Malloy v. Peters, [Ms. 2190452, Sept. 25, 2020], ___ So. 3d ___ (Ala. Civ. App. 2020).
The court (Moore, J.; Thompson, P.J., and Donaldson, Edwards, and Hanson,
JJ., concur), affirms the Montgomery Circuit Court’s order dismissing
a complaint seeking damages from the Alabama Department of Corrections,
the Alabama Board of Adjustment and several Department of Corrections
officers for money damages from an alleged destruction of personal property.
The court first rejects appellant’s contention the trial-court judge
erred in denying a motion to recuse:
“‘A trial judge’s ruling on a motion to recuse is reviewed
to determine whether the judge exceeded his or her discretion. See
Borders v. City of Huntsville, 875 So. 2d 1168, 1176 (Ala. 2003). The necessity for recusal is evaluated
by the “totality of the facts” and circumstances in each case. [Ex parte City of]
Dothan Pers. Bd., 831 So. 2d [1,] 2 [(Ala. 2002)]. The test is whether “‘facts
are shown which make it reasonable for members of the public, or a party,
or counsel opposed to question the impartiality of the judge.’”
In re Sheffield, 465 So. 2d 350, 355-56 (Ala. 1984) (quoting
Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala. 1982)).’”
Ex parte Parr, 20 So. 3d 1266, 1269 (Ala. 2009) (quoting
Ex parte George, 962 So. 2d 789, 791 (Ala. 2006)).
Ms. **4-5. The court concludes the appellant failed to show the trial court
exceeded its discretion because mere adverse rulings do not prove bias
or prejudice:
“It is well-settled that ‘[a]dverse rulings during the course
of the proceedings are not by themselves sufficient to establish bias
and prejudice.’
Hartman v. Board of Trustees of the University of Alabama, 436 So. 2d 837, 841 (Ala. 1983). ‘[R]ulings on issues of law or
attitudes concerning legal issues’ do not establish bias or prejudice
requiring recusal unless those rulings or attitudes are the product of
bias and prejudice of an extra-judicial source. Thode, [The Code of Judicial Conduct – The First Five Years in the Courts, 1977 Utah L. Rev. 395,] 405.”
In re Sheffield, 465 So. 2d 350, 357 (Ala. 1984).
Ms. **5-6.
The court also finds the judgment is due to be affirmed because the appellant
failed to discuss in his opening brief an issue on which the trial court
might have relied as a basis for its judgment, as such a failure requires
affirmance because the reviewing court will not presume error on the part
of the trial court:
“‘“... [T]he failure of the appellant to discuss in the
opening brief an issue on which the trial court might have relied as a
basis for its judgment, results in an affirmance of that judgment. [Fogarty v. Stallworth, 953 So. 2d 1225, 1232 (Ala. 2006)]. That is so, because ‘this court
will not presume such error on the part of the trial court.’
Roberson v. C.P. Allen Constr. Co., 50 So. 3d 471, 478 (Ala. Civ. App. 2010) (emphasis added). See also
Young v. Southern Life & Health Ins. Co., 495 So. 2d 601 (Ala. 1986).’” “Scrushy v. Tucker, 70 So. 3d 289, 307 (Ala. 2011) (quoting
Soutullo v. Mobile Cty., 58 So. 3d 733, 739 (Ala. 2010)) ....”
Forbes v. Brawley, 295 So. 3d 1101, 1106 (Ala. Civ. App. 2019) (some emphasis omitted) (recognizing the application of the above-quoted principle in the context of an appeal from a judgment granting a motion to dismiss).
Ms. **6-7.