IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2023

THOMAS BURRELL v. TIPTON COUNTY ELECTION COMMISSION ET 

AL.

Appeal from the Chancery Court for Tipton County

No. 37772 Kasey Culbreath, Judge

___________________________________

No. W2023-00312-COA-R10-CV

___________________________________

Appellant attorney appeals the trial court’s denial of his motion to appear pro hac vice on 

procedural grounds. We affirm. 

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Chancery Court

Affirmed and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JEFFREY USMAN, J., joined.

Percy Squire, Columbus, Ohio, Pro se.

Amber G. Shaw and Henry B. Talbot, Covington, Tennessee, for the appellee, Tipton 

County Election Commission.

MEMORANDUM OPINION1

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 7, 2022, Plaintiff Thomas Burrell (“Plaintiff”) filed a pro se petition for a 

 

1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse 

or modify the actions of the trial court by memorandum opinion when a formal opinion 

would have no precedential value. When a case is decided by memorandum opinion it 

shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not

be cited or relied on for any reason in any unrelated case.

02/15/2024
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common law writ of certiorari (“the Initial Petition”) in the Tipton County Chancery Court 

(“the trial court”) against Defendants/Appellees the Tipton County Election Commission 

(“Appellee”), commission chairman Jimmy Vandergrift, and commissioners Letitia 

Wilson, Chris Brent, Kay Bergen, Theta Rone, and Cindy Pinner (collectively, “the Tipton 

County Defendants”), as well as Mark Goins, the Coordinator of Elections for the 

Tennessee Division of Elections.2 On October 19, 2022, Appellant Percy Squire 

(“Appellant”) filed a motion to appear pro hac vice on behalf of Plaintiff under Rule 19 of 

the Rules of the Supreme Court of the State of Tennessee. On the same day, Plaintiff filed 

two “verified” motions seeking a temporary restraining order and preliminary injunction 

barring the commencement of early voting or the tabulation of votes pending resolution of 

this matter. Both motions were signed by Appellant as the purported counsel for Plaintiff,3

but only the second motion contained the signature of Plaintiff in the verification section. 

On October 25, 2022, the Tipton County Defendants filed a response in opposition to 

the Rule 19 motion. Therein, the Tipton County Defendants asserted that the Initial Petition 

was not filed pro se, as it purported to be, but had been sent from Appellant’s office. The 

Tipton County Defendants further alleged that pleadings were not properly served or 

signed by local counsel. See Tenn. R. Sup. Ct. 19(g) (“Both the Tennessee lawyer and the 

lawyer appearing pro hac vice shall sign all pleadings, motions, and other papers filed or 

served in the proceeding[.]”). The Tipton County Defendants also asserted that Appellant 

failed to provide a full history of the discipline to which he had been subjected in other 

jurisdictions, including but not limited to, a suspension, an order to pay restitution, and a 

contempt finding against him. As such, the Tipton County Defendants urged the trial court 

to deny Appellant’s motion to appear pro hac vice. On October 31, 2022, Mr. Goins joined 

in the response filed by the Tipton County Defendants. 

On November 2, 2022, the Tipton County Defendants responded in opposition to 

Plaintiff’s effort to set a hearing on the motion for temporary injunctive relief. Specifically, 

the Tipton County Defendants asserted that the requests for injunctive relief were not ripe 

as Appellant’s pro hac vice appearance had not yet been decided. The Tipton County 

Defendants further argued that the trial court lacked subject matter jurisdiction because the 

Initial Petition was defective in that it was not sworn and did not state that it was the first 

application for the writ. 

On November 3, 2022, Plaintiff filed an amended petition for a writ of certiorari 

(“the Amended Petition”). The Amended Petition was again filed pro se. On November 9, 

2022, the Tipton County Defendants filed an answer to the Amended Petition, raising as 

defenses that the Amended Petition was not “sworn to before the clerk of the circuit court, 

the judge, any judge of the court of general sessions, or a notary public” and that the 

 

2 The allegations in the Initial Petition are not relevant to this appeal. 

3 The second motion only contained Appellant’s electronic signature. Local counsel did not sign 

either motion. 
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Amended Petition “does not state that it is the first application for the writ.” As such, the 

Tipton County Defendants asserted that the trial court lacked subject matter jurisdiction.

On November 4, 2022, Appellant filed a second motion to appear pro hac vice. The 

Tipton County Defendants responded in opposition on November 9, 2022. Appellant filed 

a response on November 10, 2022. A hearing on the motion to appear pro hac vice was set 

for the same day. According to both parties, on this date, the trial court ruled from the 

bench that it would deny Appellant’s motion to appear pro hac vice.4

In the afternoon of November 10, 2022, Plaintiff filed what was captioned as a 

“Verified Petition.” The notarized Verified Petition contained a verification by Plaintiff 

under penalty of perjury that the allegations were true and based on personal knowledge. 

Plaintiff also asserted that it was the first application for a writ because the Initial Petition 

was filed without subject matter jurisdiction. On the same day, Plaintiff also filed another 

verified motion for injunctive relief; this motion was filed pro se. 

Before the trial court had entered an order memorializing its oral ruling, on 

November 18, 2022, Plaintiff filed a notice of voluntary nonsuit pursuant to Rule 41.01(1) 

of the Tennessee Rules of Civil Procedure. 

Eventually, on February 6, 2023, the trial court entered two separate orders 

simultaneously.5 First, the trial court entered a detailed order denying Appellant’s request 

to appear pro hac vice. Therein, the trial court cited a number of sanctions that had been 

imposed on Appellant by other jurisdictions, including a suspension from the practice of 

law in November 2011. The trial court also entered an order dismissing Plaintiff’s case 

without prejudice under Rule 41.01. 

Appellant filed a notice of appeal with this Court on March 2, 2023.6 On March 10, 

2023, this Court entered an order asking Appellant to explain whether he was appealing 

the denial of his motion to appear pro hac vice and, if so, directing him to file an application 

for permission to appeal pursuant to Rule 10 of the Tennessee Rules of Appellate 

Procedure.7 Appellant responded that he was appealing only the denial of his motion to 

appear pro hac vice. On April 14, 2023, Appellant filed an application for permission to 

appeal to this Court under Rule 10. Appellee filed a response in opposition on May 4, 2023, 

 

4 No transcript or statement of the evidence exists in the record to show the trial court’s oral ruling. 

But neither party denies that the trial court did orally deny the motion on this date. Specifically, Appellant 

concedes in his brief that “On November 10, 202[2], in the Chancery Court a hearing was conducted in 

relation to the Undersigned’s pro hac vice motion. The Chancery [Court] orally denied the Motion.”

5 Both indicate that they were received by the clerk’s office at 1:35 pm. 

6 The notice of appeal was filed in the name of Appellant, rather than Plaintiff.

7 Rule 19 of the Rules of the Tennessee Supreme Court states, in relevant part, that “[a] trial or 

intermediate appellate court’s denial of a motion to appear pro hac vice . . . may be appealed pursuant to 

Rule 10, Tenn. R. App. P.” Tenn. R. Sup. Ct. 19(h). 
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at the request of this Court. Mr. Goins filed a response on May 12, 2023, taking no position 

as to whether Appellant’s application should be granted. 

On June 14, 2023, this Court granted Appellant’s application on the following 

narrow issue: 

Whether the trial court erred in denying Applicant’s pending motions for pro 

hac vice admission notwithstanding the fact that, prior to the entry of the 

order denying the pending motions, Plaintiff had filed a notice of voluntary 

dismissal pursuant to Rule 41.01(1) of the Tennessee Rules of Civil 

Procedure.

II. ANALYSIS

This is a unique case under Rule 10 of the Tennessee Rules of Appellate Procedure. 

Under Rule 10, an extraordinary appeal by permission may only be granted if one of the 

following circumstances is present: “(1) if the lower court has so far departed from the 

accepted and usual course of judicial proceedings as to require immediate review, or (2) if 

necessary for complete determination of the action on appeal as otherwise provided in these 

rules.” Tenn. R. App. P. 10(a). Tennessee courts interpreting Rule 10 have held that an 

extraordinary appeal should not be granted unless “the challenged ruling represents a 

fundamental illegality, fails to proceed according to the essential requirements of the law, 

is tantamount to the denial of a party’s day in court, is without legal authority, is a plain 

and palpable abuse of discretion, or results in either party losing a right or interest that may 

never be recaptured.” Kaur v. Singh, No. W2016-02058-COA-R10-CV, 2017 WL 445149, 

at *7 (Tenn. Ct. App. Feb. 2, 2017) (citing State v. McKim, 215 S.W.3d 781, 791 

(Tenn. 2007)).

This appeal, however, is not governed solely by Rule 10. Instead, it involves a 

request by an out-of-state attorney to appear before a Tennessee court under Rule 19 of the 

Rules of the Supreme Court of the State of Tennessee. See generally Tenn. Sup. Ct. R. 19. 

Pursuant to Rule 19, a lawyer not licensed to practice law in Tennessee may file a motion 

“in a particular proceeding” before the relevant court or agency showing that the lawyer 

has complied with the conditions contained in the rule. But in its discretion, the court may, 

“in a particular proceeding pending before it,” deny the motion when certain conditions are 

met.8 Tenn. Sup. Ct. R. 19(b). And Rule 19 specifically provides that the method for 

 

8 The conditions are as follows:

(1) the applicant’s conduct as a lawyer, including conduct in proceedings in 

Tennessee in which the applicant has appeared pro hac vice and conduct in other 

jurisdictions in which the lawyer has practiced, raises reasonable doubt that the lawyer will 

comply with the Tennessee Rules of Professional Conduct and other rules and law 

governing the conduct of lawyers who appear before the courts and agencies of the State 
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appealing the denial of a motion to appear pro hac vice is via a Rule 10 extraordinary 

appeal. See Tenn. R. Sup. Ct. 19(h). 

Thus, we proceed to consider the question presented by this appeal: whether the trial 

court erred in adjudicating Appellant’s motion to appear pro hac vice in light of the 

procedural posture of the case. See Tenn. R. Sup. Ct. 19(b). We conclude that the trial court 

did not err. In our view, the issue is governed by Rule 19(b), which gives the trial court 

discretion to deny a motion to appear pro hac vice “in a particular proceeding pending 

before it[.]” Tenn. Sup. Ct. R. 19(b). At the time that the trial court entered its written order 

denying the Rule 19 motion, Plaintiff had already given notice of his voluntary dismissal 

of the action pursuant to Rule 41. But Tennessee courts have held in a different context 

that a lawsuit remains “pending” despite the filing of a notice of voluntary nonsuit until the 

order of nonsuit is entered by the trial court. See Garen v. Bowman, No. M2010-00512-

COA-R3-CV, 2010 WL 4024907, at *2 (Tenn. Ct. App. Oct. 12, 2010) (in a case involving 

the prior suit pending doctrine, holding that “the entry of an order of voluntary dismissal 

is required before the voluntary dismissal takes effect. Until that time, the lawsuit remains 

pending.”). Moreover, we note that in this particular case, the parties agree that the trial 

court had announced its oral ruling denying Appellant’s motion to appear pro hac vice prior 

to the filing of the notice of nonsuit. This is somewhat similar to where, despite the 

pendency of a motion to recuse, a trial court may enter an order on a motion that had been 

ruled upon orally prior to the filing of the recusal motion. See, e.g, Austermiller v. 

Austermiller, No. M2022-01611-COA-T10B-CV, 2022 WL 17409921, at *8 (Tenn. Ct. 

App. Dec. 5, 2022) (“[W]hen a Rule 10B recusal motion is pending, the trial court may 

enter orders that are based upon rulings the court made from the bench before the recusal 

motion was filed.”). Thus, the trial court did not err in denying Appellant’s motion to 

appear pro hac vice despite the unique procedural history of this case.9

 

of Tennessee; or

(2) the applicant has engaged in such frequent appearances as to constitute regular 

practice in this state.

Tenn. R. Sup. Ct. 19(b). 

9 We note that the Tennessee Supreme Court has held that “[w]hen a voluntary nonsuit is taken, the 

rights of the parties are not adjudicated, and the parties are placed in their original positions prior to the 

filing of the suit.” Himmelfarb v. Allain, 380 S.W.3d 35 (Tenn. 2012); see also Justice v. Craftique Constr., 

Inc., No. E2019-00884-COA-R3-CV, 2021 WL 142146, at *3 (Tenn. Ct. App. Jan. 15, 2021) (“A plaintiff’s 

voluntary nonsuit ‘terminates the action without an adjudication of the merits’ and leaves the parties ‘as if 

no action had been brought at all.’” (quoting 27 C.J.S. Dismissal and Nonsuit § 11 (2020))). But see

Reliance Ins. Co. v. Mackey, No. M2003-03106-COA-R3-CV, 2004 WL 2636706, at *4 (Tenn. Ct. App. 

Nov. 18, 2004) (“A voluntary dismissal remains of record as does the complaint it dismisses. The dismissal 

does not vitiate the fact that the action was commenced. Indeed, the complaint remains of record, though 

dismissed, unlike criminal charges that have been expunged. . . . To hold that the voluntary dismissal of a 

civil action equates to the action never having been filed requires a strained reading of the statute, which is 

inappropriate.”). Appellant has not asserted in either his Rule 10 application or his brief that the nonsuit of 

the case vitiates the trial court’s denial of his motion to appear pro hac vice for purposes of future requests 

to appear under that rule or the rules of other jurisdictions. See Tenn. Sup. Ct. R. 19(d)(4) (requiring the 
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In his brief to this Court, Appellant raises a second issue: that the trial court should 

not have ruled on the Rule 19 motion because it did not have subject matter jurisdiction 

over the matter. Although this issue was not specifically designated as an issue by this 

Court’s order granting Appellant’s Rule 10 application, we will exercise our discretion to 

address it as “necessary for complete determination of the action on appeal[,]” Tenn. R. 

App. P. 10(a), as well as because it involves an issue of subject matter jurisdiction. See

Tenn. R. App. P. 13(b) (stating that review will generally only extend to those issues 

presented for review, except that the “appellate court shall also consider whether trial and 

appellate court have jurisdiction over the subject matter”). 

In this case, Appellant asserts that the trial court never acquired subject matter 

jurisdiction over the case because neither the Initial Petition nor the Amended Petition were 

verified, as had been argued by the Tipton County Defendants in their answer. See Tenn. 

Code Ann. § 27-8-106 (“The petition for certiorari may be sworn to before the clerk of the 

circuit court, the judge, any judge of the court of general sessions, or a notary public, and 

shall state that it is the first application for the writ.”); Bd. of Pro. Resp. of Tenn. Sup. Ct. 

v. Cawood, 330 S.W.3d 608, 609 (Tenn. 2010) (“[A] a court lacks subject matter 

jurisdiction over a statutory petition for certiorari that is not supported by oath or 

affirmation.” (citing Depew v. King’s, Inc., 197 Tenn. 569, 276 S.W.2d 728, 728–29 

(Tenn. 1955))). Appellant therefore contends that the trial court’s subject matter 

jurisdiction never attached and that the trial court’s order denying his motion for admission 

pro hac vice is void. See Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. 

Ct. App. 1999) (“Judgments or orders entered by courts without subject matter jurisdiction 

are void[.]”). We consider the question of the trial court’s subject matter jurisdiction de 

novo, with no presumption of correctness. Northland Ins. Co. v. State, 33 S.W.3d 727, 

729 (Tenn. 2000).

Respectfully, we disagree with Appellant’s argument on appeal. As an initial matter, 

we note that the question in this case is not whether the trial court had subject matter 

jurisdiction over Plaintiff’s petitions for a writ of certiorari, but whether the trial court had 

subject matter jurisdiction to rule on Appellant’s motion to appear pro hac vice under Rule 

19. Rule 19, again, provides that a trial may deny a motion to appear pro hac vice when 

such a motion is filed “in a particular proceeding pending before it[.]” Tenn. Sup. Ct. R. 

19(b). And regardless of whether any or all of the various petitions for a writ of certiorari 

could ultimately be dismissed due to lack of subject matter jurisdiction, a proceeding of 

some kind was nevertheless pending at the time that the trial court adjudicated the motion 

to be admitted pro hac vice, as discussed supra.

10 Cf. Garen, 2010 WL 4024907, at *2. 

 

lawyer seeking admission under Rule 19 to include in an affidavit attached to his motion “a statement 

concerning whether lawyer has been denied admission pro hac vice . . . in any jurisdiction”). We therefore 

do not address that question in this appeal. 

10 And as a reminder, the issue of subject matter jurisdiction was never adjudicated by the trial court 

and was not the basis of the ultimate dismissal of the case. 
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Thus, at the time that the trial court adjudicated the Rule 19 motion, all of Rule 19’s subject 

matter jurisdiction requirements had been met.

In our view, the fact that the Initial Petition or the Amended Petition may, in 

hindsight, have been subject to dismissal for lack of subject matter jurisdiction does not 

alter this conclusion. Indeed, admission pro hac vice is something of a threshold issue that 

arises before other disputes concerning the case are adjudicated. In particular, Rule 19 

provides that a lawyer seeking to appear under the rule should “file a motion in the court 

or agency before which the lawyer seeks to appear not later than the first occasion on which 

the lawyer files any pleading or paper with the court or agency or otherwise personally 

appears.” Tenn. Sup. Ct. R. 19(d). This makes sense, as an out-of-state attorney has no 

ability to appear on behalf of a client in a Tennessee tribunal unless and until he or she is 

admitted pro hac vice. The question of whether a lawyer may represent a client therefore 

appears to be a matter that should often be decided prior to any consideration of the merits 

of the case—the client’s chosen out-of-state counsel cannot make his or her arguments 

concerning subject matter jurisdiction or other disputes unless and until the pro hac vice 

issue is determined. Indeed, that consideration is especially true here, as by the time that 

the trial court entered its order denying the motion for pro hac vice admission, Plaintiff had 

filed a Verified Petition seeking to correct the deficiencies pointed out in the Initial Petition 

and the Amended Petition.11 It therefore makes sense that a trial court would adjudicate a 

motion to appear pro hac vice before entertaining the question of whether it lacked subject 

matter jurisdiction over the underlying petition.

Our analysis is supported by a recent case that considered an analogous argument 

in the recusal context. Specifically, in Matter of Conservatorship of Tapp, a petition for 

the appointment of a conservator was granted. No. W2021-00718-COA-R3-CV, 2023 WL 

1957540, at *1 (Tenn. Ct. App. Feb. 13, 2023). Months later, one co-conservator filed a 

motion to re-transfer assets to a trust. Id. at *2. The trial court granted the motion. The case 

proceeded for several years and was subject to much inter-family dispute, including one 

appeal. Id. at *3. 

Eventually, the ward died, and four of the ward’s siblings and two other relatives 

filed a complaint to set aside the trust and for a will contest. A few months later, the six 

petitioners filed a petition to recuse the trial judge. The co-conservators filed a motion to 

dismiss, arguing that not only should the complaint be dismissed but the motion for recusal 

also because the matter was improperly filed as part of the conservatorship case. Thus, the 

co-conservators argued that the trial court lacked subject matter jurisdiction over the 

 

11 While the Verified Petition may have suffered from its own jurisdictional infirmities, that 

question had not been litigated or adjudicated in the trial court. Cf. Reid v. Lutche, No. M1997-00229-

COA-R3-CV, 2001 WL 55783, at *4 (Tenn. Ct. App. Jan. 24, 2001) (“Petitions for a common-law writ of 

certiorari must be filed within sixty days after the entry of the order or judgment at issue. This statutory 

time limit is mandatory and jurisdictional.” (citing Tenn. Code Ann. § 27-9-102)).
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complaint. Id. at *4. The petitioners responded in opposition, arguing that the trial court 

had subject matter jurisdiction and that the recusal motion “had priority and must be heard 

before any other pending motions[.]” Id. at *5. The trial court heard all the outstanding 

motions together and granted the co-conservators’ motion to dismiss without prejudice. Id.

On appeal, the petitioners argued that the trial court erred in, inter alia, entering an 

order dismissing the case, before disposing of the motion to recuse as required by our 

recusal rule. Id. at *6–7 (citing Tenn. Sup. Ct. R. 10B, § 1.02 (“While the motion [to recuse] 

is pending, the judge whose disqualification is sought shall make no further orders and take 

no further action on the case, except for good cause stated in the order in which such action 

is taken.”)). The co-conservators argued, however, that the trial court was not required to 

rule on the recusal motion before addressing the motion to dismiss “because the petitioners’ 

trust contest complaint was a legal nullity and the petitioners were never proper parties 

before the court.” Id. at *8 (footnote omitted). We disagreed, however, and determined that 

rulings on recusal and substantive issues should not be “intertwined” and a recusal motion 

is not rendered moot simply because one side asserts that the underlying cause should be 

dismissed as a nullity. Id. at *8–11. We therefore vacated the orders addressing the 

substance of the action and remanded to a new trial judge for rehearing. Id. at *11. 

The situation presented here is not identical. Importantly, Rule 19 does not contain 

express language mandating that a motion to be admitted pro hac vice must be adjudicated 

prior to addressing any other pending issues. But the issue here is not whether the trial court 

erred in not addressing a pro hac vice motion prior to dismissing a case. The question is 

simply whether the trial court erred in adjudicating the pro hac vice motion notwithstanding 

Appellant’s argument that, in retrospect, the trial court never acquired jurisdiction over the 

case. In Tapp, we essentially ruled that under Rule 10B, a recusal motion was a threshold 

issue that must be decided regardless of the propriety of the underlying action. While the 

same mandatory language is not at issue here, a motion for pro hac vice admission is similar 

to a recusal motion in that it can constitute a threshold issue that may be decided before the 

underlying petition is addressed in any manner. Thus, the trial court has subject matter 

jurisdiction to adjudicate a pending Rule 19 motion so long as the requirements of Rule 19 

are met: that a motion seeking admission is filed “in a particular proceeding pending before 

it.” Tenn. Sup. Ct. R. 19(b). Because the motion for pro hac vice admission here was filed 

in a particular proceeding pending before the trial court, the trial court properly exercised 

its subject matter jurisdiction in ruling on that request.

III. CONCLUSION

The judgment of the Tipton County Chancery Court is affirmed, and this cause is 

remanded to the trial court for further proceedings as may be necessary and consistent with 

this Opinion. Costs of this appeal are taxed to Appellant, Percy Squire, for which execution 

may issue if necessary. 
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S/ J. Steven Stafford 

 J. STEVEN STAFFORD, JUDGE