THOMAS ELLIOTT v. RONDA ELLIOTT (NOW HARTLAGE)
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RENDERED: May 28, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001732-MR
THOMAS ELLIOTT
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE THOMAS B. MERRILL, JUDGE
ACTION NO. 93-FD-2058
RONDA ELLIOTT (NOW HARTLAGE)
APPELLEE
OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment denying
appellant’s motion for a hearing regarding the return of personal
property and imposing CR 11 sanctions in the amount of $10,000 on
appellant for filing a pro se motion for recusal which alleged
that the judge was personally biased.
As to that portion of the
judgment that denied the hearing on the return of personal
property, we affirm.
As to the CR 11 sanctions, we reverse on
grounds that appellant was denied procedural due process and
because the judge had a conflict of interest in ruling on the
matter.
Appellant, Thomas Elliott, and appellee, Ronda Elliott,
were divorced in the Jefferson Family Court in 1994.
Subsequently, there continued to exist unresolved legal issues
between the parties regarding custody and visitation of their
minor children and the distribution of property pursuant to the
property settlement agreement.
Consequently, various post-decree
motions were made by the parties which were ruled on by Judge
Thomas Merrill.
On April 10, 1997, appellant filed a motion to set a
hearing regarding the return of certain personal property which
appellant claimed appellee had refused to return to him as
required by the decree.
April 14, 1997.
Judge Merrill denied the motion on
Thereafter, on May 22, 1997, appellant filed a
motion pursuant to CR 60.02 requesting that Judge Merrill set
aside his order of April 14.
Appellant argued that Judge
Merrill’s basis for denying the motion — that too much time had
passed since the divorce — should not be a factor in deciding
whether to resolve the issue of the return of personal property.
In response to appellant’s motion, appellee argued that she had,
in fact, returned all personal property due appellant under the
decree.
Appellee also argued that the court should impose CR 11
sanctions because the motion was brought in bad faith for the
sole purpose of harassing appellee.
On May 27, 1997, the parties argued the motion before
Judge Merrill.
At the conclusion of appellant counsel’s
argument to the court, appellant personally tendered a pro se
motion for recusal to Judge Merrill alleging that the judge was
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personally biased against him.
In support of this motion,
appellant attached an affidavit in which appellant stated that he
was told by Tim Mulloy that Judge Merrill was in a financial bind
in his campaign and had taken money from the law firm of Mulloy,
Walz, Wetterer, Fore and Schwartz, with whom appellee is
associated as a practicing attorney.
Appellant further stated
that he was told that appellee could receive preferential
treatment due to her close association with the firm in question
and Judge Merrill’s allegiance to the firm.1
Upon reading the
motion, Judge Merrill declared the motion an “assault upon the
court with no basis whatsoever” and that it was “total hearsay”.
After denying the recusal motion, Judge Merrill threatened to
hold appellant in contempt if he made another motion concerning
these matters.
On June 27, 1997, Judge Merrill granted appellee’s
motion to impose CR 11 sanctions and fined appellant $350 for
filing the motion regarding the return of the personal property,
reasoning that appellant’s motion was frivolous and that the
proper procedure to enforce a previous judgment was a motion for
contempt.
Three days later on June 30, 1997, Judge Merrill,
acting sua sponte, entered findings of fact, an opinion, and
judgment denying appellant’s recusal motion and sanctioning
appellant $10,000 pursuant to CR 11.
Judge Merrill stated in his
findings that there was no truth to the allegations in
1
Interestingly, upon reviewing the record, we see that the
motion to recuse, which was tendered to the court on May 27,
1997, was not entered in the record until February 20, 1998 upon
a motion for appellant to supplement the record for purposes of
his appeal to this Court.
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appellant’s affidavit that he accepted monies from the Mulloy law
firm or appellee.
Judge Merrill further denied any strong
allegiance to the Mulloy law firm.
He characterized the motion
as “a frivolous and perjured motion by a vindictive, disgruntled
party to impeach or impugn the integrity of this Judge and
publicly bring into disrepute the judicial process based upon
manufactured falsehoods.”
The court continued:
It [the recusal motion] has its origins in
the Respondent’s October 1995 statement to
the Petitioner to “have the Judge removed
from office by the Judicial Removal
Committee.” It is a clear continuation of
his plan to remove anyone who has acted
contrary to his personal wishes [footnote
omitted] and is reflected in his request that
the Court forward a copy of his motion and
affidavit to the Retirement and Removal
Commission.
In the judgment, the court also again denied appellant’s CR 60.02
motion set aside its earlier decision denying appellant a hearing
on the return of personal property issue.
appellant now appeals.
From this judgment,
We note that no appellee’s brief was
filed in this case.
Several of appellant’s arguments relate to his primary
argument that Judge Merrill erred when he imposed the CR 11
sanctions on appellant.
CR 11 states in pertinent part that a
signature of an attorney or party:
constitutes a certification by him that he
has read the pleading, motion or other paper;
that to the best of his knowledge,
information, and belief formed after
reasonable inquiry it is well grounded in
fact and is warranted by existing law or good
faith argument for the extension,
modification or reversal of existing law, and
that it is not interposed for any improper
purpose, such as to harass or to cause
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unnecessary delay or needless increase in the
cost of litigation.
Where sanctions are imposed, the Court of Appeals
applies a multi-standard approach for review — a clearly
erroneous standard to the trial court’s findings in support of
sanctions; a de novo review of the legal conclusion that a
violation occurred; and an abuse of discretion standard on the
type and/or amount of sanctions imposed.
Clark Equipment Co.,
Inc. v. Bowman, Ky. App., 762 S.W.2d 417 (1988).
The test to be
used by the trial court in considering a motion for sanctions is
whether the attorney’s conduct, at the time he or she signed the
pleading or motion, was reasonable under the circumstances.
Id.
Appellant first contends that CR 11 sanctions were
imposed on him in violation of his due process rights because he
was denied notice and an opportunity to be heard on the matter.
It has been clearly held in Kentucky that “a trial court should
not impose sanctions without a hearing and without rendering
findings of fact.”
Id. at 421.
The United States Supreme Court
has also held that, given the inherent power of a court over the
parties before it, sanctions should not be imposed “without fair
notice and an opportunity to be heard on the record.”
Roadway
Express, Inc. v. Piper, 447 U.S. 752, 766-767, 100 S. Ct. 2455,
2464, 65 L. Ed. 2d 488 (1980).
Thus, appellant in the instant
case was denied procedural due process when he was not given
notice and an opportunity to be heard.
Appellant next argues that the recusal motion was based
upon reasonable inquiry and was warranted by existing law.
Appellant maintains that his reliance on the representations by
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Mr. Mulloy were sufficient basis for him to file the recusal
motion.
Appellant also claims that the court should have held
him to a less stringent standard given his pro se status.
See
Lisack v. Natural Resources and Environmental Protection Cabinet,
Ky. App., 840 S.W.2d 835 (1992).
In reviewing the record, we see no evidence to support
the allegations against the judge in the recusal motion other
than appellant’s affidavit, which contained only hearsay
statements.
In our view, although appellant was acting pro se,
he nevertheless had a duty under CR 11 to ensure that his motion
was grounded in fact.
Basing a recusal motion solely on hearsay
statements of which there is no way to determine the truth is
simply not acceptable.
Thus, the trial court’s findings
regarding the recusal motion were not clearly erroneous.
In other circumstances, the court’s determination that
a CR 11 violation occurred would have been proper.
However, in
this case, given the personal nature of the allegations against
the sitting judge, we believe Judge Merrill improperly imposed CR
11 sanctions.
Under Canon 3 C(1)(a) of The Code of Judicial Conduct,
SCR 4.300:
[a] judge should disqualify himself in a
proceeding in which his impartiality might
reasonably be questioned ... where [h]e has
personal bias or prejudice concerning a
party, or personal knowledge of disputed
facts concerning the proceeding;
Further, Canon 2 of The Code of Judicial Conduct, SCR 4.300,
states that “[a] judge should avoid impropriety and the
appearance of impropriety in all his activities.”
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In our view,
Judge Merrill acted in violation of these Canons in making a
ruling under CR 11 with regard to a motion that made personal
allegations against Judge Merrill.
Although it is not improper
for a judge to rule on a recusal motion regarding that same
judge, the judge here clearly had a conflict of interest in
punishing the party2 for making the motion and the personal
allegations therein.
It is especially suspect given the fact
that appellant had apparently made a complaint to the Judicial
Removal and Retirement Commission regarding Judge Merrill.
One
has to wonder if the CR 11 sanctions were retaliatory in nature.
We believe it was an abuse of the court’s discretionary powers
under CR 11.3
Accordingly, because appellant was not afforded
procedural due process and because Judge Merrill had a conflict
of interest in ruling on the matter, we reverse the judgment
imposing the $10,000 in CR 11 sanctions.
Appellant’s remaining argument is that the court erred
as a matter of law when it denied appellant’s CR 60.02 motion to
set aside the court’s prior ruling denying a hearing on the
return of personal property issue.
A court’s ruling on a CR
60.02 motion will not be set aside absent an abuse of discretion.
Fortney v. Mahan, Ky., 302 S.W.2d 842 (1957).
CR 60.02 requires
a very substantial showing to merit relief under its provisions.
Ringo v. Commonwealth, Ky., 455 S.W.2d 49 (1970).
In his CR
60.02 motion, appellant merely alleged excusable neglect in that
2
The court explicitly stated in his opinion that $8,000 of
the sanctions were purely punitive.
3
The court could have avoided the appearance of impropriety
by having another judge rule on the CR 11 matter.
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he failed to collect the property awarded to him because he had
hoped his ex-wife would return the property.
We do not believe
that is a sufficient basis to merit CR 60.02 relief.
Accordingly, the court did not abuse its discretion in denying
the CR 60.02 motion.
For the reasons stated above, that portion of the
judgment which imposed CR 11 sanctions is reversed, and that
portion of the judgment which denied the CR 60.02 motion is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
K. Tracy Rigor
Jeffrey A. Cross
Louisville, Kentucky
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