               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                          Assigned on Briefs April 11, 2016


 JUDY CHILDRESS, ET AL. v. UNITED PARCEL SERVICE INC., ET AL.

                   Appeal from the Circuit Court for Dyer County
                    No. 2015-CV-38     William B. Acree, Judge

                         ________________________________

               No. W2016-00688-COA-T10B-CV – Filed June 3, 2016
                     _________________________________


This accelerated interlocutory appeal results from the trial court’s denial of Appellant’s
motion for recusal. Because Appellants’ did not provide the mandatory affidavit in support
of their motion for recusal as required by Tennessee Supreme Court Rule 10B, we affirm the
judgment of the trial court.

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

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which D. Michael Swiney,
C.J., and ARNOLD B. GOLDIN, J., joined.

Robert A. Cox and Ronna Kinsella, Memphis, Tennessee, for the appellants, United Parcel
Service, Inc. and Matthew Medley.

Robert V. Redding, Jackson, Tennessee and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for
the appellee, Judy Childress.

                                       OPINION

                                     I. Background

      This case arises from a motor vehicle accident between Don W. Childress and a
United Parcel Service (“UPS”) vehicle operated by Matthew Medley (together with UPS,
“Appellants”). The accident occurred on August 29, 2012, in Dyer County, Tennessee. Mr.
Childress died approximately three months later. Following his death, Mr. Childress’s
widow, Judy Childress (“Appellee”) filed a lawsuit against Appellants seeking damages for
Appellants’ alleged negligence and injuries to Mr. Childress. The Appellants filed an answer
denying any liability.

        After a lengthy procedural history, which is not relevant to this appeal, the case was
assigned, on November 10, 2015, to Senior Judge William B. Acree, Jr. During a status
conference on December 15, 2015, Judge Acree made certain disclosures regarding his
relationship to the Childress family, see infra. As a result of these disclosures, Appellants
filed a motion for recusal on January 21, 2016. Mrs. Childress opposed the motion and filed
a response on March 21, 2016. The Appellants’ motion for recusal was heard on March 22,
2016. On March 23, 2016, the trial court entered an order denying the motion for recusal.
In its order, the trial court stated, in pertinent part:

              Defendant’s motion for recusal is based on the Court’s statements to the
       parties during a December 15, 2015 status conference call. During that call,
       the Court disclosed the following facts:

       1.     The court was acquainted with the plaintiff, Judy Childress, from high
              school. Mrs. Childress is two or three years older and graduated around
              1960. The Court did not see her again until Don Childress’s funeral.
       2.     The Court was acquainted with the decedent, Don Childress, because of
              the Court’s acquaintance with Judy Childress. The Court spoke to Mr.
              Childress on one occasion after 1960 when, as a lawyer, he took Mr.
              Childress’s discovery deposition in a civil suit brought by Mr.
              Childress. The Court represented the adverse party.
       3.     The Court has known Chancellor Tony Childress since Chancellor
              Childress took the bench. The Court’s association with the Chancellor
              is primarily through meetings of the Tennessee Judicial Conference.
       4.     The Court attended the funeral of Mr. Childress out of respect for
              Chancellor Childress.
       5.     The Court had one conversation with Chancellor Childress about the
              accident which is the subject of this suit. That conversation was at or
              near the time of the funeral and lasted for one to two minutes.
              Chancellor Childress volunteered what happened as he understood it
              (he was not an eyewitness). The Court did not respond or ask questions
              and does not remember what was said.

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Chancellor Tony Childress is the son of the decedent, Don Childress and the Appellee;
Chancellor Childress has served as a chancellor in Dyer County since 2008. The Appellants
filed a timely petition for recusal appeal on April 7, 2016. Appellants’ petition for recusal
appeal was accompanied by several documents that were filed in the trial court, including
Appellants’ motion for recusal and the trial court’s order denying the recusal motion.
Although Appellee filed a response to Appellants’ petition requesting that the petition be
dismissed, she did not take issue with Appellants’ recitation of the basic facts surrounding
the case. After a review of the petition and a response filed by Appellee, we find that oral
argument is unnecessary. As such, we have elected to act summarily on this appeal in
accordance with sections 2.05 and 2.06 of the Tennessee Supreme Court Rule 10B and will
consider the case only on the submissions of the parties and the attachments thereto.

                                         II. Issues

       When reviewing a Tennessee Supreme Court Rule 10B appeal, the only order this
Court may review is the trial court’s order that denies a motion to recuse. Duke v. Duke, 398
S.W.3d 665, 668 (Tenn. Ct. App. 2012) (“Pursuant to [Tennessee Supreme Court Rule 10B],
we may not review the correctness or merits of the trial court’s other rulings[.]”).
Accordingly, the sole issue is whether the trial court erred in denying the Defendants’ motion
for 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).

                                 III. Standard of Review

        Citing State v. Hines, 919 SW 2d 573, 578 (Tenn. 1995), the trial court’s order states
that “decisions concerning whether recusal is warranted . . . will not be reversed on appeal
unless a clear abuse appears on the face of the record.” Although recusal decisions were
once reviewed under an abuse of discretion standard, that is no longer the standard. The
2012 adoption of Tennessee Supreme Court Rule 10B requires appellate courts to 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.” Williams by & through Rezba, 2015 WL
2258172, at *5 (citing McKenzie v. McKenzie, No. M2014-00010-COA-T10B-CV, 2014 WL
575908, at *3 (Tenn. Ct. App. Feb. 11, 2014)).

                                        IV. Analysis

      The Appellants argue that the trial judge should have recused himself under Tennessee
Supreme Court Rule 10, Canon 2, Rule 2.11(A). That Rule provides, in pertinent part:
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               A Judge shall disqualify himself or herself in any proceeding in which
               the judge’s impartiality might reasonably be questioned….

Tenn. Sup. Ct. R. 10, Canon 2, Rule 2.11(A). Comment 1 to the rule states that “[u]nder this
Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be
questioned, regardless of whether any of the specific provisions … apply.” Tenn. Sup. Ct.
R. 10, Canon 2, Rule 2.11, cmt.1.

       In this case, Appellants are not accusing Judge Acree of actual bias or impropriety.
Rather, they argue that “a person of ordinary prudence would certainly find a reasonable
basis for questioning the impartiality of the [trial] court” under the circumstances disclosed
by the trial court to the parties during the December 15, 2015 status conference. The trial
judge, in denying Appellants’ motion to recuse, candidly revealed that “[t]he [trial] [c]ourt
attended the funeral of Mr. Childress out of respect for Chancellor Childress.” The trial judge
further revealed that “[t]he [trial] [c]ourt had one conversation with Chancellor Childress
about the accident which is the subject of this suit. That conversation was at or near the time
of the funeral. . . .” The crux of the Appellants’ motion to recuse is that there is an
appearance of impropriety on the part of the trial court.

       Before we can reach the question of whether the trial court’s actions give rise to an
appearance of impartiality, we must first address Appellee’s argument that the motion for
recusal was defective, ab initio, because it was not accompanied by a supporting affidavit.
Tennessee Supreme Court Rule 10B Section 1.01 provides that a motion to recuse “shall be
supported by an affidavit under oath or a declaration under penalty of perjury on personal
knowledge....” Tenn. Sup.Ct. R. 10B, § 1.01 (emphasis added). The record provided by the
Appellants’ does not contain an affidavit as required by Section 1.01. The Tennessee
Supreme Court has recognized that when the word “shall” is used in a statute or rule, it is
ordinarily construed as being mandatory and not discretionary. Gabel v. Lerma, 812 S.W.2d
580 (Tenn. 1990); accord Stubbs v. State, 393 S.W.2d 150 (Tenn. 1965). In Elliott v. Elliott,
No. E2012-02448-COA-10B-CV, 2012 WL 5990268 (Tenn. Ct. App. Nov. 30, 2012), this
Court specifically held that “it is imperative that litigants file their petitions for recusal appeal
in compliance with the mandatory requirements of Rule 10B in the first instance,” and further
stated that the Rule 10B “makes [the affidavit in support of the motion for recusal]
mandatory.” Id. at *3 (citing Tenn. Sup.Ct. R. 10B, § 1.01). Likewise, in Johnston v.
Johnston, No. E2015-00213-COA-T10B-CV, 2015 WL 739606, at *2 (Tenn. Ct. App. Feb.
20, 2015), we held that

       [t]he record submitted by Defendant with his petition for recusal appeal does
       not include any affidavit filed in support of the Motion to Recuse, which Rule
       10B makes mandatory. See Tenn. Sup.Ct. R. 10B, § 1.01 (“The motion shall
       be supported by an affidavit under oath or a declaration under penalty of
                                             -4-
       perjury on personal knowledge and by other appropriate materials.”). Without
       this necessary part of the record, we cannot conclude that the Trial Court erred
       in denying the Motion to Recuse.

The Johnston Court went on to explain:

       We emphasize to Defendant that the accelerated nature of these interlocutory
       appeals as of right requires meticulous compliance with the provisions of Rule
       10B regarding the content of the record provided to this Court so as to allow
       this Court to meet its obligations under section 2.06 of the rule, which requires
       this Court to decide these appeals “on an expedited basis.” As such, it is
       imperative that litigants file their petitions for recusal appeal in compliance
       with the mandatory requirements of Rule 10B in the first instance.

Id.; see also In re American Bonding Company, No. M2014–00249-CCA-R3-CD, 2015 WL
832513, at *6 (Tenn. Crim. App. Feb. 26, 2015) (holding that the Rule 10B affidavit
requirement is mandatory and the absence of the affidavit may result in waiver of the recusal
issue on appeal). Tipton v. Constance, No. E2014-00143-COA-T10B-CV, 2014 WL 605434
(Tenn. Ct. App. Feb. 14, 2014), perm. app. denied (Tenn. May 9, 2014).

       Here, the appellate record is procedurally flawed in that it does not contain the
required affidavit in support of the motion to recuse. In light of the foregoing authority, we,
therefore, conclude that the record is insufficient to determine the issues raised by the
Appellants in this appeal
                                       V. Conclusion

       Having determined that the record provided by the Appellants is insufficient to
support a finding of error on the part of the trial court, we affirm the trial court’s order
denying the motion for recusal. The case is remanded to the trial court for such further
proceedings as are necessary and consistent with this Opinion. Costs on the appeal are
assessed against the Appellants, United Parcel Service, Inc., Matthew Medley and their
surety, for all of which execution may issue if necessary.



                                                   _________________________________
                                                   KENNY ARMSTRONG, JUDGE




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