Ferren v. USAA Insurance Co.

Cite as 2015 Ark. App. 477

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-766

ROGER FERREN, SPECIAL Opinion Delivered September 16, 2015
ADMINISTRATOR OF THE ESTATE
OF KARMEL FERREN, DECEASED APPEAL FROM THE WHITE
APPELLANT COUNTY CIRCUIT COURT
[NO. PR-2013-259-1]
V.
HONORABLE TOM HUGHES,
JUDGE
USAA INSURANCE CO. ET AL.
APPELLEES REVERSED AND REMANDED

M. MICHAEL KINARD, Judge

Roger Ferren appeals from an order in which the trial judge assigned to the case

refused to recuse or to grant an evidentiary hearing on Ferren’s motion to recuse. He argues

that the trial court erred in refusing to hold a hearing on the motion and erred in not

recusing. We agree that the trial court erred in denying the motion without affording Ferren

a hearing.

According to the record, appellant’s wife died intestate after suffering serious injuries

in an automobile accident. Appellant, through counsel, sought and obtained appointment

as special administrator of his wife’s estate for the purpose of settling a claim against the

alleged tortfeasors and their insurer. Thereafter, appellant filed a motion and, later, an

amended motion seeking recusal of the trial judge. Appellant alleged that the trial judge had

exhibited both apparent and actual bias against his attorney such that the judge’s impartiality

was reasonably brought into question. Appellant alleged that the trial judge had, in the
Cite as 2015 Ark. App. 477

presence of others, called appellant’s attorney an obscene name; blamed the attorney for the

judge having an opponent in his recent bid for reelection; and stated that the attorney was

one who thought that he (the attorney) “should get special favors because of who [he is] or

what law firm [he is] in.” Appellant further alleged that the judge remained upset with

appellant’s attorney because of the attorney’s involvement in a prior case that both resulted

in the judge being cast in a negative light and was the subject of a complaint filed by the

attorney against the judge with the Judicial Discipline and Disability Commission.

Appellant’s motion also alleged that the judge’s wife, herself a local lawyer, had openly stated

to a friend of appellant’s attorney that she (the judge’s wife) was “going to get [appellant’s

attorney]” for a perceived “slander[]” that the attorney had written in a letter favoring the

judge’s election opponent. Exhibits, affidavits, and deposition excerpts were attached in

support of the motion. Appellant specifically requested an evidentiary hearing on the

motion. The court denied that request and denied the motion to recuse, and appellant filed

this appeal.1

1
Were this not a probate case, the order would likely not be appealable because it does
not constitute a final resolution of all of the issues. However, with a few exceptions not
applicable here, all orders in probate cases are immediately appealable. Ark. R. App. P.–Civ.
2(a)(12).
The record also shows that, subsequent to the order appealed from, the trial court
approved a settlement of the claim against the decedent’s tortfeasors as requested by appellant.
It is suggested in the brief filed on behalf of the trial judge that this renders the denial of the
recusal motion nonprejudicial or moot. However, we note that the trial court denied other
relief requested by appellant, namely that the funds in question be labeled wrongful-death
benefits such that they would be beyond the reach of creditors, see Ark. Code Ann. § 16-62-
102(e) (Supp. 2013), at least one of whom was already seeking a lien against the settlement
proceeds. Therefore, additional proceedings will be called for in the trial court, and recusal
remains an issue.

2
Cite as 2015 Ark. App. 477

Canon 2 of the Arkansas Code of Judicial Conduct provides that “a judge shall

perform the duties of judicial office impartially, competently, and diligently.” Rule 2.11(a)

of the Code states in pertinent part:

A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including but not limited to the
following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of facts that are in dispute in the proceeding.

It is true that a judge is presumed to be impartial, and the party seeking recusal must

demonstrate bias or prejudice on the part of the judge. Nash v. Hendricks, 369 Ark. 60, 250

S.W.3d 541 (2007); Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001). However, the

proper administration of the law requires not only that judges refrain from actual bias but also

that they avoid all appearances of unfairness. Noland v. Noland, 326 Ark. 617, 932 S.W.2d

341 (1996); City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990). Where a

judge exhibits bias or the appearance of bias, the appellate court will reverse. Venhaus, supra.

Appellant first contends that the trial court erred in denying the motion to recuse

without first holding an evidentiary hearing. We agree and reverse and remand for a hearing

on appellant’s motion for recusal.

The attorney general correctly points out on behalf of the trial judge in this case that

there is no requirement that a hearing be held every time a litigant files a recusal motion and

asks for a hearing. See Stilley v. Fort Smith School District, 367 Ark. 193, 238 S.W.3d 902

(2006) (no hearing was required where the moving party’s motion was “devoid of any facts

supporting his assertion[s]” of bias and prejudice and “raised no issue of fact or law to be

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Cite as 2015 Ark. App. 477

raised in a hearing”). However, a hearing is necessary where one is requested and there is

more than a conclusory allegation that a judge is biased or otherwise subject to recusal. Nash,

supra; Stilley, supra; see Venhaus, supra (an appellant can hardly meet his burden of showing

cause for recusal without the opportunity to be heard on his motion); Westbrook v. State, 265

Ark. 736, 580 S.W.2d 702 (1979) (same). Here, appellant requested a hearing on his motion,

and the motion clearly consisted of more than conclusory allegations of bias or prejudice.

Therefore, we hold that the trial court erred in denying the motion to recuse without

affording appellant a hearing.

Appellant next argues that we should go further and declare that the trial court erred

in not recusing. In light of the fact that recusal is initially a matter within the trial court’s

discretion and our conclusion that a hearing should have been held, we decline to address

that question at this time.

Reversed and remanded.

GRUBER and HIXSON , JJ., agree.

Simpson, Simpson & Mercer, P.A., by: James A. Simpson, Jr.; and Brett D. Watson,
Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Leslie Rutledge, Att’y Gen., by: Gary L. Sullivan, Ass’t Att’y Gen., for appellees.

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