Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elseroad v. Cook

Court of Appeals of Tennessee, Knoxville

January 26, 2018

STUART ELSEROAD
v.
KAITLIN COOK

          Assigned on Briefs January 10, 2018

          Appeal from the Circuit Court for Knox County No. 131861 Gregory S. McMillan, Judge

         This is 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.

         Tenn. Sup. Ct. R. 10B Accelerated Interlocutory Appeal; Judgment of the Circuit Court Affirmed and Remanded

          Darren V. Berg, Knoxville, Tennessee, for the appellant, Stuart Elseroad.

          Forrest L. Wallace, Knoxville, Tennessee, for the appellee, Kaitlin D. Cook.

          Frank G. Clement Jr., P.J., M.S. delivered the opinion of the Court, in which Charles D. Susano Jr. and Brandon O. Gibson, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         The underlying dispute arises from a divorce proceeding. The plaintiff is Stuart Elseroad ("Petitioner"), and the defendant is Kaitlin Cook ("Defendant").

          This 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. 2012).

         Our standard of review in a Rule 10B appeal is de novo.[1] 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.[2]

         If we 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.

         Based 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.

         Analysis

         In this 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 circumstances?
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.