                                                                                         08/21/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                         Assigned on Briefs August 12, 2019

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

                  Appeal from the Circuit Court for Blount County
                     No. E-24747 David Reed Duggan, Judge
                     ___________________________________

                          No. E2019-01427-COA-T10B-CV
                       ___________________________________


This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the
Supreme Court of Tennessee, filed by William Kinney and Margaret Kinney
(“Defendants”), seeking to recuse the trial judge. The case arises out of the indebtedness
of Defendant’s business, Kinney Custom Interiors, to the plaintiff, Anderson Lumber
Company, Inc. (“Plaintiff”). Having reviewed the petition for recusal appeal filed by
Defendants, and finding no error, we affirm.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, 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 is the third motion for recusal appeal filed by the Defendants in this suit. The
procedural history of this case was set out in this Court’s Opinion affirming the Trial
Court’s denial of Defendants’ first motion for recusal, which was filed in the proceedings
below in 2016. See Anderson Lumber Co., Inc. v. Kinney, No. E2016-01640-COA-
T10B-CV, 2016 WL 6248597, **1-3 (Tenn. Ct. App. Oct. 26, 2016).
       After we issued our Opinion in case No. E2016-01640-COA-T10B-CV,
Defendants filed a motion seeking to recuse the panel of judges who had considered the
case No. E2016-01640-COA-T10B-CV. By Order entered on November 14, 2016, this
Court denied the motion after finding that there was no basis under the Tennessee
Constitution or the Tennessee Code of Judicial Conduct that would require recusal or
disqualification of any of the panel members. Defendants then filed a motion for court
review, which this Court denied by Order entered on December 9, 2016. Defendants then
filed an appeal of our December 9, 2016 Order to the Tennessee Supreme Court, which
was denied by Order entered on January 1l, 2017. The Supreme Court’s January 11,
2017 Order found that “Judges McClarty, Clement, and Armstrong did not err in denying
the motion for recusal as it pertained to each of them and that the Court of Appeals,
Eastern Section, did not err in denying the appellants’ motion for court review.”

       In February of 2018, Defendants filed a second recusal appeal again attempting to
recuse the trial judge. In our Opinion entered on March 12, 2018, in case No. E2018-
00322-COA-T10B-CV, this Court found no error in the Trial Court’s denial of
Defendant’s Second Motion for Disqualification or Recusal.

       Defendants filed the instant motion, their third Motion for Disqualification or
Recusal, in this Court on August 9, 2019, again seeking recusal appeal pursuant to Rule
10B. In this motion, Defendants allege among other things, “that the defendants have
experienced bias of an extreme and even punishing nature throughout the proceedings,”
and “have been denied our civil liberties and equal rights guaranteed and protected by the
Tennessee Constitution . . . .”

                                           ANALYSIS

       We have determined in this case after a review of the petition and supporting
documents submitted with the petition, that an answer, additional briefing, and oral
argument are unnecessary to our disposition because the record provided by Defendants
does not demonstrate error by the Trial Court Judge. As such, we have elected to act
summarily on this appeal in accordance with sections 2.05 and 2.06 of Rule 10B. See
Tenn. Sup. Ct. R. 10B, § 2.05 (“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.”); § 2.06 (“An accelerated interlocutory appeal shall be decided
by the appellate court on an expedited basis. The appellate court’s decision, in the
court’s discretion, may be made without oral argument.”).

      Defendants’ motion for a recusal appeal is deficient because it does not show that
the motion was presented to the Trial Court. The motion for recusal appeal does not have
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attached an order from the Trial Court denying the motion to recuse. Rule 10B provides
that a petition for recusal appeal “shall be accompanied by a copy of the motion and all
supporting documents filed in the trial court, a copy of the trial court’s order or opinion
ruling on the motion, and a copy of any other parts of the trial court record necessary for
a determination of the appeal.” R. Sup. Ct. 10B § 2.03. This deficiency is important for
several reasons, the first of which is that without an order from the Trial Court, we are
unable to determine if the petition for recusal appeal was timely filed. “[R]ecusal
motions must be filed promptly after the facts forming the basis for the motion become
known, and the failure to assert them in a timely manner results in a waiver of a party’s
right to question a judge’s impartiality.” Duke v. Duke, 398 S.W.3d 665, 670 (Tenn. Ct.
App. 2012) (quoting Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998)).
Rule 10B provides that “a petition for recusal appeal shall be filed in the appropriate
appellate court within twenty-one days of the trial court’s entry of the order.” R. Sup. Ct.
10B § 2.02. Furthermore, Rule 10B § 2.08 provides that “[t]he time periods for filing a
petition for recusal appeal pursuant to section 2.02 . . . are jurisdictional and cannot be
extended by the court.” R. Sup. Ct. 10B § 2.08. Second, the failure to attach a copy of
an order from the Trial Court denying the motion to recuse is important because “[i]n a
Tennessee Supreme Court Rule 10B appeal, the only order we may review is the trial
court’s order that denies a motion to recuse. Pursuant to the rule, we may not review the
correctness or merits of the trial court’s other rulings . . . .” Duke, 398 S.W.3d at 668.

       Despite these shortcomings, we will address this appeal, but “we caution litigants
that ‘while in this case we chose to proceed with our review despite the fact that the
parties chose not to abide by the rules of th[e Tennessee Supreme] Court, we cannot say
we will be so accommodating and choose to do the same in the future.’” Neamtu v.
Neamtu, No. M2019-00409-COA-T10B-CV, 2019 WL 2849432, at *2 (Tenn. Ct. App.
July 2, 2019), no appl. perm. appeal filed (quoting Watson v. City of Jackson, 448
S.W.3d 919, 928 (Tenn. Ct. App. 2014)).

       We review a trial court’s ruling on a motion for recusal under a de novo standard
of review with no presumption of correctness. Tenn. Sup. Ct. R. 10B § 2.01. “The party
seeking recusal bears the burden of proof, and ‘any alleged bias must arise from
extrajudicial sources and not from events or observations during litigation of a case.’”
Neamtu, 2019 WL 2849432, at *2 (quoting Williams by & through Rezba v. HealthSouth
Rehab. Hosp. N., No. W2015-00639-COA-T10B-CV, 2015 WL 2258172, at *5 (Tenn.
Ct. App. May 8, 2015), no appl. perm. appeal filed). As this Court explained in Neamtu
v. Neamtu:

       The party seeking recusal bears the burden of proof. Williams, 2015 WL
       2258172, at *5; Cotham v. Cotham, No. W2015-00521-COA-T10B-CV,
       2015 WL 1517785, at *2 (Tenn. Ct. App. Mar. 30, 2015) (no perm. app.
       filed). “[A] party challenging the impartiality of a judge ‘must come
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      forward with some evidence that would prompt a reasonable, disinterested
      person to believe that the judge’s impartiality might reasonably be
      questioned.’” Duke, 398 S.W.3d at 671 (quoting Eldridge v. Eldridge, 137
      S.W.3d 1, 7-8 (Tenn. Ct. App. 2002)). When reviewing requests for
      recusal alleging bias, “it is important to keep in mind the fundamental
      protections that the rules of recusal are intended to provide.” In re A.J., No.
      M2014-02287-COA-R3-JV, 2015 WL 6438671, at *6 (Tenn. Ct. App. Oct.
      22, 2015), perm. app. denied (Tenn. Feb. 18, 2016). “The law on judicial
      bias is 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 Bean v. Bailey, 280 S.W.3d
      798, 803 (Tenn. 2009)).

              The terms “bias” and “prejudice” usually refer to a state of mind or
      attitude that works to predispose a judge for or against a party, but not
      every bias, partiality, or prejudice merits recusal. Watson v. City of
      Jackson, 448 S.W.3d 919, 929 (Tenn. Ct. App. 2014) (citing Alley v. State,
      882 S.W.2d 810, 821 (Tenn. Crim. App. 1994)). “‘Even though the judge
      is expected to have no bias at the beginning of the trial, he must,
      perforce, develop a bias at some point in the trial; for the decision at
      the conclusion of the trial is based upon the impressions, favorable or
      unfavorable, developed during the trial.’” Id. at 933 (quoting Spain v.
      Connolly, 606 S.W.2d 540, 544 (Tenn. Ct. App. 1980)). To merit
      disqualification, the prejudice must be of a personal character, directed at
      the litigant, and stem from an extrajudicial source resulting in an opinion on
      the merits on some basis other than what the judge learned from
      participation in the case. Id. at 929. “A trial judge’s opinions of the parties
      or witnesses that are based on what he or she has seen at trial are not
      improper and ‘generally do[ ] not warrant recusal.’” Id. at 933 (quoting
      Neuenschwander v. Neuenschwander, No. E2001-00306-COA-R3-CV,
      2001 WL 1613880, at *11 (Tenn. Ct. App. Dec. 18, 2001)).

Neamtu, 2019 WL 2849432, at **2-3 (quoting In re Samuel P., No. W2016-01592-COA-
T10B-CV, 2016 WL 4547543, at *2 (Tenn. Ct. App. Aug. 31, 2016), no appl. perm.
appeal filed.) (emphasis in original).
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       As this Court explained at length in our opinion affirming the Trial Court’s denial
of Defendants’ first Motion for Disqualification or Recusal, see Kinney, 2016 WL
6248597, at * 4, the Trial Court Judge in this case has no duty to recuse himself simply
because Defendants are dissatisfied with the rulings that have been made in the case. As
this Court explained in Duke v. Duke:

       “A trial judge’s adverse rulings are not usually sufficient to establish bias.”
       State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008). “Rulings of a trial
       judge, even if erroneous, numerous and continuous, do not, without more,
       justify disqualification.” Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim.
       App. 1994). “If the rule were otherwise, recusal would be required as a
       matter of course since trial courts necessarily rule against parties and
       witnesses in every case, and litigants could manipulate the impartiality
       issue for strategic advantage, which the courts frown upon.” Davis v.
       Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001).

Duke, 398 S.W.3d at 671.

        “[A] judge should not decide to recuse unless a recusal is truly called for under the
circumstances.” Rose v. Cookeville Reg’l Med. Ctr., No M2007-02368-COA-R3-CV,
2008 WL 2078056, *2 (Tenn. Ct. App. May 14, 2008), no appl. perm. appeal filed. This
is true because “‘[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 (quoting
Mass v. McClenahan, No. 93 Civ. 3290 (JSM), 1995 WL 106106, *1 (S.D.N.Y. Mar. 9,
1995)). Recusal based upon an asserted appearance of bias or prejudice “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 *2 (quoting In
Re United States, 666 F.2d 690, 695 (1st Cir. 1981)).

       In their motion for recusal appeal, Defendants have demonstrated no reason for
recusal other than the fact that they are unhappy with a number of the rulings of the Trial
Court. Such unhappiness is insufficient to justify recusal. Furthermore, Defendants have
proven no facts supporting recusal. Rather, Defendants simply provide unsubstantiated
argument, most of which concerns the merits of the underlying claim. Many of
Defendants’ allegations concern events and circumstances dealt with in our previous
Opinions in this case, as discussed above.

       Defendants have failed to produce “evidence that would prompt a reasonable,
disinterested person to believe that the [Trial Court Judge’s] impartiality might
reasonably be questioned.” Neamtu, 2019 WL 2849432, at *3 (quoting In re Samuel P.,
No. W2016-01592-COA-T10B-CV, 2016 WL 4547543, at *2 (Tenn. Ct. App. Aug. 31,
2016), no appl. perm. appeal filed). As such, we find no error. Defendants’ motion to

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recuse is DENIED. The costs of this appeal are taxed to Defendants, for which execution
may issue. This case is remanded for further proceedings.




                                              _________________________________
                                              RICHARD H. DINKINS, JUDGE




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