                                                                                        12/18/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                   Assigned on Briefs November 13, 2019

               CATRICE THOMAS DYE V. WILLIE B. DYE, JR.

                Appeal from the Chancery Court for Shelby County
                No. CH-17-1693-3    JoeDae L. Jenkins, Chancellor


                          No. W2019-02011-COA-T10B-CV


The issue in this Tennessee Supreme Court Rule 10B interlocutory appeal is whether the
trial court erred in denying a mother’s motion for recusal based upon alleged bias due to
the court’s prior employment of and actions by the guardian ad litem. We find no error in
the trial court’s ruling.

               Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right;
                     Judgment of the Chancery Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY
and CARMA DENNIS MCGEE, JJ., joined.

Jeffrey Lucas Sanderson, Memphis, Tennessee, for the appellant, Catrice Thomas Dye.

Theresa H. Patterson, Memphis, Tennessee, for the appellee, Willie B. Dye.

                                       OPINION

                       FACTUAL AND PROCEDURAL BACKGROUND

       Catrice Thomas Dye (“Mother”) and Willie B. Dye, Jr., (“Father”) were divorced
by final decree entered on June 10, 2019, pursuant to which the parties shared equal
parenting time with their 16-year-old daughter, Wynter. On July 1, 2019, Mother filed a
petition to alter or amend the judgment based upon new evidence and a motion for
testimony of the minor child. In her motion, Mother alleged, in part, that Wynter had
stated that the “testimony she gave in chambers was not representative of her feelings
regarding visitation with her father,” but instead was based upon “fear of what her father
may do if she said she did not wish to live with him.” Further, Mother asserted that
Wynter desired to live “the majority of the time with her mother.”
       On September 13, 2019, the trial court entered a consent order appointing a
guardian ad litem for the minor child, attorney Faith N. Sanford. In this order, the trial
court described the role of the guardian ad litem and specified that the guardian ad litem
“is not a Special Master, and should not submit a Report and Recommendations to the
Court, but may file a Pre-Trial Brief/Memorandum as any attorney in any other case.”
The trial court further stated:

      The GAL must present the results of her investigation and the conclusions
      regarding the child’s best interests in the same manner as any other lawyer
      presenting his or her case on behalf of the client by such things as calling,
      examining and cross examining witnesses, submitting and responding to
      other evidence in conformance with the Tennessee Rules of Evidence, and
      making oral and written arguments based on the evidence that has been or
      is expected to be presented.

        After completing her investigation, the guardian ad litem delivered a report to the
trial court on September 27, 2019. In her report, the guardian ad litem presented her
argument concerning the best interest of the child. She analyzed the fifteen best interest
factors set out at Tenn. Code Ann. § 36-6-106(a) and, in her concluding paragraph, stated
that her “investigation found no reason for Wynter not to exercise equal parenting time
with both her parents, except for Wynter and Mother’s preference.” The guardian ad
litem ended with the following statement: “Based on these findings, the GAL
recommends that Mother and Father continue to have equal visitation and both parents
continue to be named as the Primary Residential Parent.”

        Mother filed a motion to strike the GAL report on September 30, 2019. She
argued that, in accordance with Section 7 of Tennessee Supreme Court Rule 40A, the
guardian ad litem was not to function as a special master and was not to prepare a report
or a recommendation for the court or the parties. Rather, he or she must present the
results of her investigation in the same manner as any attorney, by calling witnesses and
presenting evidence before the court. Mother asserted that the GAL’s report submitted to
the trial court was “in direct conflict” with these requirements and should be stricken
from the record.

        On October 11, 2019, Mother filed a motion for the chancellor’s recusal citing
Article 1, § 17, and Article 6, § 11 of the Tennessee Constitution, Tenn. Code Ann. § 17-
2-101, and Tennessee Supreme Court Rule 10B. As grounds for the motion, Mother
stated the following:

      1. That this Motion is not being presented for any improper purpose, such
      as to harass or cause unnecessary delay or needless increase in the cost of
      litigation.


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       2. That the Guardian ad Litem submitted a report in direct conflict with
       Tennessee Supreme Court Rule 40(a). The report was hand delivered to the
       Chancellor on September 27, 2019. Said correspondence affirming
       delivery date to the court is attached and marked “Exhibit 1” to this Motion.
       3. That in a status conference on September 30, 2019, Chancellor Jenkins
       confirmed that he had read and reviewed the report of the Guardian ad
       Litem.
       4. That until very recently, the Guardian ad litem was formerly a paid law
       clerk in Part III of the Chancery Court of Shelby County, Tennessee, under
       the direct supervision of Chancellor Jenkins.
       5. That since the Chancellor has read and reviewed the report and seen the
       improper recommendation of the Guardian ad Litem, his former employee,
       he will be unable to render a fair [and] impartial ruling in this matter. Since
       this report has been delivered to the Court, the Court must now review this
       report in its totality to determine if the report is in direct conflict with
       Tennessee Supreme Court Rule 40(a). Upon said review, the well of the
       court will undeniably be poisoned, as the Chancellor must review every
       single provision of the report of the Guardian ad Litem to determine if, in
       fact, a recommendation forbidden by Tennessee Supreme Court Rule 40(a)
       was actually given in the report. Thus, this Court will be improperly
       prejudiced by the review of the report for the purpose of ruling on this
       Motion.
       6. That this Court must recuse itself from these matters in accordance with
       Supreme Court Rule 10(b).

The motion was accompanied by a sworn affidavit. The guardian ad litem opposed
Mother’s motion to strike.

        The trial court held a hearing on Mother’s motion to recuse on October 18, 2019.
After hearing arguments from Mother, Father, and the guardian ad litem, the trial court
denied the motion. As will be discussed more fully below, the trial court entered an order
detailing its reasons for denying the motion to recuse on the day of the hearing.

        Mother is before this court on a petition for an accelerated interlocutory appeal of
the trial court’s denial of her motion to recuse.

                                  STANDARD OF REVIEW

       Section 2 of Tennessee Supreme Court Rule 10B governs appeals from a trial
court’s denial of a recusal motion. Our standard of review in appeals of motions to
recuse is de novo. Elseroad v. Cook, 553 S.W.3d 460, 462 (Tenn. Ct. App. 2018); Duke
v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012). Moreover, our review is limited to
the recusal order. Duke, 398 S.W.3d at 668. The party seeking recusal bears the burden

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of proving that the trial court erred in denying the motion to recuse. Rich v. Rich, No.
M2018-00485-COA-T10B-CV, 2018 WL 1989619, at *8 (Tenn. Ct. App. Apr. 27, 2018).

      Based upon the petition for recusal appeal and supporting documents in this case,
we have determined that it is appropriate to act summarily on this appeal. See TENN.
SUP. CT. R. 10B, § 2.05.1

                                                 ANALYSIS

      On appeal, we must determine whether the trial court erred in denying Mother’s
motion for recusal. The trial court gave three reasons for its decision, and we will
examine each of them.

          I. Affidavit.

       The trial court stated that Mother “failed to provide an affidavit setting forth
factual grounds with specificity to serve as a basis for the request for recusal.” Tennessee
Supreme Court Rule 10B, Section 1.01 provides, in pertinent part, that a motion seeking
recusal shall satisfy the following requirements:

          The motion shall be supported by an affidavit under oath or a declaration
          under penalty of perjury on personal knowledge and by other appropriate
          materials. The motion shall state, with specificity, all factual and legal
          grounds supporting disqualification of the judge and shall affirmatively
          state that it is not being presented for any improper purpose, such as to
          harass or to cause unnecessary delay or needless increase in the cost of
          litigation.

In its order, the trial court stated that Mother “has not fulfilled the requirements of the
affidavit.” In fact, Mother’s motion included an affidavit that states as follows:

                  I, Catrice Dye, do hereby make oath that the information in this
          foregoing Motion is true to the best of my knowledge, information, and
          belief, and is not being presented for any improper purpose, such as to
          harass or to cause unnecessary delay or increase in cost of litigation.


1
    Section 2.05 of Tennessee Supreme Court Rule 10B provides:

          If the appellate court, based upon its review of the petition for recusal appeal and
          supporting documents, determines that no answer from the other parties is needed, the
          court may act summarily on the appeal. Otherwise, the appellate court shall order that an
          answer to the petition be filed by the other parties. The court, in its discretion, also may
          order further briefing by the parties within the time period set by the court.
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This statement was sworn to before a notary public. Thus, contrary to the trial court’s
conclusion, Mother did include an affidavit.

      The trial court also discussed Tenn. Code Ann. § 17-2-101, one of the bases cited
by Mother for the motion for recusal, and stated that this statutory provision “sets out the
ground[s] for determining the incompetency of Special Judges.” Although Tenn. Code
Ann. § 17-2-101 appears in a part of the Tennessee Code entitled “Special Judges,” the
language of the provision itself is not limited to special judges:

       No judge or chancellor shall be competent, except by consent of all parties,
       to sit in the following cases:
       (1) Where the judge or chancellor is interested in the event of any cause;
       (2) Where the judge or chancellor is connected with either party, by affinity
       or consanguinity, within the sixth degree, computing by the civil law;
       (3) Where the judge or chancellor has been of counsel in the cause;
       (4) Where the judge or chancellor has presided on the trial in an inferior
       court; or
       (5) In criminal cases for felony, where the person upon whom, or upon
       whose property, the felony has been committed, is connected with the judge
       or chancellor by affinity or consanguinity within the sixth degree,
       computing by the civil law.

Tenn. Code Ann. § 17-2-101. We interpret this provision to apply to all judges and to
set out circumstances under which the appointment of a special judge might be necessary.
See Watson v. City of Jackson, 448 S.W.3d 919, 929 (Tenn. Ct. App. 2014) (describing
Tenn. Code Ann. § 17-2-101 as generally applicable to judges).

        With respect to Tenn. Code Ann. § 17-2-101 and the Tennessee constitutional
provisions, the trial court stated in its opinion that Mother failed to provide “by affidavit”
facts to support her motion for recusal. Tennessee Supreme Court Rule 10B does not,
however, require that all salient facts be provided by affidavit; rather, those facts must be
set forth in a motion that is supported by an affidavit. We must, then, determine whether
Mother’s motion contains facts sufficient to support a claim for relief under Tenn. Code
Ann. § 17-2-101, Article I, § 17, or Article VI, § 11 of the Tennessee Constitution.

       The first four grounds listed in Tenn. Code Ann. § 17-2-101 apply in civil cases.
Subsection (1) of Tenn. Code Ann. § 17-2-101 disqualifies a judge who “is interested in
the event of any cause.” In this context, “‘the term ‘interest’ has generally been
construed to mean either a direct pecuniary or property interest, or one involving some
individual right in the subject matter of the litigation.’” Malmquist v. Malmquist, 415
S.W.3d 826, 840 (Tenn. Ct. App. 2011) (quoting Hawkins v. State, 586 S.W.2d 465, 466
(Tenn. 1979)). Mother’s motion does not allege that the chancellor had a pecuniary or
property interest or some other right in the subject matter of the present litigation.

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Moreover, Mother does not assert in her motion facts to support Tenn. Code Ann. § 17-2-
101(2) through (4) because she does not mention the chancellor’s kinship to either party,
a prior “of counsel” relationship to either party, or having presided over the trial. Thus,
Mother’s motion fails to state facts sufficient to support a claim under Tenn. Code Ann.
§ 17-2-101.

       Article I, § 17 of the Tennessee Constitution, which is known as the Open Courts
Clause, provides, in pertinent part: “That all courts shall be open; and every man, for an
injury done him in his lands, goods, person or reputation, shall have remedy by due
course of law, and right and justice administered without sale, denial, or delay.” The
Open Courts Clause “‘does not guaranty a remedy for every species of injury, but applies
only to such injuries as constitute violations of established law of which the courts can
properly take cognizance.’” Fowler v. Morristown-Hamblen Hosp. Ass’n, No. E2018-
00782-COA-R3-CV, 2019 WL 2571081, at *4 (Tenn. Ct. App. June 24, 2019) (quoting
Harrison v. Schrader, 569 S.W.2d 822, 827 (Tenn. 1978)). Mother’s motion does not set
forth any explanation as to how the facts of the present case give rise to a violation of
Article I, § 17.

       Article VI, § 11 of the Tennessee Constitution provides, in pertinent part:

       No Judge of the Supreme or Inferior Courts shall preside on the trial of any
       cause in the event of which he may be interested, or where either of the
       parties shall be connected with him by affinity or consanguinity, within
       such degrees as may be prescribed by law, or in which he may have been of
       counsel, or in which he may have presided in any inferior Court, except by
       consent of all the parties.

These are essentially the same grounds for disqualification discussed above with respect
to Tenn. Code Ann. § 17-2-101. Thus, for the same reasons discussed above, Mother’s
motion fails to assert facts sufficient to make out a claim pursuant to Article VI, § 11 of
the Tennessee Constitution.

       II. Bias or partiality.

       The next issue addressed by the trial court in its order denying the recusal motion
is whether the court possessed any bias or partiality toward either party or the minor
child. The Rules of Judicial Conduct provide, in pertinent part:

       (A) A judge shall disqualify himself or herself in any proceeding in which
       the judge’s impartiality might reasonably be questioned, including but not
       limited to the following circumstances:



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              (1) The judge has a personal bias or prejudice concerning a party or
       a party’s lawyer, or personal knowledge of facts that are in dispute in the
       proceeding.

TENN. SUP. CT. R. 10, RJC 2.11.

        In its order, the trial court stated that it conducted a “subjective analysis” and
concluded that, apart from its knowledge based upon the present case, the court “is
otherwise unfamiliar with the parties and determines there is no personal bias for or
against either party, including the minor.” The court further reasoned that, “[o]bjectively,
the appointment of an attorney to serve as a guardian ad litem is usually not an indicia of
bias against any party.” According to the trial court, “Prior to the appointment, the
guardian ad litem was unfamiliar with the parties and contained no bias either way.” The
trial court considered whether the fact that the guardian ad litem had previously worked
as the court’s law clerk constituted a basis “for citing personal bias or prejudice for or
against either party on behalf of the Chancellor or the guardian ad litem” and concluded
that it was not.

       Mother included nothing in her motion for the chancellor’s recusal or in her
petition for accelerated interlocutory appeal alleging that the guardian ad litem had any
connection with the underlying divorce in her role as the chancellor’s law clerk. On
appeal, Mother asserts that the case cited by the trial court, In re Conservatorship of
Patton, No. M2012-01878-COA-10B-CV, 2012 WL 4086151 (Tenn. Ct. App. Sept. 17,
2012), is distinguishable on its facts. We disagree. In In re Conservatorship of Patton,
this court reasoned as follows:

              Ms. Richmond also asserts that there is an appearance of impropriety
       because opposing counsel served as a law clerk for the trial judge a few
       years ago and views the trial judge as a mentor. Ms. Richmond does not,
       however, assert that opposing counsel had any contact with this case in his
       role as law clerk for the probate court or served as a clerk while this matter
       was pending. Thus, the assertion of an appearance of impropriety is solely
       based on the two factors above.

              We find these circumstances, without more, to be inadequate to
       establish an appearance of impropriety. Moreover, a judge is not required
       to recuse himself or herself from every case in which counsel of record is a
       former law clerk or is viewed as a mentor or friend by the law clerk.

In re Conservatorship of Patton, 2012 WL 4086151, at *3. In the present case, unlike in
In re Conservatorship of Patton, the guardian ad litem did serve as a law clerk while the
divorce was pending. Nevertheless, there is no evidence that the law clerk had any


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involvement with the case. Therefore, we see no meaningful distinction between the two
cases based upon the guardian ad litem’s prior role as a law clerk.

       III. Guardian ad litem’s report as source of bias.

       The guardian ad litem’s submission of a report to the trial court constitutes
Mother’s most robust argument for bias on the part of the trial court. In accordance with
Tennessee Supreme Court Rule 40A, the trial court’s order appointing the guardian ad
litem specified that the guardian ad litem was not to submit a report and recommendation
to the court and was to act as an attorney for the best interest of the minor child. TENN.
SUP. CT. R. 40A, § 6. In apparent conflict with this order, the guardian ad litem
submitted (but did not file) a report with the trial court containing her findings and
recommendations. Yet, in its order, the trial court also stated that the guardian ad litem
“may file a Pre-Trial Brief/Memorandum as any attorney in any other case.” In its order,
the trial court found that the guardian ad litem’s “report,” “notwithstanding its
nomenclature, is a brief that advocates a position by the guardian ad litem on behalf of
the best interest of the minor.” The trial court “accept[ed] and view[ed] the document as
such.”

       As Mother correctly points out, “the standard for recusal in Tennessee is whether
‘a person of ordinary prudence in the judge’s position, knowing all the facts known to the
judge, would find a reasonable basis for questioning the judge’s impartiality.’”
Malmquist, 415 S.W.3d at 838-39 (quoting Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn.
2009)). Mother asserts that, because the trial court reviewed the guardian ad litem’s
report/brief, the court “will be unable to render an impartial ruling in this matter” and that
“the well of the court will undeniably be poisoned.” This argument is without merit.
Courts review the pretrial briefs of attorneys on a regular basis and are not prejudiced by
reading their positions. As stated above, the fact that this attorney was once the trial
court’s law clerk has no bearing on the court’s ability to remain impartial.

       We find no error in the trial court’s decision to deny Mother’s motion to recuse.

                                        CONCLUSION

        The decision of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Catrice Thomas Dye, for which execution may
issue if necessary.


                                                   ________________________________
                                                   ANDY D. BENNETT, JUDGE



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