Chambliss v. Roberson

• Decision Date: 01 December 1982
• Docket Number: No. 64944,64944
• Citation: Chambliss v. Roberson, 298 S.E.2d 550, 164 Ga.App. 579 (Ga. App. 1982)
• Parties: CHAMBLISS v. ROBERSON et al.
• Court: Georgia Court of Appeals

Page 550

298 S.E.2d 550

164 Ga.App. 579

CHAMBLISS v.ROBERSON et al.

No. 64944.

Court of Appeals of Georgia.

Dec. 1, 1982.

Kenneth G. Levin, Atlanta, for appellant.

Thomas C. Bianco, Atlanta, for appellees.

BIRDSONG, Judge.

Appellant filed this action in September, 1979, seeking $5,000 in damages for certain personal property allegedly damaged or destroyed when her apartment was flooded.Appellees were her landlords at the time of the flooding.After appellees' answer was stricken for their failure to respond to discovery, the case proceeded to trial on the court's default calendar on October 20, 1980.A jury returned a verdict for $5,000 in favor of appellant, and the trial court entered judgment upon that verdict.Appellees filed a motion for new trial on October 23.The trial judge granted the motion on October 30.

While the motion for new trial was pending, appellant filed a motion requesting the trial judge to recuse himself from hearing further proceedings in the case.The motion was supported by the affidavits of appellant and her attorney.Both affidavits stated that the trial judge made certain disparaging remarks about the merits of appellant's case and the manner in which her attorney handled the case when he was presented with the order embodying the jury verdict.The motion to recuse was denied by the trial judge.The record contains no transcript of any hearing on either the recusal motion or the motion for new trial.

After an unsuccessful mandamus action by appellant against the trial judge in an effort to have him disqualified from this action, seeChambliss v. Camp, 248 Ga. 137, 282 S.E.2d 641, the case was set for trial a second time on December 14, 1981.Appellant and her attorney appeared for the call of the case and were informed that her case would be continued due to the fact that appellees' counsel was on trial in another action.The case was reset for December 16, but appellees and their counsel again failed to appear for the call of the case.The record contains no showing that a motion for continuance, either written or oral, was made by appellees.The case proceeded to trial before a jury, which returned a second verdict in favor of appellant for $5,000.By order the trial judge, not the same judge who presided over the first trial, entered judgment in favor of appellant in the amount of $5,000.

On December 31, 1981, appellees filed a motion to set aside the judgment and motion for new trial.The basis of the motion was set forth in an affidavit submitted by appellees' counsel, which stated that he was on trial in another county on December 16 and was unable to be present for the call of this action.The conflict was allegedly communicated to counsel for appellant prior to the call of the case on December 16, and that he understood the continuance from December 14 would carry the case to another term, but appellant's counsel stated in an affidavit that the December 16 date was cleared with appellant's secretary and that he was not informed of any conflict.

By order dated March 12, 1982, the trial judge vacated and set aside the judgment rendered December 16, 1981.The parties subsequently waived jury trial and the action was tried, for the third time, on March 24, 1982.On April 26, the trial court entered judgment in favor of appellant in the amount of $2,000.Appellant filed her notice of appeal on May 24.A third motion for new trial was filed on May 25 and denied on June 25.The trial court also entered an order on June 18 denying appellant's motion, dated June 4, 1982, to compel answers to her "interrogatories in fi fa" submitted March 2, 1982.

As can be seen from the stated facts, the tortious history of this action to recover $5,000 for negligent damage to personalty includes two separate jury trials and one bench trial, three motions for new trial and one motion to set aside, one motion to recuse and a motion to reconsider the denial of the recusal motion, a mandamus action culminating in the Supreme Court, two motions for sanctions for failure to make discovery, an order striking appellees' answer, and the present appeal, which challenges the order denying the motion for recusal, the orders setting aside the first two judgments and granting new trials, the judgment entered April 26, 1982, and the order denying the motion to compel discovery.In view of our disposition of the case, we need address only the denial of the motion to recuse, the setting aside of the first two judgments and grant of first two motions for new trial, and the order denying the motion to compel discovery.

1.It was not error for the first trial judge to deny the motion to recuse.The affidavits did not set forth legally sufficient grounds for disqualification.Consequently, the trial judge did not err in considering the first motion for new trial despite the pendancy of the motion for recusal.Mann v. State, 154 Ga.App. 677, 678, 269 S.E.2d 863.This case is not...