Paulding County Industrial Building Authority v. Anthony Avery

Court of Appeals of the State of Georgia

ATLANTA,____________________

March 02, 2016 The Court of Appeals hereby passes the following order:

A15A2367. PAULDING COUNTY INDUSTRIAL BUILDING AUTHORITY et al. v. ANTHONY AVERY et al.

A15A2368. CALVIN THOMPSON et al. v. ANTHONY AVERY et al.

These appeals stem from the grant of applications for interlocutory review of the denials of motions to recuse. Because material circumstances that underlay the recusal motions no longer exist, we dismiss both appeals as moot.

Appellants in these appeals are the defendants in two related cases below; the cases were assigned to the same trial judge. Appellants filed in their respective cases motions seeking recusal of the trial judge. Citing Canon 3E (1) of the former Code of Judicial Conduct1 and Uniform Superior Court Rule 25, Appellants claimed that the “close, longstanding professional relationship between [the trial judge] and [one of the attorneys representing the Appellees (plaintiffs below)]” required the judge’s recusal so as to avoid the appearance of impropriety. The trial judge summarily denied the motions,2 then certified the orders for interlocutory review.

In their interlocutory applications to this Court, Appellants maintained that the “close, longstanding professional relationship between the trial judge and counsel for the [Appellees]” created a “reasonable perception about the trial judge’s lack of impartiality” such that the motions for recusal “should have been assigned to another judge for determination.”3 This Court granted both applications, which resulted in the docketing in this Court of the instant Case Nos. A15A2367 and A15A2368. In their respective briefs, Appellants have enumerated as their sole claim of error: “The trial court erred when it refused to submit Appellants’ motion for recusal to another judge for a determination on its merits and instead summarily denied it.”

Appellees have filed in this Court motions to dismiss as moot both Case Nos. A15A2367 and A15A2368. They point out that the attorney – whose relationship with the trial judge allegedly warranted the judge’s recusal – has withdrawn from the cases. In particular, they cite a notice of substitution of counsel filed in each of the two cases below,4 stating that the attorney, as well as affiliated lawyers and law firm, have withdrawn as counsel and “shall have no further responsibility in this matter.” Appellees thus contend in their motions that the sole issue raised in these appeals has been rendered moot and that the appeals must be dismissed.

Appellants counter that their appeals are not moot. As they describe, their appeals “concern[ ] whether [the trial judge] must refer the [recusal motions] to another judge to determine whether [the trial judge] should be recused from [the cases], either based on the facts at the time of the Motion[s] or under the circumstances once counsel withdrew once the appellate process began.”

“Under the Appellate Practice Act, the dismissal of an appeal is mandatory for the three specific instances contained in subsection (b) of OCGA § 5-6-48, one of which is ‘(3) Where the questions presented have become moot.’”5 “An appeal is moot when it seeks to determine an issue which, if resolved, cannot have any practical effect on the underlying controversy, or when such resolution will determine only abstract questions not arising upon existing facts or rights.”6

We agree with the Appellees that both cases have been rendered moot because the pertinent premise of Appellants’ recusal motions – a particular attorney serving as opposing counsel – no longer exists. Consequently, there is no basis for the claim that the judge’s relationship with an attorney in the case creates a reasonable appearance of impropriety. Indeed, even if we were to reach the merits of the Appellants’ enumerated claim(s) of error and agree that the trial judge should have referred the recusal motions for reassignment to a new judge, issuing an opinion to that effect – i.e., vacating the judgments and remanding the cases for such reassignments – “would be, in essence, rendering an advisory opinion on a moot point.”7 Where, as here, new information relevant to recusal becomes known to a party, a new recusal motion is required.8 Reassigning the motions that underlie these appeals would serve no practical purpose.

Appellants’ counter-arguments are unavailing. First, Appellants argue that the withdrawal by the attorney (and affiliated lawyers and law firm) did not “reverse the taint on the integrity of these proceedings.” But such issue – whether “taint” from former counsel’s involvement reasonably brings into question the trial judge’s impartiality – has not been presented to and ruled upon by a trial court. With respect to that issue, there is nothing for this Court to review.9

Appellants alternatively argue that, even if these appeals are moot, this Court should nevertheless rule on their enumerated error(s) as capable of repetition. As Appellants posit, “Appellees can just as easily rehire [the same attorney] or retain another co-counsel who has had a close professional relationship with [the trial judge], only to withdraw their appearance if and when the relationship comes to light.” It is well settled, however, that “the appellate court is not required to retain a moot case and decide it because a party ‘might possibly derive some future benefit from a favorable adjudication on an abstract question.’”10 Moreover, the particular attorney, affiliated lawyers and law firm have represented to the trial court that they “shall have no further responsibility in th[e] matter[s].” And at any rate, Appellants have not shown that a ruling upon a recusal motion precipitated by any such future appearance(s) would ultimately evade review.11

In light of material changes in the circumstances underlying the recusal motions ruled upon by the trial court, these appeals are “moot [because] a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.”12 Therefore, Case Nos. A15A2367 and A15A2368 are hereby DISMISSED as MOOT. We note that any new motion to recuse would be resolved pursuant to the revised Georgia Code of Judicial Conduct.13 We intimate no opinion relating to the manner in which the revised Code may impact the issues involved in any such future motion.

Appellees’ motions to dismiss as moot Case Nos. A15A2367 and A15A2368 are granted.

Court of Appeals of the State of Georgia

03/02/2016 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.