                                                                                       05/31/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                         Assigned on Briefs March 27, 2019

           LAURIE ELIZABETH LEE v. BRYAN MITCHELL LEE

                 Appeal from the Chancery Court for Knox County
             No. 191643-2      Clarence E. Pridemore, Jr., Chancellor
                     ___________________________________

                         No. E2019-00538-COA-T10B-CV
                      ___________________________________


This accelerated interlocutory appeal follows the denial of a motion to recuse. The party
seeking recusal claimed that an in-limine motion was granted after an ex parte
communication between the chancellor and the counsel moving in limine. Additionally,
the party claimed that the court showed partiality by not granting a continuance of the
hearing on the in-limine motion when her counsel was unable to attend due to illness.
We affirm the denial of the recusal request.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Jason S. Randolph, Dandridge, Tennessee, for the appellant, Laurie Elizabeth Lee.


                                       OPINION

       In the Chancery Court for Knox County, Tennessee, Laurie Elizabeth Lee
petitioned to modify a permanent parenting plan. The chancery court set the matter for a
December 5, 2018 trial. Two weeks prior to the trial, the father, Bryan Mitchell Lee,
filed an in-limine motion, which was also set for December 5. The in-limine motion was
not included with the petition for recusal appeal.

       On December 4, Ms. Lee’s counsel, Jason Randolph, fell “ill with a severe
stomach virus which had ravaged Jefferson County.” Mr. Randolph much later explained
that he “was stricken with the Mother of all viruses rendering him unable to move due to
cramping and pain” and that he “was unable to concoct a pleading and simply texted his
assistant to make the urgent notification.” On the afternoon of December 4, the chancery
court received the urgent notification, a facsimile from Mr. Randolph’s assistant advising
the court that Mr. Randolph was ill and was unable to appear in court the next day. The
facsimile was also not included with the petition for recusal appeal.

       The following day the chancery court continued the trial on the petition to modify
to January 31, 2019. But the court heard the in-limine motion. Based upon, among other
things, “the argument of counsel,” the court granted the in-limine motion and “barred
[Ms. Lee] from calling any witnesses to testify at the trial . . . other than herself.” The
court also awarded Mr. Lee costs and attorney’s fees, leaving the determination of the
proper amount until trial. In its order entered on December 18, 2018, the court
acknowledged the facsimile from Mr. Randolph’s assistant but noted that “no formal
request or Motion for Continuance of the trial date was made by [Ms. Lee] or her
counsel[] and both [Ms. Lee] and her counsel failed to attend court on the trial date
without seeking leave of court to do so.”

      On January 31, the trial did not take place as scheduled. Apparently,
Mr. Randolph “had a series of juries to prepare for,” so the court reset the trial for
Tuesday, March 5, 2019.

       On Friday, March 1, Ms. Lee moved to recuse the chancellor. As grounds, the
motion cited the court’s order granting the in-limine motion. From the order, Ms. Lee
concluded that “[e]vidently, Father’s counsel appeared [at the hearing] and had Exparte
Communication which resulted in an Order being issued” because the order stated it was
based upon “the argument of counsel.” The motion went on that, “by having Exparte
Communication and hearing [sic] without hearing all witnesses and facts,” the court
“failed to consider all of the facts.” According to Ms. Lee, “[t]he failure of the Court to
allow the case to be heard completely before making a ruling shows a lack of impartiality
and impairs the fairness of the matter pending before the Court.”

       Ms. Lee also faulted the court for not treating the facsimile of Mr. Randolph’s
assistant as a request for a continuance of the hearing. Describing the court’s
requirement of a motion for continuance “when illness strikes suddenly” as “draconian,”
Ms. Lee submitted that “[i]t [wa]s obvious the Court had appeared and acted partially in
this case to my . . . prejudice.”

       The chancery court denied the recusal request. The court acknowledged that
counsel for Mr. Lee appeared at the hearing on the in-limine motion and argued in the
absence of both Ms. Lee and her counsel. But the court did not consider argument in
open court ex parte communication. The court also again acknowledged the letter sent
from Mr. Randolph’s office the day prior to the hearing. But it noted that no motion to
continue was filed and that there was no agreement between the parties to continue the
motion hearing or the trial.
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        As is her right, Ms. Lee seeks accelerated, interlocutory review of the denial of the
motion to recuse. See TENN. SUP. CT. R. 10B, § 2.01. She frames the issue on appeal in
the following manner: “Whether the Trial Court erred in not recusing himself after
holding a hearing without Appellant or her attorney present.” See id. § 2.03(a) (requiring
a petition for recusal appeal to contain a statement of the issues for review).

                                                II.

                                                A.

       Rule 10B of the Rules of the Supreme Court of Tennessee governs the procedure
for “determin[ing] whether a judge should preside over a case.” TENN. SUP. CT. R. 10B.
In an accelerated interlocutory appeal, our review is limited to the trial court’s ruling on
the motion for disqualification or recusal. See id. § 2.01; Duke v. Duke, 398 S.W.3d 665,
668 (Tenn. Ct. App. 2012) (“[T]he only order we may review is the trial court’s order
that denies a motion to recuse.”). We review a trial judge’s ruling on a motion to recuse
de novo. TENN. SUP. CT. R. 10B § 2.01.

       In an accelerated interlocutory appeal, we may request an answer from the other
parties and briefing. Id. § 2.05. We may also set oral argument. See id. § 2.06. After a
review of Ms. Lee’s petition for recusal appeal and supporting documents, we have
determined that an answer, additional briefing, and oral argument are unnecessary. Thus,
we act summarily on the appeal. See id. § 2.05.

                                                B.

       In Tennessee, litigants “have a fundamental right to a ‘fair trial before an impartial
tribunal.’” Holsclaw v. Ivy Hall Nursing Home, Inc., 530 S.W.3d 65, 69 (Tenn. 2017)
(quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)); see also TENN. CONST. art.
VI, § 11. Under the Code of Judicial Conduct, a judge must “disqualify himself or
herself in any proceeding in which the judge’s impartiality might reasonably be
questioned.” TENN. SUP. CT. R. 10, Rule 2.11(A). “[T]he test for recusal is an objective
one . . . .” State v. Cannon, 254 S.W.3d 287, 307 (Tenn. 2008). Recusal is required
“when 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, 564-65 (Tenn. 2001)
(quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). The decision to
recuse is vested in the judge’s discretion.1 State v. Hester, 324 S.W.3d 1, 72 (Tenn.
2010).

       1
         Ms. Lee does not argue that recusal was mandatory under either Article 6, Section 11 of the
Tennessee Constitution or Tennessee Code Annotated § 17-2-101 (2009). See Hester, 324 S.W.3d at 72.
                                                 3
       To seek disqualification or recusal, a party must come forward with some
evidence that would give a person of ordinary prudence in the judge’s position a
reasonable basis for questioning the judge’s impartiality. See TENN. SUP. CT. R. 10B
§ 1.01 (requiring motions seeking disqualification or recusal to be supported by an
affidavit or declaration “and by other appropriate materials”); Davis v. Tenn. Dep’t of
Emp’t Sec., 23 S.W.3d 304, 313-14 (Tenn. Ct. App. 1999) (on petition for rehearing).
Ms. Lee came forward with her own affidavit and the chancery court’s order granting the
in-limine motion. But neither piece of “evidence” supplied a basis for questioning the
chancellor’s impartiality.

       Affidavits supporting motions to recuse must be “under oath” and “on personal
knowledge.” TENN. SUP. CT. R. 10B § 1.01. Ms. Lee’s affidavit nominally complies
with Supreme Court Rule 10B. It is executed under oath. And the personal knowledge
requirement is perhaps satisfied in the sense that the affidavit may describe Ms. Lee’s
actual feelings, beliefs, and motivations.

        As evidence of impartiality, however, the affidavit is thin gruel. It consists of four
short paragraphs, only the last of which is longer than a single sentence. The first
paragraph of the affidavit provides “[t]hat during the hearing of December 5, 2018, my
counsel was sick and could not appear and the [Chancery] Court had communication with
Counsel for the Father and the father outside of our presence.” Ms. Lee does not take the
trouble to explain how she had personal knowledge of the facts asserted in the first
paragraph of her affidavit. So we decline to treat the statement as competent evidence of
anything. In the second paragraph of her affidavit, Ms. Lee expresses her feeling that she
was not given a fair and impartial hearing and that she was prejudiced by not contesting
the in-limine motion at the hearing. In the third paragraph, Ms. Lee shares her belief that
the chancellor should recuse himself because his actions violated various canons of the
Code of Judicial Conduct. See TENN. SUP. CT. R. 10. Finally, the last paragraph of the
affidavit includes the assertion that the motion to recuse is not being offered for any
improper purpose and a request that the chancellor recuse himself. See TENN. SUP. CT. R.
10B § 1.01 (requiring a motion seeking disqualification or recusal to “affirmatively state
that it is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation”).

       The order granting the in-limine motion also does not evidence partiality. The
order does reference that the hearing on the in-limine motion took place on December 5,
2018, despite the facsimile from Mr. Randolph’s assistant. And, as Ms. Lee points out,
the order also reflects that Mr. Lee and his counsel appeared at the hearing and that the
motion was granted after the argument of counsel. From those references, Ms. Lee
submits that the chancellor must have engaged in ex parte communications. Under Rule
2.9 of the Code of Judicial Conduct, except in certain limited circumstances, “[a] judge
shall not initiate, permit, or consider ex parte communications, or consider other
                                            4
communications made to the judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter.” TENN. SUP. CT. R. 10, Rule 2.9(A).

       We disagree with Ms. Lee’s characterization of the hearing or the arguments of
counsel as ex parte. Ex parte typically means without involvement or knowledge of all
the parties. See Ex parte, BLACK’S LAW DICTIONARY (10th ed. 2014). In denying the
motion to recuse, the chancery court specifically found that Ms. Lee had notice of the
hearing on the in-limine motion. And Ms. Lee has made no assertion that she was not
provided the opportunity to be heard or that any communications by Mr. Lee or his
counsel to the court were outside the record. In re Anonymous, 729 N.E.2d 566, 567-68
(Ind. 2000) (“A communication is ex parte if made by a party outside the record without
giving other parties notice or an opportunity to contest.”); see also Ex parte proceeding,
BLACK’S LAW DICTIONARY. Ms. Lee’s complaint is that her opportunity to be heard was
lost when her counsel fell ill.

       Finally, Ms. Lee submits that the fact that the hearing on the in-limine motion took
place at all “shows a lack of impartiality.” By not continuing the hearing on the motion
along with the trial, she claims the court acted without hearing all the witnesses and
considering all the facts. As our supreme court explained, “[a] trial judge’s adverse
rulings are not usually sufficient to establish bias.” Cannon, 254 S.W.3d at 308. That is
true “even if [the adverse rulings are] erroneous, numerous and continuous”; there must
be something more to justify recusal. Alley, 882 S.W.2d at 821; see also Cannon, 254
S.W.3d at 308. Here, Ms. Lee failed to establish the “something more,” beyond the
denial of the continuance, necessary to justify recusal.

                                                   III.

       Ms. Lee failed to come forward with any evidence that would give a person of
ordinary prudence in the chancellor’s position a reasonable basis for questioning the
chancellor’s impartiality. Thus, we affirm the denial of the motion to recuse.2


                                                          _________________________________
                                                          W. NEAL MCBRAYER, JUDGE




        2
          Because our review is limited to the ruling on the motion for recusal, we offer no opinion on the
propriety of either the hearing on or the grant of the in-limine motion. See TENN. SUP. CT. R. 10B, Rule
§ 2.01.
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