                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                 Assigned on Briefs July 26, 2016

       CINDY HATFIELD, ET AL. v. ALLENBROOKE NURSING AND
              REHABILITATION CENTER, LLC, ET AL.

                       Appeal from the Circuit Court for Shelby County
                         No. CT-004249-10 Donna M. Fields, Judge
                          ___________________________________

                 No. W2016-01510-COA-T10B-CV – Filed August 25, 2016
                        ___________________________________


This is an interlocutory appeal as of right from the trial court’s denial of a motion for recusal.
Having reviewed the petition for recusal appeal de novo as required by Tennessee Supreme
Court Rule 10B, § 2.06, we affirm the denial of the motion.

    Tenn. R. App. P. 3 Appeal as of Right/Tenn. Sup. Ct. R. 10B; Judgment of the
                      Circuit Court Affirmed; Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and ARNOLD B. GOLDIN, J., joined.

Craig C. Conley and Michael T. Goodin, Memphis, Tennessee, for the appellant(s), Norbert
Bennett, D & N, LLC, Donald Denz, and DTD HC, LLC.

Carey Lynn Acerra, Deena K. Arnold, and Cameron C. Jehl, Memphis Tennessee, for the
appellee, Cindy Hatfield.

                                                 OPINION

I. FACTS AND PROCEDURAL HISTORY1

       This appeal arises out of a suit filed on August 26, 2010, asserting numerous causes of
action to recover for injuries allegedly sustained by Martha Jane Pierce while she was a
resident of Allenbrooke Nursing and Rehabilitation Center (“Allenbrooke”). In addition to

1
  The factual and procedural history is taken from the Statement of Facts and Procedural History, which is
included in both the Petition for Recusal Appeal and the Response to the petition, as well as the exhibits filed
with each document.
Allenbrooke, defendants include Aurora Cares, LLC (“Aurora”); DTD HC, LLC (“DTD”);
D&N, LLC (“D&N”); Donald Denz; and Norbert Bennett. On October 11, 2010, Mr. Denz,
Mr. Bennett, DTD, and D&N moved to dismiss the complaint for lack of personal
jurisdiction. Numerous motions and hearings, change in counsel, transfer from Division V to
Division VII of the Circuit Court, trial settings and continuances ensued; for reasons not
apparent from the record before us the motion to dismiss was not heard until July 10, 2015.
The motion was denied and a motion to alter or amend the order was filed on July 24, 2015.
On September 22, 2015 an order was entered reciting that the trial, which had been set for
August 17, 2015, was continued to May 31, 2016.

       The motion to alter or amend which had been filed on July 24, 2015, was heard on
April 21, 2016; again, no reason for the delay in having the motion heard is apparent from the
record before us. On May 10, 2016 the court entered an order denying the motion, as well as
denying Defendants’ motion for an interlocutory appeal pursuant to Tenn. R. App. P. 9.2 On
May 13, Defendants filed an application for interlocutory appeal pursuant to Tenn. R. App. P.
10, and on June 24, this court denied the application.3 Also on June 24, the trial court entered
an order on Defendants’ motion continuing the May 31 trial date to July 18.4

       On July 8, 2016 Defendants filed the Motion for Recusal, which was heard on July 18;
on that date the court entered an order denying the motion. Defendants filed the instant
petition on July 26. Pursuant to an order of this court, Plaintiff filed a response to the petition
on August 9, to which Defendants have replied. Having reviewed the record before us, we
have determined that no argument is necessary. See Tenn. Sup. Ct. R. 10B § 2.06.

II. ANALYSIS

        Appeals from orders denying motions to recuse are governed by Tenn. S. Ct. R. 10B.
Pursuant to Tenn. S. Ct. R. 10B § 2.01, parties are entitled to an “accelerated interlocutory
appeal as of right” from an order denying a motion for disqualification or recusal. The only
issue this court may consider in an appeal under Tenn. S. Ct. R. 10B is whether the trial court

2
    In the order denying the motion to alter or amend the court held that:

          Defendants have sufficient contacts with the State of Tennessee to be subject to the Court’s
          specific personal jurisdiction. . . .[T]hese defendants have waived the defense of lack of
          subject matter jurisdiction and submitted to the Court’s jurisdiction when Defendants sought
          affirmative relief from the Court in the form of the above listed motions and orders.
3
  On July 15, 2016 the Supreme Court denied Defendants’ Tenn. R. App. P. 10 application for extraordinary
appeal of the ruling denying the motion to alter or amend.
4
 The motion had originally been filed on May 4, heard on May 10, and denied; the order recites that, after the
May 10 hearing, defense counsel “re-addressed the Court regarding the continuance” and the Court granted the
motion. Trial was reset for July 18 by agreement of the parties.
                                                       2
erred in denying the motion for recusal; we cannot review the correctness of the trial court’s
other decisions regarding the merits of the case. See Tenn. R. Sup. Ct. R. 10B; Duke v. Duke,
398 S.W.3d 665, 668 (Tenn. Ct. App. 2012). We review the trial court’s denial of the motion
for recusal under a de novo standard of review. Tenn. S. Ct. R. 10B § 2.06.

       As grounds for the recusal, Defendants contend that the trial court “has made
numerous comments that indicate that the trial court has preconceived perceptions regarding
Defendants based on litigation completely unrelated to this case and has prejudged the issue
of personal jurisdiction” over them.5 In support of their contention, Defendants cite
statements made by the court in the course of hearings on April 7, October 27, and December
4, 2014, July 10, 2015, April 6 and 21, and July 18, 2016.

          As we consider this issue, we follow the standard set forth in Alley v. State:

          While the words “bias” and “prejudice” are central to the determination of
          whether a recusal should be granted, neither term is defined in Tennessee case
          law as it relates to the issue of recusal. Generally the terms refer to a state of


5
    As respects the various defendants, the complaint alleged the following:

             Allenbrooke is owned by Allenbrooke , LLC, a domestic limited liability company.
             Aurora is a foreign limited liability company engaged in business in Tennessee and that “the
              causes of action made the basis of this suit arise out of such business conducted by said defendant
              in the ownership, operation, management, and/or control” of Allenbrooke.
             DTD is a foreign for-profit limited liability company engaged in business in Tennessee and
              “responsible for maintaining the finance department . . . for Allenbrooke.”
             D&N is a foreign for-profit limited liability company engaged in business in Tennessee and is
              “responsible for providing continuous oversight regarding the direct care, contract negotiations,
              purchasing, capital improvements, employee and resident safety and human resources” for
              Allenbrooke.
             Mr. Denz “is the sole member of DTD HC, LLC, and Chief Executive Officer and Chief Financial
              Officer of Aurora Cares, LLC, that at all times material to this lawsuit was engaged in business in
              Tennessee individually and as an officer and/or member of DTD HC, LLC, and Aurora Cares,
              LLC, and as officer and/or member of Allenbrooke Nursing and Rehabilitation” and was
              responsible for maintaining the finance department . . . for Allenbrooke . . . and controlled the
              financial operations of Aurora Cares, LLC, Allenbrooke Nursing and Rehabilitation Center, and
              DTD HC, LLC.”
             Mr. Bennett “is the sole member of D&N, LLC, and Chief Executive Officer of Aurora Cares,
              LLC, that at all times material to this lawsuit was engaged in business in Tennessee individually
              and as an officer and/or member of D&N, LLC, and Aurora Cares, LLC, and as officer and/or
              member of Allenbrooke Nursing and Rehabilitation” and was “responsible for maintaining daily
              contact with facilities and frequent on-site visits, providing continuous oversite of the operations
              of the facility of Allenbrooke . . . and controlled the financial operations of Aurora Cares, LLC,
              Allenbrooke Nursing and Rehabilitation Center, and D&N, LLC.”

                                                        3
       mind or attitude that works to predispose a judge for or against a party. 46
       Am.Jur.2d “Judges” § 167 (1969). . . .

       . . . Not every bias, partiality, or prejudice merits recusal. To disqualify,
       prejudice must be of a personal character, directed at the litigant, “must stem
       from an extrajudicial source and result in an opinion on the merits on some
       basis other than what the judge learned from ... participation in the case.”
       [State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 697 (Mo. App. 1990)]; see
       also United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710,
       16 L.Ed.2d 778 (1966); Houston v. State, 565 So.2d 277 (Ala. Crim. App.
       1990).

       . . . If the bias is based upon actual observance of witnesses and evidence given
       during the trial, the judge’s prejudice does not disqualify the judge. Jack
       Farenbaugh and Son v. Belmont Const. Inc., 240 Cal.Rptr. 78, 82, 194
       Cal.App. 3d 1023, 1032 (1987). . . .

       Adverse rulings by a trial court are not usually sufficient grounds to establish
       bias. State v. Jimmy D. Dillingham, No. 03C01-9110-CR-319, 1993 WL 22155
       (Tenn. Crim. App., Knoxville, Feb. 3, 1993). Rulings of a trial judge, even if
       erroneous, numerous and continuous, do not, without more, justify
       disqualification. Riva Ridge Apartments v. Robert G. Fisher Co., 745 P.2d
       1034, 1037 (Colo. App. 1987). See also Tackett v. Jones, 575 So.2d 1123 (Ala.
       Civ. App. 1990); Band v. Livonia Associates, 176 Mich. App. 95, 439 N.W.2d
       285 (1989).

882 S.W.2d 810, 821–22 (Tenn. Crim. App. 1994).

        We have reviewed each of the comments, along with transcripts of excerpts from the
hearings supplied by Plaintiff as well as the comprehensive order denying the motion
prepared by the trial judge. Viewed in context of each hearing, the substantive issues, and
procedural posture of the case as reflected in the record before us, we cannot conclude that
the trial court’s comments invoke the requirement of Rule 2.11(A) of the Code of Judicial
Conduct as set forth in Rule 10 of the Rules of the Supreme Court of Tennessee that the
judge recuse himself or herself “in any proceeding in which the judge’s impartiality might
reasonably be questioned . . .”

       Initially, we note that the comments complained of by Defendants, other than those at
the July 10, 2015 and July 18, 2016 hearings, were not made with specific reference to the
issues raised in either the motion to dismiss or the motion to alter or amend; rather, the
proceedings involved some aspect of the operations of Allenbrooke and its related entities, as
well as the individual defendants. As to those matters, the context demonstrates that the
                                              4
court was attempting to discern the responsibilities of the various defendants and the
relationship(s) between and amongst them for purposes of discovery of evidence for use at
trial. In the course of the hearings the court at times made comments, sometimes in jest; in
our review we see nothing in the comments to indicate that the court had prejudged any issue
or was biased against any defendant or toward plaintiff, or that the comments were anything
other than the banter that is typically engaged in when motions of this type are heard.

      There are no rulings or comments by the trial court in the July 10, 2015 oral ruling on
the motion to dismiss which would evidence either bias or prejudgment; indeed, such a
determination would be belied by the penultimate ruling:

              This case, to me, has all the indicia of two individuals who are brilliant
       enough to create lots and lots of layers. But there’s no doubt in this Court’s
       mind from the thousands of documents I have looked at on both sides, yes,
       these are or appear to be . . . companies that are created to comply with state
       law. That doesn’t mean it’s absolute in my mind.

               And I’m just not convinced that these two gentlemen are not the center
       of the universe when it comes to this nursing home business and the healthcare
       business and pharmacy business and the therapy business. It all comes back
       upstream to them.

                I still want to continue to read, but this Court is of the mind at this point
       that the entire case revolves around Mr. Denz and Mr. Bennett. And they have
       enough - - they have exhibited enough control of all of this by being - - as
       members and as individuals by being officers, by being employed by Aurora
       Cares with their pay from Aurora Cares coming directly from Allenbrooke and
       - - in the Tennessee situation - - and Quince, by setting out the bonus structure,
       by being the ones who even though it is non-delegable have delegated things to
       select - - that they would select the administrator. They would provide the
       policies. They would set up the bonus structure. They were co-CEOs of
       Aurora Cares. . . .

              . . . I’m going to deny the motion to dismiss. Some of this will be
       developed at trial. And I may let these individuals out at the appropriate time.
       I don’t know. . .

       While the trial court’s ruling was adverse to Defendants, there is no basis for us to
conclude that the court was biased; neither is there any fact or circumstance upon which the
court’s impartiality might reasonably be questioned.


                                                 5
For the foregoing reasons, we affirm the judgment of the trial court.




                                          _________________________________
                                          RICHARD H. DINKINS, JUDGE




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