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Kirkland v. Tamplin

The plaintiff failed to present evidence showing a bias from an extrajudicial source in support of his recusal motions.

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Dwain Kirkland pro se appeals from the dismissal of his suit against Christopher Tamplin and Kelly Tamplin, contending 1 that the Tamplins’ motion to dismiss was untimely, 2 that the trial court erred in ruling that Kirkland’s present case was commenced after a similar suit against the Tamplins he filed in a different county, which ruling required the dismissal of the present action, and 3 that the trial court erred in denying two motions to recuse. We disagree and affirm. The undisputed record shows that at 12:53 p.m. on November 11, 2005, Kirkland filed a complaint in Madison County against Christopher and Kelly Tamplin “and Others,” alleging that they committed various wrongful acts including fraud and breach of contract. At 2:07 p.m. on the same day, Kirkland then filed a complaint in the instant case in Franklin County, making the same allegations against the same defendants.1 The Tamplins answered, contending inter alia that the Franklin County case was barred by prior pending litigation. The Tamplins subsequently moved to dismiss the Franklin County case, which motion was granted without prejudice.

The dismissal order was later vacated by the trial court because Kirkland had, one day prior to the order, filed a motion to recuse the trial court judge, Judge Tise. Following a hearing, a different judge in the same county, Judge Bailey, denied Kirkland’s motion to recuse Judge Tise, and thereafter Judge Tise reinstated his prior order dismissing Kirkland’s case without prejudice. Kirkland now appeals.

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