A Chocolate Chip Cake Conflict?

The Tennessee Court of Appeals rejected as untimely an assertion of judicial bias in a personal injury matter but remanded on a damages issue.

The alleged bias involved a childhood friendship between the judge’s son and opposing counsel

Here, Ms. Payne and her counsel were made aware of the childhood friendship between Judge Hurd’s son and counsel for Shelby County before the trial began. Ms. Payne concedes in her brief that Judge Hurd stated, before trial, that “Mr. Chockley and her son were friends as children and that Mr. Chockley’s mother had previously shared a chocolate chip cake recipe with her.” However, Ms. Payne did not express any objection to that fact when it was disclosed, during the remainder of the trial that day, in the week that followed while the matter was under advisement, or when they appeared in court to hear Judge Hurd’s oral ruling. However, once Judge Hurd announced her decision, counsel for Ms. Payne immediately asked, “Is it true that your son and Mr. Chockley were best friends growing up[?]” After this discussion of the matter on March 15, Ms. Payne then waited another month before filing a written recusal motion on April 18. This timing compels the conclusion that Ms. Payne “purposely decided to use the impartiality issue as [her] ‘ace-in-the-hole’ in the event that [she] lost the [trial] on the merits,” or at least was unhappy with the amount of damages awarded. Eldridge, 137 S.W.3d at 8 (quoting Davis, 23 S.W.3d at 313). “[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.” Id. (quoting Kinard, 986 S.W.2d at 228). “One cannot know of [allegedly] improper judicial conduct, gamble on a favorable result by remaining silent as to that conduct, and then complain that he or she guessed wrong and does not like the outcome.” Huntley v. Huntley, 61 S.W.3d 329, 340 (Tenn. Ct. App. 2001) (quoting Tenn. Dep’t of Emp’t Sec., 23 S.W.3d at 313); see, e.g., James v. James, 344 S.W.3d 915, 918 (Tenn. Ct. App. 2010) (“In this case, notwithstanding the trial court’s insertion of comments and remarks during the hearing of this matter, Ms. James’ failure to request recusal of the trial court until after the court rendered its judgment operates as a waiver.”). Therefore, we agree with the trial court’s conclusion that Ms. Payne’s recusal motion was untimely, and she has waived her argument regarding recusal. 

Defense’s side of the story

Shelby County argued that Judge Hurd’s impartiality could not reasonably be questioned based on events that occurred four decades earlier. Shelby County attached a declaration from Mr. Chockley, who stated that he became friends with Judge Hurd’s son when they were in the third grade in 1980, and they had playdates at each other’s houses and occasional sleepovers. However, Mr. Chockley stated that, when they were in ninth grade, they drifted apart and no longer socialized outside of school regularly. Mr. Chockley stated that he had only seen Judge Hurd’s son on a few occasions since high school, and the last time they socialized or intentionally spent time together was over thirty years earlier when they were minors. Mr. Chockley stated that he had fond memories of Judge Hurd from his childhood, but no personal relationship had existed between them since his childhood. He stated that his only encounters with Judge Hurd since she became a trial judge in 2010 had been inside the courtroom. Thus, Shelby County argued that a childhood friendship between Judge Hurd’s son and Mr. Chockley forty years ago was not a sufficient basis for recusal, and this provided an alternative basis for denying the recusal motion.

(Mike Frisch)