Smith v. ClarkSmith v. Clark
This is an appeal by defendant Ordell Smith from the denial of his
The judgment from which defendant sought relief arose out of a lawsuit brought by plaintiff Deborah K. Clark. That lawsuit grew out of a real estate transaction.
Sometime in late 1978, plaintiff Clark contacted defendant Smith and asked him to represent her, or to be her agent, in the purchase of a home. Smith agreed to do so, and the transaction was completed.
After discovering defects in the roofing of her new home and finding her requests for their repair ignored, Clark filed a complaint in Jefferson County Circuit Court on June 4, 1980, against Norman W. Vandergriff, Jr., Paula Vandergriff, Vulcan Realty Company, Realty Sales Company, Robert McElroy, and Smith, alleging facts constituting fraud, deceit, misrepresentation, breach of contract, and breach of fiduciary duty against all the defendants, and claiming damages of $150,000.
The law firm of Corretti and Newsom of Birmingham, through attorney N. Daniel Rogers, represented co-defendants Robert McElroy and Realty Sales Company. On October 22, 1982, the defendants in the case, with the sole exception of Ordell Smith, were dismissed with prejudice as parties to the suit. After that date, N. Daniel Rogers was no longer involved as attorney in the dispute at bar.
On April 19, 1983, a default judgment was entered against Smith by Circuit Judge John N. Bryan, Jr., with leave for the plaintiff to prove damages.
Plaintiff Deborah Clark subsequently proved damages against defendant Smith on August 30, 1983, and was awarded the sum of $15,000. The presiding judge at the hearing on damages was N. Daniel Rogers, who, as an attorney, had represented co-defendants Robert McElroy and Realty Sales Company 10 months previously.
On February 22, 1984, almost six months later, the defendant filed a
After a hearing before Judge Beasley on March 20, 1984, the defendant‘s
Clause (6) of this rule and the first five clauses of this rule are mutually exclusive, and relief cannot be obtained under (6) if it would have been available under one of the other five clauses. Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978); City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981). Consequently, relief under
None of the facts that would establish a void judgment are present in the case at bar. In rendering his order awarding damages, Judge Rogers did not lack jurisdiction over the subject matter, nor did he lack jurisdiction over the parties. For aught that appears, he did not act in a manner inconsistent with due process. Indeed, a judgment is not void because of disqualification of a judge, but is only voidable on direct attack by appeal or by motion to set it aside. State ex rel. Burns v. Phillips, 250 Ala. 120, 33 So.2d 239 (1947). Consequently, defendant here could not prevail under a
An appeal from an order denying a
The defendant contends that the Honorable N. Daniel Rogers violated
Canon 3C.(1)(b) reads:
“C. DISQUALIFICATION:
“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“....
“(b) He served as a lawyer in a matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.” (Emphasis added.)
“No judge of any court shall sit in any case or proceeding ... in which he has been of counsel ....” (Emphasis added.)
In Rushing v. City of Georgiana, 361 So.2d 11 (Ala.1978), this Court held that the trial judge should have recused himself by reason of his having prosecuted a criminal case against Rushing. The key element in that decision was the fact that a pending civil case and the previous criminal case arose out of the same matter in controversy. Rushing is distinguishable from the case at bar, however, because Rushing involved review of a refusal by the Court of Civil Appeals to grant a writ of mandamus requiring the circuit court judge to recuse himself before trial. In the case before us, a default judgment was entered against Smith, and the order to pay damages on the judgment had been outstanding six months before any complaint of bias was filed by the defendant. Because this appeal proposes a review of a ruling on a
In a case with facts similar to the present one, Acromag-Viking v. Blalock, 420 So.2d 60 (Ala.1982), this Court considered a
Important differences exist between the instant case and Blalock, supra. First of all, the
Another important difference in these two cases is that, in Blalock, the trial judge had a relationship with one of the defendants which was ongoing and continued right up to the time of the appeal. However, in the case at bar, the judge complained of had no connection with either of the parties at the time of the appeal, nor at the time of the judgment. He had represented a co-defendant in the case; this co-defendant had been dismissed as a party 10 months before he rendered the decision complained of.
Doubtless, Judge Beasley concluded that this tenuous relationship to the matter in controversy did not represent facts substantial enough to have demanded Judge Rogers‘s recusal at the damages hearing. Thus, Judge Beasley‘s exercise of his broad discretion cannot be viewed as an abuse thereof. It follows that his order denying
AFFIRMED.
MADDOX, JONES and SHORES, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
Under the facts of this case, I agree with the result reached. Given our limited scope of review in cases challenging the propriety of denying a