Moses C. Everett v. Robert H. Dykes a/k/a Bob Dykes d/b/a Dykes Farm, LLC, Dan Glienke d/b/a LOL Finance Company, Covington County Sheriff's Department, Covington County Board of Supervisors, Arthur Keys, Sterling Craft, Jimmy D. White and Fenton Page

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CP-01331-COA

MOSES C. EVERETT APPELLANT v.

ROBERT H. DYKES A/K/A BOB DYKES D/B/A APPELLEES DYKES FARM, LLC, DAN GLIENKE D/B/A LOL

FINANCE COMPANY, COVINGTON COUNTY

SHERIFF’S DEPARTMENT, COVINGTON

COUNTY BOARD OF SUPERVISORS, ARTHUR

KEYS, STERLING CRAFT, JIMMY D. WHITE

AND FENTON PAGE

DATE OF JUDGMENT: 11/16/2020

TRIAL JUDGE: HON. STANLEY ALEX SOREY COURT FROM WHICH APPEALED: COVINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MOSES C. EVERETT (PRO SE) ATTORNEYS FOR APPELLEES: WILLIAM ROBERT ALLEN

PAMELA LUCKIE CASTLE

MARGARET ZIMMERMAN SMITH LANCE WESLEY MARTIN

ANNA LITTLE MORRIS

NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE DISPOSITION: APPEAL DISMISSED - 03/08/2022 MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Moses Everett attempts to appeal from the Covington County Circuit Court’s order denying his motion for the circuit judge’s recusal. We dismiss the appeal because Everett’s attempt to appeal from the denial of his recusal motion was procedurally improper. M.R.A.P. 48B.

FACTS

¶2. On May 13, 2020, Everett and his wife, Meshel Everett, were traveling on a road in Covington County, Mississippi, when Everett’s vehicle struck a cow. Everett claimed that this collision resulted in property damage to his vehicle. He accordingly commenced a negligence suit on May 26, 2020, against Robert H. Dykes a/k/a Bob Dykes d/b/a Dykes Farm LLC, Dan Glienke d/b/a LOL Finance Company, the Covington County Sheriff’s Department, the Covington County Board of Supervisors, Arthur Keys, Sterling Craft, Jimmy D. White, and Fenton Page (Appellees).

¶3. Nearly four months after filing his complaint, Everett filed a motion for the recusal of the circuit judge. In his motion, Everett argued that the circuit judge should recuse from the matter because he is a circuit court judge for Covington County, and Everett named the Covington County Board of Supervisors as a defendant. Everett asserted that a conflict of interest existed because the county supervisors have the authority to delegate and allocate money to the Covington County Circuit Court. Everett requested that the circuit judge petition the Mississippi Supreme Court to appoint a special judge to be assigned to Everett’s case.

¶4. At a November 6, 2020 motions hearing, Everett argued that the circuit court should hear his motion for recusal prior to any other pre-trial motion the parties had filed. The circuit court allowed Everett to argue his motion, despite Everett’s failure to notice the motion for a hearing.

¶5. After hearing Everett’s argument, the circuit judge ruled from the bench and denied Everett’s motion. Everett then moved for leave of the court to appeal the ruling. The circuit court granted Everett’s request and stayed all proceedings pending the appeal’s outcome. ¶6. On November 16, 2020, the circuit judge entered his order denying Everett’s motion for recusal. That same day, Everett filed his notice of appeal from that order.

DISCUSSION

¶7. In appealing from the circuit court’s order denying his motion for recusal, Everett failed to comply with Mississippi Rule of Appellate Procedure 48B.1 “[T]he denial of a recusal motion . . . is not a final judgment.” Patriot Prod. Grp. LLC v. Livingston Operating Co., 309 So. 3d 489, 493 (¶16) (Miss. Ct. App. 2019); see also Turner v. Everett, 13 So. 3d 311, 313 (¶15) (Miss. Ct. App. 2008) (A motion for recusal of a trial judge is “in no way final as to the issues of this case.”). “It is well settled that appeals from the circuit court lie only from a final judgment.” Patriot Prod. Grp., 309 So. 3d at 492 (¶13) (quoting LaFontaine v. Holliday, 110 So. 3d 785, 787 (¶8) (Miss. 2013)). However, Rule 48B “permit[s] interlocutory review of a trial judge’s denial of a motion for recusal.” Id. at 493 (¶16).

¶8. Rule 48B states, in pertinent part, as follows:

If a judge of the circuit, chancery or county court shall deny a motion seeking the trial judge’s recusal, or if within 30 days following the filing of the motion for recusal the judge has not ruled, the filing party may within 14 days following the judge’s ruling, or 14 days following the expiration of the 30 days allowed for ruling, seek review of the judge’s action by the Supreme Court. A true copy of any order entered by the subject judge on the question of recusal and transcript of any hearing thereon shall be submitted with the petition in the Supreme Court.

M.R.A.P. 48B.2 This Court has explained that “Rule 48B requires the party seeking review to file a ‘petition in the Supreme Court’ along with a copy of the trial judge’s order.” Patriot Prod. Grp., 309 So. 3d at 493 (¶16). In this case, Everett “filed only an ordinary notice of appeal in the circuit court.” Id.3 Everett’s notice of appeal failed to include a transcript of the hearing where the circuit judge denied Everett’s motion for recusal, as required by Rule 48B.4 See Whitley, 994 So. 2d at 860 (¶12) (To properly appeal the denial of a motion for recusal of the circuit judge, the appellant “must have sought review with the clerk of the supreme court and included a transcript of the hearing wherein [the trial judge] denied the motion to recuse.”). Everett therefore failed to properly follow the procedure set forth in Rule 48B.

¶9. Everett also failed to timely seek review of the judge’s action on his motion for recusal by the supreme court. The record shows that the circuit judge did not rule on Everett’s recusal motion within thirty days of the filing of the motion. Pursuant to Rule 48B, Everett had fourteen days “following the expiration of the [thirty] days allowed for ruling”—or “forty-four days after the filing of the motion for recusal”—to seek review by the supreme court. Doll v. BSL Inc., 41 So. 3d 664, 669 (¶14) (Miss. 2010). Everett filed his notice of appeal approximately sixty-six days after the filing of his motion for recusal, well outside of the timeline required by Rule 48B. “As [Everett] failed to timely seek [the supreme court’s] review of [the circuit judge’s] action (or lack thereof), this Court concludes that this issue is time-barred.” Id.; accord Patriot Prod. Grp., 309 So. 3d at 493 (¶16). ¶10. We therefore find that Everett’s “attempt to appeal the denial of [his] recusal motion was both untimely and procedurally improper.” Patriot Prod. Grp., 309 So. 3d at 493 (¶16). Because Everett failed to seek review of the circuit judge’s denial of the recusal motion in the manner permitted by Rule 48B, this Court lacks appellate jurisdiction.

¶11. APPEAL DISMISSED.

BARNES, C.J., WILSON, P.J., GREENLEE, WESTBROOKS, McDONALD, McCARTY, SMITH AND EMFINGER, JJ., CONCUR. LAWRENCE, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.