Mondy v. Magnolia Advanced Materials, Inc.

CourtSupreme Court of Georgia
Citation815 S.E.2d 70
Docket NumberS17G1478
Decision Date04 June 2018

303 Ga. 764
815 S.E.2d 70

Michael O. MONDY et al.


Supreme Court of Georgia.

Decided: June 4, 2018

Michael Oliver Mondy, Michael O. Mondy, P.C., 235 Peachtree Street, Suite 400, Atlanta, Georgia 30303, for Appellant.

Erika Clarke Birg, Peter L. Munk, Nelson Mullins Riley & Scarborough LLP, 201 17th Street NW., Suite 1700, Atlanta, Georgia 30363, for Appellee.

NAHMIAS, Justice.

We granted a writ of certiorari in this case to decide whether, when a motion to recuse the trial judge is filed after the judge has orally held a party’s attorney in contempt, the recusal motion must be decided before the judge may properly proceed to enter a written contempt order. In Mondy v. Magnolia Advanced Materials, Inc., 341 Ga. App. 141, 797 S.E.2d 506 (2017), the Court of Appeals held that the trial judge can ignore the pending recusal motion and enter the contempt order. See id. at 142-143, 797 S.E.2d 506. We disapprove that holding, concluding that under Uniform Rule of Superior Court 25.3, the entry of a written contempt order is an "act upon the merits" of the contempt proceeding that a trial judge whose impartiality has been formally called into question may not properly perform until the recusal motion has been decided.

We also conclude, however, that—even assuming the motion to recuse in this case was not only filed with the clerk but also "presented" to the trial judge as Rule 25.3 requires—the motion was legally insufficient on its face. Thus, if properly considered, the recusal motion would not have required the trial judge’s recusal, and the judge’s procedural error does not require us to vacate the

815 S.E.2d 73

contempt order that followed. We therefore ultimately affirm the judgment of the Court of Appeals.

1. The record shows the following. Michael O. Mondy is a lawyer. His client, Moses Langford, is the defendant in a breach of contract and trade secrets lawsuit brought in the Superior Court of DeKalb County by Langford’s former employer, Magnolia Advanced Materials, Inc. Langford is also the plaintiff in an employment discrimination case against Magnolia brought in federal court in Georgia, and Magnolia is also the defendant in a trade secrets case brought by its competitor, Epoplex, in federal court in South Carolina.

In August 2015, a few days after Epoplex issued a federal court subpoena to Langford requesting Magnolia documents, the trial judge in the state case entered an injunction prohibiting Mondy and Langford from directly or indirectly disclosing or permitting unauthorized access to Magnolia’s non-public information. Magnolia then filed a motion to quash the federal subpoena, and a federal magistrate judge entered an order staying compliance with the subpoena until further order. A few days later, Mondy filed an unsealed brief with 28 exhibits opposing the motion to quash. Because the brief was not sealed, Magnolia’s non-public information in the exhibits was made available not only to the general public but to Magnolia’s competitor

Epoplex—to whom Mondy also directly sent a Dropbox link containing the brief and exhibits.

Magnolia then filed a motion in the state case to hold Mondy and Langford in contempt of the injunction. On November 23, 2015, the trial judge held an evidentiary hearing at which Mondy testified and exhibits were admitted. During the hearing, the judge orally held Mondy in contempt for violating the injunction. The judge directed Magnolia’s counsel to submit a proposed order within ten days. The judge did not announce any sanction for the contempt, but directed that a hearing be scheduled regarding an award of attorney fees to Magnolia.1

Five business days later, on November 30, Mondy filed with the trial court clerk a motion to recuse the trial judge and his own supporting affidavit. The substance of the recusal motion was that the judge’s factual findings and legal conclusions regarding the contempt motion showed that the judge was prejudiced against Mondy; in his affidavit, Mondy also averred that the judge was prejudiced against him based on the judge’s rulings and "condescending" and "angry" facial expressions and tone during the contempt hearing and in previous, unrelated cases. The judge did not immediately rule on the recusal motion. Instead, two weeks later, on December 15, 2015, the judge entered an 11-page written order holding Mondy in contempt. Forty minutes after that, the judge issued the following order: "I hereby recuse myself voluntarily from the above-styled case. The Superior Court Administrator shall assign the case to a different [judge.]" Mondy appealed the contempt order. See OCGA § 5-6-34 (a) (2) (authorizing an immediate direct appeal of "[a]ll judgments involving ... contempt cases").

The Court of Appeals affirmed the contempt order on the merits, explaining that Mondy had failed to include and properly identify evidence in the record to support his claims of error, and also held that Mondy could not appeal the trial judge’s oral ruling granting a motion to compel discovery because it had not been reduced to a written order before Mondy appealed. See Mondy, 341 Ga. App. at 144-146, 797 S.E.2d 506. Before doing that, however, the court rejected Mondy’s contention that it was improper for the trial judge to enter the written contempt order before disposing of the recusal motion. See id. at 142-143, 797 S.E.2d 506. The Court of Appeals recognized that Uniform Superior Court Rule 25.3 directs that, "[w]hen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall

815 S.E.2d 74

immediately determine the timeliness of the motion and the legal sufficiency of the affidavit," denying the motion if it is untimely or legally insufficient and otherwise directing that the motion be assigned to another judge to resolve. But the Court of Appeals concluded that the trial judge did not "act upon the merits" of the case by issuing the contempt order, which was characterized as merely "an administrative process that effectuated a ruling made before Mondy filed his motion to recuse." Mondy, 341 Ga. App. at 143, 797 S.E.2d 506. The court also analogized this case to cases holding that "a plaintiff may not foreclose a judge from acting on [the judge’s] orally-announced intention to grant a defendant’s dispositive motion by dismissing his complaint." Id.

This Court granted Mondy’s petition for a writ of certiorari solely to address the recusal motion issue.

2. " ‘It is vital to the functioning of the courts that the public believe in the absolute integrity and impartiality of its judges, and judicial recusal serves as a linchpin for the underlying proposition that a court should be fair and impartial.’ " Mayor & Aldermen of the City of Savannah v. Batson-Cook Co., 291 Ga. 114, 114, 728 S.E.2d 189 (2012) (citations omitted). The formal procedures governing recusal of superior court judges are found in Uniform Superior Court Rule 25. See Batson-Cook Co., 291 Ga. at 116 & n.3, 728 S.E.2d 189. An understanding of the basic procedural and substantive rules of recusal (or "disqualification," as that term is used interchangeably with "recusal" in this context) is necessary to understand our decision in this case. We recently outlined those rules in Post v. State, 298 Ga. 241, 243-245, 779 S.E.2d 624 (2015), and we will now repeat much of what we explained there.

Rule 25.3 directs that when the trial judge assigned to a case is presented with a recusal motion and an accompanying affidavit, "the judge shall temporarily cease to act upon the merits of the matter" and determine "immediately": (1) whether the motion is timely; (2) whether the affidavit is legally sufficient; and (3) whether the affidavit sets forth facts that, if proved, would warrant the assigned judge’s recusal from the case. See Horn v. Shepherd, 294 Ga. 468, 471, 754 S.E.2d 367 (2014) ; Birt v. State, 256 Ga. 483, 484, 350 S.E.2d 241 (1986). If all three criteria are met, "another judge shall be assigned to hear the motion to recuse." USCR 25.3. The decision about referring a recusal motion for reassignment to another judge does not involve an exercise of discretion by the judge whose recusal is sought. See Batson–Cook Co., 291 Ga. at 119, 728 S.E.2d 189. Rather, whether the three threshold criteria have been met is a question of law, which an appellate court reviews de novo. See id. To be timely, a recusal motion and accompanying affidavit must be filed and presented to the judge "not later than five (5) days after the affiant first learned of the alleged grounds" for the judge’s recusal "and not later than ten (10) days prior to the hearing or trial which is the subject of [the] recusal." USCR 25.1. Failure to meet these deadlines may be excused, but only if the motion and affidavit establish "good cause" for the delay, and "[i]n no event shall the motion be allowed to delay the trial or proceeding." Id. If a recusal motion presents allegations, some of which are timely and some untimely, only the timely allegations will be considered. See, e.g., Henderson v. State, 295 Ga. 333, 335, 759 S.E.2d 827 (2014) ; Woodham v. Atlanta Dev. Auth., 335 Ga. App. 126, 129, 779 S.E.2d 116 (2015).

For the affidavit accompanying a recusal motion to be legally sufficient, it must contain "the three elements...

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