Caviar

The Tennessee Court of Appeals affirmed the denial of a motion to recuse

This appeal arises out of a denial of a motion to recuse in a case in which the underlying litigation relates to alleged legal malpractice. In September 2022, Plaintiffs Carter O’Neal Logistics, Inc., P&M Logistics, Inc., and Mr. Boris Penchion filed the underlying suit against Defendants, the law firm Evans Petree, P.C., and one of its partners, Mr. Daniel Robinson. While representing Mr. Penchion, Mr. Robinson also became business partners with Mr. Penchion in a number of enterprises including Paddlefish Partners, LLC, a caviar company.

In October 2022, the Plaintiffs filed a special notice pursuant to Shelby County Local Rule 21, noting that a Shelby County attorney is a party to the suit. Under a provision of Shelby County Local Rule 21, the notice sought the appointment of an extra-county judge. In December 2022, Judge Smith, the trial court judge, ruled that designation of an extra-county judge was unnecessary in this case, and the case proceeded.

A hearing was held

The Plaintiffs failed to meet the October 9th deadline, and the Defendants filed a motion for sanctions. That motion was set for a hearing on October 27, 2023, along with a number of other motions relating to the case. [Plaintiff’s counsel] Mr. Bruce Kramer’s son, Mr. Scott Kramer, who is also an attorney, attended this hearing, but he did not participate. When the trial court judge entered the courtroom, Mr. Scott Kramer was seated in the jury box rather than the gallery. Judge Smith questioned why he was present in the courtroom. Addressing concerns later raised by the Plaintiffs about this question, the trial court judge indicated her reason for asking had been to determine whether Mr. Scott Kramer needed the court’s attention as to some matter or whether he was simply present as an observer with his father. Judge Smith indicated that her general practice is “to shepherd lawyers in and out as quickly as possible before starting what might be a lengthy hearing.” Mr. Bruce Kramer, however, believed the question reflected that Judge Smith held “more than a lingering resentment” against Mr. Scott Kramer related to a case the judge had presided over two years earlier and, by extension, bias against him.

The Plaintiffs filed a motion to recuse on November 29, 2023. The foundations of this recusal motion trace back to litigation occurring two years earlier involving different parties.

The earlier case was a contentious divorce

Judge Smith recalled the two [opposing] lawyers lobbing personal insults at each other and generally refusing to maintain civility, despite the trial court’s repeated attempts to encourage civility. The uncivil conduct impacted the progress of the case with the emergence of excessive and time- and resource-consuming discovery disputes.

The judge sought the assistance of a “seasoned” attorney to mediate the bad blood

That is not, however, what Mr. Bruce Kramer or Mr. Scott Kramer believe Judge Smith asked Mr. Glassman to do. Around this same time period, Mr. Scott Kramer filed a motion to recuse Judge Smith and a complaint with the Board of Judicial Conduct.

That motion to recuse was denied

Both the trial court judge and Mr. Glassman explained Mr. Glassman’s charge from Judge Smith being one of addressing incivility with attorneys in the divorce case and helping to mediate their conflict.

Glassman is opposing counsel in the present matter.

Recusal here was premised on a supposed attorney-client relationship between Judge Smith and Attorney Glassman

Simply stated, the trial court judge and Mr. Glassman have superior knowledge to Mr. Scott Kramer as to what precisely Mr. Glassman was asked by the trial court judge to do. Whereas the Plaintiffs advance a conception of the relationship as an attorney-client relationship in which Mr. Glassman was asked to get a motion to recuse withdrawn, that is simply not the mission that the trial court judge indicated she gave to Mr. Glassman nor the mission that Mr. Glassman said was given to him by the trial court judge. From our review of the record, we are unpersuaded that the Plaintiffs have satisfied their burden.

And

even if we were to assume for purposes of argument that an attorney-client relationship previously existed between the trial court judge and counsel for the Defendants, the trial court’s decision would still warrant affirmance based upon the untimely filing of the Plaintiffs’ motion to recuse.

The web page of the Glassman firm has a photograph of firm attorneys attending the judge’s swearing in ceremony. (Mike Frisch)