author: TERRI F. LOVE, Judge.

text:
    NEW ORLEANS FIREFIGHTERS ASSOCIATION LOCAL 632, AFL-CIO, and Steven Glynn, John Weinmann, Robert Volante, Glenn Trainor, Dean Dearmond, Terry Paternastro, Keith Trainor, Patrick Lampard, Barry Caruso, Donald Veazey, George Helm, et al. v. The CITY OF NEW ORLEANS.
    No. 2004-CA-2078.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 2006.
    Rehearing Denied April 6, 2006.

      Frank G. DeSalvo, Robert P. Blackburn, DeSalvo Desalvo & Blackburn, APLC, New Orleans, LA, for Plaintiff/Appellant.
    Sherry S. Landry, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Heather M. Valliant, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

_[1This appeal arises from the contentious and continuing litigation between the City of New Orleans (“City”), the New Orleans Firefighters Association Local 632 (“Union”), and individual firefighters regarding the entitlement to emoluments of the office. This Court ordered the City to award certain emoluments of office, including a five percent pay raise, to the firefighters in the present case. On remand, the trial court awarded all emoluments of office, except the five percent pay raise, and failed to quantify the amount of money due or determine the dates of retroactive ranking. The trial court denied the City’s assertion of res judicata. We find that res judicata is not applicable because the firefighters in the present appeal were not included in a prior settlement agreement. We affirm as amended to award the five percent pay raise. We also remand for the exact determination of the emoluments.

FACTS AND PROCEDURAL HISTORY

The City and twenty named plaintiff firefighters (“Firefighters”) appeal a | ¡.February 11, 2003 trial court judgment which ordered the City to award back pay, adjust the seniority dates as to the twenty firefighters named in the judgment, and to otherwise enforce the underlying judgment from June 16, 1995. The trial court dismissed the City’s exception of res judicata as to the Firefighters’ claims and ordered the City to comply within sixty days. The City’s suspensive appeal and the Firefighters’ devolutive appeal timely followed. The Union is not a party in this appeal.

STANDARD OF REVIEW

The standard of review for the peremptory exception of res judicata requires this Court to determine if the “trial court’s decision is legally correct or incorrect.” Glass v. Alton Ochsner Med. Found., 04-1824, p. 5 (La.App. 4 Cir. 6/1/05); 907 So.2d 782, 785. Additionally, Louisiana law provides “[t]he doctrine of res judicata is stricti juris and any doubts concerning the application of this principle must be resolved against its application.” Alonzo v. State of Louisiana, ex rel. Dep’t of Natural Resources, 02-0527, p. 8 (La. App. 4 Cir. 9/8/04); 884 So.2d 634, 638.

RES JUDICATA

Res judicata applies when a final judgment precludes the same parties from reasserting the same claims in subsequent litigation. LSA-R:S. 13:4231. The | aLouisiana Supreme Court has held that a valid transaction or compromise can form the basis of a res judicata exception. Ortego v. State Dep’t of Transp. and Dev., 96-1322 (La.2/25/97); 689 So.2d 1358, 1364. Louisiana’s codified law confirms this assertion. La. C.C. Art. 3071; 3078. However, a settlement made by one party does not preclude the other parties from further litigation. La. C.C. Art. 3077. Consequently, the City cannot preclude the Firefighters from asserting their rights based upon a settlement if they were not a party.

The City entered into the settlement agreement on April 30, 1997, with the Union and sixteen firefighters, not included in the present appeal, to settle “various grievances and contract disputes” stemming from the 1995 judgment. The City contends the agreement extinguished all future litigation concerning the 1995 judgment and that it included all the plaintiffs named in the original suit. However, the City admits that the Firefighters in the present case were omitted because they “no longer held any viable claims.”

Two representatives signed this agreement. The City Attorney for the City of New Orleans signed in his capacity. Louis L. Robein, Jr., who represented the Union and all of the originally named firefighter plaintiffs, signed the agreement in his capacity as counsel for the Union. The signature block reads: FOR THE | ¿UNION: BY: ITS ATTORNEY, LOUIS L. RO-BEIN, JR. The record is void of evidence indicating the Firefighters’ intent of being a party to the settlement and no attorney signed the settlement representing the rights of the individual firefighter plaintiffs.

In the case sub judice, the Firefighters were not a party to the settlement agreement. The settlement involved a group of sixteen named plaintiffs involved in the original 1995 suit, but the City omitted the Firefighters involved in this appeal. The exception of res judicata requires the parties in the settlement and the suit to be identical. LSA-R.S. 13:4231. Thus, it is not conclusive as to the omitted parties. La. C.C. Art. 3077. The record also lacks evidence of the Firefighters’ consideration or intent to enter into the settlement. Lastly, the settlement lacks a signature that waives the Firefighters’ rights. Any doubt of applying res judicata must weigh against its application. Alonzo, 884 So.2d at 638. The lack of the Firefighters’ intent and a signature on their behalf presents doubt. We find no legal error in the trial court’s dismissal of the City’s exception of res judicata.

DETERMINATION OF EMOLUMENTS

The Firefighters seek a clarification of this Court’s earlier opinion to determine if they are entitled to the five percent pay increase and an evidentiary hearing to quantify the three other emoluments of office. This Court’s opinion, later clarified on rehearing, New Orleans Firefighters Ass’n Local 632 v. City of New Orleans, 99-0011 (La.App. 4 Cir. 11/24/99); 750 So.2d 1069, reh’g granted in part and denied in part, 750 So.2d 1069, 1073 (La. App. 4 Cir. 2/2/00), states:

[W]e affirm our determination that the judgment of the trial court is reversed and this case is remanded to the trial court for a determination of entitlement of the amount of back pay, adjustment of seniority/ [^promotion and a five percent raise in accordance with the June 16,1995 judgment.

Id. at 1074. The trial court failed to include the five percent raise which sought to enforce the 1995 judgment and comply with this Court’s order.

DECREE

We affirm the trial court’s order and amend the judgment to award the Firefighters the five percent pay raise.

We remand and order the trial court, in accordance with this Court’s order of February 2, 2000, to determine: 1) the date each of the Firefighters should have been promoted; 2) the amount of back pay due to each of the Firefighters; and 3) the amount of lost wages owed to the Firefighters who were denied the five percent pay raise.

AFFIRMED AND AMENDED IN PART; REMANDED.

      . The history and facts of this case are reported at New Orleans Firefighters Ass’n Local 632 v. City of New Orleans, 1999-0011 (La.App. 4 Cir. 11/24/99); 750 So.2d 1069, reh’g granted in part and denied in part, 750 So.2d 1069, 1073 (La.App. 4 Cir. 2/2/00).

      . The named firefighters in this appeal include Murphy Arcenaux, III, Ricky Berrigan, Gary Savelle, Joseph Fincher, Donald Veazy, Robert Volante, Patrick Lampard, Robert Eis-erloh, Mark Calamari, Chris Mickal, Timothy McConnell, Louis Nugent, Terry Paternastro, Addis Casey, Alden Lombard, Gregory Choi-na, Dean Dearmond, John Petruska, Barry Caruso, and Keith Trainor.

      . The case, sub judice, began with the 1995 judgment. The trial court granted the Firefighters' Motion for Summary Judgment which required the City to “immediately promote to the rank of Fire Captain, with all back pay and emoluments of office, all of those individuals whose names appear on the roster of eligibles established by the City Civil Service Commission....”

      . LSA-R.S. 13:4231: Res judicata
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

      .La. C.C. Art. 3071: Transaction or compromise, definition
      A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
      This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.
      La. C.C. Art. 3078: Res judicata; error; lesion
      Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.

      . La. C.C. Art. 3077: Transaction by one of interested parties, effect as to others
      A transaction made by one of the interested parties is not binding for the others, and can not be opposed by them.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Plaintiff v. Chieno ORMAN, Defendant.
    No. 41,183-KH.
    Court of Appeal of Louisiana, Second Circuit.
    March 16, 2006.
    Chieno Orman, Pro Se.
    William R. Coenen, Jr., District Attorney, Johnny Boothe, Assistant District Attorney, for State of Louisiana.
    Before CARAWAY, DREW and LOLLEY, JJ.
   11 WRIT GRANTED IN PART, DENIED IN PART AND REMANDED.

The applicant’s conviction became final, and the time delays under La. C. Cr. P. art. 930.8 began to run upon the reinstatement of the applicant’s conviction and sentence in State v. Orman, 1997-2089 (La.1/9/98), 704 So.2d 245. The applicant made two claims in the district court allegedly based on “facts previously unknown to the petitioner and his attorney” as an exception to the time limitations for seeking post-conviction relief.

The first claim, is that the primary witness against him, Dee Dee Davis, had made statements to a teacher, Todd De-Mars, that she (Davis) wanted the murder victim killed. These remarks were reported to the authorities. This fact was known to the petitioner as early as 1998, according to the opinion of the U.S. Fifth Circuit in Orman v. Cain, 228 F.3d 616 (5th Cir.2000). We deny the writ on this issue, finding this claim to have been untimely asserted.

The Louisiana Supreme Court, in Carlin v. Cain, 1997-2390 (La.3/13/98), 706 So.2d 968, found that the exception to the three-year [now two-year] time bar provided by for La. C. Cr. P. art. 930.8(A)(1) based on facts not known to the petitioner or his attorney imposes no express diligence requirement on the inmate and remains subject only to the laches-like provisions of La. C. Cr. P. art. 930.8(B), which authorize the dismissal of any timely-filed application or one | ?filed under any of the statutory exceptions to the time bar when the state shows that delay has prejudiced its ability to respond to the application as the result of events not within its control.

While this holding relieves an applicant from due diligence in seeking to discover facts that will support an exception to the time limitations, it does not relieve the applicant from timely asserting a claim, once the facts supportive of that claim have been discovered. Because the facts underlying this claim were discovered before the filing of the 1998 petition in the federal court, the time limitations (whether we apply a 3-year or a 2-year delay) have run, and the claim is not timely. The trial court correctly denied this exception claim as being untimely.

The second claim is based on the applicant’s alleged January 2005 discovery of a familial relationship between Davis and an investigating officer in the case. The applicant also asserted that the officer had coached the witness during the investigation, to his detriment. This claim is not untimely, because it is governed by Carlin v. Cain, supra. The claim was filed in the state district court within two years of its alleged discovery. The trial court erred in finding it to be untimely based solely on the application and pleadings and the state’s response, which neither admitted nor denied the truth of the allegation. The trial court should have undertaken additional evidentiary proceedings to determine (1) when the alleged facts were discovered (and thus, whether the claim made in 2005 was timely filed), (2) if recently discovered and timely filed, whether the allegations are true, and (3) whether the relationship and alleged witness coaching were known to the state (i.e., whether the state withheld material exculpatory evidence in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (4) what impact, if any, would the alleged facts have on the integrity of the plea process.

The writ is granted, and remanded for the trial court to reconsider only the claim relating to the alleged relationship claim, and to undertake such additional evidentia-ry proceedings under La. C. Cr. P. arts. 929-930 as may be necessary to resolve the claim. If an evidentiary proceeding is ordered, the trial court shall appoint counsel under La. C. Cr. P. art. 930.7.


author: CLARENCE E. McMANUS, Judge.

text:
    Tammy WEAVER and Isaac Weaver, Jr., et al. v. Frank MALINDA, Nicoll’s Limousine Service, Inc., et al. Claudia Kimball, et al. v. Frank Malinda, Nicoll’s Limousine Service, Inc., et al. David Kimball, et al. v. Wausau Insurance Co., et al. Darren Gates, et al. v. Frank Malinda, Nicoll’s Limousine Service, Inc., et al.
    Nos. 05-CA-693 to 05-CA-696.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Rehearing Denied April 24, 2006.
    Randall J. Meyer, Attorney at Law, New Orleans, Louisiana, Mark Needham, Karen A. Coleman, Lisa A. Colby, Colby & Coleman, Attorneys at Law, Metairie, Louisiana, Jacob J. Amato, Jr., Cheryl L. Wild, Attorneys at Law, Gretna, Louisiana, Leonard J. Cline, Attorney at Law, Me-tairie, Louisiana, for Plaintiff/Appellant.

      Michael K. Springmann, Law Offices of Ronald L. Ronzello, Attorney at Law, Ken-ner, Louisiana, for Defendant/Appellant.
    Michael R. Sistrunk, Mark E. Hanna, Catherine M. Williams, McCranie, 'Sis-trunk, Anzelmo, Hardy, Maxwell & McDaniel, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

This case stems from an automobile accident that occurred on February 23, 2001 at the intersection of Jefferson Highway and Marmandie Ave. in Jefferson Parish, Louisiana. Stephen Laird was the driver of a Honda Accord traveling eastbound on Jefferson Highway. There were five passengers in the vehicle: Deborah Laird, Virginia Weaver, Tammy Thornton, Jenny Kimball, and Lyricka Gates. Laird ai> tempted a left turn onto Marmandie Ave. and while crossing the westbound lanes of Jefferson Highway, his vehicle was struck by a Lincoln Towncar driven by Frank Malinda and owned by Nicoll’s Limousine Service, Inc. Two passengers in the Honda Accord driven by Laird died as a result of the accident and the others were seriously injured.

Shrubs, bushes, trees and flowers were planted in the neutral ground of Jefferson Highway at the intersection with Marman-die Avenue where Laird attempted the left turn. The parents of each of the minor passengers in Laird’s vehicle filed lawsuits against Malinda, Nicoll’s Limousine Service, Jefferson Parish, the East Jefferson Levee District (“the Levee District”), Creekwood Mark Twain II Limited Partnership (“Creekwood”), Louisiana Landscape Specialty (“Louisiana Landscape”), its insurer Massachusetts Bay Insurance Company, and Travelers Insurance Company. These lawsuits were consolidated in the trial court. The plaintiffs claim the overgrown plants in the neutral ground obstructed the view Lof both Laird and Malinda and neither driver saw the other before the impact. The plaintiffs claim maintenance of the neutral ground was the responsibility of Jefferson Parish, the Levee District, Creekwood, and Louisiana Landscape.

Jefferson Highway, on which the accident took place, is Louisiana State Highway 48. The Louisiana Department of Transportation and Development (“DOTD”) is responsible for maintaining all state highways. With regards to Jefferson Highway, the DOTD had entered into a contract with the Levee District, entitled “Maintenance Agreement Including Mowing and Litter Pickup”, that took effect on July 1, 2000 for a term of one year, so it was in effect at the time of this accident. According to the agreement, the Levee District would pick up litter, mow, cut vegetation, including shrubs, bushes & trees on the neutral ground if it created a traffic hazard. At the time of the accident, some vegetation did exceed the height regulations.

Creekwood Mark Twain II Limited Partnership owns and operates an apartment complex near the accident site. Creekwood entered into an agreement with Jefferson Parish Department of Parkways to “adopt” the neutral ground area in question and provide horticulture or maintenance services on the neutral ground of Jefferson Highway between Marmandie and Upland beginning on February 5, 1990. Creekwood retained Louisiana Landscape to maintain the lawns and shrubbery at the apartment complex. Creekwood later asked Louisiana Landscape to maintain the adopted neutral ground including the lawn, trees, bushes and shrubs. Louisiana Landscape was maintaining the neutral ground at the time■■ of the accident.

On June 18, 2004, the Levee District filed a motion for summary judgment. The Levee District argued that it did not maintain the neutral ground at issue and did not have care, custody, or control of the neutral ground. The Levee District 1 Ralso argued it did nothing to cause the accident, therefore, it was entitled to summary judgment. In its memorandum in support of the motion for summary judgment, the Levee District argued it could not be held liable under La. C.C. art. 2315 or La. C.C. art. 2317 and art. 2317.1. The plaintiffs’ petitions alleged damages under the duty/risk analysis of La. C.C. art. 2315. A defendant may be held liable for the damages of the plaintiff under that article if the conduct of the defendant was a cause in fact of the harm to the plaintiff, if the defendant owed a duty to the plaintiff, if the duty was breached, and the risk and harm caused were within the scope of protection of the duty breached. The plaintiffs in this case also alleged damages under La. C.C. art. 2317 and art. 2317.1. Under those, articles, a defendant may be held liable for the damages caused by things in the defendant’s custody and control if the defendant knew, or should have known, of the vice or defect, the defect caused the damages, the damages could have been prevented by the exercise of reasonable care, and the defendant failed to exercise reasonable care. Further, under La. R.S. 9:2800, if the defendant is a public entity, liability will not be imposed unless there was notice of an unreasonably dangerous condition and a reasonable opportunity to correct the condition.

The Levee District argued in support of its motion for summary judgment that plaintiffs were unable to prove it was liable for damages under the above discussed theories, therefore, it was entitled to summary judgment. The Levee District first argued it did not have care, custody or control of the neutral ground at issue in this case, nor did it have a duty to maintain the neutral ground. It argued the care, custody and control had been transferred to Creekwood, the apartment complex, pursuant to the Letter of Agreement between Creekwood, then known as Tonti Management, and The Parish of Jefferson through the Department of Parkways. The Levee District also argued it had no notice of any risk and did not [ ^contribute to the accident. Therefore, it argued it was not liable to plaintiffs and was entitled to summary judgment.

The trial court held a hearing on the motion for summary judgment on August 16, 2004. On September 13, 2004 the trial court issued a judgment granting the motion for summary judgment in favor of the Levee District. The trial court found that the Levee District did not have care, custody or control of the area in question and the trial court stated that was the reason it was granting the motion for summary judgment. On September 29, 2004, the trial court signed an Order Amending Judgment and Designating Judgment as Final. By that judgment the trial court amended the September 13, 2004 judgment to reflect it is applicable to all consolidated matters and the trial court designated the judgment as a final judgment. Plaintiffs Weaver, Kimball, Gates, and defendant Louisiana Landscape now appeal the trial court’s judgment granting summary judgment and dismissing all claims against the Levee District.

DISCUSSION

On appeal, plaintiffs Weaver, Kimball, and Gates and defendant Louisiana Landscape argue the trial court incorrectly granted the motion for summary judgment in favor of the Levee District because genuine issues of material fact exists regarding the liability of the Levee District as a result of a contract with the Louisiana DOTD to maintain the neutral ground.

For the reasons which follow, we agree with the trial court and affirm the granting of the Levee District’s motion for summary judgment. We agree that no genuine issues of material fact exists and the Levee District is entitled to judgment as a matter of law.

LSA-C.C.P. art. 966(B) provides that summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, ^together with the affidavits show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. Appellate courts review summary judgments de novo under the same criteria that govern the district courts’ consideration of whether such judgments are appropriate. DJS Properties, L.L.C. v. Savoye, 04-1239, (La.App. 5 Cir. 3/1/05), 900 So.2d 116, writ denied, 2005-0836 (La.5/13/05) 902 So.2d 1026.

The Levee District entered into a contract with the Louisiana DOTD on July 1, 2000 that applied to the neutral ground at issue and that contract was in effect until June 30, 2001, during which time this accident occurred. According to the Maintenance Agreement, the Levee District was to pick up litter, mow, cut grass, weeds, trees and other vegetation on the neutral ground along Jefferson Highway, including the portion of the highway involved in this accident.

However, Creekwood had entered into an agreement with Jefferson Parish Department of Parkways to “adopt” this portion of the neutral ground, between Mar-mandie Ave. and Upland St. beginning on February 5, 1990. According to that agreement, Creekwood agreed to pick up litter and debris five times a week, cut the grass once a week, remove weeds and vines from around plants, water the plants as needed, and plant, replace and maintain plants in accordance with a plan approved by the Department of Parkways. Creek-wood maintained the neutral ground at issue since 1990. Creekwood retained the services of Louisiana Landscape to plant bushes, shrubs, trees and other plants in the neutral ground and maintained the lawn, trees, bushes, shrubs, and plants, just as it maintained the lawns and shrubs on the rest of Creekwood’s property.

The Levee District did not maintain the neutral ground area at issue in this case. Creekwood and Louisiana Landscape did all work and maintenance on this area. Robert H. Ferrara, the Maintenance Superintendent for the Levee District, |sand Superintendent of Operations at the time of the accident, testified in his deposition that Tonti Management, the company that managed the Creekwood apartments, orally requested that the Levee District not cut the grass in the neutral ground area in front of the apartment complex. Tonti Management asked the Levee District to bypass the area because the equipment used by the Levee District did not give the finished fine cut Tonti wanted. Tonti indicated it would maintain the area.

Margaret Rappold, general manager for Tonti Properties, the marketing name for Creekwood, testified in her deposition that Creekwood did enter into an agreement with Jefferson Parish to maintain the neutral ground area in front of the apartment complex. She stated that Creekwood mowed the grass, picked up the trash, planted and maintained the vegetation on the neutral ground. In addition, Deborah Trittle, property manager for Creekwood and Tonti Properties, testified in her deposition that Louisiana Landscape maintained the apartment complex grounds and the neutral ground once a week. She stated that Louisiana Landscape had been doing that work since 1998. James Ray Payne, a service technician with Tonti Properties, testified that Louisiana Landscape took care of all the trimming, cutting, and maintenance of the bushes and shrubs in the neutral ground. Finally, Randy Loup, the president of Louisiana Landscape, testified by deposition that Louisiana Landscape cut the grass on the neutral ground and maintained the bushes and trees.

Therefore, we agree with the trial court’s finding that the Levee District did not have care, custody or control of the neutral ground. Since, the Levee District did not have care, custody or control of the neutral ground area, it cannot be held liable for failing to properly maintain the neutral ground. Thus, we find the trial court correctly granted summary judgment in favor of the Levee District.

| ^Accordingly, the judgment of the trial court granting summary judgment in favor of the East Jefferson Levee District is affirmed.

AFFIRMED.


text:
    Troy RIEDLINGER, Rene LeBlanc and Automobile Club Insurance Company of Missouri v. Lori DAVIS, Individually and On Behalf of Her Minor Child, Ireiane Davis.
    No. 05-CA-837.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2006.
    Rehearing Denied April 24, 2006.

      Thomas M. Richard Choplin, Wagar, Richard & Kutcher, Metairie, Louisiana, for Plaintiffs/Appellees.
    Ferdinand F. Valteau, III, Attorney at Law, New Iberia, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

J¿STATEMENT OF THE CASE

On October 7, 2004, Plaintiffs, Troy Riedlinger, Rene LeBlanc, and Automobile Club International Insurance Exchange filed a Petition to Annul Judgment naming Lori Davis, individually and on behalf of her minor child, Ireiane Davis. By that petition, plaintiffs requested that a March 5, 2003 judgment against them and in favor of Davis be annulled, vacated, and set aside. The judgment was in response to a Motion for Confirmation of Default Judgment, which was heard on February 12, 2003.

On April 5, 1999, Davis, individually and on her child’s behalf, filed a Petition for Damages against Riedlinger, LeBlanc, and Automobile Club Ins. Co. seeking damages arising out of an automobile accident which occurred on April 13, 1998. The trial judge in that matter signed an order for a preliminary default |safter a Motion for Default Judgment was filed by Davis on January 19, 2000. A second Motion for Default was filed on November 22, 2002 again requesting a preliminary default, but this time alleging that service of citation had been made on Riedlinger and Automobile Club Insurance. The Motion for Confirmation of Default Judgment was heard on February 12, 2003 and the trial court awarded all costs of these proceedings, plus damages. The trial court awarded $12,000.00 to Davis, $6,000.00 to Ireiane Davis, $600.00 in lost wages, $4,200.00 in medical expenses and $1,618.00 in property damages.

In the Petition to Annul Judgment, Riedlinger, LeBlanc and Automobile Club Insurance argue they were not validly served with the original petition, nor notified of the Motions for Default Judgment or the Motion for Confirmation of Default Judgment.

The Petition to Annul Judgment also contends that there is insufficient evidence that either ACHE, or Automobile Club Insurance Company of Missouri issued an automobile liability policy that covers the claims brought by Davis because there is no original or copy of any insurance policy and no evidence that either Riedlinger or LeBlanc is an insured under any policy. Further, the petition alleges that there is no prima facie evidence that Davis has the procedural capacity to bring suit on behalf of her minor child. They allege that under La. C.C.P. art. 683, the proper party to bring a suit on behalf of an unemancipated minor is the father, if the parents are divorced or judicially separated, unless the father is mentally incompetent, committed, interdicted, imprisoned, or an absentee. The original petition does not reflect that Davis had the procedural capacity to bring any action on behalf of the minor.

Riedlinger, LeBlanc and ACHE contend that the March 5, 2003 judgment should be annulled, vacated, and set aside because they were not validly served and |4the judgment was obtained through ill practices. Davis answered the Petition to Annul on December 13, 2004. Thereafter, Riedlinger, LeBlanc and ACHE filed a motion for summary judgment which sought to vacate the default judgment entered against them. A hearing was scheduled for April 12, 2005.

On April 6, 2005, Davis filed a Motion to Recuse Judge asking that the trial judge be recused from hearing the pending motion for summary judgment in accordance with La. C.C.P. art. 151 B(5). Davis asked that the trial judge be recused in the matter, or that the trial judge in Division “C” of the 24th JDC, where the original petition was filed, be allowed to preside over the matter.

On April 8, 2005, the trial judge denied the motion, indicating it was denied as to the recusal only. Also on April 8, 2005, Davis filed an Order of Transfer, seeking to have the trial judge transfer the matter to Division “C”. The trial judge denied the order on April 21, 2005 and handwrote reasons on the document. He stated that this is a closed record, a judgment of nullity has been granted and no further proceedings are needed unless modified on appeal. He also stated that the Division “C” case and the Division “J” cases are distinct causes of action and involve different issues of law, different evidence, and different issues of fact.

A hearing on the motion for summary judgment was also held on April 12, 2005. Counsel for Riedlinger, LeBlanc and ACI-IE was present, however, counsel for Davis was not present. The trial court issued a written judgment on April 20, 2005. In that judgment, the trial court stated that Davis, through her attorney of record, had been served and Davis had filed no opposition to the motion for summary judgment. The trial court granted the motion for summary judgment and vacated and set aside the March 5, 2003 default judgment in favor of Davis.

Davis filed a' Notice of Intent to Take An Appeal on June 16, 2005. On June 20, 2005, the trial court granted the appeal, but limited to the appeal of the | ^summary judgment signed on April 20, 2005. The trial court further ordered that the supervisory writ notice with regard to the denial of the motion to recuse be denied as untimely.

Riedlinger, LeBlanc & Automobile Club Insurance Company of Missouri filed an Answer to Appeal seeking damages or sanctions from Davis for filing a frivolous appeal. They also seek costs of the trial court proceedings, these appellate proceedings, and attorney’s fees. Appellees argue that Davis’ appeal is procedurally and substantively defective and she is not entitled to a reversal of the judgment denying her motion to recuse the trial judge. Appellees argue Davis filed this appeal for the sole purpose of causing unnecessary delay. For the reasons which follow, we affirm the trial court’s denial of the motion to recuse and affirm the trial court’s grant of the motion for summary judgment in favor of Riedlinger, LeBlanc and Automobile Club Insurance. We also deny Appel-lees’ request for sanctions, costs and attorney’s fees, which they requested in their answer.

DISCUSSION

La. C.C.P. art. 151 B(5) provides that a judge may be recused when he “is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.” La. C.C.P. art. 154:

A party desiring to recuse a judge of a district court shall file a written motion therefore assigning the ground for recu-sation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge as hoc, as provided in Articles 155 and 156, for a hearing.

Davis’ motion to recuse simply states that defendants “respectfully move to re-cuse the Judge from hearing the pending motion for summary judgment in this | r,matter in accordance with Code of Civil Procedure Article 151 B(5).” No specific grounds for the recusal are stated in the motion, as is required by La. C.C.P. art. 154. The trial judge was not required to recuse himself, or refer the motion to another judge for a hearing since no specific grounds for recusal were stated. Therefore, we find that the trial judge properly denied the motion to recuse without a hearing.

In addition, we find the trial court correctly granted the motion for summary judgment filed by Riedlinger, LeBlanc and Automobile Club Insurance. We also find the trial court correctly proceeded with the hearing on the motion for summary judgment. La. C.C.P. art. 153 provides that a judge has full power and authority to act in a case until he has recused himself or a motion for his recusal has been filed. The motion to recuse was filed on April 6, 2005 and denied on April 8, 2005. The motion for summary judgment was heard on April 12, 2005. The motion to recuse had been properly denied before the hearing on the motion for summary judgment was held. Therefore, the trial judge had full authority to hear the matter and rule on the motion.

The trial court noted that Davis’ counsel made no appearance at the hearing and did not file an opposition to the motion for summary judgment. The trial court then proceeded to grant the summary judgment ordering that the default judgment entered on March 5, 2003 in favor of Davis be vacated and set aside. We first note that the trial court specifically stated in its Order granting Davis an appeal, that it be limited to an appeal of the summary judgment. The Order by the trial court went on to deny the supervisory writ notice regarding the denial of the motion to recuse because it was untimely. Although the trial court limited the appeal to the grant of the summary judgment, Davis failed to address the issue in her appellate brief.

|7Therefore, we affirm the trial court’s grant of the summary judgment in favor of Riedlinger, LeBlanc and Automobile Club Insurance, vacating and setting aside the default judgment of March 5, 2003. We further find that this appeal is not frivolous and, thus, we deny Appellees’ request for sanctions, costs and attorney’s fees.

AFFIRMED.


author: PITTMAN, Chief Justice,

text:
    WASHINGTON MUTUAL FINANCE GROUP, LLC f/k/a City Finance Company v. Greta BLACKMON, Louise Blue, Glenda Chambers, Annie Clark, Willie Earl Conway, Lillie Harris, Robin Horton, Lindsey Horton, Lorene Jackson, Lizzie Lofton, Jessie McClung, Willie McGee, Lou Waters, Earnest Claiborne, Tina Cross, Alfred Garrett, Percy Mason, Kenneth Hill, Zenester Moore, Mattie Miles, Patrishane Gordon, Janie Mason, Doris Garrett, Hazel Claiborne, David Ferguson And Lindsey Horton.
    No. 2001-CA-01911-SCT.
    Supreme Court of Mississippi.
    Feb. 5, 2004.
   ON VERIFIED MOTION FOR RECUSAL

PITTMAN, Chief Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. The appellees have filed their Verified Motion for Recusal, urging that a majority of this Court, specifically, Chief Justice Pittman, Presiding Justices Smith and Waller, and Justices Cobb and Carlson, recuse themselves. Due to the importance of the issue, not only in this case but in other cases before the Court and for the future, those justices have submitted the motion and those filed in other cases to the en banc conference for consideration by the full Court.

¶ 2. The motion before us grows out of an Emergency Complaint filed with the Mississippi Commission on Judicial Performance on August 28, 2003, by the five subject justices against then Presiding Justice C.R. McRae wherein it is charged, inter alia, that Justice McRae improperly used his judicial office for the benefit of Shane Langston and Langston, Sweet & Freese, P.A., a law firm representing the appellees here. In addition, the motion argues that the law firm of Butler, Snow, O’Mara, Stevens & Cannada, PLLC, represents the five justices in the judicial disciplinary proceeding and also represents clients which have a significant interest in the present case.

¶ 3. Having considered the motion, responses, and the appellees’ rebuttal, the Court finds that the motion is without merit and should be denied as to each of the five justices for the reasons stated in this opinion.

¶ 4. Our Code of Judicial Conduct requires that judges inform the appropriate authorities when they have information indicating that there is a substantial likelihood that another judge has committed violations of the Code of Judicial Conduct raising substantial questions as to the latter’s fitness for office. Miss.Code of Jud. Conduct, Canon 3 D(l). On August 28, 2003, the five justices filed with the Mississippi Commission on Judicial Performance an Emergency Complaint raising a number of issues concerning Justice McRae’s conduct and the performance of his judicial responsibilities. In so far as they relate to the present motion, these issues include the charge that Justice McRae used his office to promote his personal interests and those of his family. The complaint further states:

Justice McRae has a close relationship with the family of Shane and Cynthia Langston, attorneys actively practicing in Mississippi. This relationship has become even closer since the marriage of his daughter, an associate in Shane Langston’s firm, to Shane Langston. This relationship has on a number of occasions required Justice McRae to re-cuse himself, however reluctantly, in appeals in which the Langstons have an interest.... In an effort to promote their interest, having recused, Justice McRae, without consulting with other members of the Court and contrary to prior decisions of the Court, personally (and incorrectly) advised the attorneys in these cases that they were entitled to have a special justice appointed by the Governor....

¶ 5. Comments about Justice McRae ascribed to Chief Justice Pittman in two newspaper articles are also cited as showing hostility to Langston and his firm. The Kosciusko Star Herald quotes Chief Justice Pittman as stating that “[I]t shouldn’t go unnoted that McRae’s son-in-law (Shane Langston) is the one challenging Waller’s service on the court since he also helps lead the Mississippi National Guard, which is part of the executive branch and must answer to the governor.” In the same article, he is quoted as saying that “I am saddened that we make headlines that probably concern you, but this is a fight about protection of the public interest and people who don’t give a damn about the public interest.” In a Clariorir-Ledger article, Chief Justice Pittman is described as suggesting that the Court will run smoother when Justice McRae is gone and the new justice, Jess H. Dickinson, comes on board.

¶ 6. The movants also assert that W. Scott Welch, III, and the Butler Snow law firm represent the five justices in Justice McRae’s disciplinary proceedings, and that the justices sought to have Welch appointed “special prosecutor” in the those proceedings. The Butler Snow firm has filed an amicus curiae brief in the present case on behalf of Mississippi Bankers Association, and, it is asserted, represent a non-party client who will have a vital interest in the outcome of the present case.

¶ 7. In fact, neither Welch nor the firm represents any of the justices. In support of their statements regarding Welch and the Butler Snow firm, the movants have offered Welch’s affidavit in which he acknowledges that he was contacted regarding representation, but likewise declares under oath that he was never retained, that he declined to undertake representation, and that neither he nor his firm represent the five justices. The movants also offer a Motion to Direct Employment of Special Counsel by which the justices did indeed recommend Welch as special counsel; however, this motion was overruled by the Commission and the disciplinary proceedings are being prosecuted by Commission counsel.

¶ 8. The motion also alleges that Justice Carlson or his family have some kind of relationship with or interest in First Security Bank, a corporation which is not a litigant in the present matter. It argues that because of this relationship Justice Carlson cannot sit on any cases such as the present one involving credit insurance or credit related products.

¶ 9. Finally, the movants raise a legal challenge filed in the Chancery Court of the First Judicial District of Hinds County to Justice Waller’s service on this Court filed by Shane Langston, which was dismissed without prejudice on August 29, 2003.

DISCUSSION

Standard of Proof

¶ 10. The grounds here asserted for recusal do not implicate constitutional and statutory disqualifications, nor are such disqualifications alleged. Miss. Const, art. 4, § 165; Miss.Code Ann. § 9-1-11 (Rev.2002). Otherwise, under the Code of Judicial Conduct, judges should recuse “in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances .... ” Miss.Code of Jud. Conduct, Canon 3 E(l). Included among those circumstances which might cast doubt on a judge’s impartiality are those in which the judge has a personal bias or prejudice concerning a party (Canon 3 E(l)(a)), the judge or a member of the judge’s family residing in the judge’s household has a financial interest in the subject matter in controversy or in a party to the proceeding (Canon 3 E(l)(c)), or the judge or close relatives has any other interest that could be substantially affected by the outcome of the proceeding, (Canon 3 E(l)(d)). The specific circumstances listed in Canon 3 E(l) are examples and do not constitute an exclusive list of grounds for recusal. Upton v. McKenzie, 761 So.2d 167, 172 (Miss.2000); Buchanan v. Buchanan, 587 So.2d 892, 896 (Miss.1991).

¶ 11. The law recognizes that there must be confidence in judges’ impartiality in order for our judicial system to function. Those bringing their disputes before the courts must do so in a well grounded belief that the law will be applied fairly to the facts of their cases. However, there must be an equilibrium between this need for impartiality and the need to prevent the frivolous and unnecessary disqualification of those elected to perform judicial duties. The two firms addressed by the pending motion — the Langston firm and Butler Snow — are among the most active practicing before the Supreme Court, and the recusal of five justices in cases presented by these firms would essentially require the constitution of special courts to hear a substantial portion of the Court’s docket. Where required by fairness and compliance with the standards of the Code of Judicial Conduct, the duty to recuse prevails; but otherwise, the judges have a duty to serve unless they cannot adjudicate the litigants’ claims fairly.

¶ 12. In striking the required balance, the law presumes that the judge is qualified and unbiased. In order to overcome the presumption, the movant must offer evidence which will produce a reasonable doubt about the validity of the presumption. Steiner v. Steiner, 788 So.2d 771, 775 (Miss.2001); Tubwell v. Grant, 760 So.2d 687, 689 (Miss.2000); Bredemeier v. Jackson, 689 So.2d 770, 774 (Miss.1997). Whether a party seeks recu-sal based on these specific examples or on the general standard of Canon 3 E(l), that party bears the burden of proving the allegations and of demonstrating that the facts justify doubt as to the judge’s impartiality in the mind of a reasonable person who knows all the circumstances. Indeed, the burden of proving allegations that a judge’s hostility toward attorneys is such as to require recusal in their clients’ cases is a particularly heavy one. Payton v. State, 897 So.2d 921, 942-43 (Miss.2003). The recusal process must not degenerate into a technique for a lawyer to utilize in constructing a forum favorable to the positions which may favor the litigants represented by the lawyer.

Alleged Hostility of Justices Toward Shane Langston and His Firm

¶ 13. It must be said at the start that the action of the filing justices as to Justice McRae’s conduct was not initiated because of personal dislike of Justice McRae. Concern over the conduct of another or disapproval of the latter’s actions, does not equate with personal hostility toward that person or those associated with him. The complaint against Justice McRae was initiated due to conduct which, in the minds of the filing justices, violated their fellow justice’s responsibilities to the Court and to the public and their concern for the independence and integrity of this Court as the highest tribunal in the state. Whether the charges justify discipline is not for this Court to decide. The matter has been reported to the Commission on Judicial Performance which now has the charges under consideration and which will ultimately decide whether to recommend sanctions. If the Commission does recommend disciplinary action, the matter will be decided by a special tribunal empaneled by the Secretary of State under Article 6, Section 177A of the Mississippi Constitution and Rule-11 of the Rules of the Commission. It is appropriate to observe, however, that in its public ruling on whether to suspend Justice McRae pending the conclusion of the proceedings, the Commission has found that his conduct did violate several provisions of the Code of Judicial Conduct. This is mentioned here merely to demonstrate that there was a reasonable basis to file the complaint of greater import than any mere ill will of the justices toward their colleague.

¶ 14. Although the argument is made that the Emergency Complaint against Justice McRae contains language which demonstrates hostility toward Shane Langston and his firm, in fact, there is no language critical of the Langstons in that complaint. The charges are against Justice McRae with no suggestion or intimation that the Langstons sought to influence his actions or took advantage of them. Without such language, in order to find prejudice against the litigants now before the Court, it is necessary to infer from the complaint that the statements regarding Justice McRae’s conduct were animated by malice rather than in response to the justices’ duty, and then to further infer that this animosity extends to those who are associated with Justice McRae, and finally to further infer that the animosity extends beyond the Langstons to their clients. Such a three-tiered progression of inferences is not justified by the facts.

¶ 15. Even if it is assumed for the sake of argument that the justices bear hard feelings against the Langstons, the courts have generally held that such feelings entertained as to attorneys will not be imputed to their clients — particularly clients in cases unrelated to those in which the animosity arose. Jeffery M. Shaman, Steven Lubet & James J. Alfini, Judicial Conduct and Ethics § 4.08, at 123 (3d ed.2000). To warrant disqualification, the judge’s bias toward a litigant’s counsel must be extreme. Richard E. Flamm, Judicial Disqualification, § 4.4.4, at 124 (1996).

¶ 16. Recusal may, however, be required where animosity between an attorney and a judge is extreme and is one of several factors which, taken together, raise concerns about the judge’s ability to preside impartiality. In Davis v. Neshoba County General Hospital, 611 So.2d 904 (Miss.1992), this Court found that tension between the trial judge and plaintiffs counsel, taken with other factors, required recusal. There, the transcript of the recu-sal hearing included an exchange in which tension was great over a previous case in which the attorney accused the judge of being racially biased. In addition, the judge had, as an attorney, represented the hospital trustees for several years and had represented the hospital at the time when the hospital recruited one of the defendants in the case. The judge had participated in an interview with that defendant and had signed the minutes of the meeting during which the hospital had said that it would aggressively help the defendant build a successful medical practice. Under those facts, the Court found that the judge’s relation to the hospital-party with the obvious tension between the judge and counsel reflected in the hearing would cause a reasonable-minded person to question whether the judge would have a personal bias or prejudice concerning the attorney’s client.

¶ 17. In the federal system, 28 U.S.C. § 144 addresses recusals and, like Canon 3 E(l)(a) of the Code of Judicial Conduct, requires recusal where there is a demonstrated prejudice against a party. In Davis v. Board of School Comm’rs of Mobile County, 517 F.2d 1044 (5th Cir.1975), addressing animosity toward counsel as imputed bias against a party, the Fifth Circuit has said:

[Plaintiffs] seek disqualification on an imputation theory the bias against their lawyer is imputed to them. Read broadly, this peremptory challenge type approach would bid fair to decimate the bench. Lawyers, once in controversy with a judge, would have a license under which the judge would serve at their will.... One answer is that “party” as used in § 144 does not include counsel as such.... [Citations and footnote omitted.]

Davis, 517 F.2d at 1050.

¶ 18. Later, citing Davis v. Board of School Comm’rs of Mobile County, that court said:

Bias for or against an attorney, who is not a party, is not enough to require disqualification unless it can also be shown that such a controversy would demonstrate a bias for or against the party itself.... In order for bias against an attorney to require disqualification of the trial judge, it must be of a continuing and personal nature and not simply bias against the attorney or in favor of another attorney because of his conduct. [Citation omitted.]

Henderson v. Dep’t of Pub. Safety & Corrections, 901 F.2d 1288, 1296 (5th Cir.1990).

¶ 19. In contrast to Mississippi’s version, Nevada’s version of Canon 3 E(l)(a) expressly includes animus toward an attorney as a ground for disqualification. Nevertheless, the supreme court in that state has held that a judge’s bias toward an attorney is largely irrelevant. Addressing the question, that court said:

In a small state such as Nevada, with a concomitantly limited bar membership, it is inevitable that frequent interactions will occur between the members of the bar and the judiciary. Thus, allegations of bias based upon a judge’s association with counsel for a litigant pose a particularly onerous potential for impeding the dispensation of justice. [Citing In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271, 1275 (1989).] Furthermore ... if a litigant could successfully challenge a judge based upon allegations of bias against counsel for the litigant, “it ‘would bid fair to decimate the bench’ and lawyers, once in a controversy with a judge, ‘would have a license under which the judge would serve at their will.’ ” (quoting Davis v. Board of School Com’rs of Mobile County, 517 F.2d 1044, 1050 (5th Cir.1975)). This policy still applies, and we continue to believe that to permit a justice or judge to be disqualified on the basis of bias for or against a litigant’s counsel in cases in which there is anything but an extreme showing of bias would permit manipulation of the court and significantly impede the judicial process and the administration of justice.

City of Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 632, 940 P.2d 127, 129 (1997).

¶ 20. In Pennsylvania, the supreme court faced a similar situation. There the judge had made statements in a prior ease wherein he challenged the sincerity, truthfulness and integrity of the attorney. The supreme court agreed with the finding of the superior court that a judge’s personal bias and hostility toward a party’s counsel, standing alone, is irrelevant and does not require recusal. Reilly v. Southeastern Pa. Transp. Auth., 507 Pa. 204, 489 A.2d 1291 (1985).

¶ 21. In Henderson v. G & G Corp.; 582 So.2d 529 (Ala.1991), a judge had testified against an attorney who later represented a party in the case before the judge. The judge was alleged to have testified that he would not believe the attorney under oath. The Alabama Supreme Court held that these circumstances were not sufficient to show prejudice requiring recusal.

¶ 22. In People v. Fitzgibbons, 909 P.2d 1098 (Colo.1996), an attorney who was charged in a disciplinary proceeding sought recusal of the vice-chair of the hearing committee, asserting that counsel for the charged attorney had previously been admonished by a letter signed by the vice-chair. The court held that recusal was not required and that a demonstration of prejudice against counsel does not itself require recusal, but that the judge should recuse only if the judge has manifested an attitude of such hostility or ill will toward the attorney so that the judge’s impartiality can be reasonably questioned.

¶ 23. Given the frequent interaction of attorneys and judges involving matters of serious legal, social and economic consequences, it is to be expected that there will from time to time be conflict between them in the course of their professional responsibilities. Judges are often called on to discipline attorneys and to criticize their conduct. Attorneys frequently challenge rulings of the judges. However, tradition and authority do not dictate that each time an attorney perceives the possibility that a judge may not think kindly of him he is entitled to have the judge removed from a case. On the contrary, unless the antagonism is extreme and clearly demonstrated, or unless the animosity so demonstrated is coupled with other prejudicial circumstances, recusal is not mandated. Considering these authorities, it is clear that the language of the Emergency Complaint filed against Justice McRae regarding the Langston family and firm does not require recusal of the justices. Nothing there indicates any hostility toward the Langstons, certainly nothing that would arise to the level of bias against parties represented by them in other proceedings.

The Relationship Between the Justices and W. Scott Welch and Butler, Snow, O’Mara, Stevens and Cannada, PLLC

¶ 24. Scott Welch and his law firm, Butler, Snow. O’Mara, Stevens and Cannada, PLLC, are said to represent American General Finance, Inc., not a party here, but a corporation apparently having an interest in the outcome of the appeal. In addition, Welch has filed an amicus curiae brief in the case on behalf of Mississippi Bankers Association.

¶ 25. The movants charge that Welch and his firm have been retained to advise the justices in the proceedings against Justice McRae “and presumably, [regarding] the allegations relating to Appellees’ attorney, Shane Langston.” As discussed above, the complaint contains no allegations against Langston. Further, the firm has not been retained to represent the justices and does not represent them.

¶26. As evidence in support of this charge, the movants offer an affidavit executed by Welch, and excerpts from Justice Carlson’s deposition given in the judicial performance proceedings. Neither the affidavit nor the deposition excerpts support the movants’ claim. Welch states that the justices, in their official capacities, consulted with him with a view towards obtaining legal services, but that no attorney-client relationship was ever established since he declined to undertake representation. He denies that he or his firm has been retained by the justices or have any role in representing the Commission. In his deposition, Justice Carlson acknowledged that the Objection to Production of Subpoenaed Documents was prepared either by James Tucker or Welch. He also stated that Tucker and Welch were consulted but declined representation of the justices.

¶ 27. Beginning on September 24, 2003, Justice McRae served subpoenae duces te-cum and notices of depositions on the five justices and members of the Supreme Court staff. Because of this, the justices determined that they should obtain counsel for themselves and for the staff witnesses. The Butler Snow firm was contacted and over a period of approximately a week, the justices engaged in conversations with Welch as to the availability of his firm. Ultimately, the firm declined, but Welch indicated that he and James Tucker of the firm would be available to serve as special counsel for the Commission, as provided by Rule 8 E of the Rules of the Mississippi Commission on Judicial Performance, if needed or desired. During this short period, the firm assisted the justices in preparing preliminary pro se motions, one for a protective order and one for appointment of special counsel for the Commission. Although the firm was made aware of the justices’ concerns, no member of the firm appeared or argued the motions that were filed. Soon thereafter, other counsel was obtained and the Butler Snow firm had no further connection with the disciplinary proceedings. The motion suggesting Welch’s and Tucker’s appointment as special counsel was denied.

¶ 28. Even if it were assumed for the sake of argument that Butler Snow did represent or does represent the justices with regard to the judicial discipline matter, neither the constitution nor statutes impose disqualification of a judge in a case in which an attorney who has represented the judge is representing a party. Although Canon 3 E(l)(d) of the Code of Judicial Conduct requires recusal where the judge’s spouse or a person related to the judge within the third degree is acting as an attorney in the case, the Canon is silent as to an attorney who has represented the judge. Thus, the question is whether, otherwise, the facts surrounding the justices’ contacts with Butler Snow would cause a reasonable person knowing all the circumstances to question the justices’ impartiality.

¶ 29. Under some circumstances, this Court has held that a judge should recuse in a case where an attorney who represents a party also formerly represented the judge in personal litigation. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56 (Miss.1996). There the judge had been represented in his divorce case by counsel for the plaintiff in the pending case. There was testimony that the attorney had been deeply involved in the judge’s reelection campaign. In addition, there was testimony that the judge contacted one of the attorneys for defendants during the litigation, saying, “John, you do not care how this case turns out do you?” Berry is not analogous to the present situation in that the attorney there had extensive involvement with the judge over an appreciable period, being retained to represent him in personal litigation, and that the relationship was' compounded by other factors.

¶ 30. The movants cite Dodson v. Singing River Hospital System, 839 So.2d 530 (Miss.2003), as recognizing that an attorney’s representation of a judge is a significant factor compelling recusal. In Dodson, it was shown that the firm in question had represented the judge in his mother’s estate and other litigation which extended over a period of several years, and that a member of the firm had been the judge’s campaign treasurer. Further, the judge had, during the pendency of the Dodson case, recused in another case due to his relationship with the firm, and he had gone to the offices of the firm to discuss, ex parte, the possibility of recusal.

¶ 31. In deciding the question, the Court looked not at a single factor, but at the totality of the circumstances.

Justice Banks’s concurring opinion in Collins v. Joshi, 611 So.2d 898 (Miss.1992), supports this position. In Collins, the trial judge had represented the trustees of Neshoba County General Hospital, one of the defendants in the subject suit, for four years.... Neshoba General hired Dr. Joshi, another defendant, during the judge’s representation of the hospital.... The judge had also sued Dr. Soriano, the plaintiffs expert witness, on behalf of the hospital.... The majority concluded that the judge should have recused himself. Justice Banks wrote separately and stated, “In my view, while none of the factors standing alone would necessarily dictate recu-sal in the instant case, in combination they create a reasonable doubt as to impartiality....” He also found a “totality of circumstances which compel the conclusion that ‘a reasonable person might harbor doubts’ about the judge’s impartiality.” (emphasis added). The same “totality of circumstances” inquiry is appropriate in this case, and a reasonable person, not a lawyer or judge, might very well have harbored the same doubts about Judge Harkey’s impartiality in this case. [Citations omitted; emphasis in original.]

Dodson, 839 So.2d at 534.

¶ 32. A distinction is made between an attorney’s representation of a judge in personal matters on the one hand and in his official capacity on the other. “Disqualification may not be required if the attorney before the judge has represented him on the basis of the judge’s official acts.” Shaman, Lubet & Alfini, supra, § 4.18, at 146. The Emergency Complaint against Justice McRae was filed by the justices in their institutional capacities pursuant to the requirement of the Code of Judicial Conduct. All relevant contacts between Welch and the justices have been in connection with the judicial performance filing under the mandate of Canon 3 D(l).

¶ 33. In Reilly, one attorney in that case had represented all the Commonwealth’s justices and judges pro bono in a class action seeking increased judicial compensation. SPTA argued that, because of this relationship, the trial judge should recuse. The Pennsylvania court rejected this argument, saying that such a ruling would require the attorney to forego trial practice in the state, since only those judges coming on the bench after the conclusion of the compensation litigation would be able to hear his cases. “No lawyer should be compelled to suffer such a disaster because of his pro bono representation of all the jurists of Pennsylvania.” Reilly, 489 A.2d at 1294.

¶ 34. The Minnesota Supreme Court has recently recognized that under some circumstances recusal will be required where the judge has been represented by an attorney presenting a case before him. Powell v. Anderson, 660 N.W.2d 107 (Minn.2003). There, the Court vacated a decision authored by a judge of the intermediate appellate court, later removed from the bench, where the judge pleaded guilty to theft of over $800,000 from a trust fund for which he was acting as trustee. A member of the firm which represented a party in the Powell case also represented the trust during the time that the case was on appeal. In discussing the circumstances which would require recusal due to representation of the judge, the Powell court observed that four factors should be considered.

¶ 35. First, the reviewing court should consider the extent of the attorney-client relationship. “If the relationship consisted of a single, short episode, or even a series of sporadic contacts, disqualification is less likely than if it consisted of a long-term, continuous course of representation.” Id. at 118.

¶ 36. Second, the nature of the representation should be considered. “A direct relationship, where the judge is represented personally, is more indicative of a reasonable question regarding the judge’s impartiality than a relationship that only involves the judge in some institutional or technical role.” Id. (emphasis supplied).

¶37. Third, the court should consider the frequency, volume and quality of contacts between the judge and the attorney or firm. Id.

¶ 38. Fourth, the court should look to any special circumstances that may enhance or diminish the importance of disqualification, particularly in the eyes of the public. Id.

¶ 39. Applying the Powell factors, the limited involvement of the Butler Snow firm with the justices in the judicial performance proceedings is not disqualifying. The firm was in conversations with the justices for only a few days regarding a single matter in which the justices acted in their official capacities pursuant to the mandate of the Code of Judicial Conduct. The circumstances were such that it was necessary for the justices to seek representation quickly for forthcoming depositions. The matter on which they were consulted, serving as counsel for witnesses in the judicial disciplinary proceeding, was unrelated to the present case. The firm looked into the matter, assisted with preparation of preliminary motions, and then advised the justices that they were unable to accept retention. Under the Powell factors and the totality of the circumstances analysis of Dodson, recusal is not required.

Public Comments by Chief Justice Pittman

¶ 40. The movants point to public comments made by Chief Justice Pittman which appeared in state newspapers, and argue that these statements require recu-sal. There is no allegation that any other justices joined in or endorsed these comments. Therefore, they impact only on whether Chief Justice Pittman should himself recuse in this case.

¶41. The reported remarks are relevant only if they show animosity toward Langston. Under the authorities cited above, animosity toward attorneys representing clients will in only the most extreme situations be found to be of a quality and degree which will suggest that a judge is biased against the parties represented by those attorneys. Certainly, the references to Langston in the Clarion-Ledger article and to Justice McRae’s judicial disciplinary proceedings in the Star Herald do not warrant the conclusion that Chief Justice Pittman entertains such a level of hostility toward the Langston family and firm.

¶ 42. The movants argue that the Chief Justice’s public comments praising Justice Dickinson somehow shows a bias which should disqualify the former from hearing this ease. They have offered no authority for the proposition that recusal is required by a general show of respect for one attorney in a case or of an incoming judge even in comparison with another judge associated with a party, and we have found none.

¶ 43. It is also argued that the Chief Justice should recuse because Justice-elect Dickinson is attorney of record in this case, and the Chief Justice has appointed him as a special circuit judge for Forrest County. However, the record reflects that prior to the filing of the recusal motion, Dickinson took action to withdraw from the case. In Placid Oil Co., it was argued that a judge’s business relation with counsel for one of the parties should be'disqualifying. However, the court held that since the counsel in question had withdrawn from the case, recusal was not necessary. In re Placid Oil Co., 802 F.2d 783 (5th Cir.1986). In any event, a complimentary statement as to an attorney should not be treated as an indication of bias in his favor.

Justice Waller as a Party to Litigation Prosecuted by the Langston Firm

¶ 44. Justice Waller was the defendant in a suit filed by Shane Langston on behalf of a client who had a case pending before the Supreme Court. That suit, challenging Justice Waller’s qualification to serve on the Court, has since been voluntarily dismissed without prejudice. During the time when that suit was pending, Justice Waller routinely, on his own motion, recused himself from cases before this Court in which Langston was counsel. Now, the movants here argue that because Langston sued Justice Waller, the latter should recuse in this case.

¶ 45. The suit against Justice Waller was filed many months ago and was pending long after the Langston firm appeared in this appeal. Although we address the merits of this claim, we also observe that M.R.A.P. 48 C requires that motions to recuse appellate court judges be filed within thirty days following notification by the clerk that a case has been assigned to either appellate court, or within thirty days after the facts upon which the motion is based became known or could have been reasonably discovered by the party. Now, movants infer a bias by Justice Waller against the Langston firm and their present clients because that firm sued the justice. Under the authorities cited earlier in this opinion, personal animus held by a judge against an attorney does not, by itself, require recusal because it will not generally be found to be a bias against the litigant.

¶ 46. Courts generally have been wary of requiring recusal where the alleged animosity or discord is the result of affirmative, hostile actions by the attorney. To do so without caution would create situations in which the judges would serve at the will of the lawyers—a circumstance generally thought to be intolerable. See Davis v. Board of School Commits of Mobile County, 517 F.2d at 1050 (“Lawyers, once in controversy with a judge, would have a license under which the judge would serve at their will,” quoted with approval in City of Las Vegas Downtown Redevelopment Agency v. Hecht, 940 P.2d at 129; Dunlop Tire Corp. v. Allen, 725 So.2d 960, 977 (Ala.1998) (to allow an attorney to compel recusal by filing a lawsuit against the judge “would allow a litigant to control judicial proceedings whenever a litigant becomes dissatisfied with the course of the proceedings.”)). The Eighth Circuit has said:

We subscribe to the view that motions to recuse should not “be viewed as an additional arrow in the quiver of advocates in the face of [anticipated] adverse rulings.” TV Communications Network, Inc. v. ESPN, Inc. 767 F.Supp. 1077, 1081 (D.Colo.1991). We hold that KPERS’ petition for a writ of mandamus is untimely as to the Boatmen’s and Blackwell matter, that it is interposed for suspect tactical and strategic reasons, and that it can and should be denied for these reasons alone.

In re Kan. Pub. Employees Ret. Sys., 85 F.3d 1353, 1360 (8th Cir.1996).

¶ 47. Even where it is the litigant himself who sues the judge of his case, our Court is reluctant to require recusal. See Evans v. State, 725 So.2d 613 (Miss.1997), but also see, in an extreme circumstance, contra, Johnson v. Miss., 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971).

¶ 48. Given the fact that the chancery court litigation between Justice Waller and Langston’s client was initiated by Lang-ston, was filed on behalf of a client not involved in the present appeal, and has now been dismissed on Langston’s motion, that action does not require Justice Waller to recuse.

Justice Carlson’s Interest in First Security Bank.

¶ 49. The motion states that “it is believed that Justice Carlson and/or his family members has a relationship with and/or interest in the First Security Bank of Batesville and derives private income from that entity.” This case involves issues regarding loan practices and credit insurance, and the motion argues that it is believed that First Security sells credit insurance and other credit-related products that are central to the case.

¶ 50. In support of the allegation of financial interest, the movants offer Justice Carlson’s Statement of Economic Interest filed with the Mississippi Ethics Commission on April 2, 2003. The statement indicates that Justice Carlson was a director of First Security Bank until June, 2002, when he resigned. It also shows that he or his spouse receives income from certificates of deposit, investments, and interest from the bank. The motion does not otherwise indicate the nature or the extent of his income from this source.

¶ 51. Under Steiner, Tubwell and Bre-demeier, supra, as well as other authorities, in order to overcome the presumption against bias, the movant must offer evidence which will produce a reasonable doubt about the validity of the presumption. The motion’s allegations in this regard are supported only by Justice Carlson’s statement showing that he or his spouse derive some income through the bank.

¶ 52. Canon 3 E(l)(c) includes as possible grounds for recusal the fact that “the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or member of the judge’s family residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

¶ 53. The respondents points out that the motion for recusal is, as to this issue, untimely under M.R.A.P. 48 C. The notice of appeal was filed on November 29, 2001, and, the respondents argue that with the Ethics Commission statement dated stamped April 2, 2002, any recusal based on that statement should have been filed by May 8, 2003, or soon thereafter. Furthermore, Justice Carlson’s banking connection was publicly discussed by Justice McRae in his dissent to Hewes v. Langston, 853 So.2d 1237, 1258 (Miss.2003) (McRae, P.J., dissenting), which was published on September 11, 2003.

¶ 54. Neither Justice Carlson nor his spouse is alleged to have an interest in Washington Mutual or in any other corporate party to this litigation, nor are they individual parties. Thus, they do not, in the words of Canon 3 E(l)(c), have a “financial interest in the subject matter in controversy.” This leaves for consideration whether they have “any other interest that could be substantially affected by the outcome of the proceeding,” under the second clause of Canon 3 E(l)(c), or have “an interest that could be substantially affected by the outcome of the proceeding,” under Canon 3 E(l)(d). A distinction is to be made between the first of Canon 3 E(l)(c) and these additional provisions. The first clause of Canon 3 E(l)(c) does not explicitly require a substantial interest in the subject matter to justify recusal; however, the second clause and the language of Canon 3 E(l)(d) do require that any other interest be substantially affected by the outcome of the proceeding.

¶ 55. Under the latter clause, Justice Carlson’s obligation to recuse would depend on factual issues such as the nature of any credit products sold by the bank, the magnitude of the bank’s credit product sales in relation to the overall income of the bank, and the amount of income derived by Justice Carlson from his investments with the bank. Income from certificates of deposit and interest yielding competitive rates which would not be dependent on the bank’s earnings would not be relevant.

¶ 56. 28 U.S.C. § 455(b) is the federal equivalent of Canon 3 E(l)(e), requiring recusal where the judge or his spouse has “any other interest that could be substantially affected by the outcome of the proceeding.” Applying that statute, the Fifth Circuit has held that recusal was not required in an antitrust action brought against twenty-three Texas banks where the sitting judge owned a large investment in a nonparty Texas bank that might be adversely affected by the ruling. In re Placid Oil Co., 802 F.2d at 786-87. There, it was argued, as here, that any adverse ruling to the bank-defendants would have a dramatic impact on the entire banking industry and thus on the judge’s investments as well. The court said:

We find no basis here for requiring re-cusal. We are unwilling to adopt a rule requiring recusal in every case in which a judge owns stock of a company in the same industry as one of the parties to ' the case, and Petitioners, by showing only an indirect and speculative interest, have failed to sufficiently distinguish this case from that situation. A remote, contingent, and speculative interest is not a financial interest within the meaning of the recusal statute, cf. City of Houston, 745 F.2d at 931, nor does it create a situation in which a judge’s impartiality might reasonable be questioned.

Placid, 802 F.2d at 786-87.

¶ 57. Considering § 455(b), the Seventh Circuit has held that the mere fact a district judge’s spouse holds interests in trusts that include municipal bonds does not require his recusal from a case in which a party sought an injunction against the redemption of bonds by New York City Development Corporation. Although the trusts in which the judge’s spouse held interests did not hold any of the bonds of the party-development corporation, it was argued, as is argued here, that the court’s decision could affect the value of bond funds generally, including those of the judge’s spouse. New York City Dev. Corp. v. Hart, 796 F.2d 976 (7th Cir.1986). The court in its analysis said:

HDC relied on § 455(b)(4), arguing that the disposition of the case may affect the value of bond funds, including those in which the district judge has an interest. Judge Hart found this argument insufficient, as do we. The value of many assets, even the performance of the economy as a whole (and hence all assets), may depend on rules of law. It could be said that no judge who owns a house should render a decision that potentially affects the value of real estate in general, that no judge who owns stock should decide a case under the securities or antitrust laws, and so on. Effects of this sort are both ubiquitous and too indirect to require disqualification. Cf. Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 714-15 (7th Cir.1986). The effects are small, and almost every judge will have some remote interest of this sort. Moreover, the effects may have offsets that are difficult to predict. A decision under the securities laws that diminishes somewhat the value of bonds may increase somewhat the value of stocks; no judge with a diversified portfolio will be able to predict the effect on his wealth, and therefore there is little risk of either actual bias or the appearance of impropriety.

796 F.2d at 979-80.

¶ 58. The Eighth Circuit has held that a judge’s interest in a parent corporation would not disqualify him from sitting on a case in which the corporation’s subsidiary was a litigant. Under a complicated set of facts, a party in the subsidiary’s suit filed a separate action against the parent in an apparent effort to force the judge’s recu-sal. Citing Placid, the court said that it was reluctant to create a rule which would require judges to recuse from all cases that might remotely affect nonparty companies in which they own stock. In re Kan. Pub. Employees Ret. Sys., 85 F.3d at 1362.

¶ 59. The Eleventh Circuit is also in accord with the Placid holding. In Gas Utilities Co. of Ala., Inc., v. Southern Natural Gas Co., 996 F.2d 282 (11th Cir.1993), relying on Placid, the court held that a judge whose wife and father-in-law held interests in land leased to gas producers was not required to recuse from an anti trust action between gas suppliers in the area who did not hold leases from the judge’s relatives.

¶ 60. The broadly accepted rule is that in order for Canon 3 E(l)(c) or (d), to require recusal, the judge must either own an interest in a party litigant or, if he does not, there must be a showing — not mere speculation — that he will be substantially affected by the decision of the case. Such a showing has not been made here. There has been no such showing as to Justice Carlson.

Representation of Justice McRae by Rebecca Langston

¶ 61. Reference is made in the motion to the fact that Rebecca Langston, Shane Langston’s wife and an attorney with his firm, represents Justice McRae in the pending judicial performance proceeding, and the movants argue that her representation of Justice McRae requires the justices who filed the charges against him to recuse in this case. The argument here is similar to that made regarding the references to the Langston firm in the Emergency Complaint. The fallacy is the same. For recusal to be required, it must be inferred that any animosity between Jus--tice McRae and the filing justices reaches to clients of the firm in which his daughter practices. Such an inference is not warranted. The justices are not parties to the disciplinary proceedings; they filed the Emergency Complaint under their responsibility as enunciated in the Code of Judicial Conduct, and the matter has been prosecuted by counsel for the Commission on Judicial Performance. As discussed above, even if hostility toward Justice McRae were assumed, it will not justify a conclusion, that the hostility extended to his counsel and their clients.

¶ 62. It is neither unexpected nor improper that a daughter will offer her assistance to her father when serious charges are made against him. However, the Langston firm was representing their clients before this Court at the time that Rebecca Langston elected to represent Justice McRae. That decision, however appropriate on her part, cannot be used by the firm as a device by which they may force the creation of a special court to hear their other clients’ cases;

CONCLUSION

¶ 63. We write today to clarify for the practicing bar issues concerning the relationship between' attorneys and judges and the impact of those relationships on the qualification of judges to preside in particular cases. Perceived bias by judges cannot generally be inferred from attorneys’ association with causes, controversies, issues or persons which the judges may find objectionable. The presumption against bias remains strong, and can be overcome only by evidence and not by mere conjecture or speculation. Our judges are perfectly capable of distinguishing between attorneys, their clients, and the legal issues which the attorneys present, even where animosity against the attorneys may exist — a condition which does not exist as to the Langston firm. Such animosity will require recusal only where it is of an extreme character or compounded with other factors which will justify doubt as to the judge’s impartiality in the minds of reasonable and informed people.

¶ 64. Likewise, favoritism toward attorneys is not to be extrapolated from the mere fact that those attorneys have assisted judges in the performance of official obligations. Where attorneys represent judges, we will look to the totally of circumstances of the representation, as we said in Dodson, and Collins, applying the factors outlined by the Minnesota court in Powell v. Anderson.

¶ 65. Too often of late, the public, the media, and, most unfortunately, the bar, have tended to treat litigation as wars between attorneys in which the personalities of the attorneys and sometimes the judges are the focus. Too often members of the bar use recusal as a trial tactic. This is a sad and inaccurate misapprehension of the legal system as it should, and by and large, as it does exist. The nature of the profession is such that attorneys and judges often draw their friends and daily associations from their vigorous adversaries. They are schooled and nourished in an adversary system in which they learn quickly that lawyers are merely representatives of clients and positions. Those who do not generally live out their careers in misery. The judges of our state are thoroughly capable of distinguishing the attorneys from their clients and to recognize their duty to the public and the law. Our laws and rules governing recusal are written to allow remedy in the few cases where judges’ conduct indicates that they may truly appear to fall short of the responsibility to make those distinctions. The recusal mechanism must be guarded carefully to check its use as a weapon to be wielded in a campaign to maneuver onto more favorable fields of battle.

¶ 66. The motion for recusal of these justices fails to demonstrate facts that would cause a reasonable person knowing all the circumstances to doubt the justices’ impartiality in the litigation between the parties now before the Court. For that reason, the motion is denied.

¶ 67. APPELLEES’ VERIFIED MOTION FOR RECUSAL, DENIED.

SMITH AND WALLER, P JJ., COBB AND CARLSON, JJ., CONCUR. DIAZ, EASLEY, GRAVES AND DICKINSON, JJ., NOT PARTICIPATING.

      . On January 5, 2004, Presiding Justice McRae’s term of office ended when his successor, Justice Jess H. Dickinson, took the oath of office.

      . The motion does not charge that Butler Snow represents a party in this case. Rather, the firm filed an amicus curiae brief on behalf of a non-party. It has been held in at least one other jurisdiction that “representing an amicus curiae is not the equivalent of representing a 'litigant' in an appeal," and that the relationship between the attorney filing the amicus brief and the judge does not disqualify the judge. City of Las Vegas Downtown Redev. Agency, 940 P.2d at 130.

      . Wanda Doe v. William L. Waller, Jr., No. G 2002-208 S/2 (Chan. Ct. First Jud. Dist., Hinds County, Miss.).