Assigned on Briefs January 10, 2018
from the Circuit Court for Knox County No. 131861 Gregory S.
an accelerated interlocutory appeal as of right, pursuant to
Tennessee Supreme Court Rule 10B, from the trial court's
denial of a motion for recusal. Petitioner contends the trial
judge should have recused himself because Petitioner
"was directly involved in a decision-making process that
ultimately resulted in an effect on the [judge's]
finances." Petitioner also contends recusal is required
because "the Judge based his ruling almost exclusively
on his own statements that he was unaware of the
Petitioner's involvement in his loan application process,
" which statements made him "a material
witness." Having reviewed the petition for recusal
appeal, pursuant to the de novo standard as required under
Rule 10B, § 2.01, we affirm the trial court's
decision to deny the motion for recusal.
Sup. Ct. R. 10B Accelerated Interlocutory Appeal; Judgment of
the Circuit Court Affirmed and Remanded
V. Berg, Knoxville, Tennessee, for the appellant, Stuart
Forrest L. Wallace, Knoxville, Tennessee, for the appellee,
Kaitlin D. Cook.
G. Clement Jr., P.J., M.S. delivered the opinion of the
Court, in which Charles D. Susano Jr. and Brandon O. Gibson,
G. CLEMENT JR., P.J., M.S.
underlying dispute arises from a divorce proceeding. The
plaintiff is Stuart Elseroad ("Petitioner"), and
the defendant is Kaitlin Cook ("Defendant").
appeal arises from the trial judge's decision to deny
Petitioner's motion to recuse. Tenn. Sup. Ct. R. 10B
governs appeals from orders denying motions to recuse.
Pursuant to § 2.01 of Rule 10B, a party is entitled to
an "accelerated interlocutory appeal as of right"
from an order denying a motion for disqualification or
recusal. The appeal is perfected by filing a "petition
for recusal appeal" with the appropriate appellate
court. Tenn. Sup. Ct. R. 10B, § 2.02. The only issue we
may consider in a Rule 10B appeal is whether the trial judge
should have granted Petitioner's motion to recuse.
Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App.
standard of review in a Rule 10B appeal is de
novo. See Tenn. Sup. Ct. R. 10B, §
2.01. "De novo" is defined as "anew, afresh, a
second time." Simms Elec., Inc. v. Roberson Assocs.,
Inc., No. 01-A-01-9011CV00407, 1991 WL 44279, at *2
(Tenn. Ct. App. Apr. 3, 1991) (quoting Black's Law
Dictionary 392 (5th ed. 1979)). In a "de novo"
appeal, "the appellate court uses the trial court's
record but reviews the evidence and law without deference to
the trial court's rulings." Black's Law
Dictionary (10th ed. 2014). Therefore, we examine the
factual record anew, with no presumption of correctness, and
reach our own conclusion.
determine, after reviewing the petition and supporting
documents, that no answer is needed, we may act summarily on
the appeal. Tenn. Sup. Ct. R. 10B, § 2.05. Otherwise,
this court must order an answer and may also order further
briefing by the parties. Id. Tenn. Sup. Ct. R. 10B,
§ 2.06 also grants this court the discretion to decide
the appeal without oral argument.
upon our review of the petition and supporting documents, we
have determined that neither an answer, additional briefing,
nor oral argument is necessary, and we elect to act summarily
on the appeal in accordance with Tenn. Sup.Ct. R. 10B,
§§ 2.05 and 2.06.
appeal, Petitioner states, in relevant part:
On December 21, 2017, the Petitioner, by and through counsel,
filed a Motion for Recusal. In his motion, the Petitioner
noted that he was an employee at a "local financial
institution, " where he worked as a "market
valuation officer" and that the Judge had an ongoing
business relationship with the bank. He alleged he "was
directly involved in a decision-making process that
ultimately resulted in an effect on the Court's
finances." Because of certain banking laws, the
Petitioner was not more specific in his motion, and he did
not attach an affidavit, intending instead of presenting live
testimony at the hearing.
The trial court conducted a hearing on Friday, January 5,
2018. At the hearing, the Petitioner was sworn and called to
the stand. The Petitioner testified that he was an employee
of Southeast Bank, as a "market valuation officer."
He said he dealt "with appraisals, evaluations,
determining the value of property and collateral for banking
purposes, financing purposes" and noted he had been
employed there since August, 2016. At this point in the
proceedings, the Court stated "Is the issue in this case
that I applied for a home equity line of credit and mortgage
at Southeast Bank? A mortgage line that was subsequently
granted and a home equity line that was subsequently
granted?" . . . The following exchange then occurred:
Mr. Berg: Yes, your Honor.
THE COURT: What's the basis for a recusal under those
Mr. Berg: Well, your Honor, it's my understanding that
there was a refinance application and it had to go to a
secondary something and it increased the interest rate.
THE COURT: And?
Mr. Berg: And that resulted in ...