IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 11, 2020 Session

JUDY MORROW WRIGHT ET AL. v. MATTHEW G. BUYER ET AL.

Appeal from the Probate Court for Shelby County

No. PR-7275-1 Kathleen N. Gomes, Judge

___________________________________

No. W2019-01157-COA-R3-CV

___________________________________

After their case was dismissed for lack of subject matter jurisdiction, the plaintiffs moved 

for relief from the judgment claiming that the trial judge should have recused herself. The 

court denied the motion for relief, and this appeal followed. We previously considered the 

plaintiffs’ claims of the judge’s “appearance of a predispositional bias” in an accelerated 

interlocutory appeal as of right under Tennessee Supreme Court Rule 10B. In that appeal, 

we determined that the plaintiffs had waived their right to challenge the judge’s 

impartiality. So based on the law of the case, we affirm the denial of plaintiffs’ motion for 

relief from the judgment. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed

W. NEAL MCBRAYER,J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Larry E. Parrish, Memphis, Tennessee, for the appellants, David L. Morrow and Judy M. 

Wright.

Kenneth P. Jones and M. Matthew Thornton, Memphis, Tennessee, for the appellees, 

Matthew G. Buyer and SunTrust Bank, N.A.

OPINION

I.

Plaintiffs Judy M. Wright and David L. Morrow sued SunTrust Bank and Matthew 

G. Buyer in the Probate Court for Shelby County, Tennessee. The complaint sought 

“money damages from SunTrust Corporation, in its individual corporate capacity, as a 

03/02/2021
2

tortfeasor which . . . [allegedly] usurped the role of trustee of the John Goza Lifetime Trust 

and took control . . . of the financial affairs of the non compos mentis adult, John J. Goza.”1 

SunTrust did so, the plaintiffs claimed, in order “to tortiously convert use and benefit of 

the assets of the John Goza Lifetime Trust” to SunTrust’s own use and the use of others. 

The plaintiffs claimed Mr. Buyer “acted for and on behalf of SunTrust Corporation, to 

carry out SunTrust Corporation’s tortious wrongdoing, breaches of contract and 

conspiracy.” 

SunTrust and Mr. Buyer moved to dismiss the complaint for lack of jurisdiction and 

for failure to state a claim upon which relief can be granted. Among other things, the 

motion argued that, even if the court possessed subject matter jurisdiction, the plaintiffs’

claims were barred by the applicable statutes of limitations. 

The probate court granted SunTrust’s and Mr. Buyer’s motion to dismiss based on 

lack of subject matter jurisdiction. The probate court determined that the plaintiffs’ 

complaint was “[i]n essence . . . a tort action brought against a bank and an individual.” It 

then concluded that it had no “subject matter jurisdiction over an unliquidated tort claim as 

an original cause of action.” See Connell v. Walker, 74 Tenn. 709, 714 (1881) (recognizing 

act creating the probate court of Shelby County had the effect of conferring on the court 

the original jurisdiction of a county court); Tenn. Code Ann. § 16-16-107(a)(1) (Supp. 

2020) (providing for the original jurisdiction of county courts). 

As an alternative basis for dismissal, the court concluded that the action was barred 

by the applicable statute of limitations. Because John J. Goza had been adjudicated 

incompetent, it determined that the tort claims alleged by the plaintiffs must have been 

filed, at the latest, within three years of the date of his death. See Abels ex rel. Hunt v. 

Genie Indus., Inc., 202 S.W.3d 99, 105 (Tenn. 2006) (“The disability of unsound mind is 

removed when the individual is no longer of unsound mind, due either to a change in the 

individual’s condition or the individual’s death.”); Tenn. Code Ann. § 28-1-106(c)(1) 

(2017) (authorizing a person’s representative to commence an action “within the time of 

limitation for the particular cause of action, unless it exceeds three (3) years, and in that 

case within three (3) years from removal of such incapacity”). Mr. Goza died in 2007, but 

the plaintiffs filed their complaint against SunTrust and Mr. Buyer in 2016. 

Although it dismissed the case for lack of subject matter jurisdiction, the court went 

on to conclude that an award of attorney’s fees and expenses was appropriate under 

Tennessee Code Annotated § 20-12-119. That statute provides for an award of costs and 

attorney’s fees “where a trial court grants a motion to dismiss pursuant to Rule 12 of the 

Tennessee Rules of Civil Procedure for failure to state a claim upon which relief may be 

granted.” Tenn. Code Ann. § 20-12-119(c)(1) (Supp. 2020). 

 

1 The plaintiffs were first cousins of John J. Goza. See Morrow v. SunTrust Bank, No. W2010-

01547-COA-R3-CV, 2011 WL 334507, at *1 (Tenn. Ct. App. Jan. 31, 2011). 
3

A.

After the order of dismissal, the plaintiffs moved to alter or amend the order under 

Tennessee Rule of Civil Procedure 59.04. And while that motion was still pending, the 

plaintiffs moved to recuse the probate court judge. In a substituted and superseding motion 

to recuse, the plaintiffs claimed that the judge was “burdened by evident bias and 

prejudice.” Specifically, the judge had appointed one of the attorneys for the defendants 

to serve as a substitute judge. This fact “evidence[d] a professional relationship between 

[the judge] and [the attorney],” creating “the appearance that [the judge] is adjudicating the 

instant case being defended by a person in a position as would be a colleague who serves 

. . . in the same court, in the same courtroom and on the same bench.”

The plaintiffs also alleged that the judge’s “long history . . . as a practitioner” of 

trust and estate law had “‘psychologically wedded’ [her] to the proposition that so-called 

‘living trusts’ are lawful in Tennessee.” Thus, it would be “impossible for [the judge] to 

adjudicate claims for relief by [the plaintiffs] predicated on [the plaintiffs’] contention that 

so-called ‘living trusts’ are outlawed by controlling Tennessee precedent.” And the judge 

“would give more weight” to the arguments of counsel for the defendants than to arguments 

of counsel for the plaintiffs. 

Finally, the plaintiffs complained of the judge’s “result-oriented adjudications” in 

cases involving the plaintiffs. This complaint extended to previous cases involving the 

plaintiffs as well as the current matter. The order of dismissal was just “one of many 

evidences of [the judge’s] preexisting partiality disqualifying [the judge] as an adjudicator 

in the instant case or other cases involving Defendants and [the plaintiffs], where the status 

of John J. Goza and the probate Estate of John J. Goza is a subject matter.” 

The probate court denied the motion for recusal. The court found “[t]he fact that 

[opposing counsel] was appointed on one occasion to serve as a Substitute Judge[] d[id] 

not make a professional relationship” nor did it “make the Court bias[ed] in his favor.” It 

also rejected the notion that a history of “practic[ing] in the area of Probate law and 

deal[ing] with many lawyers over the years” was a ground for recusal. The court noted 

that the validity of the trusts had “already been determined.” Although acknowledging that 

the plaintiffs and their counsel were upset by the court’s adverse ruling, “the mere fact that 

a judge ha[d] ruled adversely to a party . . . in a prior judicial proceeding [wa]s not grounds 

for recusal.” See Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001). In sum,

the court found that the plaintiffs had failed to establish any personal bias or prejudice 

against the plaintiffs or their counsel.

B.

The plaintiffs sought an accelerated interlocutory appeal from the denial of the 

recusal motion. See TENN. SUP. CT. R. 10B § 2.01. And we affirmed the probate court. 
4

Wright v. Buyer, No. W2018-01094-COA-T10B-CV, 2018 WL 3546784, at *4 (Tenn. Ct. 

App. July 24, 2018), perm. app. denied, (Tenn. Aug. 22, 2018). We concluded that the 

plaintiffs, who we referred to as “Petitioners,” had waived their right to challenge the 

judge’s impartiality by not promptly bringing the facts forming the basis for their motion 

to the court’s attention.2 Id. 

 

Here, Petitioners admit in their petition for recusal appeal that, even before 

the probate judge ruled on SunTrust’s and Mr. Buyer’s motion to dismiss, 

they “kn[ew] [the probate judge’s] propensity to use result-oriented 

adjudication to defy precedent and rule according to [the probate judge’s] 

self-centered predisposition.” But Petitioners admittedly “withheld a motion 

to recuse in hopes that the absence of an issue concerning the unlawful use 

of the H. Goza Revocable Trust would suppress [the probate judge’s] 

propensity and allow principled precedent-controlled adjudication to 

determine results.” According to them, the dismissal order “was the most 

result-oriented adjudication Adjudicator had ever rendered . . . and 

withholding the Recusal Motion could no longer be justified.”

Id. (alterations in original).

C.

During the pendency of the interlocutory appeal, the plaintiffs moved to set aside 

the order of dismissal in the probate court. See TENN. SUP. CT. R. 10B § 2.04 (providing 

that recusal appeals “do[] not automatically stay the trial court proceeding”). The motion 

specified that it did “not supersede or otherwise change” the plaintiffs’ motion to alter or 

amend the order of dismissal, which had not been decided. Instead, the plaintiffs argued 

that the order of dismissal was “void ab initio, because it violate[d] the Fourteenth 

Amendment, Due Process Clause, to the United States Constitution” and was “a resultoriented adjudication, thus, per se, a violation of the Fourteenth Amendment Due Process.” 

The plaintiffs posited that the order of dismissal was void and violated the 

Fourteenth Amendment because, objectively, the probability of actual bias on the part of 

the judge was too high. For this point, the plaintiffs recycled the same arguments made in 

their substituted and superseding motion to recuse. They also relied on the same facts. But 

unlike their previous effort, they supported their factual assertions with an affidavit by their 

counsel, Larry E. Parrish. 

 

2 As an alternative ground for affirming the denial of the recusal motion, we determined that the 

appellate record was insufficient because the plaintiffs “did not support their recusal motion with an 

affidavit or a declaration under penalty of perjury on personal knowledge.” Wright, 2018 WL 3546784, at 

*4; see TENN. SUP. CT. R. 10B § 1.01 (requiring recusal motions to “be supported by an affidavit under

oath or a declaration under penalty of perjury on personal knowledge and by other appropriate materials”). 
5

The plaintiffs submitted that the order of dismissal was results-oriented because it 

failed to address a statute they claimed vested the probate court with subject matter 

jurisdiction. They also faulted the order for going beyond the court’s subject matter 

jurisdiction. After determining that subject matter jurisdiction was not present, the 

plaintiffs deemed it “both unnecessary and ‘irregular’” for the court to address the statute 

of limitations defense or to award costs and attorney’s fees. 

The plaintiffs requested that the judge recuse herself before ruling on their motion 

to set aside because any ruling would result in “yet another void ab initio order.” And 

whether the judge decided to recuse or not, they asked that the order of dismissal be set 

aside. 

The court denied both the motion to alter or amend and the motion to set aside. Its 

order concluded that both motions lacked merit. And it referenced a concession made by 

the plaintiffs’ counsel: “Plaintiffs’ counsel acknowledged at the hearing that the Motion to 

Set Aside Dismissal Order has to do with nothing other than whether the Judge adjudicated 

the Dismissal Order with an appearance of non-neutrality and not whether the adjudication 

of the Dismissal Order was/is meritorious.” 

II.

In this appeal, the plaintiffs again focus on the impartiality of the probate court 

judge. They raise a single issue for review. Specifically,

Does the Fourteenth Amendment, United States Constitution, per Williams 

v. Pennsylvania, [136 S. Ct. 1899 (2016)] . . . , combined with the Fourteenth 

Amendment “first instance” doctrine defined in Concrete Pipe & Prod. of 

California, Inc. v. Constr. Laborers Pension Tr. for S. California, 508 U.S. 

602, 617-18 (1993); Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004); Marshall 

v. Jerrico, Inc., 446 U.S. 238, 248 (1980) and Ward v. Vill. Of Monroeville, 

Ohio, 409 U.S. 57, 61-62 (1972), create, for state court litigants in all states, 

an inviolate right to be judged by trial court adjudicators as to whom there 

exists no risk of an appearance that the adjudicator might (in the future) 

adjudicate, might have (in the past) adjudicated or might (presently) be 

adjudicating the litigant’s dispute with a temptation that might undermine the 

Fourteenth Amendment required neutrality of the adjudicator? [3]

 

3

In oral argument, counsel for the plaintiffs reframed the issue: “The issue on appeal exclusively, 

as I see it, is the qualification of Judge Gomes to decide anything in this case. It is—it’s not the merits; 

none of the merits about any of the underlying issues are at issue in this case . . . .” 
6

SunTrust and Mr. Buyer respond that the plaintiffs’ attempt to disqualify the “judge has 

already been thoroughly heard and denied.” And, due to the law of the case doctrine, the 

plaintiffs are not entitled to be heard on the issue again. 

The “law of the case” doctrine “generally prohibits reconsideration of issues that 

have already been decided in a prior appeal of the same case.” Memphis Publ’g Co. v. 

Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998)

(citing 5 Am. Jur. 2d Appellate Review § 605 (1995)). Thus, “an appellate court’s decision 

on an issue of law is binding in later trials and appeals of the same case if the facts on the 

second trial or appeal are substantially the same as the facts in the first trial or appeal.” Id. 

(citing Life & Casualty Ins. Co v. Jett, 133 S.W.2d 997, 998-99 (Tenn. 1939); Ladd ex rel. 

Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 90 (Tenn. Ct. App. 1996)). The doctrine 

extends “to issues that were actually before the appellate court in the first appeal and to 

issues that were necessarily decided by implication” but not to dicta. Id. (citing Ladd ex 

rel. Ladd, 939 S.W.2d at 90). It binds the trial court following remand from the appellate 

court and the appellate court if a second appeal is taken following remand. Id. The law of 

the case doctrine also extends to appellate decisions arising from interlocutory appeals.4 

Ladd ex rel. Ladd, 939 S.W.2d at 90.

In their reply brief, the plaintiffs offer a variety of reasons for why law of the case 

should not apply. They submit that “[a]n order on a Rule 10 recusal motion is not a ruling 

by a court” and a “Rule 10B appeal is not an appeal from a ruling by a court.” Because, 

according to the plaintiffs, “[n]either granting a S. Ct. Rule 10 recusal motion nor denying 

same effects [sic] the merits of [the] case,” the law of the case doctrine cannot be 

implicated. 

The plaintiffs’ argument undercuts a basic premise of their appeal: “because the . . . 

dismissal order . . . was adjudicated by a disqualified adjudicator, the . . . dismissal order 

. . . is void ab initio.” They tie recusal, or rather the failure to recuse, to the merits of the 

court’s decision. Because “the trial court adjudicator is disqualified,” they claim the 

“dismissal order . . . must be set aside.” The plaintiffs cannot have it both ways. 

Next the plaintiffs argue that our opinion from the accelerated interlocutory appeal

was itself void ad initio. They claim that they “confessed error and mooted the appeal 

altogether before the Rule 10B appellate panel decided the Rule 10B Appeal.” In the 

interlocutory appeal, we noted that the plaintiffs sought dismissal of their appeal in order 

to correct an oversight in their substituted and superseding motion to recuse. Wright, 2018 

WL 3546784, at *3 n.5. But we denied that request. Id. So we decline the plaintiffs’ 

invitation to proceed “as if neither the Rule 10[B] recusal motion nor the Rule 10B Appeal 

 

4 The doctrine applies even if our decision has not been reviewed by the supreme court. Ladd ex 

rel. Ladd, 939 S.W.2d at 91. The doctrine “does not apply to . . . appellate . . . opinions that have been 

reversed or vacated.” Id.
7

ever occurred.” They did occur. And the plaintiffs lost on the question of the judge’s 

impartiality. 

Still, we will revisit an issue decided in a prior appeal under three limited 

circumstances: 

(1) the evidence offered at a trial or hearing after remand was substantially 

different from the evidence in the initial proceeding; (2) the prior ruling was 

clearly erroneous and would result in a manifest injustice if allowed to stand; 

or (3) the prior decision is contrary to a change in the controlling law which 

has occurred between the first and second appeal.

Memphis Publ’g Co., 975 S.W.2d at 306. The plaintiffs seemingly invoke the first two 

circumstances as additional reasons for not applying the law of the case doctrine. 

They claim that the facts changed since the filing of their recusal motion and their 

motion to set aside, which relied on Tennessee Rule of Civil Procedure 60.02. The 

plaintiffs explain that “the facts most significant to the determination of the instant Rule 

60.02 Appeal had not even occurred at the time the Rule 10B Appeal was initiated; thus, 

the Rule 10B Appeal could not have decided anything about the subsequently occurring 

facts that are determinative of the instant Rule 60.02 Appeal.” Specifically, the plaintiffs 

refer to the events of May 30, 2019, when the probate court held a hearing on the plaintiffs’ 

motion to alter or amend and motion to set aside. At that hearing, the court also considered 

motions to quash subpoenas issued on behalf of the plaintiffs and directed to the probate 

court judge, the probate court clerk, the Tennessee Bar Association, and others. The 

plaintiffs submit that the probate court judge had a duty under the Due Process Clause of 

the Fourteenth Amendment to withdraw and to not decide the motions.

We do not find the facts substantially different from when we addressed recusal in

the accelerated interlocutory appeal. The plaintiffs still maintain that the judge’s 

experience as a practicing attorney makes her biased. They “suggest that an adjudicator 

who had the best interest of former clients at risk for the professional services rendered by 

the adjudicator, while in private practice, could adjudicate whether the advice given and 

documents drafted by the adjudicator were against the law . . . is beyond unthinkable.” We 

addressed that same factual claim in the prior appeal. Wright, 2018 WL 3546784, at *2. 

And we deemed it waived. Id. at *4. 

 

Although the plaintiffs do not use the words “clearly erroneous” or “manifest 

injustice” in describing our prior opinion, they do complain that Tennessee law governing 

disqualification or recusal is “inconsistent and/or incompatible” with the United States 

Supreme Court’s decision in Williams v. Pennsylvania, 136 S. Ct. 1899 (2016). In 

Williams, the Supreme Court held that, “[w]here a judge has had an earlier significant, 
8

personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk 

of actual bias in the judicial proceeding rises to an unconstitutional level.” Id. at 1910. 

We disagree that Williams is inconsistent or incompatible with Tennessee law. 

Recently, our supreme court cited Williams for the proposition that, in deciding whether a 

prosecutor turned judge should recuse from a criminal case, the judge’s supervisory 

authority when a prosecutor is a consideration. State v. Griffin, 610 S.W.3d 752, 760

(Tenn. 2020). But, later in the same opinion, the court reaffirmed that “the analysis for 

impartiality . . . is whether ‘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.’” Id. at 762 (quoting State v. Cannon, 254 S.W.3d 287, 307 (Tenn. 2017)). 

The analysis is an objective one. Id. at 758. The analysis employed by Williams is as well. 

See Williams, 136 S. Ct. at 1905. 

Even if we accept the notion that Williams “constitutionaliz[ed] judicial recusal 

under the Fourteenth Amendment,” as plaintiffs argue, the law of the case would still 

thwart the plaintiffs’ current effort to set aside the order of dismissal based upon 

disqualification of the probate court judge. Due process rights may be waived. See Bailey 

v. Blount Cty. Bd. of Educ., 303 S.W.3d 216, 238 (Tenn. 2010). And in the previous appeal, 

we determined that all the plaintiffs’ claims about the probate judge had been waived. 

Wright, 2018 WL 3546784, at *4. 

Our decision in the accelerated interlocutory appeal has become the law of the case 

as to the sole issue raised by the plaintiffs in this appeal. The plaintiffs raised the same 

concerns regarding the probate judge in their interlocutory appeal as they do now. So we 

will not revisit the issue of disqualification of the judge. 

III.

We affirm the judgment of the trial court. The case is remanded for any further 

proceedings, consistent with this opinion, that may be necessary. 

_________________________________

W. NEAL MCBRAYER, JUDGE