EVANS et al.
WILLIAMS et al.
C. J., MILLER, P. J., and REESE, J.
case arising from a petition to modify a trust, W. Michael
Evansappeals from an order denying his motion to
recuse the trial court judge, as well as orders granting
summary judgment to Weyman Evans, James Herring, and Billy
Williams (collectively, "Appellees"). For
the reasons set forth, infra, we vacate the order denying
Appellant's motion to recuse and remand this case with
an initial matter, we must consider Appellant's first
allegation of error, to wit: that the order denying his
motion to recuse must be vacated because the judge who issued
the order failed to include findings of fact and conclusions
of law, as required by Uniform Superior Court Rule (USCR)
25.6. We agree.
record in this case shows that Appellant filed a motion to
recuse the judge presiding over the case, Judge Melanie B.
Cross. Under such circumstances, USCR 25.3 provides as
When a judge is presented with a motion to recuse, or
disqualify, accompanied by an affidavit, the judge shall
temporarily cease to act upon the merits of the matter and
shall immediately determine the timeliness of the motion and
the legal sufficiency of the affidavit,  and make a
determination, assuming any of the facts alleged in the
affidavit to be true, whether recusal would be warranted. If
it is found that the motion is timely, the affidavit
sufficient and that recusal would be authorized if some or
all of the facts set forth in the affidavit are true, another
judge shall be assigned to hear the motion to recuse.
case, after Judge Cross reviewed the Appellant's filings
and referred the motion for disposition by another judge,
Judge Harry Jay Altman, II, was appointed to consider and
rule upon the motion. In his order denying the motion to
recuse, Judge Altman stated only that, after reviewing the
motion, the responses thereto,  the "nature of the action,
" and "all surrounding circumstances, " he
found "that there [were] not adequate grounds to justify
recusal of Judge Melanie B. Cross from hearing the
to Appellant, this order fails to comply with USCR 25.6,
which requires that a judge who rules upon a motion to recuse
include written findings of fact and conclusions of law in
its order on the motion.
The judge assigned may consider the motion solely upon the
affidavits, but may, in the exercise of discretion, convene
an evidentiary hearing. After consideration of the evidence,
the judge assigned shall rule on the merits of the motion and
shall make written findings and conclusions. If the
motion is sustained, the selection of another judge to hear
the case shall follow the same procedure as established in
[USCR] 25.4 above. Any determination of disqualification
shall not be competent evidence in any other case or
the final order on the merits of the motion to recuse by the
judge who was assigned to decide the issue "must be
accompanied by written findings of fact and conclusions of
case, the record affirmatively shows that Judge Altman's
recusal order fails to comply with USCR 25.6 as a matter of
law, because it does not contain the written findings of fact
and conclusions of law that are necessary to explain how and
why he reached his decision.
appeal, Appellee Herring proposes several reasons why he
believes Judge Altman would have been authorized to deny the
motion to recuse. It was Judge Altman's duty under USCR
25.6, however, to provide a written explanation of his
reasons for denying the motion. This Court cannot simply
assume that Judge Altman reached the same findings of fact
and conclusions of law that Herring proposes, particularly
when none of the Appellees filed a response to the recusal
motion, no hearing was conducted, and the written order
provides nothing substantive for this Court to review.
also argue that Appellant waived the Rule's requirement
for written findings of fact and conclusions of law by
failing to request them before or after Judge Altman issued
his ruling and by failing to object to the recusal order when
it was issued. They have failed, however, to cite to any
authority that requires such a request, particularly given
the plain language of USCR 25.6, or that provides for such a
waiver, and this Court is not aware of any such
we vacate the recusal order and remand the case to the trial
court with direction to address the motion to recuse ...