Hathcock v. Southern Farm Bureau Cas. Ins., No. 2003-CA-02653-SCT.

• Decision Date: 17 March 2005
• Docket Number: No. 2003-CA-02653-SCT.
• Parties: Mark HATHCOCK v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company, Mississippi Farm Bureau Mutual Insurance Company and Anthony Christian.
• Court: Mississippi Supreme Court

Page 844

912 So.2d 844

Mark HATHCOCK v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company, Mississippi Farm Bureau Mutual Insurance Company and Anthony Christian.

No. 2003-CA-02653-SCT.

Supreme Court of Mississippi.

March 17, 2005.

COPYRIGHT MATERIAL OMITTED

Joe Sam Owen, Gulfport, Attorney for Appellant.

Dale Gibson Russell, Charles G. Copeland, Ridgeland, Attorneys for Appellees.

EN BANC.

RANDOLPH, Justice, for the Court:

¶ 1. This appeal arises out of a suit brought by Mark Hathcock ("Hathcock") against Southern Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company, Mississippi Farm Bureau Mutual Insurance Company and Anthony Christian¹ (collectively "Farm Bureau") in the Circuit Court of Harrison County, Mississippi, for wrongful discharge, breach of contract, and tortious interference with a business contract. After summary judgment was granted in favor of Farm Bureau, Hathcock learned of a potential conflict of interest involving the trial judge and Farm Bureau. Hathcock filed a motion for relief under Rule 60(b) of the Mississippi Rules of Civil Procedure and Rule 1.15 of the Uniform Circuit and County Court Rules requesting that the trial judge recuse himself and the order granting summary judgment be set aside. The trial court denied Hathcock's motion. It is from this ruling that Hathcock now appeals and asserts as error the trial court's denial of his motion for relief.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 16, 2000, Farm Bureau terminated the employment of Hathcock. Hathcock brought suit against Farm Bureau seeking damages for wrongful discharge, breach of contract and tortuous interference with a business contract. Farm Bureau answered and filed a motion for summary judgment.² On June 24, 2003, Circuit Court Judge Jerry O. Terry, entered his order and judgment granting Farm Bureau's motion for summary judgment.

¶ 3. Hathcock's attorney claims he was informed on or about September 18, 2003, that Jerry O. Terry, Jr., son of Judge Terry, was employed in a supervisory capacity in the Regional Claims Office in Laurel, Mississippi. On October 3, 2003, Hathcock filed a motion for relief under Rule 60(b) of the Mississippi Rules of Civil Procedure and under Rule 1.15 of the URCCC, requesting that the trial court vacate and set aside the summary judgment and transfer the case to another judge.

¶ 4. On November 5, 2003, Judge Terry entered an order denying Hathcock's motion for relief. In the order, Judge Terry stated that his son was employed by Farm Bureau since 1987 as a claims representative and was serving in the capacity of the District Claims Representative in Laurel, Mississippi at the time Hathcock's complaint was filed. Judge Terry's son does not and has not ever supervised claims handled in the counties within the Second Judicial District where Judge Terry sits. Judge Terry stated that for approximately twenty years prior to taking his judicial seat in 1987, he represented Farm Bureau in all of the counties in the Second District. While Judge Terry informed the parties of his relationship with Farm Bureau in all other cases where Farm Bureau was a litigant or insurer for the purpose of providing an opportunity for recusal requests, the record reflects that: (1) he failed to disclose that information in this case, and (2) this is the probably the first time Hathcock's attorney has appeared before Judge Terry. Hathcock timely brings this appeal and asserts that the trial court erred in denying his motion for relief under M.R.C.P. 60(b) and URCCC 1.15. Specifically, Hathcock argues that the trial judge should have recused himself, vacated and set aside the order granting summary judgment in favor of Farm Bureau, and transferred the case to another circuit court judge.

DISCUSSION

¶ 5. On review of a denial of a motion to recuse, this Court "will not order recusal unless the decision of the trial judge is found to be an abuse of discretion." M.R.A.P. 48B. See also Bredemeier v. Jackson, 689 So.2d 770, 774 (Miss.1997) (citing Davis v. Neshoba County Gen. Hosp., 611 So.2d 904, 905 (Miss.1992)) (where this Court stated: "This Court reviews a judge's refusal to recuse himself using the manifest error standard"). The Court will not reverse the ruling on the motion for recusal unless the trial judge abused his discretion in overruling the motion. Bredemeier, 689 So.2d at 774 (citations omitted).

I. Timeliness of Appeal.

A. Appeal as of Right Under Rule 4.

¶ 6. Hathcock requests that this Court vacate and set aside the order granting summary judgment in favor of Farm Bureau and transfer the case to another judge. Hathcock appeals the trial court's grant of summary judgment under M.R.A.P. 4. Rule 4 provides the guidelines for timely filing of an appeal of right. The appellant must file the notice of appeal with the clerk of the trial court within thirty (30) days after the date of entry of the judgment or order from which the appeal arises. M.R.A.P. 4. Hathcock clearly met the 30 day requirement. The trial court denied the motion for relief on November 5, 2003, and Hathcock filed his notice of appeal on December 4, 2003, exactly twenty-nine (29) days later.

B. Denial of Recusal Under Rule 48B.

¶ 7. Farm Bureau contends that Hathcock's motion is not timely under M.R.A.P 48B, which governs proceedings on a motion for disqualification of a trial judge. When a circuit court judge denies a motion for his recusal, the moving party may, within fourteen (14) days following the judge's ruling, seek review of the judge's action by this Court. M.R.A.P. 48B. The parties in the case sub judice seek interpretation on the application of 48B, specifically challenging the circumstances under which this rule applies.

¶ 8. Despite the undisputable fact that Hathcock filed a timely appeal under M.R.A.P. 4, Farm Bureau argues that Hathcock's appeal is barred under M.R.A.P. 48B because he filed his appeal twenty-nine (29) days after the trial court's issuance of summary judgment. As an emanation from the separation of powers doctrine, this Court has the inherent power to prescribe rules of procedure for Mississippi courts. Newell v. State, 308 So.2d 71 (Miss.1975). The meaning of "judicial power" as listed in the Mississippi Constitution of 1890 includes the power to make rules of procedure. Miss. Const. art. VI, § 144. This Court has the power to proscribe the Rules of Appellate Procedure, and the Court will not indulge the suggestion to read the rules in such a way as to unnecessarily cause conflict between them. Under M.R.A.P. 4, using the language "shall," requires a party to file notice of appeal within 30 days, while M.R.A.P. 48B, using the language "may," permits a party to seek review within 14 days. Hathcock's appeal is timely because it was filed in accordance with M.R.A.P. 4.

II. Denial of Hathcock's Motion for Relief.

¶ 9. "[T]his Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased." Turner v. State, 573 So.2d 657, 678 (Miss.1990) (emphasis added). "To overcome the presumption, the evidence must produce a `reasonable doubt' (about the validity of the presumption); that is, one must question whether `a reasonable person, knowing all of the circumstances, would harbor doubts about the [judge's] impartiality.'" Id. (citations omitted). This presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified. Upton v. McKenzie, 761 So.2d 167, 172 (Miss.2000).

¶ 10. This Court has held in numerous cases that the "evidence presented must produce a reasonable doubt as to a judge's impartiality." Dodson v. Singing River Hosp. Sys., 839 So.2d 530, 533 (Miss.2003); see also Tubwell v. Grant, 760 So.2d 687, 688 (Miss.2000); Beyer v. Easterling, 738 So.2d 221, 228 (Miss.1999); Walls v. Spell, 722 So.2d 566, 571 (Miss.1998). Impartiality is viewed under the "totality of the circumstances" analysis using an objective reasonable "person, not a lawyer or judge," standard. Dodson, 839 So.2d at 534 (citing Collins v. Joshi, 611 So.2d 898, 903 (Miss.1992) (Banks, J., concurring)) (emphasis in original). In Dodson, this Court stated:

Surely, it could not have been intended that the standard for recusal be so stringent as to warrant the criminal law "beyond a reasonable doubt" burden of proof. Quoting Turner, we stated in Collins that "[t]o overcome the presumption, the evidence must produce a `reasonable doubt' (about the validity of the presumption)." 611 So.2d at 901. However, in the very next paragraph we stated, "This presumption may only be overcome by evidence showing beyond a reasonable doubt that the judge was biased or not qualified." Id. (emphasis added). In Norton, we quoted Collins in applying the "beyond a reasonable doubt" burden. 742 So.2d at 131. Also, in Upton, we cited Bredemeier and Turner as the sources of the beyond a reasonable doubt burden when both of those cases clearly applied the "produces a reasonable doubt" burden. Upton, 761 So.2d at 172. See Bredemeier, 689 So.2d at 774 (quoting Turner); Turner, 573 So.2d at 678 (applying "must produce a reasonable doubt" burden).

The stringent "beyond a reasonable doubt" burden is, in our opinion, incompatible with the standard of a hypothetical "reasonable person knowing all the circumstances." The proper standard is that recusal is required when the evidence produces a reasonable doubt as to the judge's impartiality. The misapplication of the "beyond a reasonable doubt" burden in the above-discussed cases was nothing more than a minor oversight and would have led to the same conclusion. We now clarify the burden of proof from what was previously stated in Upton, Norton, and Collins.

839 So.2d at 533.

¶ 11. "When a judge is not disqualified under the constitutional or statutory...