                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                             Assigned on August 12, 2016

    ANDERSON LUMBER COMPANY, INC. v. CHRIS KINNEY, ET AL.

                   Appeal from the Circuit Court for Blount County
                      No. E24747       David R. Duggan, Judge


              No. E2016-01640-COA-T10B-CV – Filed October 26, 2016


This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the
Supreme Court of Tennessee, from the denial of a Motion for Disqualification or Recusal
filed by the Defendants, William Kinney and Margaret Kinney (ADefendants@) in this
case that arises out of the indebtedness of Defendants= business, Kinney Custom Interiors,
to the Plaintiff, Anderson Lumber Company, Inc. (APlaintiff@). Having reviewed the
petition for recusal appeal filed by Defendants, and finding no error in Trial Court=s
ruling, we affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and KENNY W. ARMSTRONG, J., joined.

William F. Kinney, Maryville, Tennessee, appellant, pro se.

Margaret E. Kinney, Maryville, Tennessee, appellant, pro se.

John T. McArthur, Maryville, Tennessee, for the appellee, Anderson Lumber Company,
Inc.

                                        OPINION

       This case began in the Trial Court with the filing of a Complaint by Plaintiff against
Chris Kinney and Margaret Kinney (AOriginal Defendants@ or AKinneys@) d/b/a Kinney
Custom Interiors, in November of 2012, for monies owed by the Kinneys on their account
with Plaintiff that was used by the business for the purchase of supplies and materials. On
June 3, 2013, William Kinney filed a pro se motion to intervene as a party based upon the
assertion that he is a partner in the business known as Kinney Custom Interiors. A hearing
on various pretrial motions was held on July 1, 2013. In the Trial Court=s order
memorializing the rulings made at the hearing, the Trial Court stated that Aa number of
motions have been filed by the Defendants, including a Motion for Summary Judgment
and two Motions to Amend which were set by Notice for hearing on July 5, 2013.@ The
Trial Court further noted that A[a]dditional motions ha[d] been filed by Plaintiff and
Defendants.@ The Trial Court determined that Plaintiff=s counsel had Aconflicts on July
5th and that discovery depositions of the Defendants which have been scheduled twice
previously have not yet been conducted.@ The Trial Court therefore granted Plaintiff=s
motion for a continuance, agreeing Athat depositions should be conducted prior to requiring
the Plaintiff=s response to any of the additional pending motions.@ The Trial Court ordered
the Original Defendants to appear for depositions at the offices of Plaintiff=s counsel on
July 18, 2013. The Trial Court further ordered that all other pending motions in the case
would be heard on September 6, 2013. At the hearing on September 6, 2013, attorney
David C. Lee filed a notice of appearance on behalf of Margaret Kinney, which also
indicated that counsel was withdrawing all pending motions previously filed pro se by
Margaret Kinney.

       Another hearing was held on August 11, 2014, at which William Kinney verbally
agreed to be added as an additional Defendant as set forth in an Amended Complaint filed
by Plaintiff. Immediately after accepting William Kinney=s agreement to be added as a
Defendant, the Trial Court took up Plaintiff=s motion for the appointment of a Special
Master. In a written order entered that same day, the Trial Court memorialized its ruling
granting Plaintiff=s motion to add William Kinney as an additional Defendant and allowing
Plaintiff=s Amended Complaint naming William Kinney as an additional Defendant to be
filed. William Kinney was not formally served with the Amended Complaint until
September 12, 2014. On November 17, 2014, he filed a Motion to Dismiss.

       At a hearing held on December 1, 2014, the Trial Court heard William Kinney=s
motion to dismiss, and denied the motion. The Trial Court also determined that it would
appoint the Special Master previously suggested by Plaintiff=s counsel during the August
11, 2014 hearing. A written order referring the case to the Special Master was entered on
December 2, 2014. A written order denying William Kinney=s motion to dismiss was
entered on December 11, 2014.

       Counsel for Margaret Kinney filed a motion to withdraw in January of 2015, before
the parties appeared before the Special Master for a hearing in February of 2015. The
Special Master filed his report on April 30, 2015, determining that the amount due on the
line of credit at issue in this case, after application of all credits and payments, was
$32,912.95. However, before the Trial Court could consider whether to adopt the findings
of the Special Master, Defendants filed a Notice of Removal to the United States District
Court for Eastern District of Tennessee, where the case remained until February of 2016,
                                           -2-
when it was remanded back to state court. Plaintiff then filed, in April of 2016, a notice of
voluntary non-suit against Chris Kinney, which the Trial Court accepted. In the order
non-suiting all of Plaintiff=s claims against Chris Kinney, the Trial Court noted that Chris
Kinney was deceased.1

       In May of 2016, Defendants filed their Motion for Disqualification or Recusal of the
Trial Court Judge alleging that they had Aexperience[d] bias in all previous court
proceedings@ in the case and asserting that they believed they would Acontinue to
experience bias in favor of the adverse party in this matter.@ In support of these assertions,
Defendants alleged that the Trial Court Judge had demonstrated bias against them by: (1)
granting Plaintiff a continuance at the July 1, 2013 hearing and refusing to hear Original
Defendants= motion for summary judgment on that date; (2) refusing to hear Original
Defendants= discovery motions at the July 1, 2013 hearing, but ordering Original
Defendants to appear for depositions noticed by Plaintiff; (3) refusing to hear William
Kinney=s motion to intervene at the July 1, 2013 hearing; (4) considering Plaintiff=s motion
for the appointment of a Special Master immediately after adding William Kinney as a
Defendant at the August 11, 2014 hearing, even though William Kinney had not yet been
served with the Amended Complaint; (5) denying William Kinney=s motion to dismiss; (6)
refusing to hear William Kinney=s motion to compel discovery at a hearing held on January
16, 2015, simply because Plaintiff=s counsel=s indicated that he would answer the discovery
request after the hearing; and (7) admonishing William Kinney in open court at the same
January 16, 2015 hearing that he could not represent Margaret Kinney on a motion to
compel, which she signed, even though according to William Kinney they enjoy the legal
status of being Aone person in the eyes of God,@ thereby making William Kinney=s
representation of Margaret Kinney in court not unlawful even though he is not licensed to
practice law.

        Defendants also alleged in support of their Motion for Disqualification or Recusal
that they believed the Trial Court Judge Amay have a social relationship with the Plaintiff=s
family and business partners, as well as the [P]laintiff=s law firm.@ Specifically,
Defendants asserted that they had learned during the course of the case that persons
affiliated with Plaintiff=s company, and their relatives, had donated to the Trial Court
Judge=s campaign and attended church with the Trial Court Judge. Defendants asserted in
their motion that, based upon these connections, Ait is reasonable to assume that personal
opinions, including personal knowledge of disputed facts concerning the case, may have
been expressed to [the Trial Court Judge] by the friends, relatives, and business partners of
[the owners of Plaintiff].@ Defendants also alleged that the law firm representing Plaintiff
        1
         Only after filing their Motion for Disqualification or Recusal did Defendants finally file, in June of
2016, a suggestion of death pursuant to Rule 25.01 of the Tennessee Rules of Civil Procedure noting the
death of Chris Kinney.

                                                     -3-
in this case Amay also have a personal relationship@ with the Trial Court Judge because: (1)
the Judge serves as the Director of the Blount County Historic Trust and one of the named
partners of the law firm Ahas performed pro bono activities for the Blount County Historic
Trust@; (2) a different named partner in the law firm had donated to the Judge=s political
campaign; (3) the Special Master recommended by Plaintiff=s counsel, as well as the
Special Master=s business partner, had both contributed to the Judge=s campaign; (4) the
Judge served with counsel for the Plaintiff on the Blount County Library=s Director search
committee, which was chaired by one of the named partners in the law firm; (5) the Judge
and counsel for the Plaintiff are members of the Library Board of Trustees; (6) another
partner in the law firm is the President of the Blount County Library Foundation; (7) the
Judge used to be an attorney in the law firm; and (8) counsel for the Plaintiff has helped the
Judge promote at least one of the books he has written.

        In a twenty-eight page order, the Trial Court Judge denied Defendants= Motion for
Disqualification or Recusal. The Judge began by meticulously explaining his reasons for
the rulings and decisions Defendants had indicated in their motion demonstrated that he
was biased against them. The Judge then determined that none of the remaining
allegations in the motion supported the conclusion that the Judge had an actual conflict of
interest that required recusal, or that any of the extra-judicial activities cited in the motion
would lead a reasonable person to question the Judge=s impartiality. Specifically, the
Judge noted that A[n]o one has had any discussions with the Court about this case, or any of
the parties to this case, outside open hearings in the courtroom.@ The Judge acknowledged
that he has attended the same church noted by Defendants as having been attended by
relatives of the principals of Plaintiff, but denied ever having had a discussion with these
individuals at church or otherwise. The Judge also stated that one of these same relatives
of the principals of Plaintiff had contributed to the Judge=s judicial campaign in the election
preceding the last election in which the Judge participated. The Judge further admitted
that one of the partners in the law firm representing Plaintiff, as well as the Special Master
appointed in this case and that attorney=s law partner, had all contributed to the Judge=s
judicial campaign in the election preceding the last election in which the Judge
participated. However, with regard to all of these financial contributions, the Judge
pointed out that the amounts contributed were minimal at best as compared to the total
amount of financial contributions received by the campaign. While acknowledging that
he has been involved in the Blount County Historic Trust along with one of the named
partners in the law firm representing Plaintiff, the Judge indicated that he did not recall that
named partner ever having performed any pro bono legal service for the Historic Trust.
The Judge also admitted to serving on the Board of Trustees for the Blount County Library,
but denied ever serving on the search committee for the new Director for the library or ever
having a discussion with the President of the Blount County Library Foundation, who is a
member of Plaintiff=s law firm, outside the context of a meeting of the Board of Trustees.
The Judge further admitted to having been an attorney in the Plaintiff=s law firm and to
                                             -4-
having represented clients with Plaintiff=s counsel in the past, but stated unequivocally that
he had not discussed any of their prior cases with Plaintiff=s counsel since he became a
judge in January of 2005. With regard to the allegation that counsel for Plaintiff had
helped the Judge promote at least one of the books he has written, the Judge explained:

       It is true that the undersigned judge has co-authored two books which are
       photographic histories of two local communities. It is also true that there
       were book signings. The Court has no knowledge of [an] alleged elevator
       discussion [between Plaintiff=s counsel and the Judge=s secretary about a
       book signing]. The Court has no recollection of Plaintiff=s counsel ever
       having been involved in any of the book signings, and does not believe that
       he had any such involvement, although it is possible he might have attended
       a book signing. The Court has discussed this matter with the Court=s
       secretary, and she had no recollection of any such discussion.

The Judge concluded that none of these allegations in Defendants= motion would lead a
reasonable person to question his ability to be impartial. The Judge went on to state that
A[t]here is simply no merit to any suggestion that the Court has denied due process of law to
Defendants or in any way treated them unfairly.@ The Judge also made clear that A[a]ny
relationships between the Court and any members or employees of [the law firm
representing Plaintiff] are de minimis.@ With regard to Defendants= complaints about the
Judge=s rulings in the case, the Judge explained that A[m]any of the allegations made by
Defendants are simply not correct or are distortions of what actually transpired before the
Court@ and that A[n]one of the Court=s adverse rulings against Defendant[s] in this case
evidence or establish any bias toward them.@ The Judge finally noted that an attorney=s
contributions to a judicial campaign, in the absence of other facts, does not require recusal
of the judge and that, in any event, all of the contributions noted by Defendants were not to
the Judge=s most recent campaign and were not contributions from any litigant or attorney
for a litigant in the present case. The Judge concluded by noting that he was obligated to
hear cases when he could do so Afairly and impartially,@ and that he could not simply
disqualify or recuse himself Abecause a case is difficult or messy, just to follow the course
of least resistance.@

       Defendants then timely filed their petition for recusal appeal in this Court pursuant
to Rule 10B. Pursuant to Section 2.05 of Rule 10B, this Court directed counsel for
Plaintiff to file an Answer to the Petition. Having reviewed Defendants= petition and
supporting documents submitted with the petition, together with Plaintiff=s answer, and the
appendix thereto, we conclude that additional briefing and oral argument are unnecessary.
As such, we proceed to decide this appeal in accordance with sections 2.05 and 2.06 of
Rule 10B.

                                            -5-
                                         ANALYSIS

       Without question, A[t]he right to a fair trial before an impartial tribunal is a
fundamental constitutional right.@ Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009)
(quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)); see also Tenn. Const. Art.
VI, ' 11. This constitutional right Ais intended >to guard against the prejudgment of the
rights of litigants and to avoid situations in which the litigants might have cause to
conclude that the court had reached a prejudged conclusion because of interest, partiality,
or favor.=@ Id. (quoting Austin, 87 S.W.3d at 470). A[P]reservation of the public=s
confidence in judicial neutrality requires not only that the judge be impartial in fact, but
also that the judge be perceived to be impartial.@ Kinard v. Kinard, 986 S.W.2d 220,
228 (Tenn. Ct. App. 1998); see also Offutt v. United States, 348 U.S. 11, 14 (1954)
(holding that Ajustice must satisfy the appearance of justice@). As such, 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 requires a judge to recuse himself or herself Ain any proceeding in which the
judge=s impartiality might reasonably be questioned.@ See also Smith v. State, 357
S.W.3d 322, 341 (Tenn. 2011)(noting that recusal is required, even if a judge subjectively
believes he or she can be fair and impartial, whenever A>the judge=s impartiality might be
reasonably questioned because the appearance of bias is as injurious to the integrity of the
judicial system as actual bias=@)(quoting Bean, 280 S.W.3d at 805).

       The terms Abias@ and Aprejudice@ generally Arefer to a state of mind or attitude that
works to predispose a judge for or against a party@; however, A[n]ot every bias, partiality,
or prejudice merits recusal.@ Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App.
1994). To merit disqualification of a trial judge, Aprejudice 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.=@ Id. (ellipsis in Alley). However, A[i]f the bias is based upon
actual observance of witnesses and evidence given during the trial, the judge=s prejudice
does not disqualify the judge.@ Id. In addition, A[a] trial judge=s adverse rulings are not
usually sufficient to establish bias.@ State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008).
ARulings of a trial judge, even if erroneous, numerous and continuous, do not, without
more, justify disqualification.@ Alley, 882 S.W.2d at 821; see also State v. Reid, 313
S.W.3d 792, 816 (Tenn. 2006).

       As the Trial Court Judge noted in the order on review, Aa judge should not decide to
recuse unless a recusal is truly called for under the circumstances.@ Rose v. Cookeville
Reg=l Med. Ctr., No. M2007-2368-COA-R3-CV, 2008 WL 2078056, * 2 (Tenn. Ct. App.
May 14, 2008). This is true because A>[a] judge has as much of a duty not to recuse
himself absent a factual basis for doing so as he does to step aside when recusal is
warranted.=@ Id. at *2-3 (quoting Mass v. McClenahan, No. 93 Civ. 3290(JSM), 1995 WL
                                            -6-
106106, * 1 (S.D.N.Y. Mar. 9, 1995). Recusal based upon an asserted appearance of
bias or prejudice A>is appropriate only if the facts provide what an objective, knowledgeable
member of the public would find to be a reasonable basis for doubting the judge=s
impartiality.=@ Id. at *3 (quoting IN RE United States, 666 F.2d 690, 695 (1st Cir. 1981)).

       In this case, there simply are no facts alleged or shown in the record that would
lead a well-informed, disinterested observer to question the impartiality of the Judge in
this case. First, it cannot be argued that the Judge had a duty to recuse himself simply
because Defendants are dissatisfied with the rulings against them. Cannon, 254 S.W.3d
at 308. Second, the Judge had no duty to recuse himself merely because he had served
on one or more local civic boards with attorneys who are members of the law firm
representing Plaintiff in this case. Cf. Van Duyn v. Electronic Innovations, LLC, No.
E2013-01167-COA-10B-CV, 2013 WL 2639344, * 4 (Tenn. Ct. App. Jun. 10, 2013)
(determining that judge=s mere service with litigant on local civic board did not require
the judge to recuse himself from presiding over litigant=s case). Third, recusal of the
Judge cannot be grounded on the mere existence of the financial contributions, identified
by Defendants in their motion, that were made by attorneys and others to the Judge=s
judicial campaign that occurred years ago.                See IN RE Gabriel V., No.
M2014-01298-COA-T10B-CV, 2014 WL 3808916, * 3 (Tenn. Ct. App. Jul. 31, 2014)
(determining that Athe fact that an attorney has contributed to a judge=s campaign, has
endorsed a judge=s candidacy, or has been listed on a judge=s campaign committee will not
require automatic disqualification of the judge@ unless the attorney has had more active
involvement in the judge=s campaign or leadership in said campaign). Finally, A[t]he mere
existence of a friendship between a judge and an attorney is not sufficient, standing alone,
to mandate recusal.@ State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008); see also State v.
Madden, No. M2012-02473-CCA-R3-CD, 2014 WL 931031, at *7 (Tenn. Crim. App.
Mar. 11, 2014) (ASimply establishing that a trial judge is acquainted with a lawyer or other
person connected to a case does not, without more, suffice to establish an abuse of
discretion in the denial of a recusal motion.@).

                                       CONCLUSION

       Having determined that the record provided by Defendants does not demonstrate
error, we affirm the Trial Court=s denial of Defendants= Motion for Disqualification or
Recusal. Defendants are taxed with the costs of this appeal, for which execution may
issue. This case is remanded for further proceedings.


                                          ________________________________
                                          JOHN W. MCCLARTY, JUDGE

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