{
  "id": 8553813,
  "name": "THEODORE McCLENDON and RACHEL McCLENDON v. DAVID ELWOOD CLINARD, JR. Defendant & Third Party Plaintiff v. GEORGE CARDWELL, d/b/a CARDWELL ELECTRIC COMPANY",
  "name_abbreviation": "McClendon v. Clinard",
  "decision_date": "1978-10-17",
  "docket_number": "No. 7721DC1008",
  "first_page": "353",
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        8557966
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  "last_updated": "2023-07-14T21:32:33.594298+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges CLARK and MARTIN (Harry C.) concur."
    ],
    "parties": [
      "THEODORE McCLENDON and RACHEL McCLENDON v. DAVID ELWOOD CLINARD, JR. Defendant & Third Party Plaintiff v. GEORGE CARDWELL, d/b/a CARDWELL ELECTRIC COMPANY"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nPlaintiffs, in their first assignment of error, contend that the trial judge erred as a matter of law in denying plaintiffs\u2019 motion to recuse. We think disposition of this case is governed by North Carolina National Bank v. Gillespie, 291 N.C. 303, 230 S.E. 2d 375 (1976). In that case the defendant made a motion to recuse, alleging personal bias and prejudice arising from an unfriendly termination of attorney-client relationship between the trial judge and defendant\u2019s family and a favorable disposition on the part of the judge towards the plaintiff. The Supreme Court declined to consider the merits of defendant\u2019s contention that the trial judge erred in failing to recuse himself. Instead, the Court held that \u201cwhen the trial judge found sufficient force in the allegations contained in defendant\u2019s motion to proceed to find facts, he should have either disqualified himself or referred the matter to another judge before whom he could have filed affidavits in reply or sought permission to give oral testimony.\u201d Bank v. Gillespie, supra, at 311, 230 S.E. 2d at 380.\nThis case is distinguishable from Bank v. Gillespie, supra, in that the basis of the motion to recuse in this instance was prejudgment of the merits of defendant\u2019s motion rather than personal bias. However, the two cases are basically similar in that the respective motions raised serious questions about the impartiality of the trial judge. We think the trial judge in this instance should have either disqualified himself from ruling on the plaintiffs\u2019 motion to set aside the judgment or referred the motion to recuse to another judge for consideration and disposition. Canon 3(c)(1) of the Code of Judicial Conduct directs that, \u201c[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. . . .\u201d We think that where a motion to recuse of this nature is made, a reasonable man knowing all the circumstances would have doubts about the judge\u2019s ability to rule on the motion to recuse in an impartial manner.\nWe think it would unduly prolong the course of this litigation if we merely vacated the order denying the motion to recuse and remanded for referral of that motion to another judge. Therefore, we reverse the court\u2019s denial of the motion to recuse and hold that the judge committed error by not disqualifying himself in this instance. We also vacate the court\u2019s order denying the motion to set aside the judgment for excusable neglect and remand the case for consideration of that motion by another District Court Judge of Forsyth County.\nWe agree with Judge Keiger\u2019s concern that counsel lunched with one of the members of the jury venire. This very juror may have been called to serve for the trial of the case in which counsel was to appear. We also agree with Judge Keiger that the president of the local bar should have been advised of counsel\u2019s conduct. We think Judge Keiger may have gone further and advised the grievance committee of the North Carolina State Bar in order that it might investigate the matter. However, counsel\u2019s conduct does not mitigate what we consider to be erroneous conduct by the trial judge in proceeding to pass upon counsel\u2019s motion to set aside the order dismissing his client\u2019s case with prejudice. The correctness or incorrectness of the trial judge\u2019s ruling on the motion to set aside is not decided. We decide only that under the circumstances Judge Keiger should have disqualified himself to pass upon the motion to set aside.\nReversed and remanded.\nJudges CLARK and MARTIN (Harry C.) concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "Legal Aid Society of Northwest North Carolina, by Bertram Ervin Brown II and Paul Sinai for plaintiffs.",
      "Deal, Hutchins & Minor, by Richard Tyndall and Richard D. Ramsey for defendant and third-party plaintiff.",
      "Hudson, Petree, Stockton, Stockton, and Robinson, by Jackson N. Steele for third-party defendant."
    ],
    "corrections": "",
    "head_matter": "THEODORE McCLENDON and RACHEL McCLENDON v. DAVID ELWOOD CLINARD, JR. Defendant & Third Party Plaintiff v. GEORGE CARDWELL, d/b/a CARDWELL ELECTRIC COMPANY\nNo. 7721DC1008\n(Filed 17 October 1978)\nJudges \u00a7 5\u2014 motion to set aside judgment \u2014 refusal of judge to disqualify himself\u2014 error\nThe trial judge erred in not disqualifying himself from ruling on plaintiffs\u2019 motion to set aside judgment against them on the ground of excusable neglect where the court dismissed plaintiffs\u2019 action with prejudice because neither they nor their attorney was present when their case was called; in the affidavits filed with plaintiffs\u2019 motion to set aside, it was revealed that plaintiffs\u2019 attorney, on the same day the case was called and dismissed, had lunched with a venireman serving jury duty that week; the judge called the president of the county bar association into open court, informed him of the attorney\u2019s behavior and asked him to investigate the matter; the judge notified a newspaper reporter that he should be present in the courtroom that afternoon; the reporter\u2019s story appeared in the next morning\u2019s paper; and the judge granted an interview to another reporter and made statements relative to the incident which appeared in a second article.\nAPPEAL by plaintiffs from Keiger, Judge. Order entered 20 October 1977 in District Court, FORSYTH County. Heard in the Court of Appeals 19 September 1978.\nPlaintiffs brought this action against defendant Clinard, their landlord, seeking to recover damages for property destroyed in a fire, allegedly resulting from the landlord\u2019s negligent maintenance of the electrical circuitry in their apartment. Defendant Clinard, asserting a cause of action for indemnification, brought in third party defendant Cardwell, an electrician who had recently done maintenance on the electrical circuitry of plaintiffs\u2019 apartment. The case came on for trial during the week of 29 August 1977 before Judge R. Kason Keiger. It was on the court\u2019s calendar as the sixth case for trial.\nAt noon Wednesday, 31 August 1977, plaintiffs\u2019 attorney was informed that the jury had just been impaneled in the fourth case on the calendar. Plaintiffs\u2019 attorney then left for lunch. At 12:18 p.m. the assistant clerk of court called the office of plaintiffs\u2019 attorney and left a message requesting that the attorney call the clerk\u2019s office \u201cre: Theodore McClendon case.\u201d For unexplained reasons, the message was not received by plaintiffs\u2019 attorney until 2:30 p.m. Upon returning from lunch, plaintiffs\u2019 counsel was notified at 2:15 p.m. that the case had been called at 2:00 p.m. and that Judge Keiger had dismissed it with prejudice because neither the plaintiffs nor their counsel had been present when the case was called.\nOn 9 September 1977, plaintiffs moved with supporting affidavits to have the judgment set aside under N.C.R. Civ. P. 60(b) (1) and (6) on grounds of excusable neglect. In the affidavits filed with the motion, it was revealed that plaintiffs\u2019 attorney, on the same day the plaintiffs\u2019 case was called and dismissed, had lunched with a venireman serving jury duty that week in district court.\nOn 14 September 1977, Judge Keiger called the President of the Forsyth County Bar Association into open court and informed him of the attorney\u2019s contact with the venireman and requested that he investigate the matter. Judge Keiger also, in effect, notified a newspaper reporter that he should be present in the courtroom that afternoon. The reporter covered the incident, and his story appeared the next morning in the Winston-Salem Journal. On that same morning, Judge Keiger also granted an interview to another reporter and made statements relative to the incident, which appeared in a second article. On 30 September 1977, plaintiffs made a motion, based on the statements made to the press, to have Judge Keiger recuse himself from hearing plaintiffs\u2019 motion to set aside the judgment. Plaintiffs\u2019 motion alleged the statements to the press indicated Judge Keiger had prejudged the merits of their motion to set aside the judgment. On 13 October 1977, a hearing was held before Judge Keiger on plaintiffs\u2019 motion to recuse and to set aside the judgment. At the hearing, the judge considered the pleadings, the affidavits of plaintiffs\u2019 attorney Paul Sinai, the attorney\u2019s secretary, and the venireman, Robert V. Ford, Jr., the newspaper articles, and the testimony of the two newspaper reporters who had written the articles. After hearing and considering this evidence, the court denied both the motion to recuse and the motion to set aside the judgment. Plaintiffs gave notice of appeal.\nLegal Aid Society of Northwest North Carolina, by Bertram Ervin Brown II and Paul Sinai for plaintiffs.\nDeal, Hutchins & Minor, by Richard Tyndall and Richard D. Ramsey for defendant and third-party plaintiff.\nHudson, Petree, Stockton, Stockton, and Robinson, by Jackson N. Steele for third-party defendant."
  },
  "file_name": "0353-01",
  "first_page_order": 381,
  "last_page_order": 385
}