Miller Dollarhide, P.C. v. Tal, 100,179.

• Decision Date: 03 July 2007
• Docket Number: No. 100,179.,100,179.
• Citation: 163 P.3d 548,2007 OK 58
• Parties: MILLER DOLLARHIDE, P.C., Plaintiff/Appellee, v. Moshe TAL, Defendant/Appellant.
• Court: Oklahoma Supreme Court

163 P.3d 548

2007 OK 58

MILLER DOLLARHIDE, P.C., Plaintiff/Appellee, v. Moshe TAL, Defendant/Appellant.

No. 100,179.

Supreme Court of Oklahoma.

July 3, 2007.

Certiorari to the Court of Civil Appeals, Division III; David Harbour, Trial Judge.

¶ 0 The appellant, Moshe Tal (client) filed a malpractice action against the appellee, Miller Dollarhide (law firm) in the District Court of Oklahoma County, Oklahoma. The law firm brought a counterclaim for unpaid legal fees. Tal, who had previously entered a pro se appearance, dismissed the malpractice action against the law firm, but failed to appear for a scheduling conference on the counterclaim. The trial court entered a default judgment in favor of the law firm on the counterclaim. Both before and after the default judgment was entered, Tal sought disqualification of the Honorable David Harbour, trial judge. The trial judge refused to disqualify several times, and on two separate occasions the Chief Judge of Oklahoma County refused to grant a motion to re-assign the case. Simultaneously, the client raised the disqualification issue in an original mandamus action in this Court and an appeal which was assigned to the Court of Civil Appeals. This Court assumed original jurisdiction in the mandamus action, but denied relief in a single sentence order. On appeal, the Court of Civil Appeals refused to consider the disqualification issue on the grounds that this Court's order denying relief was the binding law of the case. In Miller Dollarhide I, we determined that assuming jurisdiction and denying relief in the original mandamus action did not bar the Court of Civil Appeals from considering the issue on appeal and we remanded the cause to the Court of Civil Appeals to decide the merits of the bias claim. The Court of Civil Appeals held that the trial court did not abuse its discretion in denying the motion to disqualify. We hold that: 1) a trial court's continued participation while motions to disqualify are pending results in a deprivation of due process; and 2) the refusal to disqualify was an abuse of discretion.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED.

Jack S. Dawson, Mark Edmondson, Oklahoma City, OK, for the Appellee.

Moshe Tal, Oklahoma City, OK, Pro se.

KAUGER, J.

¶ 1 The questions presented are whether: 1) a trial judge's continued participation in a cause while motions for disqualification are pending deprive the movant of a fundamental right to due process; and 2) the trial judge abused his discretion when he declined to disqualify. We hold that: 1) a trial judge's continued participation while motions to disqualify are pending results in a deprivation of due process; and 2) the refusal to disqualify was an abuse of discretion.

FACTS

¶ 2 The facts surrounding the genesis of this action are discussed in Miller Dollarhide, P.C., v. Moshe Tal, 2006 OK 27, ___ P.3d ___, 2006 WL 1148158 (Miller Dollarhide I), but the following facts are relevant to disposition of this appeal. The appellant, Moshe Tal (Tal/client) sought to remove the trial judge when he made a written in camera request under District Court Rule 15¹ for recusal on February 11, 2003. Following the trial court's refusal to grant his request, Tal filed a formal motion to disqualify, which was considered by the Chief Judge of Oklahoma County² and which was denied on the merits.³

¶ 3 On October 30, 2003, the trial court entered a default judgment against Tal for failing to appear at a scheduling conference and set a date for a hearing on damages. Tal then sought vacation of the default judgment, and on November 24, 2003, the parties appeared for a hearing before the trial court on the motion to vacate. During the hearing the trial judge denied the motion to vacate and announced that he would set an evidentiary hearing on the issue of the amount of the claim. Tal again sought the trial judge's disqualification, handed the judge a letter requesting an in camera review to recuse and insisted that the trial court stay the matter until the disqualification issue had been resolved. Instead, the trial court denied the request, but did not memorialize the denial.⁴

¶ 4 On December 8, 2003, the cause was scheduled for an evidentiary hearing and Tal filed a renewed motion to disqualify which the trial court denied on the spot. Tal left the hearing to deliver the motion to the Chief Judge.⁵ In denying the motion, the Chief Judge found no additional evidence of bias requiring disqualification occurring between the filing of the two disqualification motions.

¶ 5 Pursuant to Rule 15(b), Tal brought a mandamus action in this Court to review the denial of his motion. At the same time, Tal also brought a direct appeal from the denial of his motion to vacate the default judgment, in which he argued that the trial judge should have been disqualified because of bias. On February 17, 2004, this Court assumed original jurisdiction in the mandamus action but we declined "to disqualify the trial judge in both cases." On July 25, 2005, the Court of Civil Appeals affirmed the trial court's denial of the motion to vacate, and specifically declined to consider the issue of bias.

¶ 6 The Court of Civil Appeals in Miller Dollarhide I determined that our February 17, 2004, order denying mandamus relief was the law of the case. We granted certiorari and determined that: 1) Tal's claims of bias were preserved for appellate review; 2) assuming jurisdiction and denying relief in the original mandamus action did not bar the Court of Civil Appeals from considering the issue on appeal; and 3) we remanded the cause to the Court of Civil Appeals to decide the merits of the bias claim. On remand, the Court of Civil Appeals held that the trial court did not abuse its discretion in denying the motion to disqualify. We again granted certiorari on May 7, 2007.

I.

¶ 7 A TRIAL COURT'S CONTINUED PARTICIPATION WHILE MOTIONS TO DISQUALIFY ARE PENDING RESULTS IN A DEPRIVATION OF DUE PROCESS.

¶ 8 Throughout the course of this proceeding, Tal has objected to the trial court's refusal to stay the proceedings while the motion to disqualify was pending. Tal relies on Clark v. Board of Education of Independent School District No. 89, 2001 OK 56, 32 P.3d 851, in support of his argument.

¶ 9 Clark involved the constitutional implications to a movant when a trial judge neglects to rule on a request for disqualification, yet continues to preside over the cause. The movant in Clark filed two documents requesting that the trial judge be disqualified, but the record contained no memorialized disposition of either request. Recognizing the implications of due process when challenging the impartiality of a trial judge, the Court said:

A fundamental requirement of due process is a fair and impartial trial. A neutral and detached judiciary is imperative to ensure procedural fairness to individual litigants and to preserve public confidence in the integrity of the judicial process. Every litigant is entitled to nothing less than the cold neutrality of an impartial judge. A challenge to an assigned judge for want of impartiality presents an issue of constitutional dimension which must be resolved and the rule memorialized of record after a meaningful evidentiary hearing. The quest for recusal may not be ignored, nor is a judge free to proceed with the case until the challenge stands overruled of record following a judicial inquiry into the issue .... (citations omitted, emphasis added).

We explained the three-step process for challenging the assigned judge's neutrality and detachment under District Court Rule 15:⁶ 1) the party must first informally ask the trial judge in camera to recuse from the case or to transfer it to another judge; 2) when met with an unsatisfactory response, the requesting party must then formally request (not less than 10 days before the case is set for trial) that the trial judge recuse or transfer the cause; 3) if the trial judge refuses to recuse, the party may then re-present the earlier formal request to the chief judge of the county where the case is pending. If the latter hearing should also result in an adverse order, the aggrieved litigant may then seek relief by mandamus in this Court.

¶ 10 The Clark Court explained that failing to rule on a quest for recusal bars further access to the relief afforded by the Rule 15 procedure and that without a memorialized ruling, a movant can neither proceed to the third or final Rule 15 stage. Under the teachings of Clark, when a trial court is presented with a request to disqualify, it is not a matter of discretion to refrain from presiding over the case until the disqualification ruling is memorialized and the movant has, at the movant's option,⁷ exhausted the Rule 15 procedure.

¶ 11 Here, the Rule 15 procedure was not followed by either the trial court or the movant. As we explained in Miller Dollarhide I:

The first attempt began with Tal's February, 2003 in camera letter requesting recusal. When his request was denied, Tal filed a timely formal motion in the trial court. The record is silent on why that motion was not considered by, or ruled upon by the trial court, but under our decision in Clark v. Board of Education of Indep. Sch. Dist. No. 89, 2001 OK 56, ¶¶ 5-11, 32 P.3d 851, the failure of the trial court to rule on the Rule 15 motion in the first instance was error. This error, which should not be attributed to Tal under these facts, was nevertheless mooted by the fact that the Chief Judge did in fact hear the motion and denied it on the merits.

At this point, Tal was entitled, pursuant to Rule 15(b), to bring a mandamus action in this Court within five days of the Chief Judge's order denying relief. However, Tal chose not to seek mandamus relief from the order as it applied to this case. Rather, Tal stood on the record, and under our holding in Pierce v. Pierce, 2001 OK 97, ¶ 10, 39 P.3d 791, the issue was...