Lorna Gibson v. Charles Bikas

06/04/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 21, 2018

LORNA GIBSON v. CHARLES BIKAS

Appeal from the Chancery Court for Hamilton County

No. 17-0197 Pamela A. Fleenor, Chancellor

No. E2018-00911-COA-T10B-CV

Appellant sought disqualification of the trial court judge pursuant to Tennessee Supreme

Court Rule 10B. Finding no error, we affirm.

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

Court Affirmed and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR. and RICHARD H. DINKINS, JJ., joined.

Charles William Bikas, Chattanooa, Tennessee, Pro se.

Emily Beth Brenyas, Georgetown, Tennessee, for the appellee, Lorna Gibson.

OPINION

I. FACTUAL BACKGROUND

This appeal follows the Hamilton County Chancery Court’s denial of a recusal

motion, which is governed by Tennessee Supreme Court Rule 10B. The underlying facts

of this case have been more fully described by this Court in Gibson v. Bikas, 2018 WL

1124507, No. E2017-00883-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2018) (perm. app.

pending). The relevant portions of the underlying facts are:

At issue on appeal is an order of protection sought by the petitioner, Lorna

Mae Gibson, against the respondent, her brother-in-law, Charles William

Bikas. Ms. Gibson had obtained a previous order of protection, which was

granted by the Hamilton County Chancery Court (“trial court”), with

Chancellor Pamela A. Fleenor presiding, on May 19, 2015 (“2015 OP”).

Although the 2015 OP is not in the record on appeal, it is undisputed that in

the 2015 OP, the trial court required Mr. Bikas to have no contact with Ms.

Gibson or her two minor daughters (“the Children”), who were six and two

years of age at the time the 2015 OP was entered. The 2015 OP expired on

May 19, 2016, without Ms. Gibson’s having filed a petition for an

extension.

The series of events underlying the 2015 OP began in the fall of 2014 when

a referral was called in to the Department of Children’s Services (“DCS”)

against Ms. Gibson, who had been residing with the Children. At the time

of the DCS referral, the Children were placed in the temporary custody of

Ms. Gibson’s sister, Jessica Bikas, and her sister’s husband, Mr. Bikas.

After approximately two months, Mr. and Ms. Bikas separated, and Ms.

Bikas filed a petition for an order of protection against her husband,

alleging that he had threatened violence against her if he lost custody of the

Children. In March 2015, the youngest child, N.M., was placed with

paternal relatives, and the oldest child, A.W., entered DCS custody and was

placed with non-relative foster parents. It is undisputed that Ms. Bikas’s

petition for an order of protection was subsequently dismissed.

Later in the spring of 2015, Mr. Bikas, still separated from Ms. Bikas, co-

signed a lease with Ms. Gibson concerning an apartment. Ms. Gibson

subsequently alleged that Mr. Bikas repeatedly tried to coerce her into a

romantic relationship by threatening to remove his name from the lease and

threatening to take legal action to obtain custody of the Children. Ms.

Gibson filed the petition for the 2015 OP the day after Mr. Bikas allegedly

stayed overnight in her apartment without permission and allegedly

sexually molested her. Although on appeal in this action, Mr. Bikas

vehemently denies Ms. Gibson’s allegations underlying the 2015 OP, he

acknowledges that he consented to the trial court’s entry of the original

order without an evidentiary hearing. Mr. Bikas asserts on appeal that he

agreed to the 2015 OP “so that he could break the apartment lease” with

Ms. Gibson.

In the meantime, A.W. was residing in the spring of 2015 with her foster

parents within the same school district where she had previously lived with

Ms. Gibson. A.W. resumed attendance at the elementary school where she

previously had been a student, and she resumed speech and language

therapy with Ginger Vitrano, a speech and language pathologist who had

provided therapy to A.W. in the past. Ms. Vitrano testified in this matter

that she became concerned after observing changes in A.W.’s behavior,

particularly changes denoting sexually reactive behavior. Ms. Vitrano

subsequently applied with DCS to provide a foster placement for A.W.

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Upon approval, Ms. Vitrano provided foster care to A.W. for approximately

eighteen months. A.W. was eventually placed in the custody of her

biological father, who is not a party to this action. Ms. Gibson’s younger

daughter has remained in her original foster placement since the Children’s

removal from Ms. Gibson’s home. At some point in 2015, Mr. and Ms.

Bikas reconciled.

Ms. Gibson commenced the instant action, initially acting pro se, by filing

a petition for an order of protection against Mr. Bikas on March 24, 2017.

She again sought a one-year order requiring Mr. Bikas to have no contact

with her or the Children, who were by then eight and four years of age. In

her petition, Ms. Gibson repeated the factual allegations underlying the

2015 OP and averred that since entry of the 2015 OP, Mr. Bikas had

continued his attempts to harass and influence her by repeatedly attempting

to gain custody of A.W. for allegedly illicit purposes.

Upon Ms. Gibson’s petition, the trial court, with Chancellor Jeffrey M.

Atherton presiding by interchange, entered an ex parte order of protection

as to Ms. Gibson. The court denied an ex parte order of protection as to the

Children and set a hearing for April 3, 2017, directing Ms. Gibson to show

cause why the Children required protection from Mr. Bikas. The court

stated the following in this regard: “Question exists as to standing as

children do not appear to be in physical or legal custody of [Ms. Gibson].”

By the time of the April 3, 2017 hearing, Ms. Gibson was represented by

her current counsel, and Mr. Bikas was represented by attorney Mark

Whittenburg. Following a hearing, during which Ms. Gibson’s counsel

requested a continuance because Ms. Gibson had been involved in an

automobile accident while on her way to the courthouse, the trial court,

with Chancellor Fleenor again presiding, entered an order resetting the

hearing for April 10, 2017. Although Mr. Bikas insists on appeal that he

did not agree to this continuance, the trial court’s order memorializing the

grant of continuance, entered on April 7, 2017, states that it did so upon the

facts underlying Ms. Gibson’s absence and “agreement by the Parties.”

The trial court then conducted a bench trial on April 10, 2017, during which

the court heard testimony from the parties, Ms. Bikas, and Ms. Vitrano.

Attorney Laura E. Banks, who had been appointed as a guardian ad litem

(“GAL”) to represent the Children’s best interests in the separate custody

case, appeared on behalf of the Children. Ms. Gibson testified regarding

the allegations underlying the 2015 OP, stating that Mr. Bikas had “a bad

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obsession with [her] and especially [her] oldest daughter, [A.W.]” She

further testified that Mr. Bikas “had continuously threatened” to “take [her]

name off the lease” of the apartment for which he had co-signed and had

told her that once she was homeless, he was “going to go and get custody of

[her] child” and she would have “to do what [he said].” Ms. Gibson

explained that once the 2015 OP expired, Mr. and Ms. Bikas had filed

petitions seeking custody of the Children and termination of her parental

rights to A.W. She acknowledged that the Children had been removed

from her custody in the past by DCS. She stated that she had not filed for

an extension of the 2015 OP due to her own medical condition at the time.

....

Upon determining that “credible evidence” indicated that Mr. Bikas was

currently “a threat to the safety” of Ms. Gibson and the Children, the trial

court granted Ms. Gibson’s petition in an order entered April 10, 2017

(“2017 OP”). The 2017 OP had the effect of extending the ex parte order

into a one-year, no-contact order of protection on behalf of Ms. Gibson and

modifying the ex parte order to include the Children in the one-year, no-

contact order. The court had ruled orally during trial that Ms. Gibson’s

status as a parent afforded her standing to petition on behalf of the Children,

pursuant to Tennessee Code Annotated § 36-3-602(b), despite her lack of

current legal or physical custody. Finding that Mr. Bikas had done “the

things listed in the Petition,” the court adopted the allegations in the petition

by reference into the 2017 OP. The court further found in the 2017 OP that

Mr. Bikas had “stalked” and “threatened” Ms. Gibson and had “sexually

molested” and “sexually abused” A.W. The court also ordered Mr. Bikas to

pay all court costs and attorney’s fees.

Gibson at *1-4

In the first appeal, one of the issues on appeal was “whether Ms. Gibson

demonstrated by the required evidentiary standard that she and the Children were in need

of protection from abuse by Mr. Bikas.” Id. at *5. This Court’s discussion of this issue

follows:

Finally, Mr. Bikas asserts that this Court should vacate the 2017 OP and, if

necessary, remand for a hearing before a different judge because the trial

court judge allegedly demonstrated bias toward him. However, Mr. Bikas

never filed a motion for the trial court judge’s recusal pursuant to

Tennessee Supreme Court Rule 10B. Inasmuch as the issue of recusal was

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not presented to the trial court, we determine that it is not properly before

this Court on appeal. This Court is one “of appeals and errors,” and “we

are limited in authority to the adjudication of issues that are presented and

decided in the trial courts.” Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn.

1976).

Moreover, Mr. Bikas provides no extrajudicial basis for the trial court judge

to have been biased against him. In his principal brief on appeal, Mr. Bikas

delineates a long list of purportedly biased actions that are primarily

comprised of rulings against him or procedural delays. See Watson v. City

of Jackson, 448 S.W.3d 919, 929 (Tenn. Ct. App. 2014) (“Adverse rulings

and ‘the mere fact that a witness takes offense at the court’s assessment of

the witness,’ do not provide grounds for recusal . . . in light of the

‘adversarial nature of litigation.’”) (quoting Davis v. Liberty Mut. Ins. Co.,

38 S.W.3d 560, 565 (Tenn. 2001)). Insofar as Mr. Bikas argues that the

trial court erred in granting the order of protection based on judicial bias,

his argument is without merit.

Id. at *10-11.

After this Court’s opinion was filed, Mr. Bikas filed, on April 23, 2018, a Motion

to Recuse in the trial court. The motion notes that it “corrects the procedural error listed

in [the Court of Appeals decision] where the Defendant’s motion to recuse Judge Fleenor

was denied.” The motion also asserts that it is timely because it “is a direct response to

the Order of Protection extension that Lorna Gibson requested on April 9th, 2018 and is

therefore timely.”

The motion to recuse in the trial court alleges an “acrimonious relationship”

between Judge Fleenor and Mr. Bikas, and it alleges that Mr. Bikas has filed five

complaints with the Board of Judicial Conduct against Judge Fleenor. Mr. Bikas asserts

that Judge Fleenor “promis[ed] to give future favorable rulings against [Mr. Bikas] on

October 5th, 2015” and issued orders of protection against him. The motion also alleges

that the factual basis of the motion is “a substantial history of biased acts.” Despite

attaching two affidavits to support his motion to recuse, Mr. Bikas does not plainly

explain the biased acts that support his request. Rather, he appears to rely on his multiple

complaints to the Board of Judicial Conduct and Judge Fleenor’s legal rulings to support

his allegations.

II. STANDARD OF REVIEW

When reviewing an appeal pursuant to Tennessee Supreme Court Rule 10B, we

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limit our review to whether the trial court erred in denying the appellant’s motion for

recusal. Williams by & through Rezba v. HealthSouth Rehab. Hosp. N., No. W2015-

00639-COA-T10B-CV, 2015 WL 2258172, at *5 (Tenn. Ct. App. May 8, 2015) (no

perm. app. filed). We do not review the merits or correctness of the trial court’s other

rulings. Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012). “[W]e review the

denial of a motion for recusal under a de novo standard of review.” Id. (citing Tenn. Sup.

Ct. R. 10B § 2.06).

The appellate court may order the other parties to answer the appellant’s petition

and file any necessary documents, but it is also authorized to adjudicate the appeal

summarily, without an answer from other parties. Id. at § 2.05. Having reviewed

Appellant’s petition and supporting documents, we have determined that an answer and

additional briefing is unnecessary, and we have elected to act summarily on the appeal in

accordance with Tennessee Supreme Court Rule 10B, § 2.05. Oral argument is likewise

unnecessary.

III. DISCUSSION

We set forth the legal principles applicable to this case in In Re: Samuel P., No.

W2016-01592-COA-T10B-CV, 2016 WL 4547543 (Tenn. Ct. App. Aug. 8, 2016) (no

perm. app. filed):

The party seeking recusal bears the burden of proof. Williams, 2015 WL

2258172, at *5; Cotham v. Cotham, No. W2015-00521-COA-T10B-CV,

2015 WL 1517785, at *2 (Tenn. Ct. App. Mar. 30, 2015) (no perm. app.

filed). “[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.’” Duke, 398 S.W.3d at 671 (quoting Eldridge v. Eldridge, 137

S.W.3d 1, 7-8 (Tenn. Ct. App. 2002)). When reviewing requests for

recusal alleging bias, “it is important to keep in mind the fundamental

protections that the rules of recusal are intended to provide.” In re A.J., No.

M2014-02287-COA-R3-JV, 2015 WL 6438671, at *6 (Tenn. Ct. App. Oct.

22, 2015), perm. app. denied (Tenn. Feb. 18, 2016). “The law on judicial

bias 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 Bean v. Bailey, 280 S.W.3d 798, 803

(Tenn. 2009)).

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The terms “bias” and “prejudice” usually refer to a state of mind or

attitude that works to predispose a judge for or against a party, but not

every bias, partiality, or prejudice merits recusal. Watson v. City of

Jackson, 448 S.W.3d 919, 929 (Tenn. Ct. App. 2014) (citing Alley v. State,

882 S.W.2d 810, 821 (Tenn. Crim. App. 1994)). “‘Even though the judge

is expected to have no bias at the beginning of the trial, he must, perforce,

develop a bias at some point in the trial; for the decision at the conclusion

of the trial is based upon the impressions, favorable or unfavorable,

developed during the trial.’” Id. at 933 (quoting Spain v. Connolly, 606

S.W.2d 540, 544 (Tenn. Ct. App. 1980)). To merit disqualification, the

prejudice must be of a personal character, directed at the litigant, and stem

from an extrajudicial source resulting in an opinion on the merits on some

basis other than what the judge learned from participation in the case. Id. at

929. “A trial judge’s opinions of the parties or witnesses that are based on

what he or she has seen at trial are not improper and ‘generally do[ ] not

warrant recusal.’” Id. at 933 (quoting Neuenschwander v.

Neuenschwander, No. E2001-00306-COA-R3-CV, 2001 WL 1613880, at

*11 (Tenn. Ct. App. Dec. 18, 2001)). Consistent adverse rulings may lead

a party to wish for another trial judge, but they do not provide a basis for

requiring the trial judge’s recusal from the case. Runyon v. Runyon, No.

W2013-02651-COA-T10B, 2014 WL 1285729, at *10 (Tenn. Ct. App.

Mar. 31, 2014). Adverse rulings usually are not sufficient to establish bias.

Duke, 398 S.W.3d at 671 (citing State v. Cannon, 254 S.W.3d 287, 308

(Tenn. 2008)). “‘Rulings of a trial judge, even if erroneous, numerous and

continuous, do not, without more, justify disqualification.’” Id. (citing

Alley, 882 S.W.2d at 821).

In Re: Samuel P., 2016 WL 4547543, at *2.

In reviewing Appellant’s asserted grounds for recusal pursuant to the de novo

standard required by Rule 10B, we have determined that Mr. Bikas has failed to establish

that the trial court’s impartiality may reasonably be questioned or that the trial court has

an impermissible bias or prejudice.

Appellant’s petition indicates that he disagrees with Judge Fleenor’s factual

findings and legal decisions related to the various orders of protection. Nothing in the

record on appeal indicates that Judge Fleenor guaranteed rulings adverse to Mr. Bikas, as

he alleges. On our review of the record on appeal, Judge Fleenor’s actions appear to be

based on her observations throughout the case. Judges inevitably form opinions about

parties during the course of litigation, and those opinions are not always positive.

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Marcum v. Caruana, No. M2012-01827-COA-10B-CV, 2012 WL 3984631, at *7 (Tenn.

Ct. App. Sept. 11, 2012). “Judicial remarks that are ‘critical or disapproving of, or even

hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality

challenge.’” Krohn v. Krohn, No. M2015-01280-COA-T10B-CV, 2015 WL 5772549, at

*10 (Tenn. Ct. App. Sept. 22, 2015), perm. app. denied (Tenn. Oct. 15, 2015) (quoting

McKenzie v. McKenzie, No. M2014-00010-COA-T10B-CV, 2014 WL 575908, at *4

(Tenn. Ct. App. Feb. 11, 2014)).

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 impartially issue for strategic

advantage, which the courts frown upon. See Kinard [v. Kinard, 986

S.W.2d 220, 228 (Tenn. Ct. App. 1998)].

Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001). If bias is based on the

actual observation “of witnesses and evidence given during the trial, the judge’s prejudice

does not disqualify the judge.” Alley, 882 S.W.2d at 821. The evidence in this case

simply does not support recusal.

IV. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is hereby

affirmed and remanded for further proceedings. Costs of this appeal are taxed to the

appellant, Charles Bikas, for which execution may issue if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

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