                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                               Assigned on Briefs November 1, 2016

             JEANIE HOLSCLAW V. IVY HALL NURSING HOME, INC.

                        Appeal from the Circuit Court for Carter County
                             No. C12784 Jean A. Stanley, Judge


             No. E2016-02178-COA-T10B-CV-FILED-DECEMBER 19, 2016
                        _________________________________

CHARLES D. SUSANO, JR., J., dissenting.

       I cannot concur in the majority’s conclusion that Judge Stanley’s “personal
extrajudicial knowledge” created “an appearance of impropriety . . . under Canon 2.11 of
the Code of Judicial Conduct necessitating recusal.” Therefore, I respectfully dissent.

       I do not find it necessary to determine whether Judge Stanley acted appropriately
or not when she contacted Dr. Wayne Mulkey and had a private phone conversation with
him in an effort to obtain information which would assist her in determining whether to
grant the appellant’s rule 35 motion. Having said that, I would point out that Judge
Stanley did not attempt to hide the fact that she had the subject phone conversation. On
the contrary, she advised the parties of her conversation at the hearing on the rule 35
motion. In any event and, assuming, solely for the purpose of discussion, that this
conversation was erroneous, I do not believe that any of this mandates recusal.

        As the majority points out, “[n]othing in the record leads this Court to believe that
the trial judge in this case holds a prejudice or bias against any party or that the trial judge
cannot remain impartial despite this communication [with Dr. Mulkey].” I certainly
agree with that comment. The issue here, however, is whether “the judge’s impartiality
might reasonably be questioned.” My answer to this is simply “no.” Her action in
speaking privately to Dr. Mulkey may have been erroneous and may even be reversible
error,1 but I do not believe it could or would reasonably lead one to question her
“impartiality.”
         1
           See Alley v. State, 882 S.W.2d 810, 821 (Tenn. Cr. App. 1994) (“Rulings of a trial judge, even if
erroneous, numerous and continuous, do not, without more, justify disqualification.”); see also State v. Cannon, 254
S.W.3d 287, 308 (Tenn. 2008) (“Even though we hold that the trial court committed reversible evidentiary errors
with regard to the chain of custody of the pantyhose and the admissibility of M.N.’s out-of-court statements, the
record does not support the proposition that those decisions resulted from the trial judge’s bias or prejudice against
Defendant.”)
I would affirm the trial court on the issue of recusal.


                                              _______________________________
                                              CHARLES D. SUSANO, JR., JUDGE
