Smith v. Math

• Decision Date: 16 November 2007
• Docket Number: 2060415.
• Citation: 984 So.2d 1179
• Parties: Robert Lee SMITH, Sr. v. Leonard Norman MATH.
• Court: Alabama Court of Civil Appeals

984 So.2d 1179

Robert Lee SMITH, Sr. v. Leonard Norman MATH.

2060415.

Court of Civil Appeals of Alabama.

November 16, 2007.

Robert Lee Smith, Sr., pro se.

Frank J. Stakely and R. Brett Garrett of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.

On Application for Rehearing

THOMPSON, Presiding Judge.

This court's opinion of August 17, 2007, is withdrawn, and the following is substituted therefor.

Robert Lee Smith, Sr., appeals from the trial court's summary judgment on his claims against Leonard Norman Math. The issues raised on appeal require this court to decide whether the trial judge erred in failing to recuse himself from the case and whether the Alabama Legal Services Liability Act ("ALSLA"), §§ 6-5-570 to 6-5-581, Ala.Code 1975, applies to Smith's claims.

Math is an attorney who practices law in Montgomery County. On March 22, 2004, Math, on behalf of his client Max Federal Credit Union ("Max"), filed a collection action against Smith in the Montgomery District Court ("the Max action"). On December 9, 2004, Math obtained a default judgment in favor of Max against Smith in the amount of $2,767.71. On December 17, 2004, Smith filed a motion to set aside the default judgment due to ineffective service of process of the complaint. The district court granted Smith's motion on the same day; it set aside the default judgment and reset the case on the district court's docket.

Although the default judgment had been set aside on December 17, 2004, on December 28, 2004, Math recorded the default judgment against Smith in the Montgomery County Probate Court. The district court later heard the merits of the case, and on January 19, 2005, it entered a final judgment against Smith and in favor of Max. On February 2, 2005, Math recorded the January 19, 2005, judgment in the Montgomery County Probate Court. Thus, two virtually identical judgments against Smith — the December 9, 2004, judgment and the January 19, 2005, judgment — were then on record with the Montgomery County Probate Court. The record does not contain any evidence tending to indicate that Math attempted to correct the erroneous recording of the December 9, 2004, judgment. Smith stated in his affidavit that he had made numerous requests to Math to correct the erroneous recording of the December 9, 2004, judgment but that Math had failed to take any remedial action.

On November 4, 2005, Smith filed a pro se complaint against Math in the Montgomery Circuit Court ("the trial court"). The complaint contained two counts. In addition to the basic facts set forth above, Smith alleged in the first count that Math had "recorded the default judgment on December 28, 2004, although it had been set aside by the district court and all parties were provided notice of the default judgment being set aside." Smith further alleged that "after he discovered that the default judgment had been recorded, he made numerous requests to [Math] to rescind the recordation of" the December 9, 2004, judgment. Regarding damages, Smith alleged that "the recording by [Math] of the default judgment that had been set aside was fraudulent and the recording of the judgment had an adverse effect on [Smith] as it relat[es] to his business affairs" and that, "because of the recordation, he had to devote his time and energy in attempting to correct the recording of an invalid judgment and the recorded judgment deprived him of the use of certain funds." Smith sought $25,000 in damages on count one.

In count two of his complaint, Smith alleged that after the January 19, 2005, judgment in the Max action had been recorded, $2,950.75 was garnished from his wages. Smith alleged that Math never took the steps necessary to secure the garnished funds and satisfy the judgment and that, as a result, postjudgment interest continued to accrue even though he had already paid enough to satisfy the judgment. Smith also alleged that Math refused to refund "the overpayment" and thereby deprived him of the use of the funds. Smith sought $25,000 in damages on the second count.

Four of the Montgomery County circuit judges recused themselves from the case, and the matter was ultimately assigned to Circuit Judge Charles Price. Math filed a motion for a summary judgment on October 16, 2006. Citing Valentine v. Watters, 896 So.2d 385 (Ala.2004), Math argued that Smith had stated claims of legal malpractice under the ALSLA. According to Math, he was entitled to a summary judgment because Smith was never his client. Math also argued that he was entitled to a summary judgment because Smith had not presented expert testimony showing that Math had breached the applicable standard of care. To support his motion, Math submitted his own affidavit, in which he stated:

"In representing Max Federal Credit Union in an action against Robert Lee Smith, Sr. (CV-04-2168), I was practicing within my specialty as a collections attorney. I am familiar with the standard of care applicable to collections attorneys in general and specifically, under the same or similar circumstances as presented by my representation of Max Federal Credit Union in (CV-04-2168), I met or exceeded the applicable standard of care. I exercised the same degree of care, skill, and diligence that other collections attorneys would have exercised in a like or similar case."

According to Math, his affidavit was prima facie evidence establishing that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law.

On November 9, 2006, two days after the trial court had set Math's summary-judgment motion for a hearing, Smith filed a written response to Math's summary-judgment motion. Relying primarily on Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 So.2d 800 (Ala.1999), Smith, still acting pro se, argued that his claims were governed by general tort law, not the law relating to legal malpractice. Both parties agreed that Smith had never received legal services from Math. Smith supported his response with an affidavit and documentary evidence relating to the Max action.

On November 14, 2006, Smith filed a motion to recuse in which he argued that Math had practiced law in Montgomery County for many years and that, as a result, Math "had occasion to appear before the Judge and interact with him on other occasions." Smith did not specify what those "other occasions" were. Smith sought the judge's recusal "because it would eliminate any appearance of a conflict of interest." Smith subsequently filed a motion to continue the hearing on Math's motion for a summary judgment.

The trial court set Smith's motion to recuse for a hearing, but it did not rule on his motion to continue. On December 19, 2006, Smith filed a written request that the hearing on his motion to recuse be waived. In that request, Smith stated that the trial judge would know what contacts the judge had had with Math and what the judge's motivations were, according to Smith, for "persist[ing] in hearing this case contrary to the motion for recusal." In an order dated December 18, 2006, the day on which the hearing on Math's summary-judgment motion had been set, the trial court denied Smith's motion to recuse and granted his motion to continue the hearing on Math's motion for a summary judgment. The order was not filed in the trial-court clerk's office until December 19, 2006.

Smith subsequently filed a "Notice of Non-Appearance at Hearing" in which he advised the trial court that he would not attend the hearing on Math's summary-judgment motion and would rely instead on the arguments set out in his written response to the motion. In that notice, Smith voiced his belief that the trial judge was biased against him because the judge had set Math's summary-judgment motion for a hearing before he had received Smith's written response to that motion. Smith also argued that the fact that his motion to recuse was apparently denied the day before he filed his request for a waiver of the hearing on that motion and the fact that his motion to continue the December 18, 2006, hearing was not granted until the day on which the hearing was set showed bias on the part of the trial judge. Finally, Smith argued that the fact that four other judges in the circuit had recused themselves from the case was evidence of bias on the part of the trial judge.

The hearing on Math's summary-judgment motion took place on January 26, 2007. Smith did not attend the summary-judgment hearing. At the hearing, Math's counsel argued that Smith's claims alleged legal malpractice and that the ALSLA required Smith to support his claims with expert testimony. Without citing any specific cases, Math's counsel argued that "the basic common law doctrine is that an attorney does not owe a duty to anyone unless it was his client." The trial court stated at the hearing that Smith "decided not to appear and not to respond." On January 26, 2007, the trial court entered an order granting Math's motion for a summary judgment. Still acting pro se, Smith filed a timely notice of appeal to this court.

Smith's Motion to Recuse

We first consider whether the trial judge erred in failing to recuse himself from this action. "Review of the denial of a motion to recuse is appropriate either upon a petition for a writ of mandamus or upon an appeal from a final judgment." General Motors Corp. v. Jernigan, 883 So.2d 646, 673 (Ala.2003).

"A trial judge's ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion. See Borders v. City of Huntsville, 875 So.2d 1168, 1176 (Ala.2003). The necessity for recusal is evaluated by the `totality of the facts' and circumstances in each case. [Ex parte City of] Dothan Pers. Bd., 831 So.2d [1,] 2 [(Ala.2002)]. The test is whether `"facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge."' In re Sheffield, 465 So.2d...