                                                                                             08/28/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs August 7, 2018

BARBARA PATTERSON, INDIVIDUALLY AND AS SURVIVING SPOUSE
 OF DAVID CHARLES PATTERSON, DECEASED V. STHS HEART, LLC

                  Appeal from the Circuit Court for Davidson County
                      No. 15C-1058        Kelvin D. Jones, Judge
                      ___________________________________

                           No. M2018-01419-COA-T10B-CV
                        ___________________________________


Appellant sought disqualification of the trial judge pursuant to Tennessee Supreme Court
Rule 10B. The trial judge denied the motion to recuse. Finding no error, we affirm.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and RICHARD H. DINKINS, JJ., joined.

C. Bennett Harrison, Jr. and Sean C. Wlodarczyk, Nashville, Tennessee, for the appellant,
STHS Heart, LLC.

Phillip N. Elbert and Jeffrey A. Zager, Nashville, Tennessee, for the appellee, Barbara
Patterson.

                                         OPINION

                           I.     FACTUAL BACKGROUND

        The facts of this case are largely undisputed. The underlying case is a healthcare
liability action. STHS Heart, LLC (“STHS”) filed a motion for partial summary judgment
in April 2018, and the trial court heard the motion on June 15, 2018. The transcript of the
hearing that is included with the petition indicates that the trial court said, with respect to
the motion for partial summary judgment, “[t]he Court, based upon arguments of counsel,
does find there are disputes over material facts. And so the Court will respectfully deny
the motion.” Counsel for STHS then said, “[w]ith all due respect, Your Honor, I need you
to give me your rulings, findings of fact and conclusions,” to which the trial court
responded “we’ll do that.” According to Appellant’s petition, the trial court’s law clerk
stopped plaintiff’s counsel in the hallway after the June 15, 2018 hearing and asked
plaintiff’s counsel to submit an order denying the motion for summary judgment.

        Counsel for plaintiff submitted, on June 25, 2018, a three page “Proposed Order
Denying Defendant’s Motion for Partial Summary Judgment and Defendant’s Motion to
Strike,” and STHS objected to the proposed order on the basis of the Tennessee Supreme
Court’s decision in Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014). On
July 5, 2018, STHS’s counsel received an email from plaintiff’s counsel that was directed
to two members of the trial court’s staff but also copied to defense counsel. The email
from plaintiff’s counsel to the trial court staff began with “[t]o follow up from our
conversation last week, attached please find the requested proposed findings of fact and
conclusions of law with additional citations to the record.” Attached to the July 5 email
was a ten page proposed order denying partial summary judgment. Counsel for STHS
responded to the email and asked the trial court staff to explain the conversations the trial
court staff had with plaintiff’s counsel. The trial court’s law clerk responded to the email
and stated, “[a]fter the plaintiffs submitted their proposed order and the defense filed an
objection to the proposed order, I called [plaintiff’s counsel] and asked him to submit
proposed findings of facts and conclusions of law, as the prevailing party. The Court will
draft its own order regarding the motion for summary judgment.” The record before us
does not contain the order the trial court actually entered deciding the motion for partial
summary judgment.

       STHS filed its motion to recuse on July 9, 2018, arguing that the trial court’s ex
parte communication warranted recusal.1 In the trial court’s order denying the motion to
recuse, the trial court determined that the “ex parte communications initiated by the court
were for administrative purposes only in asking the prevailing party to submit proposed
findings of facts and conclusions of law for the Court’s reference in preparing its order
denying the Defendant’s Motion for Partial Summary Judgment.” The trial court noted
that no “substantive, procedural, or tactical advantage” was gained by plaintiff’s counsel
because the trial court intended to draft its own order denying the motion for summary
judgment and the defendant was provided with the requested document and given an
opportunity to respond. This timely appeal followed.

                              II.     STANDARD OF REVIEW

       When reviewing an appeal pursuant to Tennessee Supreme Court Rule 10B, we
limit our review to whether the trial court erred in denying the appellant’s motion for

       1
           STHS also argued that the trial court impermissibly considered extra-judicial
information (namely, the STHS website) in deciding the motion for partial summary judgment.
The trial court denied STHS’s motion to recuse on this basis as well. On appeal, STHS raises no
issue in this regard. Therefore, that particular issue is waived, and we will not analyze it further.
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recusal. 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
perm. app. filed). We do not review the merits or correctness of the trial court’s other
rulings. Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012). “[W]e review the
denial of a motion for recusal under a de novo standard of review.” Id. (citing Tenn. Sup.
Ct. R. 10B § 2.06).


       The appellate court may order the other parties to answer the appellant’s petition
and file any necessary documents, but it is also authorized to adjudicate the appeal
summarily, without an answer from other parties. Tenn. Sup. Ct. R. 10B § 2.05. Having
reviewed Appellant’s petition and supporting documents, we have determined that an
answer and additional briefing is unnecessary, and we have elected to act summarily on
the appeal in accordance with Tennessee Supreme Court Rule 10B, § 2.05. Oral
argument is likewise unnecessary.


                                   III.   DISCUSSION

       On appeal, Appellant maintains that the trial court should have recused itself “due
to actual and/or apparent bias, prejudice, and partiality.” We set forth the legal principles
applicable to this case in In Re: Samuel P., No. W2016-01592-COA-T10B-CV, 2016 WL
4547543, at *2 (Tenn. Ct. App. Aug. 31, 2016) (no perm. app. filed):

       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
       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

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       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)). Consistent adverse rulings may lead a party to wish for
       another trial judge, but they do not provide a basis for requiring the trial
       judge’s recusal from the case. Runyon v. Runyon, No. W2013-02651-
       COA-T10B, 2014 WL 1285729, at *10 (Tenn. Ct. App. Mar. 31, 2014).
       Adverse rulings usually are not sufficient to establish bias. Duke, 398
       S.W.3d at 671 (citing 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.’” Id. (citing Alley, 882 S.W.2d at
       821).


In Re: Samuel P., 2016 WL 4547543, at *2.


        It is important for us to stress what this particular appeal is not. It is not an appeal
of the trial court’s decision on Appellant’s motion for summary judgment. Nor is this an
appeal regarding whether the trial court complied with the Tennessee Supreme Court’s
directives in Smith v. UHS of Lakeside. Rather, this appeal is solely about whether the
Appellant has satisfied its burden to prove bias, prejudice, or partiality on the part of the
trial court.


       This case involves the intersection of two rules of the Code of Judicial Conduct
and a determination of whether an ex parte communication establishes partiality, bias, or
prejudice that requires the judge’s recusal. Rule 2.11 provides that a “judge shall
disqualify himself [] in any proceeding in which the judge’s impartiality might
reasonably be questioned,” including when the “judge has a personal bias or prejudice
concerning a party or a party’s lawyer[.]” Rule 2.9 provides:
                                           -4-
       (A)      A judge shall not initiate, permit, or consider ex parte
             communications, or consider other communications made to the judge
             outside the presence of the parties or their lawyers, concerning a
             pending or impending matter, except as follows:
                (1) When circumstances require it, ex parte communication for
                    scheduling, administrative, or emergency purposes, which does
                    not address substantive matters, is permitted, provided:
                    (a) The judge reasonably believes that no party will gain
                        procedural, substantive, or tactical advantage as a result of the
                        ex parte communication; and
                    (b) The judge makes provision promptly to notify all other parties
                        of the substance of the ex parte communication, and gives the
                        parties an opportunity to respond.

        We note at the outset that the trial court does not deny that it engaged in ex parte
communication; rather, the court characterized the ex parte communication as for
administrative purposes only. This case is similar to Runyon v. Runyon, 2014 WL
1285729, at *9, in which a trial court initiated ex parte communication with the guardian
ad litem and the appellant sought recusal. As in this case, the Runyon court recognized
that our duty was not to “determine whether the ex parte communications constitute[d] a
violation of RJC 2.9, only whether they mandate [the judge’s] recusal…” Id. at *9. We
went on to say that “[g]enerally, an ex parte communication requires recusal only where
it creates an appearance of partiality or prejudice against a party so as to call into question
the integrity of the judicial process.” Id.

        Here, the trial court denied STHS’s motion for summary judgment. This, in and
of itself is not proof of bias or prejudice on the part of the judge. The trial court also
requested that plaintiff’s counsel submit a proposed order and proposed findings. Again,
this alone does not establish proof of bias or prejudice. STHS seems to argue that,
because the trial court was allegedly violating the Tennessee Supreme Court’s directives
in Smith v. UHS of Lakeside, bias or prejudice is established.

       We simply find no facts in the record to establish that the trial court’s ex parte
communications mandate recusal. STHS asks many questions in its petition: “why would
the Trial Court say one thing, but then do another;” “[w]hy would the Trial Court call up
Plaintiff’s counsel, ex parte, and ask for information it had just been informed it could not
request under Lakeside;” “[w]hat possible legitimate reason could it have for doing so;”
and “[w]hy would the Trial Court instruct Plaintiff’s counsel to keep the newly requested
[proposed order] out of the record,” just to name a few. STHS goes on to say that there
are no “good” answers to these questions, so we must be “confined only to negative
ones.” This leads us to the crux of STHS’s argument on appeal: “[t]hese facts, on their
face, make it appear that the Trial Court, in an attempt to avoid its Lakeside obligations,

                                               -5-
tried to delegate its ‘high judicial function’ to provide a reason for its ruling to the
Plaintiff, and did so in a way that was seemingly intended to occur without [STHS’s]
knowledge.” However, STHS’s argument is based more on insinuation and speculation
than on actual facts. As such, we reject STHS’s argument that the trial court’s ex parte
communication with plaintiff’s counsel regarding a proposed order created an appearance
that the trial court was biased or prejudiced.

      The decision of the trial court is affirmed, and the cause is remanded for further
proceedings consistent with this Opinion. Costs on appeal are to be taxed to STHS Heart,
LLC, and its surety, for which execution may issue if necessary.


                                               _________________________________
                                               BRANDON O. GIBSON, JUDGE




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