In re: Wade v. Singleton
| Decision Date | 01 October 1999 |
| Citation | 776 So.2d 76 |
| Parties | (Ala. 2000) Ex parte Jim Walter Homes, Inc., et al. (In re: William J. Wade, as trustee of Mid-State Trust II, a Delaware business trust v. Earl M. Singleton, Sr., et al.; and Walesther Hutchins and Charlie Hutchins v. Jim Walter Homes, Inc., et al.) 1981532 |
| Court | Alabama Supreme Court |
(Sumter Circuit Court, CV-97-21 and CV-97-43)
On Rehearing Ex Mero Motu
The opinion of March 24, 2000, is withdrawn, and the following is substituted therefor.
Jim Walter Homes, Inc. ("Jim Walter"); Mid-State Homes, Inc. ("Mid-State"); Best Insurers, Inc. ("Best"); and William J. Wade have filed in this Court a document styled as a petition for the writ of mandamus. We treat that document as a request for an order voiding the transfer of two cases (Sumter Circuit Court, CV-97-21 and CV-97-43) by Judge Eddie Hardaway, Jr., to Judge Richard L. Osborne. Judge Hardaway transferred the two cases to Judge Osborne after Judge Hardaway had disqualified himself from presiding over those cases.1 We grant the petitioners' request for an order vacating Judge Hardaway's order transferring the two cases and vacating all orders entered by Judge Osborne in regard to the two cases.
On April 8, 1997, Walesther Hutchins and Charlie Hutchins filed a complaint in the Sumter County Circuit Court against Jim Walter, Mid-State, Best, and other defendants. On or about Marcha3, 1997, Wade filed a separate action in the Sumter County Circuit Court against Earl Singleton, Sr. Singleton filed a counterclaim against Wade and named Jim Walter, Mid-State, and Best as third-party defendants. Both cases alleged various tort theories based on improper foreclosure procedures allegedly followed by Jim Walter and Mid-State in retaliation for the plaintiffs' selection of insurance providers other than Best. Both cases were initially filed in the Seventeenth Judicial Circuit and were thus assigned to Circuit Judge Eddie Hardaway, Jr., the only circuit judge regularly sitting in that circuit. (Hereinafter, the Hutchins case and the Wade case will be referred to jointly as the "Jim Walter cases.")
When the Jim Walter cases were filed, the law firm of Copeland, Franco, Screws & Gill, P.A. (the "Copeland firm"), was representing Judge Hardaway as the named plaintiff in a case styled In re:aaEddie Hardaway, Jr., et al. v. Robert L. Childree, in his official capacity as Comptroller of the State of Alabama, CV-94-1396. That case was pending in the Montgomery Circuit Court. The Copeland firm was also representing Jim Walter, Mid-State, and Best in the Jim Walter cases pending before Judge Hardaway. On February 6, 1998, Judge Hardaway entered an order disqualifying himself from both Jim Walter cases, stating in his order:
The petitioners now before this Court objected to Judge Hardaway's assigning the cases to Judge Osborne after having disqualified himself in regard to them. In response to this objection, Judge Hardaway, on October 6, 1998, signed another set of orders that noted his disqualification, but, this time, he ordered that the Jim Walter cases be set for a reassignment by the Administrative Office of Courts ("AOC"). The defendant Singleton moved to vacate the October 1998 orders and submitted a proposed revised order for Judge Hardaway's signature; however, Judge Hardaway did not sign that proposed order and did not rule on the motion.
Despite Judge Hardaway's second set of orders, Judge Osborne conducted a pretrial hearing on May 24, 1999. This hearing was the first proceeding Judge Osborne conducted in the Jim Walter cases, and the petitioners here moved for Judge Osborne to recuse himself, arguing that Judge Hardaway had improperly assigned the cases to Judge Osborne. Judge Osborne denied the motion and entered an order purporting to consolidate the Jim Walter cases for trial.
Jim Walter, Mid-State, Best, and Wade now seek relief from this Court. The relief they seek is in the nature of a writ of mandamus, which is an appropriate method for challenging a trial court's denial of a motion to recuse. Crawford v. State, 686 So.a2d 196 (Ala. 1996). A writ of mandamus will be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Exaparte United Serv. Stations, Inc., 628 So.a2d 501, 503 (Ala. 1993).
This petition presents the issue whether a trial judge, who has been disqualified from presiding over a case by the Canons of Judicial Ethics, can, pursuant to Rule 13, Ala. R. Jud. Admin., appoint his successor.2 We hold that he cannot.
Rule 13, Ala. R. Jud. Admin., vests in the presiding circuit judge of a judicial circuit the authority to temporarily assign circuit- or district-court judges to serve in the courts of that circuit, if the presiding judge deems such an assignment necessary to assist in the orderly administration of justice. Therefore, under normal circumstances, Judge Hardaway, as the presiding circuit judge in the Seventeenth Judicial Circuit, would have had the authority to assign the Jim Walter cases to Judge Osborne.
The plaintiffs in the Jim Walter cases argue that these petitioners did not object to the assignment of Judge Osborne until 15 months after that assignment had been made and, therefore, by that delay effectively waived their objection to his assignment. In support of their argument, they cite Adams v. Board of Trustees of the University of South Alabama, 676 So. 2d 1326 (Ala. Civ. App. 1996), and Phillips v. Amoco Oil Co., 799 F.2d 1464 (11th Cir. 1986). We find those cases distinguishable.
In Adams, the Court of Civil Appeals held that a party may not "lie in wait and raise the issue of recusal after learning the outcome of the proceeding." 676 So. 2d at 1328. To allow a party to do so would allow that party to hear the outcome of the case and then object only if the outcome did not suit him. Likewise, in Phillips, the objecting party did not object until it had learned the court's ruling on a summary-judgment motion. 799 F.2d at 1472.
In this case, the delay was mitigated by several factors. First, the petitioners asked that their cases be sent to the AOC for reassignment when they initially requested that Judge Hardaway disqualify himself. Second, they made their formal objection to Judge Osborne's assignment the first time he conducted a proceeding in the case. Finally, and most significantly, Judge Osborne had made no ruling on any issue in this case before the petitioners made their objection on May 24, 1999. Therefore, we conclude that the petitioners did not waive their objection.
Furthermore, the respondents argue that this Court, in Ross v. Lutton, 456 So. 2d 249 (Ala. 1984), and the Court of Civil Appeals, in Ex parte Sanders, 521 So. 2d 56 (Ala. Civ. App. 1988), and Edge v. Edge, 494 So. 2d 71 (Ala. Civ. App. 1986), have upheld, under Rule 13, Ala. R. Jud. Admin., assignments made by the presiding judge of the circuit after that judge had entered an order of disqualification or recusal in regard to the case being reassigned. We find those cases distinguishable from the case now before us.
In Ross, the presiding judge recused himself; however, the judge never determined whether he was required to do so. The party requesting the recusal "made only general accusations of bias and prejudice" against the trial judge. 456 So. 2d at 254-55. The same kind of accusations were also made against the new judge assigned to hear the case. The Court of Civil Appeals determined that the accusations were not sufficient to warrant recusal of the second judge. Id. Moreover, the party in Ross asking for the recusal of the second judge did not seek the recusal until after that judge had entered several orders in the case. Although this Court upheld the assignment in Ross, this Court has not expressly upheld an assignment under the circumstances presented in this case.
In Sanders, a child-custody case, the trial judge recused himself. The presiding judge reassigned the case; the presiding judge, however, had a "personal relationship" with the father, who was seeking custody. 521 So. 2d at 58. The wife objected to the assignment, based on the relationship of the presiding judge and her ex-husband. Id. at 56. This case is different from Sanders in that, in Sanders, the Court of Civil Appeals, while suggesting that a different course of action would have been preferable, held that the presiding judge was not disqualified under the Canons of Judicial Ethics, id. at 57; in this present case Judge Hardaway entered an order of disqualification.
Finally, we note that the Edge case, likewise, does not control this present case. The Edge court deferred answering the question that...
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