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Holsclaw v. IVY Hall Nursing Home, Inc.

Supreme Court of Tennessee, Knoxville

September 19, 2017


         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.



         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.").


         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 ...

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