Butler v. Biven Software, Inc. ( 1996 )

Birdsong, Presiding Judge.

Michael B. Butler is the defendant in this legal malpractice suit. Plaintiffs seek more than $9,000,000. The trial court gave default judgment against Butler for abuse of discovery and struck his counterclaims. The record contains more than 3,175 pages. On appeal Butler contends he repeatedly and timely produced all discovery demanded and ordered, and that he was deposed five times and did not refuse to make himself available to be deposed again.

After his former clients (plaintiffs) hired new counsel in the underlying lawsuits, Butler filed a lien for $181,537.50 on the proceeds of that suit. New counsel settled that suit in April 1993 and this malpractice suit was filed one month later, upon a malpractice affidavit filed by plaintiffs’ new counsel. Extensive discovery ensued. Butler produced more than 5,000 documents. Nevertheless, plaintiffs filed eight discovery motions.

In November 1994 the trial court ordered, “Absent good cause shown, all motions, except motions in limine, shall be filed on or before January 23, 1995.” (Emphasis supplied.) In December 1994 Butler moved for partial summary judgment, saying plaintiffs could not recover against him for their “low” settlement, for their damage was caused by the voluntary settlement entered for them by new counsel, who is also the expert affiant in this malpractice suit. See Rogers v. Norvell, 174 Ga. App. 453, 457 (330 SE2d 392). The trial court ruled Butler’s motion was filed too late.

In a letter to the court, Butler contended the judge’s refusal to consider his summary judgment motion was based on an “erroneous representation by Robert Goldstucker, counsel for plaintiffs, that the court had signed an order [requiring] all motions, including motions for summary judgment, to be filed by October 30, 1994.” The court issued an order saying the court’s November 1994 order requiring the parties to file all motions on or before January 23, 1995 “applied to all motions other than the summary judgment motion, as that motion had been specifically addressed in the status conference of June 1994 [where all parties agreed the motion] would be filed by October 30, 1994.” The court then denied Butler’s motion for partial summary judgment. Butler’s former counsel, however, wrote a letter to the judge refuting that any October 30,1994 deadline for Butler’s motion for summary judgment was ever discussed as stated by the judge.

Butler filed a motion to recuse the judge, saying he had learned of a “secret oral order allegedly prepared by Robert Goldstucker” which set an October 30, 1994 deadline for Butler’s motion for summary judgment, that no record of such order exists and that any such oral order “is the product of an ex parte, extra-judicial interaction between [the judge] and Robert Goldstucker, in violation of [USCR] Rule 4.1 [and] OCGA § 9-11-7 (b) (1).”

Plaintiffs then filed notices for four depositions, including one of Butler’s wife, and subpoenaed Butler for “the original of all documents produced by you [numbered] 00001 through 05240.”

On March 2, 1995 the judge denied the motion to recuse on grounds that he had no ex parte communication with Goldstucker and that therefore Butler’s recusal affidavit was insufficient. In March 1995 Butler filed notice of bankruptcy. In June 1995 the trial court granted default judgment and struck Butler’s counterclaims, leaving the amount of damages for jury trial. Held:

1. Appellant’s motion for summary judgment was peremptorily denied because of the alleged existence of an order setting an October 30, 1994 deadline for that motion. Appellant’s affidavit accompanying his motion for recusal raises in question the existence of such an alleged order, which would contradict the trial court’s November 1994 order setting a deadline of January 23, 1995 for all motions except motions in limine. An order setting an October 30, 1994 deadline is not in the record and appellant alleges it was unknown to him, and was either a “secret” order or one issued ex parte. These are not mere conclusions and opinions of bias and prejudice such as would render appellant’s affidavit insufficient. See Stephens v. Ivey, 212 Ga. App. 407, 408 (442 SE2d 248). They are allegations of fact and of factual inference which may be made from the facts and circumstances asserted in appellant’s motion to recuse and affidavit. If an order setting an October 30, 1994 deadline for appellant’s summary judgment motion existed and was not known to him, the trier of fact may conclude, as did appellant, either that the order was a “secret” order or was issued ex parte, or that some other impropriety occurred. These are factual conclusions, and are not the sort of “ ‘bare conclusions and opinions’” (Stephens, supra) as to bias and partiality which render an affidavit insufficient. The trial judge’s ruling that this affidavit was insufficient merely because it contained “conclusions” may itself, in the circumstances of this case, “ ‘give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ [Cit.]” Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67); Stephens, supra. Butler’s recusal affidavit raises genuine questions of fact involving the trial judge’s own actions, and this trial judge could not sit as trier of fact on allegations concerning his own actions.

The judge’s duty on a motion to recuse is to determine the timeliness and legal sufficiency of the movant’s affidavit and to determine whether the facts alleged, if true, would warrant recusal. State v. Fleming, 245 Ga. 700, 702 (267 SE2d 207). He is not allowed to pass on the truth of the allegations in the affidavit. Id. The affidavit in this case sets forth circumstances which, if true, give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment, and recusal of this trial judge in this case may be required. The trial court erred in denying appellant’s motion to recuse on the basis of insufficiency of appellant’s recusal affidavit.

2. Where an affidavit is filed giving fair support to the charge of a bent of mind that may prevent or impede impartiality in the case, the trial judge must “ ‘cease to act’ ” in the case (State v. Fleming, supra at 702), as he must when he asserts his own partiality and recuses himself or when he is recused by another judge. By the nature of his recusal, any actions following his recusal or after he should have recused himself are naturally void. The default judgment in this case is therefore void.

Judgment reversed.

Blackburn, J., concurs. Beasley, C. J., concurs specially.