Doyle, Presiding Judge. In the third appearance of this case before this Court,[1] A & M Hospitalities, LLC; JDS&J Enterprises, LP; David B. Motley; Jane P. Motley; MotManco, Inc.; MotManco, LLC; JPM Advertising, Inc.; and DJ Land & Development, LLC, (collectively, “the defendants”) appeal the trial court’s orders: granting Prenita Alimchandani (“the plaintiff”) leave to file a second amended complaint (“SAC”) instead of dismissing the case based on res judicata; denying the defendants’ motion to stay litigation and granting the plaintiff’s motion to stay the 2020 arbitration; denying the defendants’ motion to recuse; and granting the plaintiff’s motion to appoint a receiver. For the reasons that follow, we reverse and remand the case. This case has a protracted procedural history as relayed in Alimchandani I: The record shows that Alimchandani and Jane and David Motley jointly created A&M in 1998 to develop and operate a Hampton Inn in Lake Park, Georgia. Originally, Jane Motley owned a 75 percent interest in A&M and Alimchandani owned 25 percent. From the beginning, operational control and decision making for A&M was vested with Jane Motley, who was designated A&M’s manager. In 2006, half of Jane Motley’s 75 percent interest was transferred to David Motley, and then the interests of Jane and David Motley were both transferred to JDS&J Enterprises, LP, a limited partnership comprising of Jane and David Motley and their children. At the same time, David Motley was made a comanager of A&M with Jane Motley. In October 2017, Alimchandani filed the instant lawsuit against . . . the defendants[], seeking the judicial dissolution of A&M and raising claims of breach of fiduciary duties and violations of Georgia’s Racketeer Influenced and Corrupt Organizations Act (“RICO”), OCGA § 16141 et seq. In her complaint, Alimchandani alleged that between 2008 and 2014, the Motleys misappropriated, wasted, and abused A&M’s assets, failed to make required distributions to her as a partner of A&M, failed to provide her with notice of the transfer of Jane Motley’s interest to David Motley and JDS&J Enterprises, LP, failed to provide her with required financial information, threatened the employment of Alimchandani’s husband (a hotel operations manager at A&M), failed to hold annual meetings, and failed to communicate with her or deal in good faith. Alimchandani alleged that this conduct occurred in an apparent effort to freeze her out of A&M and to transfer business away from A&M to other companies owned by the Motleys and in which Alimchandani did not have an ownership interest. At the same time that she filed the complaint, Alimchandani also filed a motion for the appointment of a receiver and related injunctive relief, alleging that she would be “subjected to immediate and irreparable injury, loss and damage” if A&M was not placed in a receivership.[2] On November 22, 2017, the defendants moved to compel arbitration pursuant to the arbitration clause in the parties’ Operating Agreement. The plaintiff opposed the motion, and the trial court denied it without explanation in July 2018. On January 17, 2018, while her opposition to the defendant’s motion to compel arbitration remained pending, the plaintiff switched gears and filed a demand for arbitration with AAA. In July 2018, the trial court appointed Christopher Cohilas as “receiver” “for the purposes of audit and discovery,”[3] ordering “that Cohilas was to receive ‘reasonable compensation’ for his services, paid by A&M.”[4] Following the August 2018 AAA arbitration, the arbitrator issued a final award on September 28, 2018, finding in favor of the defendants on all claims and awarding them damages in the amount of $95,093.52, which included $70,800 for attorney fees.[5] On October 1, 2018, the defendants moved to confirm the award, and on December 28, 2018, the plaintiff moved to vacate it.[6] On November 30, 2018, the plaintiff filed an amended complaint seeking judicial dissolution of the company, appointment of a receiver, and other equitable relief. Meanwhile, the defendants had appealed the limited receiver order, and on May 15, 2019, this Court affirmed the appointment, “concluding that based on the language of the order, the trial court had actually appointed Cohilas as an auditor, not a receiver, and that the appointment was not an abuse of discretion.”[7] During the pendency of the appeal, the defendants filed a motion to clarify the appointment order.[8] Upon remand on June 14, 2019, the defendants moved for summary judgment, arguing that all of the plaintiff’s claims were or could have been asserted in the arbitration. The record does not reflect a ruling on the defendants’ summary judgment motion. On October 7, 2019, the trial court issued an order (“the special master/auditor order”) clarifying Cohilas’s appointment, explaining that Cohilas was appointed as an auditor and special master as those terms are contemplated and authorized by OCGA §§ 971, 972, 973, and Uniform Superior Court Rule 46. Specifically, the court vested Cohilas with authority to, among other things: conduct an accounting of A&M; hear motions, allow amendments, and pass upon all questions of law and fact; address all pretrial and discovery matters; monitor implementation of and compliance with all orders of the court, and he is permitted to impose upon a party any noncontempt sanction provided by OCGA §§ 91137 and 91145; conduct all trial proceedings and make and recommend findings of fact on all issues to be decided by the court without a jury; and engage in ex parte communications with the parties, counsel, and the trial court for certain purposes. The special master/auditor order also restated the payment provision in the initial order, with minor changes.[9] Thereafter, on October 23, 2019, the plaintiff moved for leave to file the SAC adding several causes of action against the then-existing defendants and adding as parties MotManCo., Inc.; MotManCo, LLC; JPM Advertising, LLP; and DJ Land Development, Inc. On December 6, 2019, after the defendants filed a mandamus petition in superior court, and more than a year after the defendants moved for confirmation of the award, the trial court confirmed the arbitration award.[10] The defendants appealed the special master/auditor appointment order on December 6, 2019, and the plaintiff appealed the confirmation on December 17, 2019.[11] On February 17, 2020, Cohilas entered an order granting the plaintiff’s motion for leave to file the SAC.[12] On June 1, 2020, the defendants filed an arbitration demand with AAA demanding that the plaintiff arbitrate the claims raised in her SAC and moved to stay the litigation pending arbitration. On June 17, 2020, the plaintiff moved to stay arbitration. On August 13, 2020, the trial court entered an order staying arbitration and denying the defendants’ motion to stay the litigation, finding that defendant A&M had waived its purported right to compel arbitration by “faili[ng] to challenge the portion of the [c]ourt’s 2018 [o]rder [d]enying [a]rbitration on appeal.” On October 1, 2020, the defendants filed a motion to disqualify and recuse the trial judge, alleging that he had directed the superior court clerk to not transmit the record to this Court even though the record in Alimchandani II was ready. On November 13, 2020, the trial court denied the motion without assigning the recusal motion to another judge. On January 26, 2021, the trial court appointed a receiver “to oversee . . . A&M’s assets, accounts, and all other interests currently owned by . . . A&M, including all of its subsidiaries” and to turn over to him all assets, wherever located, in their entirety and unaltered, including but not limited to A&M’s hotels, properties, assets, M3 accounting software, documents, books and records, checks, certificates of deposit, financial statements, bank accounts, financial instruments, money, receivables, keys to any and all security boxes and the exact location of said security boxes, and equipment. In the order, the trial court concluded that “there is a clear and urgent need for a receiver because . . . there is a significant risk that A&M’s corporate assets, which are 25 [percent] owned by [the p]laintiff will be dissipated,” noting a prior $6 million transfer from A&M to defendants MotManCo. and JDS&J. The defendants filed the notice of appeal in the instant case on January 29, 2021. On March 16, 2021, this Court issued its opinion in Alimchandani II, affirming the arbitration confirmation order[13] but reversing the appointment order, holding that Cohilas was disqualified as a special master for a multitude of reasons and that he was performing “fundamentally incompatible duties . . . at odds with the role of a special master.”[14] This Court also held that the trial court erred by requiring the defendants to pay Cohilas’s auditor fees prior to final judgment.[15] On May 6, 2021, before the remittitur in Alimchandani II was issued, the trial court entered a sua sponte order to “address” this Court’s March 16, 2021 opinion and “provide guidance to the parties.”[16] Therein, the trial court “formally remove[d]” from Cohilas any special master responsibilities in light of the appointment of a receiver, noting that the court would perform any additional judicial functions going forward. The court also addressed the auditor fees, stating that contrary to this Court’s holding, the defendants had not been previously required to advance payments for fees to Cohilas; instead the prior fee awards “ were ‘interim allocations’ which the [c]ourt will ultimately consider and assess in a final judgment” as “intended by the statutory framework.”[17] On June 25, 2021, the defendants filed in this Court a petition for mandamus against the trial court judge, Brian A. McDaniel, seeking an order (1) compelling him to vacate his May 6, 2021 order, which they allege conflicts with this Court’s opinion in Alimchandani II; (2) directing the return, bond, or escrow of all fees the defendants were required to pay to Cohilas; and (3) directing that Cohilas be removed and disqualified from serving in this matter.[18] 1. Res judicata. The defendants contend that res judicata bars the plaintiff’s claims raised in the SAC. We agree. (a) As an initial matter, we reject the plaintiff’s argument that this issue is not ripe because the trial court has not yet ruled on it. After the defendants moved for summary judgment on the basis of res judicata in June 2019, the plaintiffs filed the motion for leave to file the SAC in October 2019. In June 2020, the trial court granted the plaintiff’s motion for leave to file the SAC without ruling on the summary judgment motion. The court went on to stay arbitration of the claims raised in the SAC, deny the defendants’ motion to stay litigation of those claims, deny the defendants’ motion to recuse, appoint a receiver, and issue the May 2021 order referring to the receiver and noting that the court intended to rule on future judicial functions. These actions, combined with the trial court’s apparent refusal to rule on the summary judgment that has been pending for over two years, made it apparent that the trial court is permitting the plaintiff to pursue the claims raised in her SAC and rejecting the defendants’ res judicata arguments.[19] Indeed, without such an implicit ruling, the need for and purpose of the trial court’s additional orders are inexplicable. (b) We now turn to the issue presented. “Res judicata acts as a procedural bar to claims that were raised or could have been raised in a prior action.”[20] Pursuant to OCGA § 91240, “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” “There are three prerequisites to the application of res judicata: (1) identity of the cause of action; (2) identity of the parties or their privies; and (3) a previous adjudication on the merits by a court of competent jurisdiction.”[21] Res judicata applies even if some new factual allegations have been made, some new relief has been requested, or a new defendant has been added. It is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid.[22] Here, the third prong — a previous adjudication on the merits by a court of competent jurisdiction — was satisfied by the prior arbitration.[23] The first prong — identity of the cause of action — is also satisfied. The arbitration clause in the parties’ contract expressly covers “[a]ny dispute, controversy[,] or claim arising out of or in connection with, or relating to the [A&M Operating] Agreement.” The defendants moved to compel arbitration of all claims raised in the initial complaint, and after the plaintiff objected, the trial court denied the motion. The plaintiff then filed an arbitration demand with AAA naming A&M and JDS&J as respondents and seeking “immediate and instant dissolution of” A&M. She later amended the demand, alleging that JDS&J “breached numerous terms of the Operating Agreement, fiduciary duties owed to [her],” including “looting of company assets” and “financial manipulation,” and that JDS&J and the Motleys breached their fiduciary duties to her. In the final award, the arbitrator ruled that the plaintiff “cannot succeed on the [d]issolution [c]laim,” rejecting her breach of fiduciary duty claims against JDS&J.[24] The arbitrator also found in favor of JDS&J on its counterclaim alleging that the plaintiff breached the operating agreement and awarded it $95,093.52 in damages. “All claims for relief that concern ‘the same subject matter‘ must be raised. Any claims for relief concerning the same subject matter that are not raised are thereafter barred under OCGA § 91240.”[25] The phrase “arising out of” in the arbitration clause “is broad enough to encompass” the claims raised by the plaintiff in the SAC.[26] The claims raised in the SAC all allege that the defendants impaired the plaintiff’s rights and interests under the operating agreement and either were or could have been raised in the arbitration.[27] Finally, the second prong — identity of the parties or their privies — is also satisfied. The plaintiff repeatedly alleged in the SAC that all of the defendants in this action have a “unity of interest and/or ownership” with and are “alter egos” of JDS&J, A&M, and each other. “‘[P]rivies are all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denoting mutual or successive relationship to the same rights of property.’”[28] And the fact that the defendants other than A&M and JDS&J were not technically parties to the arbitration does not preclude application of res judicata.[29] Thus, the identity of parties or their privies requirement has been met. Res judicata requires that a party assert all claims that arise out of the underlying facts in one proceeding. [The plaintiff . . . was] required to seek recovery in one proceeding against [the defendants] for all [her] claims arising out of the [operating agreement]. [She] may not hold some claims in abeyance while others are submitted to binding arbitration.[30] Therefore, the claims raised in the SAC are barred. 2. Recusal. The defendants argue that the trial court erred by failing to assign the recusal motion to another judge and denying the motion. We agree. In their recusal motion, the defendants reiterate that it took the trial court more than a year to rule on their request for confirmation of the arbitration award, doing so only after they filed a mandamus petition in superior court seeking a ruling on the confirmation. The defendants filed their notice of appeal in Alimchandani II on December 17, 2019, 11 days after the entry of the order confirming the arbitration award. After a delay of several months, the plaintiff finally paid the bill of costs on June 26, 2020, after the defendants filed a motion to dismiss the appeal. The defendants attached to the recusal motion the affidavits of two of their attorneys, who averred that on September 24, 2020, one of them called the clerk’s office to inquire about the delay in transmitting the record on appeal; the Deputy Clerk of Court advised that “while the record had been ready for some time, he had not forwarded it the Georgia Court of Appeals at the direction of Judge Brian McDaniel[, the trial judge presiding over the case]” and “ that he was instructed to hold the record by Judge McDaniel’s office until further notice.” According to counsel, defendants were never advised of the court’s directive to the clerk, and they have been ordered to pay “hundreds of thousands of dollars” to Cohilas while awaiting a ruling on their motions and transmission of the record to this Court. The trial court denied the recusal motion without sending it to another judge, concluding that the affidavits submitted by the defendants are legally insufficient to support a motion to disqualify or recuse because the affidavits fail to set forth allegations of “bias stemming from extra-judicial conduct or statements.”. . . Even taking the affidavits as true, they fail to show a bias that may result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. . . . [The d]efendants’ affidavits acknowledge that the reason for the [c]ourt’s delay in transmitting the appeal record to the Georgia Court of Appeals was their June 4, 2020 motion to dismiss the appeal. . . . None of the affidavits describe any statement by the [c]ourt or other action (apart from the delay in record transmission) which they contend evidences bias. . . . Even if all the facts alleged in [the d]efendants’ affidavits were true, and the Superior Court in purported error caused there to be a delay in the transmission of the record on appeal, such error does not show an intense bias that prevents [the d]efendants from receiving impartial treatment.[31] On appeal, the defendants argue that the trial court’s “secret directive” to the clerk requires his disqualification/recusal and that the court erred by denying the recusal motion without submitting it to another judge for consideration pursuant to Uniform Superior Court Rule (“USCR”) 25.3. “It is vital to the functioning of the courts that the public believe in the absolute integrity and impartiality of its judges, and judicial recusal serves as a linchpin for the underlying proposition that a court should be fair and impartial.”[32] USCR 25 sets forth the formal procedure governing recusal of superior court judges: USCR 25.3 directs that when the trial judge assigned to a case is presented with a recusal motion and an accompanying affidavit, “the judge shall temporarily cease to act upon the merits of the matter” and determine “immediately”: (1) whether the motion is timely; (2) whether the affidavit is legally sufficient; and (3) whether the affidavit sets forth facts that, if proved, would warrant the assigned judge’s recusal from the case. If all three criteria are met, “another judge shall be assigned to hear the motion to recuse.” The decision about referring a recusal motion for reassignment to another judge does not involve an exercise of discretion by the judge whose recusal is sought. Rather, whether the three threshold criteria have been met is a question of law, which an appellate court reviews de novo.[33] The plaintiff is correct that “[a]llegations consisting of bare conclusions and opinions that the assigned judge is biased or prejudiced for or against a party . . . are not legally sufficient to support a recusal motion or to justify forwarding the motion for decision by another judge.”[34] Nevertheless, “[i]n all other respects, . . . the assigned judge must take the motion at face value, treating it as though ‘all of the facts set forth in the affidavit are true.’”[35] [When] deciding whether this assumed state of facts would require recusal, USCR 25.3 says that the assigned judge is to be guided by . . . Rule 2.11 of the revised Code of Judicial Conduct that took effect on January 1, 2016. Rule 2.11 (A) in the revised Code says generally that “judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned,” followed by a nonexclusive list of specific situations in which recusal is required. . . . The standard is an objective one. The facts must be considered from the perspective of a reasonable person rather than from the perception of interested parties or their lawyeradvocates, or from the subjective perspective of the judge whose continued presence in the case is at issue. The operative question is whether a fairminded and impartial person would have a reasonable perception of a judge’s lack of impartiality based upon objective facts set forth in the affidavit or reasonable inferences therefrom. If the motion and affidavit, taken at face value, satisfy the three threshold criteria, the assigned judge must refer the motion for reassignment and may not oppose the motion. The judge whose recusal is sought may not respond to the motion or attempt to refute the allegations, which stand denied automatically, no matter how false or even defamatory the judge might know or perceive the allegations to be.[36] Here, assuming the truth of the facts alleged, the affidavits constitute evidence that the trial court, without notifying the parties, contacted the clerk’s office and directed that it delay transmission of the record to this Court in a case that had already suffered an unduly lengthy delay, during which the defendants were required to pay large sums of money to a receiver appointed by the court after the defendants prevailed at arbitration and were merely awaiting confirmation. Moreover, the trial court attempted to explain its actions in the order denying the motion, which it is prohibited from doing. And the trial court slightly, but crucially, mischaracterized the defendants’ allegations regarding the cause of the delay. The defendants alleged that the trial court clerk remarked that the delay in forwarding the record on appeal “might have had something to do with a . . . June 4, 2020 Motion to Dismiss [the plaintiff's appeal[,]” but the trial court affirmatively stated that the defendants “ acknowledge[d] that the reason for the [c]ourt’s delay in transmitting the appeal record . . . was their June 4, 2020 motion to dismiss the appeal.” (Emphasis supplied.) Under these circumstances, the defendants’ recusal motion should have been referred for reassignment to another judge.[37] But “[w]e see no need to remand [this] case[] for such reassignment.”[38] By advancing a factual claim in opposition to the recusal motion and mischaracterizing the defendants’ allegation regarding the reason for the delay, the trial court evaluated and accepted the truth of his own factual allegations, mandating his recusal. As the Supreme Court of Georgia has explained, a judge cannot become actively involved in presenting evidence or argument against a motion seeking his recusal without that defense itself becoming a basis for recusal, [because] a judge who personally refutes a party’s allegations of judicial bias may appear to a reasonable person to have exhibited a personal interest in the outcome of the litigation, or to have aligned himself with the party resisting the judge’s disqualification, and that by attempting to refute a charge of bias, a judge may become — or appear to have become — an adversary of the party seeking his disqualification.[39] Accordingly, we reverse the order denying the defendants’ motion for recusal and remand the case to the trial court with direction that the case be reassigned to a new judge to continue with any additional necessary proceedings (e.g., judgment, determination of fees for receiver/special master/auditor).[40] 3. Receivership. Based on our holding in Division 1, this case is now over, with the exception of determining fees for Cohilas and the special master. And all orders issued subsequent to the order denying the defendants’ motion to recuse, including the order appointing a receiver, are void.[41] Thus, the defendants’ arguments regarding receivership are moot. 4. Motions to stay litigation and compel arbitration. Our holding in Division 1that the SAC is barred by res judicata renders this enumeration of error moot. Judgment reversed and case remanded. McFadden, P.J., concurs fully and specially. Hodges, J., concurs in part and dissents in part.
