Price v. Clayton

• Citation: 18 So.3d 370
• Decision Date: 31 October 2008
• Docket Number: 2070755.,2070728.
• Parties: Robert O. PRICE III v. Philip Warner CLAYTON.
• Court: Alabama Court of Civil Appeals

18 So.3d 370

Robert O. PRICE III v. Philip Warner CLAYTON.

2070728.

2070755.

Court of Civil Appeals of Alabama.

October 31, 2008.

Rehearing Denied January 16, 2009.

Certiorari Denied March 13, 2009 Alabama Supreme Court 1080521.

Robert O. Price, III, pro se.

James W. Woolley, Birmingham, for appellee.

THOMPSON, Presiding Judge.

In April 2000, Philip Warner Clayton filed a complaint against Robert O. Price III and William P. Holland alleging a number of tort claims. At the beginning of the bench trial in the action, Price and Holland each admitted to having received earnings from a contest and falsely reporting those earnings as income received by Clayton on Internal Revenue Service 1099 forms. In addition, Price admitted that he sent an e-mail message disparaging Clayton to the Alabama National Guard, of which Clayton was a member, and to the law school Clayton was attending at the time. The Alabama National Guard investigated each of the 10 allegations contained in the e-mail and determined 2 of those allegations to be "substantiated"; Clayton received a reprimand as a result of that investigation. The Alabama State Bar, into which Clayton was seeking admission, investigated Clayton as a result of Price's e-mail; it is not clear whether Price sent the e-mail to the Alabama State Bar or whether that organization learned of the e-mail after it had been sent to Clayton's law school. It does not appear that the Alabama State Bar took any action against Clayton as a result of its investigation.

After Price and Holland admitted liability for falsely reporting the contest earnings as income to Clayton and Price admitted sending the e-mail, the only remaining issue before the trial court was the assessment of damages, and the bench trial proceeded on that issue. On February 12, 2007, the trial court entered a judgment in favor of Clayton awarding him $25,000 in damages from Holland and $50,000 in damages from Price. Price and Clayton each appealed; those appeals were consolidated, and this court affirmed the trial court's judgment, without an opinion. Price v. Clayton (Nos. 2060476 and 2060639, Feb. 15, 2008), 13 So.3d 456 (Ala Civ.App.2008) (table) ("Price v. Clayton I").

On March 6, 2008, Price filed a pro se¹ application for a rehearing in this court.² On March 12, 2008, Price filed in this court a "motion to set aside" the trial court's February 12, 2007, judgment. In that motion, Price alleged that he had "recently discovered" evidence of a personal relationship between the trial judge and Clayton that might call into question the trial judge's impartiality. This court treated Price's March 12, 2008, motion as a request for permission to file a motion in the trial court seeking relief under Rule 60(b), Ala. Civ. P., from the February 12, 2007, judgment, and we granted that request. See Rule 60(b), Ala. R. Civ. P. ("Leave to make [a Rule 60(b) ] motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending in such court.").

Price then filed in the trial court a motion in which he sought relief from the February 12, 2007, judgment pursuant to Rule 60(b) and moved the trial judge to recuse himself from the action. Although that motion was filed in the trial court on April 16, 2008, that motion is deemed to have been filed in the trial court on March 12, 2008, the date on which Price sought relief in this court. See Rule 60(b), Ala. R. Civ. P. ("If leave of the appellate court [to file a Rule 60(b) motion in the trial court] is obtained, the motion shall be deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court."). Accordingly, we refer to Price's motion as having been filed on March 12, 2008.

In his March 12, 2008, motion, Price alleged that the trial judge had submitted to the Character and Fitness Committee of the Alabama State Bar a September 14, 1999, affidavit recommending Clayton as an applicant for admission to the Alabama State Bar. In that motion, Price also alleged that the trial judge's execution of the September 14, 1999, affidavit violated Canon 2 of the Alabama Canons of Judicial Ethics, which, he argued, warranted the trial judge's recusal as well as a retrial of Clayton's claims against Price. In support of his March 12, 2008, motion, Price submitted the September 14, 1999, affidavit, in which the trial judge stated:

"I have known Phil Clayton for a number of years, and I know him to be a hard-working and dedicated individual who is well-respected in the community. Phil has achieved the rank of Major in the Alabama National Guard and is employed full-time with the Guard. He has served the State of Alabama well, and I know that he will be an asset to the Alabama Bar. I recommend him wholeheartedly and without reservation."

On April 18, 2008, the trial court entered a judgment denying the relief sought in Price's March 12, 2008, motion. In its April 18, 2008, judgment, the trial court stated:

"This matter comes before the Court on Defendant Price's motion seeking relief from judgment. Having considered said pro se motion in its entirety, the Court will consider this as a motion to recuse. [Price] contends that the trial court should recuse because of a Character and Fitness affidavit signed by the Court for [Clayton], a prospective law student in September 1999.

"This has never been raised by any party or attorney, nor was it remembered by the Court until [Price] filed the present motion.

"Having heard the bench trial, reviewed the most recent filing and the subject affidavit, the court finds said motion shall be DENIED."

Price timely appealed on April 25, 2008; this court assigned the appeal case number 2070728. On April 28, 2008, Price filed in this court a petition for a writ of mandamus, which also purported to challenge the trial court's April 18, 2008, judgment. The petition for a writ of mandamus was assigned case number 2070755. This court consolidated the appeal and the petition for a writ of mandamus. Upon submission, this court incorporated the record from Price v. Clayton I, supra, into the record in this matter.

It is well settled that the denial of a Rule 60(b) motion is appealable. Ex parte King, 821 So.2d 205, 209 (Ala.2001); Williams v. Williams, 910 So.2d 1284, 1286 (Ala.Civ.App.2005). Thus, Price's appeal is the appropriate method of seeking appellate review of the denial of his Rule 60(b) motion, which is the sole issue raised in the appeal in case number 2070728.

However, Price's petition for a writ of mandamus in case number 2070755 is not the appropriate method for reviewing the issue raised in that petition, i.e., whether the trial judge erred in failing to recuse himself. After the trial court denied Price's March 12, 2008, motion, nothing further remained pending in the trial court. Thus, the trial court's April 18, 2008, ruling was a final judgment and was not an interlocutory order from which appellate review could be had through a petition for a writ of mandamus. See Rule 21(e)(4), Ala. R.App. P. (review by petition for writ of mandamus "encompasses the situation where a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable"). Although a petition for writ of mandamus may not be used as a substitute for an appeal, Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894-95 (Ala.1998), this court may, in certain circumstances, treat a petition for a writ of mandamus as an appeal.

"In Ex parte Burch, 730 So.2d 143 (Ala. 1999), our supreme court held that it had the discretion to treat a petition for a writ of mandamus as a Rule 5, Ala. R.App. P., petition for permission to appeal, and it granted permission to appeal in that case. In doing so, the supreme court stated, `[t]here is no bright-line test for determining when this Court will treat a particular filing as a mandamus petition and when it will treat it as a notice of appeal.' Ex parte Burch, 730 So.2d at 146. See also Ex parte C.L.J., 946 So.2d 880, 888 (Ala.Civ.App.2006) (in which this court elected to treat a petition for a writ of mandamus as an appeal); and Ex parte W.H., 941 So.2d 290, 298 (Ala.Civ.App.2006) (treating a petition for a writ of mandamus as an appeal)."

Weaver v. Weaver, 4 So.3d 1171, 1173 (Ala. Civ.App.2008).

In this case, the inquiry on appeal in case number 2070728 is whether the trial court erred in denying Price's request for relief pursuant to Rule 60(b) based on Price's argument that the trial judge should have recused himself from considering this matter. Because the issue of recusal, which is the only issue raised in the petition for a writ of mandamus in case number 2070755, is central to the inquiry on appeal in case number 2070728, we elect to treat the petition for a writ of mandamus in case number 2070755 as an appeal. See Ex parte Weaver, supra, and Ex parte Burch, supra; see also Rule 1, Ala. R.App. P. (The Rules of Appellate Procedure "shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits."); and Appendix IV to the Alabama Rules of Appellate Procedure (the philosophy of reaching the merits of an appeal when possible is a "principle [that] echoes throughout the rules").

Price did not specify the specific subsection of Rule 60(b) pursuant to which he sought relief in his March 12, 2008, motion. The substance of a motion determines the type of motion it is. Evans v. Waddell, 689 So.2d 23, 26 (Ala. 1997). Rule 60(b) provides, in pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial...