME?
3. Whether the trial court erred by denying Plaintiff’s pre-trial motion for a
continuance of the trial?
4. Whether the court erred in admitting certain evidence over Plaintiff’s objections?
5. Whether the trial court erred in its jury instruction?
6. Whether the trial court erred by denying Plaintiff’s motion for recusal?
(5) Whether the trial court erred and abused its discretion in the admission of
photographs of the vehicle driven by Plaintiff during the subject June 1, 2013,
automobile collision into evidence, because the property damage claims in this
action had previously been bifurcated for a separate trial and the subject
photographs caused confusion, with respect to the issues for trial, as well as were
misleading?
(6) Whether the trial court erred and abused its discretion in the admission of the
reading of statements by Plaintiff from the police report from the subject June 1,
2013, automobile collision at Defendant’s direction at trial, because the trial
court previously granted Defendant’s motion in limine to specifically exclude
said police report?
(7) Whether the trial court erred and abused its discretion with respect to the jury
pertaining to certain matters, because the jury was not properly charged on the
issues of causation and fault, and evidence was presented to the trial court in
support of the contention that the jury did not entirely exercise its own judgment
in reaching the verdict?
(8) Whether the trial court erred and abused its discretion with respect to the
scheduling of the trial for the present action, because the trial was not continued,
despite a request to do so, although major evidentiary issues remained
unresolved?
(9) Whether the trial court erred and abused its discretion upon the denial of
Plaintiff’s motion for recusal for a lack of impartiality, because evidence was
presented that could prompt a reasonable, disinterested person to believe the trial
judge’s impartiality might reasonably be questioned?
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STANDARD OF REVIEW
All issues, except with respect to the jury instructions, involve discretionary
decisions that are reviewed pursuant to the “abuse of discretion” standard of review. Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). The abuse of discretion
standard does not permit reviewing courts to substitute their discretion for that of the trial
court. Id. Nevertheless, the abuse of discretion standard of review does not immunize a
lower court’s decision from any meaningful appellate scrutiny. Id.
Discretionary decisions must take the applicable law and the relevant facts
into account. An abuse of discretion occurs when a court strays beyond the
applicable legal standards or when it fails to properly consider the factors
customarily used to guide the particular discretionary decision. A court
abuses its discretion when it causes an injustice to the party challenging the
decision by (1) applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its decision on a clearly
erroneous assessment of the evidence.
… [R]eviewing courts should review a [trial] court’s discretionary decision
to determine (1) whether the factual basis for the decision is properly
supported by evidence in the record, (2) whether the [trial] court properly
identified and applied the most appropriate legal principles applicable to the
decision, and (3) whether the [trial] court’s decision was within the range of
acceptable alternative dispositions. When called upon to review a lower
court’s discretionary decision, the reviewing court should review the
underlying factual findings using the preponderance of the evidence
standard contained in Tenn. R. App. P. 13(d) and should review the [trial]
court’s legal determinations de novo without any presumption of
correctness.
Id. at 524-25 (internal citations omitted).
Therefore, we shall review each of the trial court’s decisions to determine, where
applicable, whether there is a factual basis for the decision in the record, whether the
court properly identified and applied the relevant legal principles, and whether the
decision is within the range of acceptable alternative dispositions. Id. at 524.
As for Plaintiff’s challenge to the jury instructions, whether a jury instruction is
erroneous is a question of law, which is subject to de novo review with no presumption of
correctness. Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011).
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ANALYSIS
I. INDEPENDENT MEDICAL EXAMINATION
Plaintiff contends the trial court erred by compelling an IME of Plaintiff. She also
contends the trial court erred by imposing sanctions due to Plaintiff’s refusal to submit to
an IME. We shall discuss each of the issues in turn.
Tennessee Rule of Civil Procedure 35.01 provides, in pertinent part, “[w]hen the
mental or physical condition . . . of a party . . . is in controversy, the court . . . may order
the party to submit to a physical or mental examination by a suitably licensed or certified
examiner. . . .” The rule also states that “[t]he order may be made only on motion for
good cause shown and upon notice to the person to be examined and to all parties and
shall specify the time, place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made.” Id. (emphasis added).
Plaintiff placed her mental and physical condition in controversy when she alleged
that she suffered “pain and suffering, severe mental distress, and loss of enjoyment of
life,” as a result of Defendant’s actions, and sought compensatory damages for “all past,
present, and future medical expenses.” Accordingly, Defendant had a meritorious basis
upon which to request that Plaintiff undergo an IME. Having determined that Plaintiff
placed her mental and physical condition in controversy, we affirm the trial court’s ruling
to compel Plaintiff to submit to an IME of her physical and mental health, based on the
injuries and damages alleged by Plaintiff and defenses asserted by Defendant.
Although the trial court acted within its discretion by compelling Plaintiff to
submit to an IME, it failed to limit the scope of the examination as Rule 35.01 requires.
Nevertheless, Plaintiff failed to effectually communicate her justifiable objections to the
trial court by, at first, refusing to communicate with anyone, and later by filing a vague
motion for a protective order that was devoid of a factual or legal justification. Stated
another way, Plaintiff failed to inform the trial court of the factual or legal basis of her
objections that arose from the court’s failure to limit the scope of the IME, and it was not
the responsibility of the trial court to search for a meritorious basis if Plaintiff failed to
articulate it. More significantly, Plaintiff failed to inform the trial court of what she has
provided to this court for our consideration in this appeal.
Although Plaintiff vaguely objected to the “volume, nature, and extent” of the
examination, the record before us allows us to appreciate why Plaintiff took exception to
portions of the questionnaire mailed to her in advance of the IME by the independent
medical examiner, Dr. Jeffrey Hazlewood. The questionnaire included topics that appear
to have no relevance to the injuries and damages Plaintiff placed in controversy. For
example, Plaintiff was asked to state if she had been sexually abused as a child. We fail
to see how this question, and possibly others, would fall within the appropriate scope of
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an IME of Plaintiff. More importantly, we are confident the trial court would have limited
the scope following the motion for a protective order had Plaintiff presented this
information to the trial court. However, she did not. Nevertheless, the trial court denied
Plaintiff’s motion for a protective order without specifying or limiting the scope of the
examination.
Following the denial of her motion for a protective order, Plaintiff sought
interlocutory relief under Tenn. R. App. P. 9, which the trial court denied. Thereafter,
Plaintiff filed an application for an extraordinary appeal pursuant to Tenn. R. App. P. 10
on May 5, 2016, which this court denied on May 16, 2016.
Following the denial of her interlocutory and extraordinary appeals, the order
compelling Plaintiff to submit to an IME remained in effect. Thereafter, Plaintiff failed to
answer any portion of the questionnaire from Dr. Hazelwood, even those relevant to the
injuries and damages she placed in controversy.6 Moreover, Plaintiff failed to appear for
the court ordered IME, and by failing to do so, Plaintiff was in direct contravention of the
order compelling her to submit to an IME.
Thereafter, Defendant filed a motion to dismiss all claims raised by Plaintiff. The
trial court denied that motion and, instead, elected to impose discovery sanctions by
prohibiting Plaintiff from presenting any medical evidence of “future pain and suffering,
future loss of enjoyment of life, and/or permanent impairment.” Plaintiff contends this
was error for the following reasons.
Plaintiff first argues that she did not violate the trial court’s order because an IME
was never scheduled. We find this contention disingenuous because the order clearly
states that the IME was to be scheduled by “the parties,” and Plaintiff refused to
participate in scheduling the IME. In fact, she refused to respond to multiple requests to
schedule the IME at a time convenient to her. Therefore, Plaintiff violated the order
requiring her to cooperate in scheduling the IME.
Plaintiff next argues that she was justified in disobeying the order compelling an
IME because the order was invalid. In this regard, she contends Defendant made no
showing of “good cause,” the IME was unnecessary, and the order was overly broad. We
find these arguments unavailing. Defendant was justified in seeking an IME, and he
established good cause by showing that Plaintiff had placed her physical and medical
condition in controversy. Therefore, an IME, at least one with an appropriate “scope,”
was necessary. Although the order compelling Plaintiff to submit to an IME failed to
6
Not at issue in this appeal is whether Plaintiff could have answered the relevant questions while
refusing to answer the irrelevant questions, after the trial court denied the motion for a protective order,
without violating the court’s order.
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appropriately limit the scope of examination, once she exhausted her interlocutory and
extraordinary appeals, she had no option but to submit to an IME. When Plaintiff failed
to schedule and failed to appear for an IME, she was in direct contravention of not one,
but two trial court orders, the purpose of which was to further discovery.7
As a consequence of Plaintiff’s failure to comply, the trial court imposed
sanctions. We have determined that the trial court acted within its discretion by imposing
the sanctions of which Plaintiff now complains.
Tennessee Rule of Civil Procedure 37.02 states:
If a . . . party . . . fails to obey an order to provide or permit discovery,
including an order made under Rule 37.01 or Rule 35 . . . the court in which
the action is pending may make such orders in regard to the failure as are
just, and among others the following:
. . .
(B) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting that party from introducing
designated matters in evidence;
. . .
(D) In lieu of any of the foregoing orders or in addition thereto, an order
treating as a contempt of court the failure to obey any orders except an
order to submit to a physical or mental examination[.]
(Emphasis added).
By refusing to schedule or submit to an IME, Plaintiff failed to obey two orders to
permit discovery. Based on Plaintiff’s refusal, the trial court had the discretion to issue
“[a]n order refusing to allow the disobedient party to support or oppose designated claims
or defenses, or prohibiting that party from introducing designated matters in evidence. .
. .” Tenn. R. Civ. P. 37.02(B) (emphasis added). Given Plaintiff’s refusal to comply with
the discovery orders, the trial court acted within its discretion to impose sanctions
prohibiting Plaintiff from introducing evidence which likely would have been discovered,
7
Had Plaintiff appeared for the IME, whether Plaintiff could have insisted that Dr. Hazelwood
limit the scope of the physical examination without violating the court’s order is not at issue in this
appeal.
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had Plaintiff complied with the orders. Accordingly, we find no error with the trial
court’s decision.
II. PRE-TRIAL MOTION TO CONTINUE TRIAL DATE
Plaintiff contends the trial court abused its discretion by denying her motion to
continue the trial date, which was set to begin twelve days later.
Plaintiff made an oral motion on February 16, 2017, to continue the trial date at
the conclusion of a hearing during which the trial court ruled that Plaintiff’s recently
disclosed expert witness, her chiropractor, could not provide opinion testimony
concerning her condition. The court’s reason for prohibiting the expert from rendering
opinion testimony was due to the fact Plaintiff did not identify her chiropractor as an
expert witness until after the deadline to do so had passed, as established in a case
management scheduling order.8
The trial date and the scheduling order deadlines were set during a case
management conference on August 16, 2016, which was six months before the scheduled
trial date. Our trial courts “possess broad discretionary authority to control their dockets
and the proceedings in their courts.” Hessmer v. Hessmer, 138 S.W. 3d 901, 904 (Tenn.
Ct. App. 2003). Considering the fact the case had been pending for more than three years
and the issues were, or should have been, straightforward, we find no abuse of discretion
in the denial of Plaintiff’s motion to continue the trial date.
III. EVIDENTIARY ISSUES
Plaintiff raises several issues that pertain to discretionary evidentiary decisions;
however, we have determined that Plaintiff has waived these issues by failing to provide
an appropriate record. See State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993).
“When a party seeks appellate review there is a duty to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the
issues forming the basis of the appeal.” Id. at 560 (citing State v. Bunch, 646 S.W.2d 158,
160 (Tenn. 1983)). The burden is on the appellant to provide a transcript of the evidence
or a statement of the evidence. Tenn. R. App. P. 24(b) and (c).
8
As Defendant correctly notes in his brief, Plaintiff requested an extension of the deadline to
designate expert witnesses so she could designate her treating chiropractor as an expert witness. She also
stated that she needed more time to review a redacted version of Dr. Hazlewood’s video deposition, “even
though Plaintiff was present during Dr. Hazlewood’s entire video deposition, and the redactions were
made to benefit her by removing any reference to her refusal to attend the IME exam.”
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The record before us does not include either a verbatim transcript of the evidence
or a statement of the evidence. See id. Thus, we do not know the evidence proffered by
either party, if an objection was made to that evidence, if so, on what ground, or why the
court elected to exclude or admit such evidence. “The absence of either a transcript or a
statement of the evidence significantly ties the hands of the appellate court.” Chandler v.
Chandler, No. W2010–01503–COA–R3–CV, 2012 WL 2393698, at *6 (Tenn. Ct. App.
June 26, 2012).
Plaintiff presents four issues, each of which constitutes a challenge to the
admissibility or exclusion of evidence, which is within the sound discretion of the trial
court. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004); Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992).
(1) Whether the trial court erred and abused its discretion in admitting
Defendant’s expert testimony at trial, because Plaintiff was denied the
opportunity to challenge said expert’s qualifications to testify as such and
said testimony was admitted in violation of rules of court?
(2) Whether the trial court erred and abused its discretion in the admission of
the reading of statements by Plaintiff from the police report from the subject
June 1, 2013, automobile collision at Defendant’s direction at trial, because
the trial court previously granted Defendant’s motion in limine to
specifically exclude said police report?
(3) Whether the trial court erred and abused its discretion in the admission of
a selection of Plaintiff’s medical records into evidence by Defendant,
because said medical records entered had been altered by the defense?
(4) Whether the trial court erred and abused its discretion by allowing
Defendant to admit into evidence photographs depicting modest damage to
her automobile.
Each of these issues challenges a fact-based, discretionary decision to admit or
exclude evidence, which will be overturned on appeal only when there is an abuse of
discretion. Mercer, 134 S.W.3d at 131. Moreover, we are required to affirm the decision
of the trial court in the absence of a transcript of the evidence or a statement of the
evidence. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992).
Where the issues raised go to the evidence, there must be a transcript. In the
absence of a transcript of the evidence, there is a conclusive presumption
that there was sufficient evidence before the trial court to support its
judgment, and this Court must therefore affirm the judgment.” McKinney v.
Educator and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. Ct.
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App. 1977). This rule likewise applies where there is a statement of the
evidence which is incomplete. The burden is upon the appellant to show
that the evidence preponderates against the judgment of the trial court.
Capital City Bank v. Baker, 442 S.W.2d 259, 266 (Tenn. Ct. App. 1969).
The burden is likewise on the appellant to provide the Court with a
transcript of the evidence or a statement of the evidence from which this
Court can determine if the evidence does preponderate for or against the
findings of the trial court. The appellant has failed to carry this burden. This
issue is without merit.
Id.
For the foregoing reasons, we find these evidentiary issues have been waived due
to Plaintiff’s failure to provide a record that conveys a fair, accurate, and complete
account of what transpired with respect to these issues.
IV. JURY INSTRUCTIONS
Plaintiff alleges that the trial court’s pattern jury instructions on causation and
fault were improper because Defendant admitted fault for the accident.9 Plaintiff contends
that Defendant’s admission of fault for the accident left only the issue of damages to be
tried, and that the trial court’s instructions on causation and fault confused the jury. We
have determined that Plaintiff misconstrued the effect of Defendant’s admission that “he
was not without fault in causing the collision,” as constituting an admission of “sole
liability.” It does not. Despite admitting that “he was not without fault in causing the
collision,” Defendant disputed the nature and extent of Plaintiff’s injuries and demanded
“strict proof of any and all damages.”
As noted earlier, whether a jury instruction is erroneous is a question of law,
which is subject to de novo review with no presumption of correctness. Nye, 347 S.W.3d
at 699.
The legitimacy of a jury’s verdict is dependent on the accuracy of the trial
court’s instructions, which are the sole source of the legal principles
required for the jury’s deliberations. Therefore, a trial court is under a duty
to impart “substantially accurate instructions concerning the law applicable
to the matters at issue.”
9
In her brief, Plaintiff states, “[T]he jury was not properly charged on the issues of causation and
fault . . . and evidence was presented to the trial court in support of the contention that the jury did not
entirely exercise its own judgment in reaching the verdict[.]”
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Id. (citations omitted).
When considering whether the trial court erroneously instructed the jury, “it is our duty to
review the charge in its entirety and consider it as a whole, and the instruction will not be
invalidated if it ‘fairly defines the legal issues involved in the case and does not mislead
the jury.’” Id. (quoting Otis, 850 S.W.2d at 446). Significantly, however, “[t]he judgment
of a trial court will not be set aside based on an erroneous jury instruction unless it
appears that the erroneous instruction more probably than not affected the judgment of
the jury.” Id. (citing Tenn. R. App. P. 36(b); Gorman v. Earhart, 876 S.W.2d 832, 836
(Tenn. 1994)).
The Tennessee Pattern Jury Instructions are frequently used as a source for
instructions in the trial court. State v. Rutherford, 876 S.W.2d 118, 120 (Tenn. Crim.
App. 1993). Nevertheless, a pattern instruction does not displace the trial court’s
obligation to prepare and use fair and accurate instructions, State v. Phipps, 883 S.W.2d
138, 152 (Tenn. Crim. App. 1994), or trial counsel’s obligation to call material
misstatements or omissions to the trial court’s attention. Here, the trial court’s jury
instructions were taken directly from the Tennessee Pattern Jury Instructions. More
importantly, and contrary to Plaintiff’s contention, the instructions given to the jury in
this case accurately stated the applicable law concerning an issue being tried and properly
guided the jury in fulfilling its responsibilities.
Finding no error with the jury instructions, we affirm the trial court.
V. MOTION FOR RECUSAL OF TRIAL JUDGE
Plaintiff contends the trial court erred by denying her post-trial motion for recusal.
Tennessee Supreme Court Rule 10B sets out the procedures that shall be employed to
determine whether a judge should preside over a case. In pertinent part the rule provides:
Any party seeking disqualification, recusal, or a determination of
constitutional or statutory incompetence of a judge of a court of record . . .
shall do so by a timely filed written motion. The motion shall be supported
by an affidavit under oath or a declaration under penalty of perjury on
personal knowledge and by other appropriate materials. The motion shall
state, with specificity, all factual and legal grounds supporting
disqualification of the judge. . . .
Tenn. Sup. Ct. R. 10B, § 1.01.
In her brief on appeal, Plaintiff states on page 71 that she “moved the trial court
for recusal, pursuant to Tenn. R. Civ. P. 63, enabling any other judge to proceed, based
upon the contention that . . . Judge Kelvin D. Jones, is unable to proceed due to a lack of
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impartiality.” Unfortunately, Rule 63 has nothing to do with a motion to recuse a judge
on the ground of bias or impropriety. To the contrary, it only pertains to circumstances
where the judge who was presiding over a case becomes ill or is otherwise unable to
preside over the rest of the case. That is not the case here because not only was Judge
Jones able to preside, he indeed did preside over the case through the entry of a final
judgment, from which Plaintiff appeals.
Nevertheless, we acknowledge that Plaintiff filed “a motion” in the trial court in
which she sought the recusal of Judge Jones.10 We also acknowledge that she filed “an
affidavit” in support of the motion. However, the motion and affidavit focus entirely on
what Plaintiff perceived to be very bad decisions by Judge Jones and which Plaintiff
contends establish that Judge Jones was biased because his rulings, many of which were
adverse to Plaintiff, prove his bias.
We start our analysis of the grounds for recusal understanding that a party
challenging the impartiality of a judge “must come forward with some evidence that
would prompt a reasonable, disinterested person to believe that the judge’s impartiality
might reasonably be questioned.” Adkins v. Adkins, No. M2017-00495-COA-T10B-CV,
2017 WL 1960549, at *7 (Tenn. Ct. App. May 11, 2017) (citing Eldridge v. Eldridge,
137 S.W.3d 1, 7 (Tenn. Ct. App. 2002) (quoting Davis v. Dep’t of Emp’t Sec., 23 S.W.3d
304, 313 (Tenn. Ct. App. 1999)). Next, we note that Plaintiff did not file her motion for
recusal until the jury trial had concluded. It is also significant that the trial judge presided
over this action for more than three years prior to the motion for recusal being filed. This
is significant because a trial judge’s adverse rulings are not usually sufficient to establish
bias. Id. (citing State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008)).
More importantly, the grounds upon which Plaintiff relies are insufficient because
“[r]ulings of a trial judge, even if erroneous, numerous and continuous, do not, without
more, justify disqualification.” Id. (quoting Alley v. State, 882 S.W.2d 810, 821 (Tenn.
Crim. App. 1994)). “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.” Id. (quoting Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn.
2001)).
The foregoing deficiencies notwithstanding, we acknowledge that the trial judge
failed to fulfill his Tenn. Sup. Ct. R. 10B responsibilities when he denied the motion to
recuse by simply stating: “Plaintiff’s motion for recusal is hereby DENIED.” The trial
court’s order denying the motion for recusal was woefully inadequate because Rule 10B
10
The Motion was titled “Plaintiff’s Motion For Permission To Appeal, Application For A Stay
And Motion For Recusal.”
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states with clarity: “Upon the filing of a motion pursuant to section 1.01, the judge shall
act promptly by written order and either grant or deny the motion. If the motion is
denied, the judge shall state in writing the grounds upon which he or she denies the
motion.” Tenn. Sup. Ct. R. 10B, § 1.03.
Due to the deficiencies in the trial court’s order, if this court had any uncertainty
concerning whether recusal was appropriate, we could choose to remand with instructions
for the trial judge to comply with the mandate in Section 1.03, or reverse with
instructions for the trial court to grant the motion. However, due to Plaintiff’s misplaced
reliance on Tenn. R. Civ. P. 63, which is inapplicable, her failure to substantially comply
with Rule 10B, and realizing that her grounds are primarily based on rulings she claims
were erroneous, which do not, without more, justify disqualification, see Alley v. State,
882 S.W.2d at 821; see also Davis, 38 S.W.3d at 565, we find no error with the trial
court’s denial of the motion to recuse. Therefore, we affirm the decision to deny the
motion for recusal.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Appellant, Candes V. Prewitt.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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