Diane v. Vannucci v. Memphis Obstetrics and Gynecological Association P.C. and Diana v. Vannucci v. W.B. Moss

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

APRIL 17, 2006 Session

DIANE V. VANNUCCI, Individually, and as Executrix of the Estate of Julie

Vannucci Barney, Deceased, ET AL. v. MEMPHIS OBSTETRICS AND

GYNECOLOGICAL ASSOCIATION, P.C., ET AL.

AND

DIANE V. VANNUCCI, Individually, and as Executrix of the Estate of Julie

Vannucci Barney, Deceased and DIANE V. VANNUCCI for the use and

benefit of the heirs at law of Julie Vannucci Barney, Dec’d., and DIANE V.

VANNUCCI, for the use and benefit of ROBERT ALLEN BARNEY, III, A

Minor v. W. B. MOSS, INDIVIDUALLY, and W. B. MOSS, M.D., P.C.

Interlocutory Appeal from the Circuit Court for Shelby County

Nos. 303685-3 T.D. & CT-00702200 Karen R. Williams, Judge

No. W2005-00725-COA-R3-CV - Filed July 11, 2006

Following the untimely diagnosis of her cervical cancer, the plaintiff filed a medical malpractice suit

against several doctors and the laboratory that interpreted her test results. In addition to her

individual suit, the plaintiff sued on behalf of her minor son for loss of consortium. Shortly after

filing the lawsuit, the plaintiff died. The executrix of her estate was substituted as a plaintiff in the

case. Some of the named defendants sought to enter into a settlement with the minor, who was the

only beneficiary of any proceeds to be derived from the suit. Pursuant to section 34-1-121 of the

Tennessee Code, the settling parties petitioned the trial court to approve the settlement. At the

hearing, the trial court excluded the non-settling defendants from participating in the hearing. The

trial court subsequently entered an order approving the settlement, but the court sealed the contents

of the settlement. Thereafter, the non-settling defendants moved the trial court judge to recuse

herself, arguing that she could no longer impartially preside over the remainder of the case by virtue

of having heard disputed facts during the ex parte settlement hearing. When the trial court denied

their motion, the non-settling defendants applied for and received the trial court’s permission to seek

an interlocutory appeal to this Court. We decided to grant the non-settling defendants’ application

for an interlocutory appeal to address the narrow issue of whether the trial court erred when it denied

the motion to recuse. After reviewing the record, we affirm the trial court’s decision to deny the

Appellants’ motion for recusal.

Tenn. R. App. P. 9; Interlocutory Appeal; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY

M. KIRBY , J., joined.

Teresa J. Sigmon, Claire M. Cissell, William D. Domico, W. Bradley Gilmer, Memphis, TN, for

Appellants

OPINION

I.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

On August 11, 1999, Julie Barney (“Barney”) filed a medical malpractice lawsuit on her own

behalf against Memphis Pathology Laboratories, Inc.; Health Tech Affiliates, Inc.; W.B. Moss,

M.D.; W.B. Moss, M.D., P.C.; Suzanne Harrison, individually; Suzanne Harrison, P.C.; Laura

Skinner, individually; Laura Skinner, P.C.; Memphis Obstetrics and Gynecological Association,

P.C.; John Gayden, M.D.; John Gayden, M.D., P.C.; Peter Ballenger, M.D.; and Peter Ballenger,

M.D., P.C. (hereinafter collectively referred to as the “Defendants”) in the Circuit Court of Shelby

County. Barney alleged therein that the Defendants failed to properly interpret her laboratory test,

which in turn led to the untimely detection of her cervical cancer. In addition to her individual claim,

Barney asserted a cause of action on behalf of her minor son for loss of consortium.

On August 12, 1999, Barney died as a result of the cancer. Thereafter, the trial court

permitted Diane V. Vannucci (“Vannucci” or “Appellee”), the executrix of Barney’s estate, to be

substituted as a plaintiff in the case. At the time of her death, Barney and the child’s father were

divorced. Following his mother’s death, the child went to live with his father in Mississippi.

In December of 1999, Vannucci voluntarily nonsuited her claims against Dr. W.B. Moss and

his medical practice with prejudice. Vannucci, however, subsequently filed an amended complaint

naming Dr. Moss and his medical practice as defendants once more. The trial court subsequently

entered an order citing the previous order allowing Vannucci to voluntarily nonsuit her claims

against Dr. Moss and his practice and held that she erroneously included Dr. Moss and his practice

as defendants in the amended complaint. On December 1, 2000, Vannucci filed a separate lawsuit

against Dr. Moss and his practice in the Circuit Court of Shelby County. The circuit court

subsequently entered a consent order consolidating the cases.

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Vannucci, pursuant to Rule 31 of the Rules of the Supreme Court of Tennessee,1 requested

and obtained the trial court’s permission to pursue mediation. In September of 2004, following

mediation, Vannucci entered into settlement negotiations with Memphis Pathology Laboratories,

Inc., Health Tech Affiliates, Inc., Suzanne Harrison and her practice, and Laura Skinner and her

practice (hereinafter referred to as the “Settling Defendants”). On October 21, 2004, Vannucci, the

minor’s father, and the Settling Defendants filed a joint petition asking the trial court, pursuant to

section 34-1-121 of the Tennessee Code,2 to approve their settlement agreement. In their petition,

the parties asked that the settlement “be kept confidential and kept under seal not to be opened

except on further orders of this Court.”

When counsel for Dr. Moss learned of the proposed compromise, she faxed a letter to counsel

for the Settling Defendants and Vannucci inquiring as to when the petition would be heard by the

trial court. On October 27, 2004, counsel for Dr. Moss received a telephone call from counsel for

the Settling Defendants informing her that the settlement hearing would be confidential, therefore,

they could not attend. Counsel for Dr. Moss then contacted counsel for Memphis Obstetrics and

Gynecological Association, P.C., Dr. Gayden, and Dr. Ballenger (hereinafter referred to, along with

Dr. Moss, as the “Non-Settling Defendants” or “Appellants”) and informed them of the hearing. On

October 28, 2004, counsel for all parties, including the Non-Settling Defendants, appeared at the

hearing.

Before the hearing got underway, counsel for Vannucci made an oral motion to Judge Karen

R. Williams asking that she exclude counsel for the Non-Settling Defendants from the proceedings.

In making this request, counsel for Vannucci noted that the Non-Settling Defendants failed to reach

a compromise with the minor during mediation. While discussing the motion with counsel, Judge

Williams indicated that Vannucci had submitted various documents regarding the Settling

1

Rule 31 of the Rules of the Supreme Court of Tennessee governs Alternative Dispute Resolution. T EN N . S U P .

C T . R. 31 (2005). Alternative Dispute Resolution may be sought in “all civil actions except forfeitures of seized property,

civil commitments, adoption proceedings, and habeas corpus and extraordinary writs.” Id. § 2(d). “Upon motion of

either party, or upon its own motion, a Court, by Order of Reference, may order the parties to an Eligible Civil Action

to participate in a Judicial Settlement Conference, Mediation, or Case Evaluation.” Id. § 3(b).

2

As the minor child was the sole beneficiary of any proceeds recovered from the lawsuit, the aforementioned

statute applies. This statute provides, in relevant part, as follows:

In any action, claim, or suit in which a minor or disabled person is a party

or in any case of personal injury to a minor or disabled person caused by the alleged

wrongful act of another, the court in which the action, claim, or suit is pending, or

the court supervising the fiduciary relationship if a fiduciary has been appointed,

has the power to approve and confirm a compromise of the matters in controversy

on behalf of the minor or disabled person. If the court deems the compromise to be

in the best interest of the minor or disabled person, any order or decree approving

and confirming the compromise shall be binding on the minor or disabled person.

T EN N . C O D E A N N . § 34-1-121(b) (2001).

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Defendants’ proposed compromise with the minor, which counsel for the Non-Settling Defendants

never received. Judge Williams subsequently entered an order on the oral motion, stating:

The court is of the opinion that the Motion to Exclude Counsel for

Defendant, W.B. Moss, and Counsel for the gyn defendants is well

taken and is granted. The hearing shall be conducted in chambers to

the exclusion of Counsel for Defendant, W.B. Moss, and Counsel for

the gyn defendants.

Whereupon, Counsel for Defendant, Moss, made a motion for

a two week continuance of the hearing to address the Court of

Appeals about their right to attend the hearing. Whereupon, the Court

denied said Motion for continuance. In addition, Dr. Moss’ motion

to be provided copies of the pleadings and submissions made to the

court in connection with the minor’s settlement was denied. The

court is of the opinion that Defendant, Moss, and the gyn defendants

are not entitled to access to said documents.

Counsel for Dr. Moss also requested that the trial court allow the Non-Settling Defendants to attend

the hearing but order the amount of the settlement withheld, which the trial court apparently denied

as well.

Judge Williams then proceeded to hold a hearing on the petition. Judge Williams indicated

in subsequent orders that she requested the presence of a court reporter at the hearing to preserve the

proceedings for appellate review. She further indicated that counsel for the parties present at the

hearing did not recall a court reporter being in attendance. Judge Williams stated in her subsequent

orders, however, that she and her court clerk recalled a court reporter “setting up” in her chambers

on the day of the hearing. In any event, the record on appeal is devoid of any transcript of the

hearing.

On October 28, 2004, Judge Williams entered an order approving the settlement of the claims

filed against the Settling Defendants, stating:

This cause came to be heard upon the joint petition . . . for the

approval of the final settlement of any and all claims of the minor . .

. upon the duly executed Settlement Agreement and Release that was

presented to the Court, the testimony in open court of the plaintiff

Diane V. Vannucci and the [father], the report and testimony of the

Guardian Ad Litem, statements of counsel for the respective parties,

and the entire record, from all of which the Court finds as follows:

....

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The Court finds that the final settlement and its terms as set

forth in the Settlement Agreement and Release are fair and reasonable

and in the best interest of the minor petitioner . . . , that the settlement

should be approved, ratified and confirmed, that the settlement and

its terms are confidential and should be kept confidential, and that the

[Settling Defendants] should be dismissed from this case with

prejudice.

Thereafter, the Non-Settling Defendants filed their written motions asking Judge Williams to recuse

herself from the trial of the claims filed against them.3

Judge Williams subsequently denied the Non-Settling Defendants’ motions to recuse.

Thereafter, the Non-Settling Defendants filed a request for an interlocutory appeal, which the trial

court granted on March 14, 2005. After entering the initial order granting the Non-Settling

Defendants an interlocutory appeal, Judge Williams amended her order twice, with the last order

entered on the subject stating:

The Court granted the Motion for an Interlocutory appeal

because this is a matter of first impression for which there is a need

for a uniform rule of law. Further, if the challenged Order is

reversed, there would be needless, expensive and protracted litigation

because the case would need to be tried a second time.

....

The Trial Court reasoned that, if a non-minor settled with one

or more Defendants, an Order dismissing that Defendant would be

entered and the remaining Defendants would not be privy to the dollar

amount of the settlement. In this instance, the settling plaintiff is a

minor and therefore the Court must approve any settlement. The fact

of the settlement and the amount thereof neither increases nor

decreases the share of fault the Jury may allot to the remaining

Defendants in the event the matter goes to trial. The settlement does

not change the list of persons to whom the Jury may assign fault.

Plaintiffs bear all the risk that the Jury may apportion fault differently

and their judgment will be lessened thereby.

3

Dr. Moss filed his motion to recuse on November 16, 2004. Dr. Gayden and Memphis Obstetrics and

Gynecological Association, P.C., filed their motion to recuse on November 29, 2004.

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This Court subsequently granted the Non-Settling Defendants’ request for an interlocutory appeal

to address the single issue of whether the trial court erred in denying the Appellants’ motion to

recuse.4

On October 13, 2005, Judge Williams supplemented the record with a “Statement of the

Evidence by the Court,” which recounted the aforementioned procedural history and the basis for

her ruling to exclude the Non-Settling Defendants from the settlement hearing and further provided:

During the settlement hearing everyone carefully avoided any

discussion of the non-settling defendants. All attention was focused

on the terms of the settlement and whether Plaintiffs understood the

risks they were taking by agreeing to a partial settlement when the

jury later could apportion fault in a way that was detrimental to them.

Having heard the statements of Plaintiff’s counsel, the counsel

for the settling defendants, the report of the Guardian ad Litem and

the responses of the Father of the minor to questions regarding his

understanding of the ramifications of the settlement, the Court

approved the settlement.

When Vannucci failed to file a brief in this Court setting forth her position on appeal, we

entered an order directing her to show cause why the case should not be submitted on the record, the

Appellants’ brief, and the Appellants’ oral argument. When Vannucci failed to respond, we entered

an order directing that the case be submitted for a decision based on the record before the Court, the

Appellants’ brief, and the Appellants’ oral argument. When counsel for Vannucci appeared at oral

argument, the Court did not allow him to argue his client’s position regarding the recusal issue

before this Court.

II.

STANDARD OF REVIEW

Interlocutory appeals are governed by Tennessee Rule of Appellate Procedure 9, which

provides that “an appeal by permission may be taken from an interlocutory order of a trial court from

which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals only

upon application and in the discretion of the trial and appellate court.” TENN . R. APP . P. 9(a) (2005).

The party seeking an interlocutory appeal may, within thirty (30) days after the entry of the

interlocutory order complained of, file a motion with the trial court requesting permission to take an

interlocutory appeal. Id. § 9(b). Should the trial court decide to grant the motion and set forth its

reasons for doing so in a written opinion, this Court may, in its discretion, allow the appeal to

proceed. Id.

4

The trial court’s orders granting the Non-Settling Defendants an interlocutory appeal do not reference Dr.

Ballenger, and it does not appear as though he has appealed the trial court’s decision in this case. Furthermore, the

record does not contain any indication as to whether Dr. Ballenger continues to be a defendant in this litigation.

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Interlocutory appeals generally are not favored because our appellate courts promote finality

in the case over piecemeal appellate review. State v. Hawk, 170 S.W.3d 547, 554 (Tenn. 2005)

(citing United States v. MacDonald, 435 U.S. 850, 853, 857 (1978)). In deciding whether to grant

an application for an interlocutory appeal, we are mindful of the following:

In determining whether to grant permission to appeal, the following,

while neither controlling nor fully measuring the court’s discretion,

indicate the character of the reasons that will be considered: (1) the

need to prevent irreparable injury, giving consideration to the severity

of the potential injury, the probability of its occurrence, and the

probability of that review upon entry of final judgment will be

ineffective; (2) the need to prevent needless, expensive, and

protracted litigation, giving consideration to whether the challenged

order would be a basis for reversal upon entry of a final judgment, the

probability of reversal, and whether an interlocutory appeal will result

in a net reduction in the duration and expense of the litigation if the

challenged order is reversed; and (3) the need to develop a uniform

body of law, giving consideration to the existence of inconsistent

orders of other courts and whether the question presented by the

challenged order will not otherwise be reviewable upon entry of final

judgment.

TENN . R. APP . P. 9(a) (2005). “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.” State v. Hines, 919 S.W.2d 573, 578 (Tenn.

1995) (citing State ex rel. Phillips v. Henderson, 423 S.W.2d 489, 492 (Tenn. 1968)).

III.

DISCUSSION

It is a fundamental principle of law that litigants are entitled to a fair trial before an impartial

judge. In re Cameron, 151 S.W. 64, 76 (Tenn. 1912); Reynolds v. Chumbley, 135 S.W.2d 939, 940

(Tenn. 1940). It is a denial of justice to force a litigant to “try his case before a judge who has

already decided it, and has announced that decision in advance of the hearing.” In re Cameron, 151

S.W. at 76–77. “It, therefore, 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);

Alley v. State, 882 S.W.2d 810, 819–20 (Tenn. Crim. App. 1994). Moreover, public confidence in

the judiciary would be eroded if litigants were forced to have their cases heard by someone other

than an impartial fact-finder. Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001);

Alley, 882 S.W.2d at 820. “It is only when the people are satisfied that impartial judges decide their

controversies, that they entertain feelings of reverence for the judgments of the courts of the land.”

In re Cameron, 151 S.W. at 76.

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The principle of judicial neutrality is embodied in the Tennessee Constitution, the Code of

Judicial Conduct, and our statutory law. The Tennessee Constitution provides:

No judge of the Supreme or Inferior Courts shall preside on

the trial of any case in the event of which he may be interested, or

where either of the parties shall be connected with him by affinity or

consanguinity, within such degrees as may be prescribed by law, or

in which he may have been of counsel, or in which he may have

presided in any Inferior Court, except by consent of all the parties. In

case all or any of the judges of the Supreme Court shall thus be

disqualified from presiding on the trial of any cause or causes, the

court or the judges thereof, shall certify the same to the governor of

the state, and he shall forthwith specially commission the requisite

number of men, of law knowledge, for the trial and determination

thereof. The Legislature may by general laws make provision that

special judges may be appointed, to hold any courts the judge of

which shall be unable or fail to attend or sit; or to hear any cause in

which the judge may be incompetent.

TENN . CONST . art. 6, § 11. “The purpose of Article 6, sec. 11 of our Constitution is to insure every

litigant the cold neutrality of an impartial court.” Leighton v. Henderson, 414 S.W.2d 419, 421

(Tenn. 1967); see also In re Cameron, 151 S.W. 64, 76 (Tenn. 1912).

The Code of Judicial Conduct provides that “[a]n independent and honorable judiciary is

indispensable to justice in our society.” TENN . S. CT . R. 10, Canon 1 (2005). In furtherance of this

objective, the judiciary must “comply with the law and shall act at all times in a manner that

promotes public confidence in the integrity and impartiality of the judiciary.” Id., Canon 2(A). “A

judge must avoid all impropriety and appearance of impropriety.” Id., Canonf 2(A) cmt. Further,

“[a] judge shall perform judicial duties without bias or prejudice,” Id., Canon 3(B)(5), and “must

perform judicial duties impartially and fairly,” Id., Canon 3(B)(5) cmt.

To protect the impartiality of the judiciary, the legislature directs that a judge is not

competent to hear the following matters:

No judge or chancellor shall be competent, except by consent

of all parties, to sit in the following cases:

(1) Where the judge or chancellor is interested in the event of

any cause;

(2) Connected with either party, by affinity or consanguinity,

within the sixth degree, computing by the civil law;

(3) Has been of counsel in the cause;

(4) Has presided on the trial in an inferior court; or

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(5) In criminal cases for felony, where the person upon whom,

or upon whose property, the felony has been committed, is connected

with the judge or chancellor by affinity or consanguinity within the

sixth degree, computing by the civil law.

TENN . CODE ANN . § 17-2-101 (1994).

In the instant case, the Non-Settling Defendants asked Judge Williams to recuse herself from

the remainder of the case, which she refused to do. A recusal motion “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) (citations omitted); see also Davis v. Tenn. Dep’t of

Employment Sec., 23 S.W.3d 304, 313 (Tenn. 2000) (“Parties may lose the right to question a judge’s

impartiality if they attempt to manipulate the impartiality issue to gain procedural advantage.”); In

re Cameron, 151 S.W. 64, 78 (Tenn. 1912) (“And, generally, if the facts are known to the party

recusing, he is bound to make his objections before issue joined, and before the trial is commenced;

otherwise he will be deemed to have waived the objection in cases where the statute does not make

the proceedings void.”). It is undisputed that the Non-Settling Defendants raised the recusal issue

with Judge Williams in a timely manner, as the issue is before this Court in the form of an

interlocutory appeal.

In examining whether Judge Williams’ decision constituted an abuse of discretion, we are

mindful of the following:

When a motion to recuse is made, a judge should grant the

motion whenever his or her “impartiality might reasonably be

questioned.” Tennessee, like many jurisdictions, employs an

objective rather than a subjective standard. Thus, while a trial judge

should grant a recusal whenever the judge has any doubts about his

or her ability to preside impartially, recusal is also warranted 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.

Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994) (citations omitted); see also Davis v.

Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001) (“Hence, 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.”);

Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998) (“[I]nstead of making this decision

based on subjective notions of his or her impartiality, a judge must be more objective and must ask

what a reasonable, disinterested person knowing all the relevant facts would think about his or her

impartiality.”). Thus, “because perception is also important, a party does not have to prove actual

bias or prejudice.” Wilson v. Wilson, 987 S.W.2d 555, 562 (Tenn. Ct. App. 1998).

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In the case before us, section 34-1-121(b) of the Tennessee Code required Judge Williams

to approve the compromise between the minor and the Settling Defendants by determining whether

such compromise would be in the minor’s best interest. The Non-Settling Defendants argue that,

since this case involves multiple defendants and comparative fault principles are applicable, Judge

Williams necessarily had to view the case in its entirety in order to comply with the statute. Stated

differently, they contend that she was required to ascertain, albeit informally, the respective share

of fault of each defendant in order to ascertain whether the compromise with the Settling Defendants

was reasonable. In doing so, they assert that Judge Williams had to consider certain facts. The Non-

Settling Defendants argue that, had they been allowed to attend the hearing, they would have been

able to interject and point out that certain facts remained in dispute and present an outline of the

proof they intended to offer at trial. They contend that Judge Williams did not have an objective

presentation of the facts in the case and had to prejudge certain facts in order to comply with the

statute, therefore, she no longer can remain impartial. Accordingly, the Non-Settling Defendants ask

this court to find that Judge Williams abused her discretion in denying their motion for recusal and

ask this Court to remand the remainder of the case for a trial before another judge.5

The Non-Settling Defendants readily note the absence of any Tennessee case squarely

addressing this issue, and our independent research has likewise failed to find any controlling

authority to guide our decision in this case. The Code of Judicial Conduct provides that “[a] judge

shall disqualify himself or herself in a 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, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

TENN . S. CT . R. 10, Canon 3(E)(1)(a) (2005) (emphasis added). The following offers some guidance

for assessing a trial court’s knowledge of disputed facts: “The law is clear that the court must

generally restrain itself to consideration of those facts that are before it and may not conduct an

independent investigation.” Minor v. State, No. M2001-00545-CCA-R10-PC, 2001 Tenn. Crim.

App. LEXIS 932, at *34–35 (Tenn. Crim. App. Dec. 5, 2001) (citing TENN . S. CT . R. 10, Canon

3(B)(7)(e) cmt.); see also State v. Ray, 984 S.W.2d 239, 240 (Tenn. Crim. App. 1998). Further,

5

As we previously noted, no transcript of the hearing to approve the settlement with the minor is contained in

the record before this Court. “Parties who challenge a judge’s impartiality must come forward with some evidence that

would prompt a reasonable, disinterested person to believe that the judge’s impartiality might reasonably be questioned.”

Davis v. Tenn. Dep’t of Employment Sec., 23 S.W .3d 304, 313 (Tenn. Ct. App. 2000) (citations omitted). Ordinarily,

we would be inclined to hold that many of the assertions put forth by the Non-Settling Defendants would constitute

nothing more than mere conjecture. In this case, however, while it is impossible to know the depth with which Judge

W illiams reviewed the evidence in this case, the assertions by the Non-Settling Defendants concerning the actions of

Judge W illiams at the hearing are somewhat well-founded.

First, the statute, by its very nature, required Judge W illiams to do more than merely approve a compromise

negotiated by the parties. Next, without a record of the proceeding at issue, we must presume that Judge W illiams

complied with the applicable statute. See Yeubanks v. Methodist Healthcare Memphis Hosps., No. W 2003-01838-COA-

R3-CV, 2004 Tenn. App. LEXIS 808, at *10–11 (Tenn. Ct. App. Nov. 18, 2004); Scarbrough v. Scarbrough, 752

S.W .2d 94, 97 (Tenn. Ct. App. 1988). Third, we are cognizant of the fact that a party excluded from the hearing and

without the benefit of a transcript of that hearing will never have direct proof of impartiality. Finally, in her order

approving the settlement and her subsequent statement of the evidence, Judge W illiams referenced the fact that she

entertained testimony in open court, reviewed the report of the Guardian ad Litem, and entertained the arguments of

counsel.

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“[b]ias or prejudice in the disqualifying sense must stem from an extrajudicial source and not from

what the judge hears or sees during the trial.” Wilson v. Wilson, 987 S.W.2d 555, 562 (Tenn. Ct.

App. 1998) (citing Alley v. State, 882 S.W.2d 810, 822 (Tenn. Crim. App. 1994)).

Even if we were to assume, for purposes of this appeal, that Judge Williams entertained

various facts at the hearing and informally examined the comparative fault of the parties, including

that of the Non-Settling Defendants, we cannot agree that such action would warrant a recusal under

the unique facts of this case. There is nothing in the record to indicate that Judge Williams has made

comments expressing her intention to rule for or against the Non-Settling Defendants at trial. See

Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 n.3 (Tenn. 2001) (“Among other ways, bias or

prejudice warranting recusal may be shown where the trial judge expresses an opinion on the merits

of a case prior to hearing any evidence, makes comments suggesting the judge has taken a position

favorable or unfavorable to a party, or makes remarks indicating that the judge has prejudged factual

issues.”); Leighton v. Henderson, 414 S.W.2d 419, 420 (Tenn. 1967) (“In the trial of any lawsuit the

judge must be careful not to give an expression to any thought, or to infer what his opinion would

be in favor or against either of the parties in the trial.”). It is only when the trial judge makes

statements indicating that he or she has prejudged the factual issues that our courts ordinarily will

require disqualification. Alley v. State, 882 S.W.2d 810, 822 (Tenn. Crim. App. 1994).

Moreover, the Non-Settling Defendants have overlooked an important aspect of this case.

The Tennessee Rules of Civil Procedure provide that “[t]he right of trial by jury as declared by the

Constitution or existing laws of the State of Tennessee shall be preserved to the parties inviolate.”

TENN . R. CIV . P. 38.01 (2005). “Any party may demand a trial by jury of any issue triable of right

by jury by demanding the same in any pleading specified in Rule 7.01 . . . .” TENN . R. CIV . P. 38.02

(2005). “Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court . .

. .” TENN . R. CIV . P. 39.02 (2005). In her amended complaint, Vannucci expressly demanded a jury

to try the allegations contained therein. Thus, it is a jury, and not Judge Williams, who will decide

the issues of fact should the remainder of the case proceed to trial.

At oral argument, counsel for the Non-Settling Defendants suggested that Judge Williams

still must enter rulings on evidentiary and other matters during the trial. Our appellate courts

previously have noted, however, that a trial court’s assessment of a witness’s credibility at trial,

Davis, 38 S.W.3d at 565, the fact that the trial judge made findings in a previous case involving the

same party, State ex rel. Phillips v. Henderson, 423 S.W.2d 489, 492 (Tenn. 1968); State v. Harris,

947 S.W.2d 156, 172 (Tenn. Crim. App. 1996), or the fact that the trial judge entered adverse rulings

against a party, Herrera v. Herrera, 944 S.W.2d 379, 392 (Tenn. Ct. App. 1996), cannot, in and of

themselves, serve as the basis for recusal. “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.” Alley v.

State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994); see also Eldridge v. Eldridge, 137 S.W.3d 1,

7 (Tenn. Ct. App. 2002). Adverse rulings by a trial court, even if erroneous as a matter of law,

generally are not sufficient grounds to establish the need for recusal. Alley, 882 S.W.2d at 821. “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]

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issue for strategic advantage, which the courts frown upon.” Davis, 38 S.W.3d at 565. We are not

prepared at this early stage of the litigation to presuppose how Judge Williams will choose to address

any motions or evidentiary objections that may arise at trial.

The Non-Settling Defendants have offered two additional arguments as to why Judge

Williams abused her discretion in failing to recuse herself in this case. First, they assert that ex parte

communications are not permitted in litigation. The Tennessee Rules of Professional Responsibility

provide that “[a] lawyer shall not . . . communicate ex parte with a judge, juror, or a member of the

jury pool, prior to or during a proceeding, except as permitted by law.” TENN . S. CT . R. 8, RPC 3.5

(2005). The comment to this rule provides that it “does not prohibit a lawyer from communicating

with a judge on the merits of the cause in writing if the lawyer promptly delivers a copy of the

writing to opposing counsel and to parties who are not represented by counsel.” Id., RPC 3.5 cmt.

(2). “Oral communication is permitted upon adequate notice to opposing counsel and parties who

are not represented by counsel.” Id. Further, the Code of Judicial Conduct provides:

A judge shall accord to every person who has a legal interest

in a proceeding, or that person’s lawyer, the right to be heard

according to law. 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 concerning a pending or

impending proceeding . . . .

TENN . S. CT . R. 10, Canon 3(B)(7) (2005). With the exception of those instances outlined in the

rule, which are not applicable here, “a judge must discourage ex parte communication and allow it

only if all the criteria stated in Section 3B(7) are clearly met.” Id., Canon 3(B)(7) cmt. The Non-

Settling Defendants assert that, since they were not provided with a copy of the documents disclosed

to Judge Williams at the hearing and a hearing conducted pursuant to the statute at issue is not one

of the recognized exceptions set forth in Canon 3(B)(7) of the Code of Judicial Conduct, their

argument in favor of recusal is bolstered even further.6

Next, the Non-Settling Defendants argue that, pursuant to Tennessee Supreme Court Rule

31 governing Alternative Dispute Resolution, a trial judge, in an effort to ensure impartiality, cannot

6

W e limited the issue in this interlocutory appeal to whether the trial court erred in denying the Appellants’

motion for recusal. Thus, we must limit the Appellants’ argument in this regard to whether the alleged ex parte

proceeding bears on the issue of recusal. W e are not asked to decide whether the Non-Settling Defendants are entitled

to the documents presented to the trial court at the hearing or the disclosure of the terms of the settlement. Furthermore,

we are not asked to decide if non-settling tortfeasors are entitled to attend a judicial hearing convened pursuant to section

34-1-121 of the Tennessee Code to approve a settlement between settling tortfeasors and a minor. As such, the Non-

Settling Defendants do not ask that we set aside the compromise entered into between the minor and the Settling

Defendants.

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preside over the mediation and the trial of the matter.7 They contend that the present case is

analogous to the mediation setting, and they point to the fact that counsel for Vannucci told Judge

Williams prior to the hearing that the Non-Settling Defendants failed to settle the case at the prior

mediation when urging her to exclude them from the hearing. In support of this position on appeal,

the Non-Settling Defendants direct our attention to our decision in Team Design v. Gottlieb, 104

S.W.3d 512 (Tenn. Ct. App. 2002). Team Design involved “a dispute over payment for artwork and

graphic design for a country music album.” Id. at 515. The trial court entered an order, pursuant to

the parties’ agreement, directing that the parties undergo “binding arbitration.” Id. The trial court

then conducted off-the-record discussions with each of the parties and subsequently entered an order

adjudicating their claims. Id. After setting forth the history of Tennessee Supreme Court Rule 31

and its purpose, this Court held that the “binding mediation” ordered in that case did not comply with

Rule 31. Id. at 524. In so holding, we noted that “the parties’ decision-making rights were

supplanted by the trial court, and there was no apparent effort to assist the parties in reaching their

own voluntary settlement of their differences.” Id. Further, “the proceeding was conducted by the

trial judge to whom the case had been assigned notwithstanding the clear requirement in [Rule 31].”

Id.

We find both arguments espoused by the Non-Settling Defendants to be without merit.

While the trial court did order the parties, pursuant to Vannucci’s request, to undergo mediation, that

process resulted in only some of the defendants agreeing to settle with the minor. It is important to

note that the Non-Settling Defendants do not argue that the mediation sanctioned by Tennessee

Supreme Court Rule 31 and ordered in this case was performed improperly as was argued in Team

Design.

“The resolution of disputes by agreement of the parties is to be encouraged.” Harbour v.

Brown, 732 S.W.2d 598, 599 (Tenn. 1987); see also Third Nat’l Bank v. Scribner, 370 S.W.2d 482,

487 (Tenn. 1963) (“The policy of the law is to favor compromise.”); 15A C.J.S. Compromise &

Settlement § 1 (2002) (“The settlement of cases serves the dual and valuable purposes of reducing

the strain on scarce judicial resources and preventing the parties from incurring significant litigation

costs.”). “Court approval of a settlement is generally not required, and parties routinely settle

litigation without court involvement.” Envtl. Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530,

539 n.9 (Tenn. Ct. App. 2000). As we stated in Team Design:

Public policy strongly favors resolving disputes between

private parties by agreement. Private parties may, of course, decide

to submit their disputes to the courts for resolution; however, a broad

range of other formal and informal alternatives are available before

they resort to litigation. These procedures are, as a practical matter,

7

“Mediation” is defined as “an informal process in which a neutral person conducts discussions among the

disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part

of the issues in dispute.” T EN N . S. C T . R. 31, § 2(f) (2005) (emphasis added). “Rule 31 Neutrals shall . . . [m]aintain

impartiality toward all parties . . . [which] means freedom from favoritism or bias in favor of or against any party, issue,

or cause.” Id., § 10(b)(2).

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limited only by the parties’ imaginations because the parties

themselves may agree on virtually any mutually satisfactory

procedure that is not illegal or contrary to public policy.

Team Design, 104 S.W.3d at 517.

Courts are empowered to adjudicate disputes and administer remedies, not to make contracts

for the parties in the form of a compromise. “A compromise and settlement agreement is merely a

contract between parties to litigation and, as such, issues of enforceability of a settlement agreement

are governed by contract law.” Envtl. Abatement, Inc., 27 S.W.3d at 539 (citing Sweeten v. Trade

Envelopes, 938 S.W.2d 383, 385 (Tenn. 1996)); see also Harbour, 732 S.W.2d at 600 (“That is not

to say that the compromise agreement may not be a binding contract, subject to being enforced as

other contracts . . . .”). Compromising parties may wish to have their agreement memorialized in

the form of a consent judgment. “[A] consent judgment does not represent the reasoned decision

of the court but is merely the agreement of the parties, made a matter of record by the court.”

Harbour, 732 S.W.2d at 599–600; see also 15A C.J.S. Compromise & Settlement § 33 (2002) (“A

compromise is the law between the parties and a judicially-entered settlement agreement that

becomes part of the stipulation that ends the litigation has the force and effect of a judicial decree.”);

49 C.J.S. Judgments § 187 (1997) (“As a consent judgment has the sanction of the court, and is

entered as its determination of the controversy, it generally has the same force and effect as any other

judgment . . . .”). “An order for entry of a consent judgment is a judicial act in the sense that it

requires the court to examine the record to determine its authority, but is ministerial in the sense that

it is predicated on the agreement of the parties.” 49 C.J.S. Judgments § 185 (1997).

The general rule that a court is not required to approve a settlement or compromise does not

operate when a statute requires the court to “review the substance of the settlement, not just the fact

of an agreement.” Envtl. Abatement, Inc., 27 S.W.3d at 539 n.9; see also 15A C.J.S. Compromise

& Settlement § 22 (2002) (“However, situations in which prior approval of a settlement by the court

is mandatory are the exception rather than the rule and may be governed by special legislation.”).

Here, due to the involvement of a minor in the litigation, we have a statute requiring the trial court

to go beyond its normal role of merely entering a consent judgment memorializing the parties’

private agreement. See TENN . CODE ANN . § 34-1-121 (2001); see also 15A C.J.S. Compromise &

Settlement § 23 (2002) (“Generally, compromises and settlement in certain cases, such as cases

involving class actions and infants, must be approved by the court.”).

We cannot, however, subscribe to the Non-Settling Defendants’ contention that Judge

Williams, by performing her role under the applicable statute, is no longer impartial and must recuse

herself. The Non-Settling Defendants correctly note the need for confidentiality in mediation. The

rules governing mediation provide: “Evidence of conduct or statements made in the course of Rule

31 ADR Proceedings and other proceedings conducted pursuant to an Order of Reference shall be

inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of

Evidence 408.” TENN . S. CT . R. 31, § 7 (2005). While counsel for Vannucci did disclose that the

Non-Settling Defendants did not settle as a result of the court ordered mediation, Judge Williams

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could infer this fact simply by recognizing that only the Settling Defendants sought to confirm their

settlement with the minor and that the Non-Settling Defendants sought to attend the hearing.

Nothing in the record suggests that Vannucci’s counsel disclosed any facts or evidence related to any

settlements discussed in the mediation. Further, Judge Williams statement of the evidence states

that, during the hearing, “everyone carefully avoided the discussion of the non-settling defendants.”

Moreover, unlike the facts in Team Design,8 there is nothing in the record in the present case

to suggest that Judge Williams undertook an effort to mediate or otherwise foster the compromise

between the minor and the Settling Defendants. To the contrary, the record supports the conclusion

that she merely sought to comply with the applicable statute by approving the compromise already

negotiated by the parties during mediation. As the statute requires, Judge Williams merely convened

a meeting with the relevant parties to approve the settlement. “A valid compromise agreement binds

the parties to it and those in privity with them or claiming under them with notice, but it is not

binding on persons not parties to the settlement or in privity with a party.” 15A C.J.S. Settlement

& Compromise § 43 (2002). “Furthermore, a joint tortfeasor who is not a party to a settlement is not

bound by a compromise settlement made by another tortfeasor, and a compromise of litigation by

one defendant does not conclude the codefendants, unless they consent to or ratify the settlement or

the settlement extinguishes liability of all torfeasors on the verdict in a negligence action.” Id. The

Non-Settling Defendants, therefore, have no interest — other than their argument that Judge

Williams is no longer impartial by virtue of fulfilling her role under the statute — in the compromise

entered into between the Settling Defendants and the minor.

8

The rules governing Alternative Dispute Resolution in this state provide:

Trial Court Judges are authorized to conduct judicial settlement

conferences in accordance with procedures to be developed by Local Rule, by

Standing Order or in consultation with the parties. W ithout the consent of the

parties, no Judge presiding over a matter may preside of a Judicial Settlement

Conference respecting that matter.

T EN N . S. C T . R. 31, § 20 (2005). A “Judicial Settlement Conference” is defined as “a mediation conducted by a judicial

officer other than the judge before whom the case will be tried.” Id., § 2(e) (emphasis added). In Team Design, we noted

that “should the judge who conducts the judicial settlement conference later be called upon to decide the issues of

liability or damages, it is impossible to avoid questions as to whether he or she can disregard the matters disclosed during

the conference or put aside any opinions or judgments already formed based on this information.” Team Design, 104

S.W .3d at 523.

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IV.

CONCLUSION

Although it appears as though Judge Williams received certain evidence at the hearing for

the limited purpose of fulfilling her statutory obligation, we cannot say that she has prejudged the

remainder of the case or no longer remains impartial. “Prior knowledge of facts about the case is

not sufficient in and of itself to require disqualification.” Alley v. State, 882 S.W.2d 810, 822 (Tenn.

Crim. App. 1994). “Bias or prejudice in the disqualifying sense must stem from an extrajudicial

source and not from what the judge hears or sees during the trial.” Wilson v. Wilson, 987 S.W.2d

555, 562 (Tenn. Ct. App. 1998). Accordingly, we hold that, given the unique facts of this case,

Judge Williams did not abuse her discretion when she denied the Appellants’ motion for recusal.

Costs of this appeal are to be taxed to the Appellants, W.B. Moss, M.D., W.B. Moss, M.D.,

P.C., Memphis Obstetrics and Gynecological Association, P.C., John Gayden, M.D., John Gayden,

M.D., P.C., and their sureties for which execution, if necessary, may issue.

___________________________________

ALAN E. HIGHERS, JUDGE

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