Appellate Law

Recusal-Based 60(b)(6) Motion Late Where Moving Party Obtained Underlying Document Six Years Earlier

A defendant found no relief from judgment under Rule 60(b)(6) where he had obtained the document supporting his plea for relief six years before he filed his motion. Price v. Clayton, Nos. 2070728, 2070755 (Ala. Civ. App. Oct. 31, 2008). The trial court’s denial of the recusal-based 60(b)(6) motion was affirmed.

The Court of Civil Appeals reviewed several points of post-judgment and appellate practice before reaching the heart of this case. Hoping it will prove useful to readers here, we follow the court’s long approach.

The Court of Civil Appeals upheld a judgment against Robert Price. Acting pro se, Price sought a rehearing and, days later, moved the appellate court to “set aside” the adverse judgment under Rule 60(b). Price argued that “newly discovered evidence” showed that the trial judge should have recused himself. This motion, made on March 12, 2008, pointed to a 1999 affidavit in which the trial judge had recommended the plaintiff as a fit candidate for admission to the Alabama State Bar. The Court of Civil Appeals treated Price’s motion as a request for permission to file a Rule 60(b) motion in the trial court, and granted that permission.

Price filed his 60(b) motion in the circuit court and asked the trial judge to recuse himself. The trial court denied this motion. Price appealed and, days later, filed a separate mandamus petition challenging the trial court’s decision.

The Court of Civil Appeals first noted that the denial of the 60(b) motion was appealable. The mandamus petition, however, was not proper. After the circuit court denied the 60(b) motion, there was nothing left pending for it to do. The 60(b) denial was therefore final, not interlocutory, and could not be reviewed by mandamus. Nonetheless, the appellate court explained that, “in certain circumstances,” it could elect to treat a petition for mandamus as an appeal. Because the recusal issue was at the heart of both Price’s appeal and his mandamus petition, the court elected to treat the petition as an appeal.

The appellate court then analyzed Price’s 60(b) motion. Price had not specified which subsection of Rule 60(b) his motion was brought under. The Court of Civil Appeals “decline[d] to construe” Price’s motion as one under 60(b)(2), seeking relief from judgment based on “newly discovered evidence.” Such a motion, the court explained, comprehends proof “which was not known at time of trial and could not have been discovered by due diligence in time to move for a new trial.” Price had not alleged or argued that he had only recently discovered the 1999 affidavit on which his recusal argument rested; nor had he claimed that he could not have discovered it sooner. His motion therefore was not viable under Rule 60(b)(2).

The court then considered the motion under Rule 60(b)(6). This subsection allows relief from judgment for “any other reason justifying relief” than those listed in previous parts of Rule 60(b). The appellate court set out various criteria governing this rule. “Rule 60(b)(6) is an extreme remedy and relief” thereunder “will be granted only in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.” (Quotation omitted.) A party moving under this rule must show that he did “everything reasonably within his power to achieve a favorable result” before the challenged judgment became final. Decisions under Rule 60(b)(6) lie in the trial court’s discretion. Indeed, “a strong presumption of correctness” attaches to a trial court’s decision under Rule 60(b)(6). The object of appellate review in such a case is not the underlying judgment, but the decision on the 60(b)(6) motion itself.

The appellate court affirmed the denial of Price’s 60(b)(6) motion. Such a motion must be brought “within a reasonable time.” Yet Price had made no allegation or argument showing that his motion was timely under this criterion. The record showed, to the contrary, that Price had not moved within a reasonable time. Price had acquired the 1999 affidavit that supported his motion much earlier in the litigation — fully six years before he filed his Rule 60(b) recusal motion. His motion therefore was not filed “within a reasonable time” and the circuit court did not err in denying it. The judgment of the circuit court was accordingly affirmed.

(The Court of Civil Appeals also upheld the circuit judge’s underlying decision not to recuse himself. This decision, too, came down to a question of timeliness; specifically, Price’s failure not to seek recusal before the court entered judgment.)

Full post as published by Alabama Appellate Watch on November 11, 2008 (boomark / email).