                                                                                           07/14/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs June 26, 2020

 CAROL BUCKLEY v. THE ELEPHANT SANCTUARY IN TENNESSEE,
                          INC.

                 Appeal from the Chancery Court for Lewis County
                 No. 2010-CV-133 Deanna Bell Johnson, Chancellor
                       ___________________________________

                          No. M2020-00883-COA-T10B-CV
                       ___________________________________

This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme
Court Rule 10B, from the trial court’s denial of a motion for recusal. Having reviewed the
petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B,
§ 2.01, we reverse the trial court’s decision to deny the motion for recusal and remand with
instructions for another judge to be designated to preside over this case.

               Tenn. Sup. Ct. R. 10B Accelerated Interlocutory Appeal;
              Judgment of the Chancery Court Reversed and Remanded

FRANK G. CLEMENT JR., P.J., M.S. delivered the opinion of the Court, in which ANDY D.
BENNETT and RICHARD H. DINKINS, JJ., joined.

Edward M. Yarbrough and W. Justin Adams, Nashville, Tennessee, for the appellant, Carol
Buckley.

Robert E. Boston and Mark M. Bell, Nashville, Tennessee, for the appellee, The Elephant
Sanctuary in Tennessee, Inc.

                                        OPINION

       This appeal arises from a civil action commenced by Carol Buckley (“Ms.
Buckley”) against The Elephant Sanctuary in Tennessee, Inc. (“the Sanctuary”). Ms.
Buckley was a founding member of the Sanctuary, which was organized in 1995 for the
purpose of caring for and providing sanctuary to captive elephants. The Sanctuary is
located in Hohenwald, Tennessee. Tarra, an Asian elephant, which Ms. Buckley had
individually cared for since 1974, was one of the first elephants to reside at the Sanctuary.
        Ms. Buckley worked at the Sanctuary caring for Tarra and the other elephants until
2009 when she was placed on leave; her employment was terminated in 2010. Since that
time, the Sanctuary has refused to allow Ms. Buckley to visit Tarra. As a consequence, Ms.
Buckley commenced this action against the Sanctuary seeking visitation with Tarra, among
other relief. The Sanctuary filed an answer and asserted a counterclaim seeking, among
other relief, a declaration that it owned Tarra.

       The case lay dormant for a few years until it was decided on summary judgment
that the issue to be tried was which party had the right to control and possess Tarra. The
case was then tried before a jury in August of 2018 with Chancellor Deanna Belle Johnson
presiding. It ended in a hung jury.

       The case was retried before Chancellor Johnson and a different jury in April of 2019.
During his closing argument, Ms. Buckley’s counsel made reference to a fact that was not
introduced at trial, mentioning that the Sanctuary did not pay property taxes in Lewis
County. Based on this comment, the Sanctuary moved for and received a corrective jury
instruction, which the court read to the jury before the Sanctuary’s rebuttal argument. The
instruction provided reads as follows:

       Members of the jury, during his closing argument, Mr. Yarbrough made
       reference to a matter as if it was a fact which was . . . introduced at trial. In
       addition, that comment was not accurate. He mentioned that The Sanctuary
       does not pay property taxes in Lewis County. That is inaccurate. The
       Sanctuary does pay property taxes in Lewis County. I am instructing you that
       it was in error for Mr. Yarbrough to present that to you, and I am instructing
       you to disregard it.

Additionally, following closing arguments, the court’s jury instructions included this
directive:

       In reaching your verdict, you may consider only the evidence that was
       admitted. Remember that any questions, objections, statements or arguments
       made by the attorneys during the trial are not evidence.

       After deliberating, the jury ruled in favor of Ms. Buckley.

       Following the entry of judgment, the Sanctuary timely filed a motion for a new trial
on three grounds: (1) the verdict was contrary to the weight of the evidence; (2) that Ms.
Buckley’s counsel made a highly prejudicial comment during closing argument; and (3) the
interests of justice required a new trial. Ms. Buckley filed a response in opposition to the
motion contesting all three grounds. As for the second ground, Ms. Buckley contended that
the Sanctuary waived the issue by choosing to request a corrective jury instruction instead
of a mistrial. The court conducted a hearing on the Sanctuary’s motion on July 8, 2019. At


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the conclusion of the hearing, the court ordered the Sanctuary to file a supplemental brief,
which it did, and Ms. Buckley filed a response.

       On September 27, 2019, the trial court entered an order granting a new trial without
stating the grounds upon which the motion was granted.

       On October 17, 2019, Ms. Buckley filed a motion to alter or amend the order, asking
the court to specify “the underlying basis of the Court’s ruling in order to determine
whether the new trial is governed by Tenn. R. Civ. P. 59.06,” i.e., because the verdict was
contrary to the weight of the evidence. Three months later, on February 3, 2020, the trial
court entered an order setting a deadline for the Sanctuary to respond to Ms. Buckley’s
motion. The Sanctuary filed its response on March 2, 2020.

       On March 25, 2020, the court entered an order denying Ms. Buckley’s Motion to
Alter or Amend without explanation and without clarifying its reasons for granting a new
trial.

        Thereafter, Ms. Buckley filed a motion for recusal pursuant to Tenn. Sup. Ct. Rule
10B § 1.01 and a motion seeking a new trial before another judge pursuant to Tenn. R. Civ.
P. 59.06. The motions contended that, by granting the motion for a new trial without
explanation, the trial court was presumed to have weighed the evidence and found the
jury’s verdict to be against the weight of the evidence. Accordingly, Ms. Buckley asserted
that the trial judge was required to disqualify herself pursuant to Rule 59.06, and failing to
do so constituted grounds for her recusal pursuant to Rule 10B.

      Pursuant to an order entered on May 18, 2020, the trial court denied Ms. Buckley’s
motions. The court stated, for the first time, a ground for granting a new trial:

       The Court believed that Mr. Yarbrough’s statements in closing argument
       were so very egregious that a new trial was warranted on that ground.
       However, out of respect for Mr. Yarbrough, the Court chose not to identify
       his statements as the actual reason for granting the motion, especially in light
       of the media coverage of this case. Therefore, the Court simply granted the
       motion for new trial without identifying the reason.

                                       .      .      .

       Ms. Buckley has now filed a Rule 10B motion. In order to properly rule on
       that Rule 10B motion, the Court must now put into the record the Court’s
       finding regarding Mr. Yarbrough’s statement i.e., Mr. Yarbrough’s statement
       was so highly inflammatory, prejudicial, and offensive to The Sanctuary as
       to warrant a new trial. For this reason, the Court granted The Sanctuary’s
       motion for new trial.


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(Emphasis in original).

        This Petition for Recusal Appeal pursuant to Tenn. Sup. Ct. R. 10B followed.

                                       STANDARD OF REVIEW

        Tennessee Supreme Court Rule 10B governs appeals from orders denying motions
to recuse. Pursuant to § 2.01 of Rule 10B, a party is entitled to an “accelerated interlocutory
appeal as of right” from an order denying a motion for disqualification or recusal. The
appeal is perfected by filing a “petition for recusal appeal” with the appropriate appellate
court. Id. § 2.02.

       The only issue we may consider in a petition for recusal appeal is whether the trial
judge should have granted the motion to recuse. See Duke v. Duke, 398 S.W.3d 665, 668
(Tenn. Ct. App. 2012). Our standard of review is de novo. See Tenn. Sup. Ct. R. 10B § 2.01.
“De novo” is defined as “anew, afresh, a second time.” Simms Elec., Inc. v. Roberson
Assocs., Inc., No. 01-A-01-9011-CV-00407, 1991 WL 44279, at *2 (Tenn. Ct. App. Apr.
3, 1991) (quoting Black’s Law Dictionary 392 (5th ed. 1979)). Thus, we examine the
factual record anew, with no presumption of correctness, and reach our own conclusion.
See Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013).

       If we determine after reviewing the petition and supporting documents that no
answer from the other parties is needed, we may act summarily on the appeal. Tenn. Sup.
Ct. R. 10B, § 2.05. Otherwise, this court must order an answer and may order further
briefing by the parties. Id. We may also decide the appeal without oral argument. Id. § 2.06.

       Based on our review of the petition and supporting documents, we determined that
an answer was appropriate. In its answer, the Sanctuary encouraged us to “construe this
proceeding as one under Tenn. Sup. Ct. R. 10B because [Ms. Buckley] admittedly [sought]
appellate review of the May 2020 order denying her Motion for Recusal under Tenn. Sup.
Ct. R. 10B.”1 It also encouraged us to reverse the trial court’s denial of Ms. Buckley’s Rule
10B recusal motion because Ms. Buckley “failed to provide a valid ground for the trial
judge’s recusal.”

        1
         Ms. Buckley’s initiating pleading was styled “Tenn. R. App. P. 10 Application For Extraordinary
Appeal Or, Alternatively, Tenn. Sup. Ct. R. 10B Petition For Recusal Appeal.” The petition was filed under
docket No. M2020-00804-COA-R10-CV. In our order of June 10, 2020, we requested the Sanctuary file
an answer and address the propriety of combining a Tenn. R. App. P. 10 Application for Extraordinary
Appeal with a Tenn. Sup. Ct. R. 10B Petition for Recusal Appeal. In short, the Sanctuary stated that we
should deny and dismiss the Application for Extraordinary Appeal and treat this proceeding as a Petition
for Recusal Appeal. Alternatively, the Sanctuary stated that this court should separate the matters because
“a Tenn. Sup. Ct. R. 10B petition may only be considered in conjunction with other issues in a Tenn. R.
App. P. 3 appeal as of right.” In our order of June 26, 2020, we separated the two matters and the Clerk
assigned a separate case number to the Petition for Recusal Appeal.


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       Having considered the answer along with the petition and supporting documents,
we have determined that neither additional briefing, nor oral argument is necessary, and
we elect to act summarily on the appeal in accordance with Tenn. Sup. Ct. R. 10B, §§ 2.05
and 2.06.

                                          ANALYSIS

        Ms. Buckley contends the trial court’s explanation of its reasons for granting the
new trial, made months later in response to a motion for recusal, creates the appearance of
bias. More specifically, Ms. Buckley contends the trial court’s “sudden change of course
in this case, disclosing her reasons for granting a new trial only when it became apparent
she could be removed from the case pursuant to Tenn. R. Civ. P. 59.06 if she did not,
creates the appearance that the judge is not a disinterested neutral third-party but an
interested participant[.]” Ms. Buckley goes on to state that this change of course
“undermines ‘public confidence in the justness of civil procedure.’”

       The Sanctuary contends that the trial court’s decision to grant a new trial “because
of the prejudicial conduct of the other party” is “not one that prompts recusal.”

        The issue for us to consider is not whether the trial court erred by stating, for the
first time, in response to a motion for recusal, its reasons for granting the motion for a new
trial several months earlier. In a Tenn. Sup. Ct. R. 10B appeal, “[t]he only issue [the
appellate court] may consider . . . is whether the trial judge should have granted [the]
motion to recuse.” Elseroad v. Cook, 553 S.W.3d 460, 462 (Tenn. Ct. App. 2018) (citing
Duke, 398 S.W.3d at 668). Therefore, the issue before us is whether “a person of ordinary
prudence in the judge’s position, knowing all of the facts known to the judge, would find
a reasonable basis for questioning the judge’s impartiality.” Davis v. Liberty Mut. Ins. Co.,
38 S.W.3d 560, 564 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn.
Crim. App. 1994)). If the answer is “yes,” then the motion to recuse should be granted. Id.
at 565.

                         I. Tennessee Rule of Civil Procedure 59.06

       As an initial matter, we agree with Ms. Buckley’s assertion that—in the absence of
an explanation for granting a new trial—Rule 59.06 required the trial judge to recuse
herself.

        As this court explained in Cooper v. Tabb, “[w]hen faced with a motion for a new
trial asserting that the verdict is against the weight of the evidence, the trial court is called
upon to independently weigh the evidence and determine whether it preponderates in favor
of or against the verdict.” 347 S.W.3d 207, 220 (Tenn. Ct. App. 2010) (citing Woods v.
Herman Walldorf & Co., 26 S.W.3d 868, 873 (Tenn. Ct. App. 1999) (other citations


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omitted)). “This role has been likened to acting as a thirteenth juror[.]” Id. As this court
reasoned in Mize v. Skeen, while acting as the “thirteenth juror,” the trial judge “is not only
required to approve or disapprove of the verdict but is charged with independently
weighing the evidence and determining therefrom whether the evidence preponderates in
favor or against the jury verdict.” 468 S.W.2d 733, 736 (Tenn. Ct. App. 1971) (citations
omitted). “[I]f the trial judge is dissatisfied with the verdict, the verdict must be set aside.”
Cooper, 347 S.W.3d at 221 (citing Holden v. Rannick, 682 S.W.2d 903, 905 (Tenn. 1984)).

       As Ms. Buckley acknowledges, “the trial court has such broad discretion that it is
not bound to give reasons for its action in granting or denying a new trial based on the
preponderance of the evidence.” Id. When a trial judge approves or disapproves of the
verdict without comment, “the appellate court will presume that the trial judge has
adequately performed [her] function as the thirteenth juror.” Id. (citations omitted).
Accordingly, “[i]f the trial judge does not give a reason for [her] action, the appellate courts
will presume [s]he did weigh the evidence and exercised [her] function as thirteenth juror.”
Mize, 468 S.W.2d at 736 (citations omitted).

       These legal principles set the stage for us to consider the import of the
straightforward language of Rule 59.06, which states, “If the trial court grants a new trial
because the verdict is contrary to the weight of the evidence, upon the request of either
party the new trial shall be conducted by a different circuit judge or chancellor.”
Tenn. R. Civ. P. 59.06 (emphasis added). Thus, when a trial judge grants, without
comment, a motion for a new trial asserting that the verdict is against the weight of the
evidence, the trial judge must grant a request for a different judge in the new trial.

        In this case, the Sanctuary filed a motion for new trial, asserting the verdict was
contrary to the weight of the evidence. In its order of September 27, 2019, the trial court
granted the motion without comment, leading to a presumption that the judge granted a
new trial because the verdict was contrary to the weight of the evidence. Accordingly, Ms.
Buckley filed a motion pursuant to Rule 59.06, asking for another judge to preside over the
next trial. At that point, the judge was under an affirmative duty to recuse herself from the
case and allow another judge to preside.2 However, the judge denied Ms. Buckley’s motion,
        2
          We acknowledge but disagree with the Sanctuary’s contention that a Rule 59.06 motion is
inapplicable to a recusal motion. As support, the Sanctuary cites to Baker v. Hooper, 50 S.W.3d 463 (Tenn.
Ct. App. 2001). In pertinent part, Baker states:

        The Trial Judge did not abuse his discretion in declining to recuse himself. The Plaintiff’s
        reliance on Tennessee Rule of Civil Procedure 59.06 as grounds for recusal is misplaced.
        This Rule provides for a new trial where a jury verdict is against the weight of the evidence,
        and is therefore inapplicable to the case at bar.

Id. at 467. We find the Sanctuary’s reliance on the foregoing is misplaced because the court’s reasoning in
Baker was based on the fact that the case was tried without a jury; thus, Rule 59.06 did not apply. Id.



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explaining that the new trial was granted based solely on the statements of Ms. Buckley’s
counsel in closing arguments, and refused to step aside from the case.

                                  II. Appearance of Impartiality

        Ms. Buckley contends the timing of the trial court’s explanation for granting a new
trial creates the appearance of bias. The trial court’s explanation that the new trial was
granted based solely on the statements of Ms. Buckley’s counsel was not in response to a
motion for a new trial or a motion to alter or amend the order granting a new trial. Instead,
it was provided in response to a motion for recusal.

       As stated, a trial judge should step aside if “a person of ordinary prudence in the
judge’s position, knowing all of the facts known to the judge, would find a reasonable basis
for questioning the judge’s impartiality.” Davis, 38 S.W.3d at 564–65 (quoting Alley, 882
S.W.2d at 820).

        The relevant portion of the Code of Judicial Conduct provides:

        (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:

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

Tenn. Sup. Ct. R. 10, RJC 2.11(A)(1).3 Thus, the question is whether there is a reasonable
basis for questioning the trial court’s impartiality when the court refused to state a reason
for its prior decision until it was faced with mandatory disqualification pursuant to Rule
59.06.

        We find it significant that seven months prior to the filing of Ms. Buckley’s motion
for recusal, the trial court granted a new trial without stating the grounds for its decision.
Ms. Buckley then timely filed a motion to alter or amend the order granting the motion for
a new trial in which she specifically asked the court to state its reasons for granting a new
trial. This motion afforded the trial court another opportunity to state its reason for granting
a new trial; yet, once again, the trial court reaffirmed its grant of a new trial without stating
its reasons. The relevant timeline, stated summarily in outline form, leading up to the Rule
59.06 motion and the Motion for Recusal is as follows:

        3
         “Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be
questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply.”
Tenn. Sup. Ct. R. 10, RJC 2.11(A), cmt. 1.


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 April 22, 2019: The final judgment was entered after the jury rendered a verdict
  in favor of Ms. Buckley.

 May 21, 2019: The Sanctuary filed a motion for a new trial.

 July 8, 2019: The trial court held a hearing on the motion for a new trial

 August 7, 2019: At the request of the trial court, the Sanctuary filed a
  supplemental brief to address Ms. Buckley’s contention that the issue regarding
  the nonpayment of property taxes was waived during closing arguments. August
  19, 2019: Ms. Buckley filed a response addressing the same issue.

 September 27, 2019: Six weeks later, the trial court entered an order granting a
  new trial without stating the grounds upon which the Sanctuary’s motion was
  granted and without addressing the waiver issue for which the trial court had
  requested supplemental briefing.

 October 17, 2019: Ms. Buckley filed a motion to alter or amend the order
  granting a new trial in which she asked the trial court to clarify “the underlying
  basis of the Court’s ruling in order to determine whether the new trial is governed
  by Tenn. R. Civ. P. 59.06.”

 February 3, 2020: The trial court entered an order setting a deadline for the
  Sanctuary to respond by March 2, 2020. March 2, 2020: The Sanctuary filed a
  response.

 March 25, 2020: The trial court entered an order denying Ms. Buckley’s motion
  to alter or amend without stating its reasons and without stating the grounds on
  which it granted a new trial.

 Ms. Buckley then filed a motion for trial before another judge pursuant to Tenn.
  R. Civ. P. 59.06 and a motion for recusal pursuant to Tenn. Sup. Ct. Rule 10B,
  § 1.01. The motions were based on the ground that, by granting the motion for a
  new trial without explanation, the trial judge was presumed to have weighed the
  evidence and found the jury’s verdict to be against the weight of the evidence.
  The Sanctuary timely filed a response.

 May 18, 2020: The trial court denied Ms. Buckley’s motion for recusal, and for
  the first time, the court stated its reasons for granting a new trial.




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        Although the court was “not bound to give reasons for its action in granting or
denying a new trial,” the court’s silence on the issue created a presumption that it granted
a new trial because the weight of the evidence was against the verdict. See Cooper, 347
S.W.3d at 220–21. As a consequence, upon the filing of Ms. Buckley’s Rule 59.06 motion,
the trial court was disqualified from presiding over the new trial. As Ms. Buckley contends,
the trial court only stated a reason for granting a new trial after Ms. Buckley invoked her
right under Tenn. R. Civ. P. 59.06 to have another judge preside over the new trial.

       Considering the unique facts and circumstances of this case, they give the
impression that the court’s decision to belatedly provide a reason for granting a new trial
was to avoid disqualification. Accordingly, we have determined that a person of ordinary
prudence, knowing all the facts known to the judge, would find a reasonable basis for
questioning the judge’s impartiality based on the facts of this case. See Davis, 38 S.W.3d
at 564; see also Alley, 882 S.W.2d at 820; Tenn. Sup. Ct. R. 10, RJC 2.11(A). Accordingly,
we reverse the decision of the trial court and remand with instructions to grant the Motion
for Recusal and for the case to be assigned to another judge or chancellor.

                                     IN CONCLUSION

       The judgment of the trial court is reversed, and this matter is remanded with
instructions for the assignment of another judge or chancellor to preside over this case.
Costs of appeal are assessed against the Sanctuary of Tennessee, Inc.


                                                  ________________________________
                                                  FRANK G. CLEMENT JR., P.J., M.S.




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