Accelerated
Appeal by Permission from the Court of Appeals Circuit Court
for Carter County No. C12784 Jean A. Stanley, Judge
This
case is on appeal from a trial court judge's decision not
to recuse herself based on a telephone call to a university
department director concerning a potential expert
witness' qualifications. Upon the trial court's
denial of the defendant's motion for recusal of the trial
court judge, the defendant filed an accelerated interlocutory
appeal in the Court of Appeals pursuant to Tennessee Supreme
Court Rule 10B, section 2. The Court of Appeals reversed the
trial court's decision, holding that recusal of the trial
judge was necessary. We granted the plaintiff's
accelerated application for permission to appeal to this
Court. Having thoroughly reviewed the filings of both parties
and the applicable law, we conclude that the trial
court's denial of the motion to recuse was appropriate in
this case. Therefore, we reverse the decision of the Court of
Appeals.
Tenn.
Sup. Ct. R. 10B Accelerated Appeal by Permission; Judgment of
the Court of Appeals Reversed; Judgment of the Trial Court
Reinstated
Robert
Bates and Tony Seaton, Johnson City, Tennessee, for the
appellant, Jeanie Holsclaw.
Steven
H. Trent and Mark A. Fulks, Johnson City, Tennessee, for the
appellee, Ivy Hall Nursing Home, Inc.
OPINION
PERCURIAM
Factual
and Procedural Background
This
matter originated as a retaliatory discharge action filed by
Jeanie Holsclaw ("Plaintiff") against Ivy Hall
Nursing Home, Inc. ("Defendant") in November 2012.
The parties engaged in extensive discovery over the course of
several years. During that time, the first two trial judges
assigned to the matter recused or removed themselves, and
eventually the Honorable Jean Stanley was assigned to preside
over the case. The matter was set for trial five different
times but, to date, no trial has occurred.
On
September 12, 2016, the Defendant filed a motion, pursuant to
Tennessee Rule of Civil Procedure 35.01, [1] requesting an
examination of the Plaintiff by Edward M. Smith, a certified
rehabilitation counselor ("CRC"), to support its
affirmative defense of failure to mitigate damages. The
Defendant's motion stated that Mr. Smith's
examination would focus on "Ms. Holsclaw's
individual characteristics and the job market" and
"the nature and extent of Ms. Holsclaw's vocational
disability." The Defendant argued that, upon
examination, Mr. Smith would be able to testify regarding
"Ms. Holsclaw's ability to work as a CNA,
[2] the
availability of CNA positions in the area, and the
availability of alternative or substitute jobs for which Ms.
Holsclaw is qualified based upon her transferable
skills." (Footnote added).
The
Plaintiff opposed the motion, arguing in her response that
this request was the fourth examination to which she would be
required to undergo in the course of
litigation;[3]that the Defendant was attempting to
circumvent the trial court's order limiting its requests
for admissions; that the Defendant already had conceded that
the Plaintiff had a vocational disability; and that,
regardless, a vocational disability was not an element of
damages in a wrongful termination case. Moreover, the
Plaintiff argued that a CRC was not qualified to testify
regarding the "availability of alternative job
opportunities in a particular labor market" or "Ms.
Holsclaw's efforts to secure alternative
employment."
On
September 19, 2016, the trial court held a hearing on the
Rule 35 motion and stated the following:
THE COURT: Okay. Here's the deal. You all don't need
to keep hiring 14 experts on this issue and 14 on that. It is
a real issue; front pay and back pay are an issue. So that
being at issue, I think they have the right to ask for an
evaluation.
My view on this is that I would rather have one expert I
could trust that's appointed by the court, who
doesn't care who the plaintiff is or who the defendant
is. Really, my leaning would be for the court to appoint
somebody. Now, if you all don't want to do that, I'm
probably going to let him go ahead and have this evaluation
done.
. . . .
THE COURT: Okay. And I will tell you all this: Most of the
experts I've had on this kind of topic are, like, Dr.
Hankins, vocational disability experts. So, I really was not
all that familiar with the rehab counselors. To me, the whole
concept of a rehab counselor is somebody who is going to
counsel with you, form a relationship with you, and try to
help you. So my first question was: Are these dudes even
qualified to testify as experts?
So, frankly, I called the director of the department at the
University of Tennessee this morning. I talked to Dr. Mulkey.
I don't think there is any problem with me doing that,
but I do think I have an obligation to disclose to you that I
did. He just kind of filled me in on what the program, the
certification is, what these guys do and don't do, you
know, enough for me to at least conclude that this is the
type of certification for a person that I might let testify
as an expert.
So I understand that what this person might or might not be
able to testify to is also going to be limited by what their
background, education, and so forth is. And I'm not even
making any kind of ruling on that right now, but I had even
asked him if he could give me a couple of names of people who
might be willing to work for the court, not necessarily for a
party in litigation and he said that, yes, he could probably
do that.
So, just for general information, if you're ever in a
position where you would prefer to have a court-appointed
expert that doesn't testify for a living, I think I can
get us one. Just general info.
The
parties raised no objection following the trial court's
disclosure. At the conclusion of the hearing, the trial court
granted the Defendant's motion for a Rule 35 examination.
On
October 21, 2016, the Defendant obtained a copy of the
transcript from the hearing on the Rule 35 motion and filed a
motion to recuse the trial judge on October 25, 2016. The
Defendant argued that recusal was necessary because the trial
court "did not constrain itself to consideration of the
facts presented by the parties"; "conducted an
independent investigation"; and "acquired knowledge
from an extra-judicial source." Accordingly, the
Defendant argued that the trial judge had "personal
knowledge of disputed evidentiary facts concerning the
proceeding." The trial court denied the motion to recuse
on October 28, 2016, stating that she had "done no
investigation of defendant's expert witness
whatsoever" and that her "actions would not lead a
reasonable person to question [her] ability to be
impartial." Rather, she only had inquired regarding
"what [rehabilitation counselors] might go on to do with
their degree and/or their certification" and the
availability of court-appointed experts.
On
November 1, 2016, the Defendant filed a petition in the Court
of Appeals for an accelerated interlocutory appeal of the
trial court's denial of the motion for recusal. On
December 19, 2016, the Court of Appeals issued a decision
reversing the trial court's denial of the motion for
recusal. In the lead opinion, Presiding Judge Steven Stafford
determined that the trial judge engaged in an independent
investigation that allowed the judge to gain personal
knowledge of disputed facts. Holsclaw v. Ivy Hall Nursing
Home, No. E2016-02178-COA-T10B-CV, 2016 WL 7364901, at
*8-9 (Tenn. Ct. App. Dec. 19, 2016). Thus, according to the
lead opinion, "an appearance of impropriety was created
under Canon 2.11 of the Code of Judicial Conduct
necessitating recusal." Id. at *8. Judge
Richard Dinkins, in a concurring opinion, "reiterate[d]
the conclusion that nothing in the record leads me to believe
that the trial judge is biased or prejudiced for or against
any party or that there was any improper motive in the
court's contact with Dr. Mulkey" but stated that
recusal was necessary based on the "limited and specific
nature of the court's inquiry and how that inquiry could
reasonably create the appearance of impropriety."
Id. at *9 (Dinkins, J., concurring). In a dissenting
opinion, Judge Charles Susano concluded that recusal was not
necessary because the trial judge's conduct did not cause
the judge's impartiality reasonably to be questioned.
Id. at *9 (Susano, J., dissenting). On February 17,
we granted the Plaintiff's accelerated application for
permission to appeal to this Court. This Court did not find
it necessary to hear oral arguments in this matter.
See Tenn. Sup. Ct. R. 10B, § 2.07 ("The
Supreme Court . . . may decide the appeal without oral
argument.").
Analysis
The
Plaintiff argues that the Court of Appeals erred in reversing
the trial court's denial of recusal. Specifically, she
contends that the Court of Appeals "applied the wrong
test" by deciding that recusal was necessary without
determining that "the judge's impartiality might
reasonably be questioned" pursuant to Tennessee Supreme
Court Rule 10, Canon 2.11. The Plaintiff also contends that
the Defendant is using recusal as a last-ditch tactic ...