Genevieve Thomas v. Cass Clay Thomas ( 2022 )

12/01/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 17, 2022 Session
GENEVIEVE THOMAS v. CASS CLAY THOMAS
Appeal from the Circuit Court for Shelby County
No. CT-003904-15 James F. Russell, Judge1
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No. W2021-01092-COA-R3-CV
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This is an appeal of a divorce case involving the awarding of alimony and the division of
marital property. The trial court entered an order summarily denying the wife’s various
motions, including a motion to alter or amend the judgment. Upon our review of the record,
we vacate the trial court’s order and remand for a review pursuant to Rule 63 of the
Tennessee Rules of Civil Procedure.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated
and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and KENNY ARMSTRONG, J., joined.
J. Noble Grant, III, Jackson, Tennessee, for the appellant, Genevieve Thomas.
Cass Clay Thomas, Bartlett, Tennessee, Pro se.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
Pursuant to a final decree entered on September 25, 2017, Genevieve Thomas
(“Wife”) and Cass Clay Thomas (“Husband”) were declared divorced. Notwithstanding
the trial court’s declaration of divorce, issues remained concerning the parties’ marital debt
and assets. Accordingly, the trial court referred the matter to a special master who
conducted a hearing on March 27, 2018.2 Subsequent to the hearing, the special master
1
Judge Russell has retired as of August 31, 2022, and the case shall be remanded to his successor
for further proceedings.
2
There is no order of reference contained in the record specifically delineating the special master’s
duties; however, based on our review of the record, it appears the matters at issue concerned the household
filed her report on April 17, 2018, and later filed an amended report on June 12, 2018. On
July 3, 2018, Wife filed exceptions to the special master’s report. On August 13, 2018, an
order was entered by the trial judge assigned to the case at the time, confirming certain
parts of the special master’s recommendations and modifying others.
On September 5, 2018, Wife filed two motions, including a motion to reconsider
the trial court’s ruling regarding the marital home and a motion for a new trial or to alter
or amend the judgment or for relief pursuant to Rule 60. Subsequently, Wife retained new
counsel, and an order was thereafter entered on February 6, 2019, continuing the hearing
to allow Wife’s new counsel to become familiar with the transcript in the matter. On
September 23, 2019, the trial judge recused herself due to a conflict that had arisen. As a
result, the case was reassigned to another judge. On May 10, 2021, a hearing was held on
all the outstanding motions in the case before the newly assigned judge. 3 On September
13, 2021, the successor judge entered an order stating that he “did not try the case and is
not familiar with the facts and the parties and is of the opinion that ruling upon these
motions is inappropriate.” According to the successor judge, “this court is of the opinion
that the proper venue for Plaintiff would be the Court of Appeals; as such her pending
motions are denied.” This appeal followed.
DISCUSSION
Wife raises several issues for our review, including that the “trial court erred in
failing to properly decide the post-trial motions filed by Wife.” As discussed herein, we
conclude the manner in which the trial court disposed of these motions to be dispositive of
this appeal. Here, the trial court summarily denied the motions, determining that, since it
had not tried the case, it was “inappropriate” to issue a ruling on them. For the reasons
stated below, we vacate the trial court’s order denying Wife’s motions.
Rule 63 of the Tennessee Rules of Civil Procedure “governs situations when a case
must be assigned to another judge because the judge originally presiding over the case is
unable to proceed.” Shofner v. Shofner, 181 S.W.3d 703, 711 (Tenn. Ct. App. 2004).
Specifically, the rule provides:
If a trial or hearing has been commenced and the judge is unable to proceed,
any other judge may proceed upon certifying familiarity with the record and
determining that the proceedings in the case may be completed without
prejudice to the parties. In a trial or hearing without a jury, the successor
judge shall at the request of a party recall any witness whose testimony is
material and disputed and who is available to testify again without undue
debts and assets.
3
In addition to the aforementioned motions filed by Wife on September 5, 2018, the record reflects
that other motions were filed by her new counsel both before and after the trial judge’s recusal.
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burden. In any trial or hearing with or without a jury, the successor judge
may recall any witness.
Tenn. R. Civ. P. 63.
The previously-cited Shofner decision has parallels to the case at bar and is
instructive as to the responsibilities successor judges must exercise pursuant to Rule 63.
The Shofner case involved a custody dispute where the initial trial judge disqualified
herself and the case was thereafter assigned to a new judge. Shofner, 181 S.W.3d at 706.
The successor trial judge refused to consider one of the parties’ motions and also refused
to consider a previous parenting plan because she did not issue the prior order. Id. On
appeal, we noted that in situations where Rule 63 is applicable, “[t]he newly assigned judge
must either certify familiarity with the record and determine that the proceedings may
continue without prejudice to the parties[4] or grant a new trial.” Id. at 711. Moreover,
“[t]he successor judge may not proceed in a case without making the requisite
certifications.” Id. As such, this Court determined that the successor trial judge in Shofner
had erred in failing to certify her familiarity with the record or, in the absence thereof, order
a new trial. Id. at 712.
Similarly here, the successor judge noted that he “did not try the case and is not
familiar with the facts and the parties and is of the opinion that ruling upon these motions
is inappropriate.” The successor judge then summarily denied Wife’s pending motions.5
There is no indication in the record that the successor trial judge ever certified his
familiarity with the record or even attempted to do so. In fact, the plain language of the
order indicates quite the opposite. We find this to be a clear contravention of Rule 63 as
“there is no room for discretion regarding compliance” with the Rule. Id. “The plain
language of the rule demonstrates that it applies to all cases in which a successor trial judge
replaces a trial judge who is unable to proceed.” Id. (emphasis added). As such, the
successor judge here had a duty to comply with Rule 63 and either certify familiarity with
the record and find that continuing the proceeding would not prejudice the parties or, in the
alternative, order a new trial. The successor judge in this case did neither. We find this to
be clear error and violative of the trial court’s obligations pursuant to Rule 63.
4
“[I]f a successor trial judge decides to permit a legal proceeding to continue, the judge must
consider and dispose of any post-trial motions made either before or during the successor judge’s
involvement in the case. If the successor judge is satisfied that he or she cannot perform the duties imposed
by the procedural rules with respect to the particular case, the successor judge is empowered to and must
order a new trial.” Id. at 714 (citing 12 MOORE’S FEDERAL PRACTICE § 63.05).
5
Curiously, the successor judge appeared to suggest that the appropriate venue for Wife to pursue
her motions was this Court.
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CONCLUSION
Based on the foregoing, we vacate the trial court’s September 13, 2021, order and
remand the matter for compliance with Rule 63.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
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