Stevens v. Wakefield
| Decision Date | 13 October 1981 |
| Docket Number | Nos. 61928,61929,s. 61928 |
| Parties | STEVENS v. WAKEFIELD (two cases). |
| Court | Georgia Court of Appeals |
J. Sherrod Taylor, Billy E. Moore, Columbus, for appellant.
John W. Denney, A. J. Land, Columbus, for appellee.
These two cases involve negligence and personal injury arising out of the collision of motor vehicles. The defendant in each case came into default, and a motion to open the default was made. The state court judge disqualified herself and in accordance with the judge assignment rules for Muscogee Superior Court designated and appointed a judge of that superior court as judge pro hac vice for the purpose of hearing the motions to open default and all other matters of said cases in the State Court of Muscogee County.
The plaintiffs then moved for the assignment of the cases to another state court judge and made a motion to disqualify the appointed trial judge (pro hac vice of the state court) on the grounds of bias and prejudice following the procedure outlined in State v. Fleming, 245 Ga. 700, 701-702, 267 S.E.2d 207, with affidavits in support thereof. The affidavits contended that the appointed trial judge (pro hac vice) had been very closely aligned with the law firm which had been representing defendant's insurer and representing tortfeasor defendants in certain cases, ruling favorably for this law firm in every case and claiming bias and prejudice toward plaintiffs in tort cases in which defendants were represented by this law firm before this judge. This law firm is alleged to have failed to file a timely answer for defendant in the cases sub judice.
The alleged recusant judge proceeded to hear the motions before him, denied the motion to recuse "determining that the Motion and supporting Affidavit ... are insufficient as a matter of law to disqualify the trial judge." The court then granted the motions of the defendant to open the defaults in each of said cases, finding the defendant had "made a showing under oath of excusable neglect for failure to file timely defensive pleadings and from all the facts the Defendant has made a proper case for the Defaults to be opened." Motion for assignment to another state court judge was likewise denied, the court finding, "the method of assignment by the Judge of the State Court of Muscogee County, Georgia proper and in accordance with the Constitution and laws of the State of Georgia." The plaintiffs appeal upon application granted by this court. Held :
1. The trial court did not err in denying plaintiffs' motions for assignment of the cases to another state court judge. Compare Garland v. State of Ga., 110 Ga.App. 756, 140 S.E.2d 46; Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15. While as the plaintiffs argue that under Code Ann § 24-2111a.1 (Ga.L.1980, p. 600, effective March 20, 1980), the motion being heard and determined July 17, 1980, a disqualified judge of the state court could have called upon the judge of another state court to serve; nevertheless this was not the only authority to allow the disqualified state court judge to appoint another judge to preside. See in this connection Spry v. State, 156 Ga.App. 74, 76(2), 274 S.E.2d 2, and Manders v. Caldwell, 229 Ga. 326, 327, 190 S.E.2d 913.
Instead of requesting another state court judge to serve, the disqualified state court judge assigned the cases to a judge of the superior court of that county, which was authorized by Art. VI, Sec. IV, Par. X, Constitution of 1976 (Code Ann. § 2-3310); and Manders v. Caldwell, 229 Ga. 326, 327, 190 S.E.2d 913, supra. Further, a local amendment (Ga.L.1952, pp. 579, 582, ratified November 4, 1952) authorized the designation of judges pro hac vice by the City Court of Columbus, the forerunner of the state court of that county by designating a judge of the Superior Court of Chattahoochee Circuit to serve in his stead or simultaneously with "and said judges pro hac vice shall possess the rights and powers vested in the Judge of said City Court of Columbus for such periods and in such matters ..." as the judge of the city court in his discretion has designated. We do not here decide whether this amendment to the Constitution of 1945 has been absorbed into the Constitution of 1976, since under the above designated judges of the superior court have authority to serve in these cases. The enumeration of error in denying plaintiffs' motion for assignment of the case to another state court judge is not meritorious.
2. Our next consideration must be to determine whether the trial court was correct or whether it erred in denying plaintiffs' motion to disqualify the trial judge on grounds of bias and prejudice and in finding that the plaintiffs' motion and supporting affidavits were "conclusionary in nature" and are "insufficient as a matter of law to disqualify the trial judge." One of the affidavits is generally insufficient, merely expressing the opinion of the affiant that his clients would not or could not or did not receive a fair trial or fair treatment before this trial judge in cases "in which the [named law firm] represented the opposing party without setting forth the reasons for the opinion." This affiant further deposed that if he were representing a party in which the opposing party was represented by this law firm and said case was pending before this trial judge, "the deponent is of the opinion that his client would not receive fair treatment by the aforesaid judge." (Emphasis supplied.) Again no basis for the opinion is given. However, this affiant does state that the trial judge "has not rendered fair decisions in cases which deponent has presented to said Court in which the law firm [named law firm] represented the opposing party."
Another affidavit is one in which affiant merely deposes that the state court judge "disqualified herself from hearing this case after it was suggested to her by counsel for Defendant that she might have a conflict of interest because her husband was employed by Defendant's insurer," and that she did not disqualify herself from hearing another case in which defendant was represented by the same law firm and insured by the same insurance company. The remaining affidavit states the "deponent believes that the Plaintiffs in said causes of action cannot receive a fair hearing on the issues before the ..." alleged recusant judge. The affiant then deposes, "according to his knowledge the said Judge is very closely aligned with and friends of the various members of the [named] law firm." Affiant then stated facts that the judge was involved, "in a serious automobile collision in which one of the members of the aforesaid law firm was a passenger in said Judge's vehicle [and] received substantial injury from which he continues to suffer until this date." Affiant then deposes that he believes that based upon his knowledge of practice before said judge he "could not fairly render a decision on the above styled cases because the aforementioned would be prejudiced by extraneous matters not in evidence." Affiant then set out a particular case in which he was involved as opposing counsel to this law firm and obtained a jury verdict in a substantial amount but, "because deponent was of the opinion that [alleged recusant trial judge] would grant a motion for new trial on the general grounds from which there could be no appeal," he had filed a direct appeal and the case was thereafter settled. As to another case, affiant deposes, "according to his best knowledge," in a certain case in which summary judgment was granted...
To continue reading
Request your trial
-
Christensen v. State
...171, 178-179(3), 166 S.E.2d 593 (1969). 30. See in general State v. Fleming, supra at 702-703, 267 S.E.2d 207; Stevens v. Wakefield, 160 Ga.App. 353, 356(2), 287 S.E.2d 49 (1981), rev'd on other grounds, Wakefield v. Stevens, 249 Ga. 254, 290 S.E.2d 58 (1982); Howard v. Dept. of Human Resou......
-
Scott v. Owens-Illinois, Inc.
...be sufficient to preclude an award of summary judgment. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977); Stevens v. Wakefield, 160 Ga.App. 353, 287 S.E.2d 49 (1981); rev'd on other grounds, 249 Ga. 254, 290 S.E.2d 58 3. The fact that the evidence adduced by appellant in his response ......
-
Stevens v. Wakefield, s. 61928
...A. J. Land, Columbus, for appellees. McMURRAY, Presiding Judge. The decision of this court in the above styled cases (Stevens v. Wakefield, 160 Ga.App. 353, 287 S.E.2d 49) in which we remanded with direction, having been reversed by the Supreme Court on certiorari (Wakefield v. Stevens, 249......
-
DeMudd v. Atlanta Metro Taxi-Cab Group, Inc.
...belief," committing the affiant to "almost nothing." Martin v. Lamb & Co., 77 Ga. 252, 256(3), 3 S.E. 10. See also Stevens v. Wakefield, 160 Ga.App. 353, 356, 287 S.E.2d 49, and cases cited, (rev'd on other grounds, Id., 249 Ga. 254, 290 S.E.2d 58). These issues remain for jury Judgment rev......