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Evans v. Williams

Court of Appeals of Georgia, Second Division

April 13, 2017

EVANS et al.
v.
WILLIAMS et al.

          DOYLE, C. J., MILLER, P. J., and REESE, J.

          Reese, Judge.

         In this case arising from a petition to modify a trust, W. Michael Evans[1]appeals 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[2] (collectively, "Appellees"). For the reasons set forth, infra, we vacate the order denying Appellant's motion to recuse and remand this case with direction.

          1. As 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.

         The 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 follows:

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, [3] 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.

         In this 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, [4] 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 action."

         According 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.[5] 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 proceedings.[6]

         Thus, 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 law."[7]

         In this 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.[8]

         On 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.

         Appellees 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 authority.[9]

         Consequently, we vacate the recusal order and remand the case to the trial court with direction to address the motion to recuse ...


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