Xingkui Guo v. Jon David Rogers

11/18/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 25, 2020

XINGKUI GUO v. JON DAVID ROGERS

Appeal from the Circuit Court for Davidson County

No. 18c2570 Thomas W. Brothers, Judge

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No. M2020-01321-COA-T10B-CV

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This accelerated interlocutory appeal is taken from the trial court’s order denying

Appellant’s motion for recusal. Because there is no evidence of bias that would require

recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial

court.

Tenn. Sup. Ct. R. 10B Interlocutory Appeal; Judgment of the Circuit Court

Affirmed and Remanded.

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J. and ANDY D. BENNETT, J., joined.

Xingkui Guo, Nashville, Tennessee, appellant, pro se.

Jon David Rogers, Hendersonville, Tennessee, appellee, pro se.

OPINION

I. Background

This case arises from a petition to recuse filed in the Davidson County Circuit

Court (“trial court”). In 2016, attorney Jon David Rogers (“Appellee”) represented

Xingkui Guo (“Appellant”) as plaintiff in a malicious prosecution case. In 2017, Mr.

Guo’s complaint for malicious prosecution was dismissed. On October 8, 2018, Mr. Guo

sued Mr. Rogers for legal malpractice. On October 25, 2019, Mr. Rogers filed a motion

for summary judgment. On January 31, 2020, the trial court granted the motion for

summary judgment and dismissed the legal malpractice case. In February 2020, Mr.

Guo filed a “motion to revise summary judgment,” asking the trial court to “reinstate

[his] claims for legal malpractice.”1 On July 10, 2020, the trial court heard the motion to

revise. By order of August 6, 2020, the trial court denied the motion. On July 19, 2020,

Mr. Guo filed a motion for recusal, which the trial court denied by order of September 4,

2020.

On September 24, 2020, Mr. Guo filed his appeal to this Court. After reviewing

the petition and supporting documents, we conclude that an answer, additional briefing

and oral argument are unnecessary. Accordingly, we will act summarily on the appeal in

accordance with Tennessee Supreme Court Rule 10B, sections 2.05 and 2.06.

II. Issues

Mr. Guo’s statement of the issues contains several arguments concerning both the

trial court’s denial of the motion to recuse and the merits of the trial court’s other rulings

related to the summary judgment. The only order this Court may review on an appeal

under Tennessee Supreme Court Rule 10B is the trial court’s order denying a motion to

recuse. Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012) (“Pursuant to

[Tennessee Supreme Court Rule 10B], we may not review the correctness or merits of the

trial court’s other rulings[.]”). Accordingly, the sole issue is whether the trial court erred

in denying Mr. Guo’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).

III. Standard of Review

Tennessee Supreme Court Rule 10B requires appellate courts to review a trial

court’s ruling on a motion for recusal under a de novo standard of review with no

presumption of correctness. Tenn. Sup. Ct. R. 10B, § 2.01. The party seeking recusal

bears the burden of proof, and “any alleged bias must arise from extrajudicial sources and

not from events or observations during litigation of a case.” Williams by & through

Rezba, 2015 WL 2258172, at *5 (citing McKenzie v. McKenzie, No. M2014-00010-

COA-T10B-CV, 2014 WL 575908, at *3 (Tenn. Ct. App. Feb. 11, 2014)).

We further note that while we are cognizant of the fact that Mr. Guo is

representing himself in this appeal, it is well-settled that “pro se litigants are held to the

same procedural and substantive standards to which lawyers must adhere.” Brown v.

Christian Bros. Univ., 428 S.W.3d 38, 46 (Tenn. Ct. App. 2013). This Court has held

that “[p]arties who choose to represent themselves are entitled to fair and equal treatment

by the courts.” Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000)

(citing Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct.

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The trial court treated the motion as one to alter or amend the grant of summary judgment.

However, for purposes of this opinion, we will refer to it as the “motion to revise.”

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App. 1997)). Nevertheless, “courts must not excuse pro se litigants from complying with

the same substantive and procedural rules that represented parties are expected to

observe.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (citing

Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley,

912 S.W.2d 728, 733 n.4 (Tenn. Ct. App. 1995)).

IV. Analysis

As a preliminary matter, we note that Mr. Guo did not include his motion for

recusal in the appellate record.2 Tennessee Supreme Court Rule 10B, section 2.03

provides that a petition for recusal shall be accompanied by a copy of the motion for

recusal filed with the lower court. Tenn. Sup. Ct. R. 10B, § 2.03 (emphasis added).

Although Mr. Guo failed to include his motion in the appellate record, the record contains

the trial court’s order denying the motion. In its order, the trial court clearly establishes

the parameters of Mr. Guo’s motion to recuse and clearly outlines his arguments in favor

of recusal. As such, we are able to glean Mr. Guo’s arguments from the trial court’s

order and from the other documents in the record. Therefore, Mr. Guo’s omission of the

motion for recusal from the appellate record is not fatal to our ability to review the trial

court’s ruling, and we will proceed with adjudication of the appeal on the merits.

However, we caution litigants that “while in this case we chose to proceed with our

review despite the fact that [a party] chose not to abide by the rules of th[e] [Tennessee

Supreme] Court, we cannot say we will be so accommodating and choose to do the same

in the future.” Watson v. City of Jackson, 448 S.W.3d 919, 928 (Tenn. Ct. App. 2014)

(quoting Wells v. Wells, No. W2009-01600-COA-R3-CV, 2010 WL 891885, *4 (Tenn.

Ct. App. March 15, 2010)).

Turning to the question of recusal, as explained in the trial court’s order, the

gravamen of Mr. Guo’s argument for recusal concerns the trial court’s disposition of two

ancillary motions, i.e., a February 14, 2020 motion for sanctions and the February 27,

2020 motion to revise the grant of summary judgment.

Concerning the ground for recusal stemming from the trial court’s denial of Mr.

Guo’s motion for sanctions, in its order denying recusal, the trial court held that

[t]o [the] extent this present motion [for recusal] alleges impartiality

regarding the hearing and order on the Motion for Sanctions, the Court

2

We also note that some of the documents Mr. Guo provided to this Court on appeal are not

filed-stamped copies. “As such, we cannot conclusively determine that the copies provided by [Mr. Guo]

as part of the record for our review are copies of the actual documents filed by [him] in the trial court.”

Smith v. Daniel, No. M2019-02083-COA-T10B-CV, 2019 WL 6825976, at *1 (Tenn. Ct. App. Dec. 13,

2019). Nevertheless, giving Mr. Guo the benefit of the doubt, we will treat the documents as copies of

those filed in the trial court. See id. (citing Elliott v. Elliott, No. E2012-02448-COA-10B-CV, 2012 WL

5990268, at *3 n.1 (Tenn. Ct. App. Nov. 30, 2012)).

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finds that [Appellant] has not timely brought these allegations before the

Court. A motion to recuse must be filed promptly after the facts forming

the basis for the motion become known. Cain-Swope v. Swope, 523

S.W.3d 79, 87-88 (Tenn. Ct. App. 2016)[.]

The failure to assert them in a timely manner results in a waiver of a

party’s right to question a judge’s impartiality. Id. Moreover, courts frown

upon the manipulation of the impartiality issue to gain procedural

advantage and will not permit litigants to refrain from asserting known

grounds for disqualification in order to experiment with the court and raise

the objection later when the result of the trial is unfavorable. Id.

The [c]ourt finds that [Appellant]’s allegations regarding impartiality

surrounding the Motion for Sanctions heard on February 28, 2020 are

waived because they were not timely raised. Therefore, the [c]ourt will not

consider them for the purposes of this motion.

Under Tennessee Supreme Court Rule 10B, section 1.01, “[a]ny 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 written motion filed promptly after a

party learns or reasonably should have learned of the facts establishing the basis for

recusal.” Tenn. Sup. Ct. R. 10B, § 1.01; Cain-Swope v. Swope, 523 S.W.3d 79, 88

(Tenn. Ct. App. 2016), perm. app. denied (Tenn. April 12, 2017) (citation omitted) (“[A]

recusal motion must be filed promptly after the facts forming the basis for the motion

become known, and the failure to assert them in a timely manner results in a waiver of a

party’s right to question a judge’s impartiality.”). Here, the trial court heard the motion

for sanctions on February 28, 2020 and denied the motion by order of March 11, 2020.

From the hearing and order, Mr. Guo would have “learned of the facts establishing the

basis for recusal,” yet he waited until July 19, 2020 to file his motion for recusal. See

Tenn. Sup. Ct. R. 10B, § 1.01. As noted by the trial court, Mr. Guo’s timing is suspect

given the fact that his motion to revise the summary judgment was heard on July 10,

2020. Although the trial court did not enter its order denying the motion to revise until

August 6, 2020, the trial court orally denied the motion at the hearing on July 10, 2020.

Rather than filing his motion for recusal immediately after he received an unfavorable

ruling on his motion for sanctions, Mr. Guo apparently waited until he received the

subsequent adverse ruling on his motion to revise before alleging bias on the part of the

trial court. As this Court has cautioned that

our “[c]ourts frown upon the manipulation of the impartiality issue to gain

procedural advantage and will not permit litigants to refrain from asserting

known grounds for disqualification in order ‘to experiment with the court . .

. and raise the objection later when the result of the trial is unfavorable.’”

Kinard [v. Kinard,] 986 S.W.2d [220,] at 228 [(Tenn. Ct. App. 1998)]

(quoting Holmes v. Eason, 76 Tenn. 754, 757 (1882)).

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Cain-Swope, 523 S.W.3d at 88. If Mr. Guo had legitimate grounds for recusal stemming

from the trial court’s denial of his motion for sanctions, it was incumbent on him to bring

his concerns to the trial court’s attention promptly. Under the specific facts of this case,

Mr. Guo’s delay of more than four months between the trial court’s ruling on the motion

for sanctions and the filing of his motion for recusal was neither prompt nor timely. A

party’s failure to assert recusal motions “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 (internal

citations omitted); see also Duke v. Duke, 398 S.W.3d 665, 670 (Tenn. Ct. App. 2012).

Accordingly, we conclude that the trial court did not err in denying recusal on the basis of

its denial of the motion for sanctions.

Concerning Mr. Guo’s argument for recusal on the ground of the trial court’s

denial of his motion to revise, in its order denying recusal, the trial court held:

As for the allegations of impartiality regarding the July 10, 2020

hearing on [Appellant]’s Motion to Revise, the [c]ourt finds that

[Appellant] has not alleged any actions of this [c]ourt that would amount to

a showing of bias or prejudice. 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 v. State, 882 S.W.2d 810, 82[1] (Tenn. Crim. App. 1994).

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.

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). “Rulings of a trial judge, even if erroneous,

numerous and continuous, do not, without more, justify disqualification.”

[Alley, 882 S.W.2d at 821].

In addition to the trial court’s correct statement of the law on bias warranting recusal, we

also reiterate that “[t]he party seeking recusal bears the burden of proof.” In Re: Samuel

P., No. W2016-01592-COA-T10B-CV, 2016 WL 4547543, at *2 (Tenn. Ct. App. Aug.

31, 2016) (citing Williams by & through Rezba, 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)). Specifically, “a party challenging the impartiality of a judge ‘must

come forward with some evidence that would prompt a reasonable, disinterested person

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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 (Tenn. Ct. App. 2002)).

Concerning Mr. Guo’s evidence of bias, in its order denying recusal, the trial court

found that there was

no evidence that [the trial court’s] decision [held] any actual or perceived

bias or prejudice towards [Appellant]. Rather, the decision was made on

the application of the law to the facts that were before the [c]ourt. The

allegations in [the] motion [for recusal] amount[ed] to nothing more than

displeasure with the [c]ourt’s ruling.

In the absence of such evidence, the trial court concluded that Mr. Guo “failed to meet his

burden of setting forth evidence that would prompt a person of ordinary prudence in the

judge’s position to find a reasonable basis for questioning the judge’s impartiality.” From

our review of the record, Mr. Guo failed to provide any substantive evidence from which

we might conclude that the trial court showed prejudice of a personal character, directed

at Mr. Guo, which stemmed “from an extrajudicial source and result[ed] in an opinion on

the merits on some basis other than what the judge learned from . . . participation in the

case.” Alley, 882 S.W.2d at 821. Because Mr. Guo did not meet his burden of proof, the

trial court did not err in denying recusal based on its adjudication of Mr. Guo’s motion to

revise.

Although, at the trial level, Mr. Guo failed to meet his burden to show evidence of

the trial court’s alleged bias, in his petition for Rule 10B appeal to this Court, Mr. Guo

asserts that the trial court demonstrated bias against him and violated Tennessee Supreme

Court Rule 10B when it: (1) signed the . . . order [denying his motion to revise] on

August 6, 2020 while the motion to recuse[, which was filed on July 19, 2020,] was

pending; and (2) failed to act promptly in denying the motion to recuse [the order

denying the motion to recuse was entered on September 4, 2020].3

Tennessee Supreme Court Rule 10B, section 1.02 states that while the motion to

recuse is pending, “the judge whose disqualification is sought shall make no further

orders and take no further action on the case, except for good cause stated in which such

action is taken.” Tenn. Sup. Ct. R. 10B, § 1.02. The purpose of section 1.02 is to ensure

3

In addition, in his petition for 10B appeal, Mr. Guo alleges that the trial court: (1) found Mr.

Guo not credible at the hearing on the motion to revise and in its August 6, 2020 final order; (2) deprived

Mr. Guo of his right to fair and equal treatment by not granting Mr. Guo’s motion to continue the

summary judgment hearing; (3) applied incorrect legal standards when it served him with the final order

through the E-filing system; and (4) did not consider Mr. Guo’s summary judgment evidence in the

record. These allegations concern the “correctness or merits of the trial court’s other rulings” and are not

subject to review under Tennessee Supreme Court Rule 10B. Duke, 398 S.W.3d at 668. Given our

limited review under Tenn. Sup. Ct. R. 10B, we will not address these allegations.

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that a trial court makes no substantive decisions while the motion to recuse is pending.

See In re Estate of Abbott, No. W2017-02086-COA-T10B-CV, 2017 WL 4864816, at *2

(Tenn. Ct. App. Oct. 27, 2017). Here, the trial court heard Mr. Guo’s motion to revise on

July 10, 2020. In one of the supporting documents included in our appellate record, Mr.

Guo admits that the trial court orally denied the motion to revise on the same day, i.e.,

July 10, 2020. Furthermore, Mr. Rogers, as the prevailing party, drafted a proposed order

denying the motion to revise and mailed it to Mr. Guo on July 10, 2020. From the record,

there is no question that, as of July 10, 2020, Mr. Guo was cognizant of the trial court’s

decision to deny his motion to revise. In other words, the trial court made its substantive

decision on the motion on July 10, 2020, which was nine days before Mr. Guo filed his

motion to recuse. The trial court’s electronic signing and filing of the order on August 6,

2020 was purely administrative, and these acts were not in violation of Tennessee

Supreme Court Rule 10B, section 1.02.

Concerning Mr. Guo’s second argument alleging that the trial court violated

Tennessee Supreme Court Rule 10B, section 1.03, the rule provides that “[u]pon the

filing of a motion [to recuse], the judge shall act promptly by written order and either

grant or deny the motion.” Tenn. Sup. Ct. R. 10B, § 1.03. The rule does not define

“promptly.” Here, Mr. Guo filed his motion for recusal on July 19, 2020. The trial court

heard the motion on September 4, 2020 and entered its order denying the motion on the

same day. Although the delay between the filing of the motion and the hearing on same

is not specifically explained in our record, we take judicial notice of the fact that there

have been delays in all Tennessee courts due to the coronavirus pandemic and the

Tennessee Supreme Court orders precluding in-person hearings at certain points during

2020. Given the extraordinary circumstances under which our courts have been forced to

operate this year, we cannot conclude that the time between the filing of the motion and

the hearing was excessive in this case. That being said, we note that the trial court acted

most promptly in entering its order denying recusal on the same day it heard the motion.

From the totality of the circumstances, Mr. Guo’s allegations that the trial court violated

Tennessee Supreme Court Rule 10B sections 1.02 and 1.03 provide no basis for reversal

of the trial court’s order denying recusal.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order denying the motion for

recusal. The case is remanded to the trial court for such further proceedings as are

necessary and consistent with this Opinion. Costs on the appeal are assessed against the

Appellant, Xingkui Guo, for all of which execution may issue if necessary.

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KENNY ARMSTRONG, JUDGE

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