# Dawn Marie Pennington v. Joel David Pennington, III

> Court of Appeals of Tennessee · February 1, 2024

URL: https://www.frixlaw.com/law-library/cases/9929206

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** February 1, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9929206

## How later opinions describe it (automated extraction)

- concluding that non-retiring justices were not required to recuse from considering legislation regarding judicial elections because it was conjecture to suppose that the new system would help or hinder their chances of reelection
- noting that the Rule has altered the standard of review of recusal motions

## Opinion text

02/01/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 1, 2023

DAWN MARIE PENNINGTON v. JOEL DAVID PENNINGTON, III

Appeal from the Chancery Court for Henry County
No. 25408 Bruce Irwin Griffey, Judge
___________________________________

No. W2023-01691-COA-T10B-CV
___________________________________

This is an accelerated interlocutory appeal as of right pursuant to Rule 10B of the Rules of
the Supreme Court of Tennessee from the chancery court’s denial of a motion to recuse.
An attorney negotiated a settlement on behalf of a client in litigation over the
administration of an estate. The same attorney subsequently assisted his client in the prior
litigation in filing a related suit in which the party obtained default judgment. The Plaintiff
in the present case is seeking to set aside that default judgment and to obtain other relief,
asserting the Defendant acted unscrupulously in filing a suit on matters which had
previously been settled. The trial judge reported the attorney, who is no longer the attorney
representing the Defendant, to the Board of Professional Responsibility based on the filing
of the suit which resulted in the default judgment. The Defendant seeks recusal of the trial
judge, asserting that the judge’s impartiality might reasonably be questioned. The judge
denied the motion for recusal, finding that he could be fair and impartial, had not pre-
judged any matters, and that a person of ordinary prudence would find no reasonable basis
for questioning his impartiality. We affirm.

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

JEFFREY USMAN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J.,
W.S., and JOHN W. MCCLARTY, J., joined.

Charles C. Exum and Craig P. Sanders, Jackson, Tennessee, for the appellant, Joel David
Pennington, III.

Colin B. Calhoun, Nashville, Tennessee, for the appellee, Dawn Marie Pennington.
OPINION

I.

The origins of the present dispute are found in prior litigation involving the
administration of the estate of Joel David Pennington, Sr. (Mr. Pennington, Sr.).1 Mr.
Pennington, Sr. had a son named after him, Joel David Pennington, Jr. (Joel). The Plaintiff
in the present case is Dawn Marie Pennington (Dawn); she was Joel’s wife. After the birth
of his son Joel, Mr. Pennington, Sr., married Gloria Pennington (Gloria) and adopted her
son, who was renamed after Mr. Pennigton, Sr., as Joel David Pennington, III (David). In
order to avoid confusion among the three Joel David Penningtons, we will refer to Joel
David Pennington, Sr., as “Mr. Pennington, Sr.,” to Joel David Pennington, Jr., as “Joel,”
and to Joel David Pennington, III, as “David.” Similarly, with two Ms. Penningtons, we
refer to Dawn Marie Pennington as Dawn, and Gloria Pennington as Gloria. We intend no
disrespect to any of these individuals by the use of first names.

At the time of his death in 2008, Mr. Pennington, Sr., had filed a complaint for
divorce against Gloria, which was pending. Joel served as the executor of Mr. Pennington,
Sr.’s estate. The settlement of the estate of Mr. Pennington, Sr., turned acrimonious, with
Gloria and her son David seeking to remove Joel as executor. However, the parties settled
their dispute in August 2013. The complaint alleges that the settlement agreement covered
“all matters in controversy in connection with” the estate of Mr. Pennington, Sr.

In 2015, David, nevertheless, filed suit against Joel and Joel’s wife Dawn.
According to the complaint in the present case, David’s 2015 suit was filed by the same
attorney who had represented David and Gloria in arriving at the earlier settlement
agreement. The complaint alleges that the 2015 suit asserted claims for malfeasance in
managing the estate, did not reference the prior settlement agreement, and did not make
any allegations of misconduct against Dawn personally.

Dawn acknowledges she was served with the 2015 lawsuit. However, she alleges
that Joel had become physically abusive of her, that he insisted on handling all
correspondence and all documents associated with the suit, and that she was afraid to
investigate the status of the lawsuit, although she was a named party. Based on Joel’s
representations to her, Dawn believed the 2015 suit had been resolved. Joel died in 2019.
Dawn alleges that she discovered after the death of her husband that a default judgment
had been entered against her on January 26, 2017, when a debt collector attempted to

1
The facts recited here are taken from the Order Denying Recusal and the Complaint, which are
attached to the petition for appeal. Page 3 of the trial court’s order, from the section summarizing the facts,
is missing.
-2-
collect $323,327.05. She alleges that David subsequently placed a lien on her home.

Dawn filed a complaint in August 2022, seeking a temporary restraining order and
seeking to vacate, pursuant to Tennessee Rules of Civil Procedure 60.02(4) and (5), the
default judgment that had been entered on January 26, 2017. She also asserted claims for
fraud, abuse of process, and reckless and intentional infliction of emotional distress.

David filed a motion to dismiss and then filed a motion for recusal. The recusal
motion stated that the trial judge had filed a complaint against David’s former attorney
with the Tennessee Board of Professional Responsibility (BPR) based on that attorney’s
act of filing the 2015 lawsuit in which David obtained default judgment against Dawn.
David asserted that the BPR complaint suggested the judge had “made conclusions about
the propriety of the underlying case and the default judgment,” that the complaint
committed the court to a result in the pending motion to dismiss, and that the judge’s
impartiality might reasonably be questioned by a person of ordinary prudence. David
asserted the judge had more than a de minimis interest in the outcome of the case and had
reviewed extraneous material and conducted an independent investigation by looking at
documents pertaining to the underlying default judgment, which had been granted by a
different judge. He sought recusal based on an “acrimonious relationship” between the
judge and David’s former counsel. The motion included the affidavit of one of David’s
attorneys, who stated David’s former counsel “indicated that the board complaint evinces
this Court’s position that the underlying default judgment was obtained via some type of
fraud or wrongdoing” and that David’s current attorney believed the court reviewed
documents pertaining to the default judgment.

Dawn opposed the recusal, noting that the judge had a duty to report a violation of
the Rules of Professional Conduct. Dawn asserted that the judge was permitted to take
judicial notice of the court’s own records, that there was no indication the court had
determined impropriety with respect to the default or committed to any particular result,
and that there was no indication the judge had an interest in the outcome of the case. Dawn
likened the judge’s actions to an adverse ruling and argued that a person of ordinary
prudence would find no basis to question the judge’s impartiality.

A transcript of the recusal hearing, attached to the Rule 10B petition, reflects that
the trial judge noted that he respected David’s former attorney and “with some difficulty
. . . and concern” felt he had the duty to make the report. The judge stated during the
hearing that he felt compelled to report the attorney when he was reviewing documents and
saw “that there was apparently a global settlement, and then all of a sudden there’s a new
complaint filed approximately a year later. . . .” He asserted that he had no personal animus
and that he had recommended the attorney for a job previously. The judge noted he had a
duty to hear cases and stated he had not prejudged the matter. He noted that he had not
heard testimony on the issue David contended that he had already decided and expressed
an openness to the conclusion that default judgment was appropriately obtained.
-3-
The trial judge ultimately entered an order denying the motion to recuse. Therein,
the trial court judge observed that he had not “conclusively determined that impropriety or
wrongdoing occurred in connection with the procurement of the underlying default
judgment.” The trial court further observed that reporting David’s prior attorney to the
Board of Professional Responsibility did not “commit the Court to a particular outcome in
this case.” The court noted that the reporting was in a related case and concluded that a
disinterested person would not believe that the court’s impartiality could reasonably be
questioned. David appeals the trial court judge’s denial of his motion to recuse.

II.

Under section 2.01 of Rule 10B of the Tennessee Supreme Court, a party is entitled
to “an accelerated interlocutory appeal as of right” of an order denying a motion to recuse.
This court reviews a trial court’s decision regarding a motion to recuse de novo. Tenn.
Sup. Ct. R. 10B § 2.01; Duke v. Duke, 398 S.W.3d 665, 668 n.2 (Tenn. Ct. App. 2012)
(noting that the Rule has altered the standard of review of recusal motions).

“Litigants in Tennessee have a fundamental right to a fair trial before an impartial
tribunal.” State v. Griffin, 610 S.W.3d 752, 757 (Tenn. 2020) (quoting Holsclaw v. Ivy
Hall Nursing Home, Inc., 530 S.W.3d 65, 69 (Tenn. 2017)). The public’s confidence in
the neutrality and impartiality of the judiciary is a significant interest, Bean v. Bailey, 280
S.W.3d 798, 803 (Tenn. 2009), and “[i]f the public is to maintain confidence in our system
of justice, a litigant must be afforded . . . the ‘cold neutrality of an impartial court.’” State
v. Cannon, 254 S.W.3d 287, 307 (Tenn. 2008) (quoting Davis v. Liberty Mut. Ins. Co., 38
S.W.3d 560, 564 (Tenn. 2001)).

“[T]he test for recusal requires a judge to disqualify himself or herself in any
proceeding in which ‘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.’” Griffin, 610 S.W.3d at 758 (quoting Cannon, 254 S.W.3d at 307). This test
is objective rather than subjective because the appearance of bias harms the integrity of the
court system as much as actual bias. Cannon, 254 S.W.3d at 307. “To act ‘impartially’ is
to act in ‘absence of bias or prejudice in favor of, or against, particular parties or classes of
parties, as well as maintenance of an open mind in considering issues that may come before
a judge.’” Adams v. Dunavant, 674 S.W.3d 871, 878 (Tenn. 2023) (quoting Tenn. Sup. Ct.
R. 10, Terminology “Impartiality.”). When a judge’s impartiality might reasonably be
questioned, recusal is warranted “[e]ven if a judge believes he [or she] can be fair and
impartial.” Bean, 280 S.W.3d at 805. The party moving for recusal bears the burden of
presenting evidence that would prompt a reasonable, disinterested person to believe that
there is a reasonable basis for questioning the judge’s impartiality. Duke, 398 S.W.3d at
671.

-4-
Under Tennessee Supreme Court Rule 10, Canon 2, Rule 2.11(A)(1),

(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 a
party’s lawyer, or personal knowledge of facts that are in dispute in
the proceeding.

(2) The judge knows that the judge . . . is:
....

(c) a person who has more than a de minimis interest that could
be substantially affected by the proceeding; or
....

(5) The judge, while a judge or a judicial candidate, has made a public
statement, other than in a court proceeding, judicial decision, or
opinion, that commits or appears to commit the judge to reach a
particular result or rule in a particular way in the proceeding or
controversy.

(6) The judge:
....
(b) served in governmental employment, and in such capacity
participated personally and substantially as a lawyer or public
official concerning the proceeding, or has publicly expressed
in such capacity an opinion concerning the merits of the
particular matter in controversy;

Tenn. Sup. Ct. R. 10, RJC 2.11

David offers five arguments for why the trial court judge erred by denying his
motion for recusal. One, he contends the trial court judge has an interest in the case. Two,
he argues the trial court judge conducted its own independent investigation and considered
extraneous materials in filing with the BPR, thereby creating an appearance of partiality.
Three, he asserts an acrimonious relationship exists between the trial court judge and prior
counsel. Four, he argues the trial court judge made a public criticism of prior counsel.
Five, he maintains the totality of the circumstances creates an appearance of partiality. For
various reasons addressed further below, none of these arguments are ultimately availing.

Citing Rule 2.11(A)(2)(c) and (A)(6)(b), David first asserts that the trial judge had
-5-
“more than a de minimis interest” in the outcome of the case because the judge “essentially
advocated” Dawn’s position that the default judgment was fraudulent. The interest alluded
to in (A)(2)(c) need not be economic, see Tenn. Sup. Ct. R. 10, RJC 2.11(A)(3) (mandating
recusal when the judge knows that the judge or other listed parties have an economic
interest in the matter or are parties to the proceeding); however, it must be an interest
substantially affected by the proceeding. See Reichert v. State ex rel. McCulloch, 278 P.3d
455, 469-70 (Mont. 2012) (concluding that non-retiring justices were not required to recuse
from considering legislation regarding judicial elections because it was conjecture to
suppose that the new system would help or hinder their chances of reelection);
Presbyterian Church (U.S.A) v. Edwards, 594 S.W.3d 199, 204 (Ky. 2018) (concluding
that a justice’s spouse’s affiliation with a law firm did not constitute more than a de minimis
interest when the spouse’s remuneration was not tied to the success of the case and any
enhancement of reputation or goodwill would be minimal); Gardner v. Lee, No. 2003-CA-
002230-MR, 2005 WL 119839, at *4 (Ky. Ct. App. Jan. 21, 2005) (concluding the judge
should have recused for reasons including that her cousin was the mayor and thus had a
significant interest in the outcome of an action against that governmental entity). The
interest at stake must not be speculative; “[a] merely theoretical interest in the issue at bar
is insufficient.” Betts-Lucas v. Hartmann, 87 S.W.3d 310, 329 (Mo. Ct. App. 2002).

Here, David has not demonstrated that the trial judge had any personal stake at all
in the outcome of the proceeding seeking to set aside the default judgment. His factual
assertion is more akin to a contention the judge had already decided the issue. Accordingly,
the judge did not err in refusing to recuse on the basis that he had more than a de minimis
interest in the result. Likewise, the judge did not previously participate “personally and
substantially as a lawyer or public official concerning the proceeding.” Instead, the judge,
while acting as a judge, made a referral to the BPR. Accordingly, David is not entitled to
relief based upon these arguments.

David next asserts that the court reviewed extraneous materials and conducted an
independent investigation, and that this has led to an appearance of partiality. See
Holsclaw, 530 S.W.3d at 72-73 (concluding that the judge’s ex parte communication and
independent investigation regarding qualification of an expert did not require recusal when
there was no appearance of partiality). David does not on appeal specify what
“extrajudicial” materials he alleges the judge reviewed. The allegations in the affidavit
attached to the motion to recuse assert counsel’s belief that the court “viewed documents
pertaining to the underlying default judgment.” However, a court’s own records are subject
to judicial notice. Tenn. R. Evid. 201(b), (c) (allowing a court, whether requested or not,
to take notice of facts “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned”); State v. Lawson, 291 S.W.3d 864, 869
(Tenn. 2009) (“Facts relating to the operation of the courts, matters occurring within the
immediate trial or appeal, or developments in a prior trial or prior proceedings all have
been subject to judicial notice.”); Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d
857, 862 n.5 (Tenn. 2016) (the Tennessee Supreme Court “may take judicial notice of the
-6-
records of the courts of this state”). Accordingly, a review of the court’s own records was
not an improper independent investigation giving the appearance of partiality, and the
judge did not err in refusing to recuse himself on this basis.

Third, David asserts that the BPR complaint demonstrates an acrimonious
relationship with prior counsel, and that the BPR complaint was a personal criticism of the
attorney which would lead to reasonable questions regarding the judge’s impartiality.
David cites to Bean v. Bailey, in which the Tennessee Supreme Court concluded that the
trial judge was required to recuse based on an acrimonious history with trial counsel. 280
S.W.3d at 805-06. In Bean, the judge had allegedly threatened adverse results for the
attorney’s clients if the attorney did not try to influence the newly elected District Attorney
General; the judge had reported the attorney to the Tennessee Bureau of Investigation for
alleged criminal conduct or unethical behavior twice (resulting in no action by the TBI);
the judge filed three complaints, all dismissed, against the attorney with the BPR; the
attorney filed a complaint against the judge, which was found to be meritorious; and the
public was aware of the parties’ hostility. Id. at 800-02. In the present case, the judge
reported David’s former counsel to the BPR, suspecting a violation of the Rules of
Professional Conduct. This single instance of making a report is not comparable to the
extended and deep-seated antagonism catalogued in Bean. Furthermore, the trial court
judge in the present case went so far to observe regarding prior counsel that “I’ve known
[him] for a long time. I very much respect him and think he is an excellent attorney. He’s
extremely bright and sharp with the law . . . .” We note that David’s former attorney is not
representing him in the present case. There is simply no showing of the type of animosity
towards prior counsel that existed in Bean. Nor are there indicators of any animosity
bleeding over into to the present case that provide a sufficient basis to require recusal in
this case in which prior counsel is not even representing the Defendant. E.g., State v.
Schiefelbein, 230 S.W.3d 88, 136-37 (Tenn. Crim. App. 2007) (recusal was required when
the judge had a “punitive” reaction (reporting counsel to the BPR) to a relatively benign
statement (opining the judged had erred) by former counsel; restricted discovery; failed to
place findings and reasons for denying recusal on the record; and examined the victim to
bolster her credibility).

Fourth, David also asserts that recusal was necessary because the judge had “made
a public statement, other than in a court proceeding, judicial decision, or opinion,” that
appeared to commit the judge “to reach a particular result or rule in a particular way in the
proceeding or controversy.” Tenn. Sup. Ct. R. 10, RJC 2.11(A)(5). Dawn counters that
reporting David’s former counsel to the BPR did not constitute a public statement, since
such reports are confidential. David does not assert that the judge made any statement
other than the report to the BPR, and all information submitted to the BPR “shall be
confidential and privileged, and shall not be public records or open for public inspection.”
Tenn. Sup. Ct. R. 9, § 32.1. Accordingly, the judge’s actions are not governed by Rule
2.11(A)(5), and it was not error to deny the recusal motion on this basis.

-7-
David finally asserts that the judge erred in denying the motion for recusal because
judge’s impartiality might reasonably be questioned based on the totality of the
circumstances. He notes that the specific provisions in Rule 10 listed above are not
exclusive. Cook v. State, 606 S.W.3d 247, 254 (Tenn. 2020) (noting the examples are
illustrative and not exclusive and that a court should disqualify itself when its impartiality
might reasonably be questioned).

In this case, the challenged conduct is the judge’s act of reporting a litigant’s prior
attorney to the BPR for filing a complaint in a matter subject to a prior global settlement.
See Tenn. Sup. Ct. R. 10, RJC 2.15(B), (D) (“A judge having knowledge that a lawyer has
committed a violation of the Rules of Professional Conduct that raises a substantial
question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects shall inform the appropriate authority,” and “[a] judge who receives information
indicating a substantial likelihood that a lawyer has committed a violation of the Rules of
Professional Conduct shall take appropriate action.”). The complaint filed by the former
attorney resulted in the default judgment that is being challenged in the present case.

Recusal is not automatically required simply because of the filing of a complaint
alleging unethical or unprofessional conduct. This is true where a party files a complaint
about a judge. See Salas v. Rosdeutscher, No. M2021-00157-COA-T10B-CV, 2021 WL
830009, at *3 (Tenn. Ct. App. Mar. 4, 2021) (noting that “the judicial disqualification
standards do not require recusal simply because the person seeking recusal has filed some
type of complaint against the judge”); In re Adison P., No. W2015-00393-COA-T10B-CV,
2015 WL 1869456, at *6 n.7 (Tenn. Ct. App. Apr. 21, 2015); State v. Parton, 817 S.W.2d
28, 30 (Tenn. Crim. App. 1991) (there was no evidence of bias based on the defendant’s
filing a complaint with the board of judicial conduct); see also Moncier v. Bd. of Prof’l
Responsibility, 406 S.W.3d 139, 162 (Tenn. 2013) (collecting cases in which recusal was
not required when a litigant sued a judge). This is also true when the complainant is the
judge whose recusal is at issue and the complaint is about the attorney for a party in the
litigation before the judge. Cone v. Cone, No. M2008-02303-COA-R3-CV, 2010 WL
1730129, at *18 (Tenn. Ct. App. Apr. 29, 2010) (no abuse of discretion in denying recusal
when the court expressed an intention to report an attorney to the board based on the belief,
drawn from allegedly seeing the attorney hold a client’s hand during a hearing, that the
attorney was having an inappropriate relationship); see Watson v. Cal-Three, LLC, 254
P.3d 1189, 1192 (Colo. App. 2011) (trial judge did not abuse her discretion in failing to
recuse after she reported an attorney for violation of professional rules because “[w]hile
the better practice would have been for the court either to inform [the attorney] of her report
before entering judgment or wait to report any unethical behavior until after entry of
judgment,” the judge “acted in accordance with her duties”); OneWest Bank, FSB v. Walsh,
No. 1-12-0111, 2013 WL 6061644, at *4 (Ill. App. Ct. Nov. 15, 2013) (“[B]ecause the trial
judge acted based upon his ethical duty to report attorney misconduct and facts discovered
during the course of the proceeding, . . . the[] claim that [litigants] were denied an impartial
hearing before an impartial tribunal must fail.”).
-8-
Likewise, a prior adverse determination on an issue does not amount to bias or a
lack of partiality. Embracing David’s argument would require recusal of trial judges in
cases in which, for example, a motion for summary judgment had been granted and this
court reversed after concluding that sufficient evidence existed for the case to proceed.
That has never been the understanding of this court. The In re Estate of Miller case,
wherein the appellant asserted that the court’s prior erroneous granting of summary
judgment demonstrated bias and showed that the judge had prejudged the issues on remand
after an appeal, reflects this court’s contrary understanding to the position advanced by
David. No. E2018-00658-COA-T10B-CV, 2018 WL 1989610, at *1 (Tenn. Ct. App. Apr.
27, 2018). The In re Estate of Miller court held the trial court did not err by declining to
recuse, particularly because the prior decision did not rise from extrajudicial information.
Id. at *2.

Similarly, in Davis v. Liberty Mutual Insurance Company, the judge had, in a prior
opinion, noted that the plaintiff’s expert had no active psychiatry practice, had left practice
in another state “under something of a cloud,” and was used “to an unusual extent” by
plaintiff’s counsel. 38 S.W.3d at 563-64. The Tennessee Supreme Court concluded that
recusal was not required because “the mere fact that a judge has ruled adversely to a party
or witness in a prior judicial proceeding is not grounds for recusal.” Id. at 565; see also
Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994) (adverse rulings, “even if
erroneous, numerous and continuous, do not, without more, justify disqualification”).

Likewise, in Adams v. Dunavant, a law firm claimed an interest in interpleaded trust
distributions in the case before the trial judge, and the judge had expressed his opinion as
an expert witness in a separate case prior to taking the bench that the fees of the law firm
were “outrageous and clearly excessive.” 674 S.W.3d 871, 874-75 (Tenn. 2023). The
Tennessee Supreme Court concluded recusal was not required because the prior expert
opinion “concerned a different case and distinct legal questions.” Id. at 879-80; see Bailey
v. Champion Window Co. Tri-Cities, LLC, 236 S.W.3d 168, 171 (Tenn. Ct. App. 2007)
(the judge had previously and erroneously found a party in contempt); see also OneWest
Bank, FSB, 2013 WL 6061644, at *4 (“A trial judge’s previous rulings are almost never a
valid basis for a claim of judicial bias.”). The Tennessee Supreme Court has observed that
“[i]f 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; see Liteky v. United States, 510 U.S. 540, 551 (1994)
(“Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If
the judge did not form judgments of the actors in those court-house dramas called trials, he
could never render decisions.” (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d
Cir.1943))).

Here, the trial judge explained that he reported prior counsel to the BPR because he
-9-
believed that the attorney may have violated the Rules of Professional Conduct in filing
David’s 2015 lawsuit. The issue before the court is whether the default judgment obtained
through that lawsuit should be set aside several years later under Tennessee Rules of Civil
Procedure 60.02(4) and (5) and whether Dawn is entitled to relief for the tort claims
asserted. According to the filings, David filed a motion to dismiss based on the statute of
limitations and based on the procedural mechanism employed. While the issues are
adjacent, they are not the same, nor is the trial judge’s knowledge from an extrajudicial
source.

Furthermore, the trial court judge clearly indicated that he has not reached any
decision on the question as to whether the default should have been obtained. At the
hearing on the motion to recuse, the trial judge specifically noted the following:

Mr. Johnson [(prior counsel for the Defendant)] may come in here and there
may be a perfectly logical reason why we’re at the status that we are in this
litigation. I don’t know. The Court doesn’t know. He hasn’t heard from Mr.
Johnson and that side, so the Court certainly has not made any determination.

Additionally, in his order denying the motion to recuse, the trial court judge emphasized
that no decision had been reached by the court on the propriety of obtaining the default
judgment.

Under these circumstances, we cannot conclude that the trial judge erred by
determining that a person of ordinary prudence would not find a reasonable basis for
questioning the judge’s impartiality. See Griffin, 610 S.W.3d at 758. Accordingly, we
affirm the trial court’s denial of the recusal.

CONCLUSION

In considering the arguments advanced on appeal and for the reasons discussed
above, we affirm the judgment of the trial court. The costs of the appeal are taxed to the
appellant, Joel David Pennington, III, for which execution may issue if necessary. The
case is remanded for such further proceedings as may be necessary and consistent with this
opinion.

_________________________________
JEFFREY USMAN, JUDGE

- 10 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9929206. Public record. Not legal advice.