Dan J. Marcum v. Paul F. Caruana

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned September 5, 2012

DAN J. MARCUM v. PAUL F. CARUANA, ET AL.

Appeal from the Circuit Court for Bedford County
No. 8911 Franklin L. Russell, Judge

No. M2012-01827-COA-10B-CV - Filed September 11, 2012

The defendant in this action filed a motion for recusal with the trial judge alleging bias
against both himself and his counsel. The trial judge denied the motion, and the defendant
filed this interlocutory appeal as of right pursuant to Tenn. S. Ct. R. 10B. We affirm the trial
court’s denial of the motion for recusal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.

Suzette Peyton, Brentwood, Tennessee, for the appellant, Paul F. Caruana.

Andrew Clark Rambo, Shelbyville, Tennessee, for the appellee, Dan J. Marcum.

OPINION

This appeal arises out of the denial of a motion for recusal filed more than ten
years after the commencement of the litigation. In September of 2001, Dan J. Marcum
filed his original complaint against Paul F. Caruana alleging breach of a contract to buy
shares of common stock in a Tennessee corporation, Tennessee Motors, Inc. At some
point, the plaintiff amended his complaint to add, inter alia, a shareholder derivative
claim, misrepresentation, and fraud.

On August 31, 2007, Mr. Marcum filed a motion for writ of attachment seeking to
attach funds held by the Circuit Court Clerk in a condemnation case, State ex rel. Dept. of
Transportation v. West Coast LLC. Mr. Marcum asserted that the property condemned
was actually owned by Tennessee Motors, not West Coast. Mr. Marcum subsequently
submitted, and the trial court entered, an order releasing $367,556.67 of the attached
funds to pay the first mortgage on the property, which debt was in the name of Mr.
Caruana. The history of these orders is described in State ex rel. Dept. of Transportation
v. West Coast LLC, 2009 WL 4801713 (Tenn. Ct. App. Dec. 14, 2009) (dismissing appeal
for lack of final order).

On October 12, 2007, Mr. Caruana filed a motion to quash the writ of attachment
and to disqualify opposing counsel. Following a non-evidentiary hearing on the motion,
the trial court entered an order on November 26, 2007, directing the parties to brief
additional issues and requiring both parties to be physically present at the next hearing.
The court also directed Mr. Caruaca to prepare a proposed stipulation of facts and
directed Mr. Marcum to advise Mr. Caruaca which of the facts could be stipulated and
which would need to be determined at an evidentiary hearing. Mr. Marcum stipulated
some of the facts proposed by Mr. Caruaca, but not all. The hearing never occurred.

On May 30, 2012, Mr. Marcum filed a motion to set the case for trial. Mr.
Caruana opposed setting the case on the grounds a related federal court action, in which
Mr. Caruana is a plaintiff and Mr. Marcum a defendant, was set to begin in October and
counsel would not have time to prepare. Mr. Caruana also asserted he could not afford to
travel for both the state court trial and the federal trial. At the same time, Mr. Caruana
filed the motion for recusal that is the subject of this litigation.

The trial court denied the motion on August 16, 2012, and set the case for a bench
trial to begin on September 19, 2012. Mr. Caruana filed a motion to continue the trial on
August 21, supported by an affidavit of counsel regarding her schedule and her mother’s
health. On August 28, 2012, Mr. Caruana filed with the clerk of this court a timely
petition for recusal appeal pursuant to Tenn. S. Ct. R. 10B, together with a motion to stay
the proceedings in the trial court pending resolution of the appeal.

I. A PPEALS UNDER T ENN. R. S. C T. 10B

Appeals from orders denying motions to recuse are governed by Tenn. S. Ct. R.
10B. Pursuant to Tenn. S. Ct. R. 10B, §2.01, parties are entitled to an “accelerated
interlocutory appeal as of right” from an order denying a motion for disqualification or
recusal. The appeal is effected by filing a “petition for recusal appeal” with the
appropriate appellate court. Tenn. S. Ct. R. 10B, §2.02. In civil cases other than
worker’s compensation cases, this court is the appropriate appellate court. If this court,
based on the petition and supporting documents, determines that no answer is needed, we
may act summarily on the appeal. Tenn. S. Ct. R. 10B, §2.05. Otherwise, this court may
order an answer and may also order further briefing by the parties. In addition, Tenn. S.
Ct. R. 10B, §2.06 grants this court the discretion to decide the appeal without oral
argument.

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 Pursuant to Tenn. S. Ct. R. 10B, §2.05, we have reviewed Mr. Caruana’s petition
and supporting documents, determined that an answer and additional briefing are
unnecessary, and elected to act summarily on the appeal.1 We also find oral argument
unnecessary pursuant to Tenn. S. Ct. R. 10B, §2.06. Mr. Caruana’s requests for
additional briefing and oral argument are thus denied.

The only issue before this court in an appeal under Tenn. S. Ct. R. 10B is whether
the trial court erred in denying the motion for recusal.2 We review the trial court’s recusal
decision under a de novo standard of review. Tenn. S. Ct. R. 10B, §2.06.3

II. G ROUNDS FOR R ECUSAL

Mr. Caruana’s motion for recusal alleges as grounds (1) that the trial judge “is
biased” against both Mr. Caruana and his attorney and (2) that recusal is warranted to
avoid the appearance of impropriety.

The importance of an impartial and unbiased court cannot be overstated. As the
Supreme Court has held:

Litigants, as the courts have often said, are entitled to the cold neutrality of
an impartial court. Kinard v. Kinard, 986 S.W.2d 220, 227 (Tenn. Ct.
App.1998). Thus, one of the core tenets of our jurisprudence is that
litigants have a right to have their cases heard by fair and impartial judges.
Id. at 228. Indeed, it goes without saying that a trial before a biased or
prejudiced fact finder is a denial of due process. Wilson v. Wilson, 987
S.W.2d 555, 562 (Tenn. Ct. App.1998). Accordingly, judges must conduct
themselves at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary and shall not be swayed by
partisan interests, public clamor, or fear of criticism. Tenn. Sup. Ct. R. 10,
Cannon 2(A), 3(B)(2).

1
An unordered Answer was, however, filed.

2
The merits of any other rulings, even though those rulings cited as examples of bias, are not part of
this appeal.

3
Prior to the adoption of Tenn. S. Ct. R. 10B, appellate courts reviewed recusal decisions under an
abuse of discretion standard. State v. Hester, 324 S.W.3d 1 (Tenn. 2010); Bailey v. Blount County Bd of
Educ., 303 S.W.3d at 240; State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995) (“A motion for recusal based
upon the alleged bias or prejudice of the trial judge addresses itself to the sound discretion of the trial court
and will not be reversed on appeal unless clear abuse appears on the face of the record.”)

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Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001)

[W]e have observed that “ ‘[i]f the public is to maintain confidence in the
judiciary, it is required that cases be tried by unprejudiced and unbiased
judges.’ ” State v. Rimmer, 250 S.W.3d 12, 37 (Tenn. 2008) (quoting Alley
v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). . . Leighton v.
Henderson, 220 Tenn. 91, 414 S.W.2d 419, 421 (1967) (“The purpose of
Article 6, § 11 of our Constitution is to insure every litigant the cold
neutrality of an impartial court.”).

Smith v. State, 357 S.W.3d 322, 340 (Tenn. 2011).

Mr. Caruana’s allegations fall under Rule 2.11 of the Rules of Judicial Conduct,
which 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.

Rule 2.11(A) lists other specific situations which create questions regarding the
judge’s ability to be impartial, including defined relationships to the parties or counsel on
the part of the judge or the judge’s family. None of those situations is alleged to exist
here.

In accordance with Tenn. S. Ct. R. 10B, §1.03, the trial judge filed a thorough
memorandum opinion detailing the grounds for his denial of the motion for recusal. The
trial judge recounted some of the history of the case, affirmed that he held no actual bias
against either Mr. Caruana or his counsel, and addressed each of the specific instances
Mr. Caruana had alleged were evidence of bias.

The question of recusal on the basis of bias involves two inquiries. The first is
whether the judge has actual bias; the second is whether his or her impartiality might
reasonably be questioned, i.e., whether there may be an appearance of bias even though
no actual bias exists. The public’s confidence in the judiciary requires not only that the
judge be impartial in fact, but also that the judge be perceived to be impartial.

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 As we said many years ago, it is of immense importance, not only that
justice be administered ... but that [the public] shall have no sound reason
for supposing that it is not administered. In re Cameron, 126 Tenn. 614,
151 S.W. 64, 76 (1912). If the public is to maintain confidence in the
judiciary, cases must be tried by unprejudiced and unbiased judges.

Davis v. Liberty Mut. Ins. Co., 38 S.W.3d at 564.

. . . State v. Reid, 213 S.W.3d 792, 815 (Tenn. 2006) (“ ‘[T]he preservation
of the public’s confidence in judicial neutrality requires not only that the
judge be impartial in fact, but also that the judge be perceived to be
impartial.’”) (quoting Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct.
App. 1998)); Bd. of Prof’l Responsibility v. Slavin, 145 S.W.3d 538, 548
(Tenn.2004); Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564
(Tenn.2001) (“If the public is to maintain confidence in the judiciary, cases
must be tried by unprejudiced and unbiased judges.”); State v. Lynn, 924
S.W.2d 892, 898 (Tenn.1996) (“It is the appearance that often undermines
or resurrects faith in the system. To promote public confidence in the
fairness of the system and to preserve the system’s integrity in the eyes of
the litigants and the public, ‘justice must satisfy the appearance of
justice.’”) (quoting Offutt v. United States, 348 U.S. 11, 13, 75 S.Ct. 11, 99
L.Ed. 11 (1954))

Smith v. State, 357 S.W.3d at 340.

A trial judge should grant a recusal motion not only when he or she has any doubt
as to his or her ability to preside impartially in the case, i.e., where actual bias is alleged,
but also 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.” State v. Hester, 324 S.W.3d 1; Bean v. Bailey, 280 S.W.3d at 805 (citations
omitted).

Thus, even when a judge believes that he or she can hear a case fairly and
impartially, the judge should grant the motion to recuse if “the judge’s impartiality might
reasonably be questioned.” Tenn. Sup.Ct. R. 10, R. 2.11(A); Bean v. Bailey, 280 S.W.3d
at 805. The test is ultimately an objective one since the appearance of bias is as injurious
to the integrity of the judicial system as actual bias. Smith v. State, 357 S.W.3d at 341;
Davis, 38 S.W.3d at 565.

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 III. A NALYSIS

In examining requests for recusals for bias, it is important to keep in mind the
fundamental protections that the rules on recusals are intended to provide. The
Constitutional provision, Article VI, section 11 of the Tennessee Constitution, provides
that “[n]o Judge of the Supreme or Inferior Courts shall preside on the trial of any cause
in the event of which he may be interested . . . .” That provisions 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.” Bean, 280 S.W.3d at 803 (quoting State v. Austin,
87 S.W.3d 447, 470 (Tenn. 2002)); see also Chumbley v. People’s Bank & Trust Co., 57
S.W.2d 787 (Tenn. 1933).

Generally, the terms “bias” and “prejudice” refer to a state of mind or attitude that
works to predispose a judge for or against a party. Alley v. State, 882 S.W.2d at 821.
However,

not every bias, partiality, or prejudice merits recusal. To disqualify,
prejudice must be of a personal character, directed at the litigant, “must
stem from an extrajudicial source and result in an opinion on the merits on
some basis other than what the judge learned from ... participation in the
case.”

***

If the bias is based upon actual observance of witnesses and evidence given
during the trial, the judge’s prejudice does not disqualify the judge....
However, if the bias is so pervasive that it is sufficient to deny the litigant a
fair trial, it need not be extrajudicial.

Id. (citations omitted.). See also Spain v. Connolly, 606 S.W.2d 540, 544 (Tenn. Ct.
App.1980).

It is well settled that “[a]dverse rulings by a trial court are not usually sufficient
grounds to establish bias.” Keisling v. Keisling, 92 S.W.3d 374 (Tenn.2002); Alley, 882
S.W.2d at 821. The reason for this proposition has been explained:

[T]he mere fact that a judge has ruled adversely to a party or witness . . . is
not grounds for recusal. Given the adversarial nature of litigation, trial
judges necessarily assess the credibility of those who testify before them,
whether in person or by some other means. Thus, the mere fact that a

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 witness takes offense at the court’s assessment of the witness cannot serve
as a valid basis for a motion to recuse. 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, 38 S.W.3d at 565 (citations omitted).

Thus, the mere fact that a judge has ruled adversely to a party or witness is not
grounds for recusal. State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995). If the rule were
otherwise, recusal would be required in every case since trial courts necessarily rule
against at least one party on all motions and other proceedings.

The majority of factual allegations Mr. Caruana makes in support of his claims of
bias are, actually, rulings of the trial court or, the failure to rule. Essentially, Mr. Caruana
asserts that because the trial judge did not grant the relief he requested, the trial judge
must be biased. Indeed, the petition argues that bias is obvious from the rulings, e.g.,
“Appellant certainly is justified in believing that bias appears to be the only reason for the
trial judge to ignore or misconstrue appellant’s legal arguments.” The argument in the
appeal petition is replete with questions asking “why else,” other than bias, would the
court have taken the action it did. Many of the arguments go more to the merits of the
decisions rather than the bias of the judge.

Even though adverse rulings are not generally enough to support a motion to
recuse, we will nonetheless examine some of Mr. Caruana’s arguments. A number of
complaints stem from the writ of attachment described earlier. In August of 2007, Mr.
Marcum filed a motion for writ of attachment seeking to attach funds held by the Circuit
Court Clerk in a condemnation case, State ex rel. Dept. of Transportation v. West Coast
LLC. Mr. Marcum asserted that the property condemned was actually owned by
Tennessee Motors, not West Coast.

On October 12, 2007, Mr. Caruana filed a motion to quash the writ of attachment
and to disqualify opposing counsel. Following a non-evidentiary hearing on the motion,
the trial court entered an order on November 26, 2007, directing the parties to brief
additional issues and requiring both parties to be physically present at the next hearing.
The court also directed Mr. Caruaca to prepare a proposed stipulation of facts and
directed Mr. Marcum to advise Mr. Caruaca which of the facts could be stipulated and
which would need to be determined at an evidentiary hearing. Mr. Marcum may have
agreed to some of the proposed stipulations by Mr. Caruaca, but certainly not all.

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 It appears that a large issue in this case is the ownership of Tennessee Motors.
Presumably as part of the derivative action, Mr. Marcum had added Tennessee Motors as
a plaintiff, and that entity was also a defendant. The basis for Mr. Caruaca’s motion to
disqualify plaintiff’s counsel was that counsel for plaintiff appeared as counsel for
plaintiff Tennessee Motors, while suing that corporation and while counsel for defendant
already represented Tennessee Motors as the defendant.

Now, as part of the argument on recusal, Mr. Caruaca objects to the writ itself and
to the fact that the writ has been in effect for five years and the court has not quashed it.
After the hearing in which only the lawyers appeared, in 2005, the trial court determined
that it needed to hear evidence to sort out the issues raised in both motions filed by Mr.
Marcuna. So, the court ordered that the parties appear at the next hearing and that the
parties try to stipulate as to relevant facts.

Mr. Caruaca vehemently objected to the fact he would have been required to travel
to Tennessee from Nevada for that hearing and, apparently, never did so. He also now
argues that this order shows bias against him. We find nothing unusual or prejudicial for
a court to require evidence to determine disputed facts relevant to motions filed by a
party, here Mr. Caruaca.

Counsel for Mr. Caruaca argues that the trial court should have ruled on the
motions based upon the record, that the illegality of the attachment was apparent on its
face, and that it was obvious that opposing counsel could not represent Tennessee Motors
and also sue it. Again, the fact that the trial court required evidence of some type
regarding ownership of Tennessee Motors and the relationship between the parties and
entities involved in both cases is not an indication of bias.

In this court, Mr. Caruaca asserts that the trial court misconstrued his argument
regarding the objections to the evidentiary hearing when that court described the
complaint as objecting to the trial court’s refusal to grant summary relief. Counsel asserts
that she never sought summary relief, stating she never filed a Rule 56 or 12 motion, but
instead only an adjudication based solely upon the filings. We are unable to find a
distinction. Counsel also argues that the trial court’s mistaken and “unfounded”
characterization of the argument was evidence of bias.

To the extent Mr. Caruana asserts the ex parte communications themselves,
alleged to have taken place prior to the entry of the two orders, are evidence of bias, those
events took place in 2007. Recusal 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. Kinard v.
Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). An alleged prejudicial event cannot

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be silently preserved as an “ace in the hole to be used in the event of an adverse
decision.” Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn. Ct. App. 1988).

In any event, the trial court described the communications. After the attachment
issued, Pinnacle Financial, the holder of a security interest in the condemned property,
placed an unsolicited call to the trial judge complaining that the attachment interfered
with Pinnacle’s ability to receive payment for its lost security. The trial court clerk
communicated a similar message to the trial judge. The trial judge referred Pinnacle to
counsel. The writ of attachment and the order releasing funds to the bank 4 are the subject
of the claims of bias, and those are the relevant acts.

Mr. Caruaca takes special exception to the order setting the trial in this case over
his objection and to the trial court’s denial of a continuance despite the upcoming federal
trial and the illness of counsel’s mother. The only question before this court is whether
those decisions evidence a bias or prejudice against Mr. Caruana or his counsel.5 The
trial judge set forth his impartial reasoning for each of those questioned decisions.
Having carefully reviewed the record before us, we find no evidence of bias in the trial
court’s rulings on the trial date.

Counsel for Mr. Caruana also alleges that the trial court is biased or prejudiced
against her, and relies in part on statements made by the trial court in various hearings
during the course of this long-pending litigation. In particular she alleges that the trial
court called into question the accuracy of some of her statements. One such incident
involved counsel’s representation to the trial court of the substance of a conversation she
had had with his deputy clerk with regard to a hearing time. It is clear from the transcript
that the court believed that counsel’s version of the conversation did not match that of the
deputy clerk. We refuse to hold that a court cannot question lawyers about the
correctness of statements made to the court without subjecting itself to recusal motions.

Counsel for Mr. Caruana also points to other statements as evidencing bias against
her, including a discussion in the hearing on the motion to recuse about “abrasive”

4
Mr. Marcum subsequently submitted, and the trial court entered, an order releasing $367,556.67 of
the attached funds to pay the first mortgage on the property, which debt was in the name of Mr. Caruana, and
the mortgage was held by Pinnacle Financial. The history of these orders is described in State ex rel. Dept.
of Transportation v. West Coast LLC, 2009 WL 4801713 (Tenn. Ct. App. Dec. 14, 2009) (dismissing appeal
for lack of final order).

5
The denial of the continuance and the trial judge’s other rulings are not on appeal, and the
correctness of those decisions is not before us.

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lawyers in general and the lack of correlation between that quality and success in court.6
We have reviewed all the transcripts provided and must conclude that the trial judge’s
statements concerning counsel do not rise to the level of bias. Judges inevitably form
opinions about both parties and counsel during the course of litigation. Those opinions
are not always positive. The Rules of Judicial Conduct do not require recusal merely
because a judge has formed an opinion that a particular counsel is abrasive or has a
litigation strategy that might include delay as a tactic. See Davis v. Liberty Mut. Ins. Co.,
38 S.W.3d 560, 565 (the mere fact that a witness takes offense at the court’s assessment
of the witness cannot serve as a valid basis for a motion to recuse.)

IV. C ONCULSION

The trial court’s order denying the motion for recusal is affirmed. The motion to
stay the proceedings in the trial court pending resolution of the appeal is denied as moot.
Paul F. Caruana and his surety are taxed with the costs for which execution, if necessary,
may issue.

_________________________________
PATRICIA J. COTTRELL, JUDGE

6
Counsel also suggests that the trial court made “veiled criticism” of her competence and cites that
as another indication of prejudice against her. However, in the same paragraph, she alleged that the trial
judge either “could not comprehend” her arguments or simply refused to consider the legal challenges she
raised.

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