Appeals court affirms dismissal of 'judge v. judge' case

By Lauren Kirkwood
The Daily Record Newswire
BALTIMORE, MD — A former Baltimore City Circuit Court judge was not required to recuse himself from hearing a case brought by another former Baltimore judge whom he allegedly held a grudge against, the Court of Special Appeals has ruled in upholding a trial court decision.

Kenneth Lavon Johnson filed a $700,000 lawsuit against Clifton J. Gordy in 2013, alleging Gordy should not have heard Johnson’s lawsuit against a real estate firm seven years earlier because he had a longstanding grudge against Johnson stemming from Johnson’s representation of Gordy’s ex-wife during their divorce proceedings.

The Court of Special Appeals, in an unreported opinion last month, unanimously affirmed a Talbot County judge’s dismissal of Johnson’s complaint, ruling that his claims of negligence, abuse of process and fraud were barred by absolute judicial immunity, as Gordy was acting as a judicial officer performing a judicial act when he dismissed Johnson’s case against his real estate company.

The intermediate appellate court panel also found that Johnson was precluded from arguing that Gordy was required to recuse himself from the real estate case because Johnson had not raised the issue when the case was in the circuit court nor did he do so during the appeal.

Johnson argued that he had been unaware Gordy had presided over the real estate matter — and therefore could not have sought Gordy’s recusal — because his attorney had failed to tell him about the May 2006 hearing in which Gordy ruled against Johnson and in favor of the real estate brokers, but the Court of Special Appeals rejected this explanation.

“If appellant’s counsel in the real estate matter was negligent in failing to raise the issue of recusal at the circuit court and on appeal, that negligence is attributed to the appellant,” Judge Michele D. Hotten wrote for the court. “Appellant cannot now allege that he is entitled to litigate the issue of recusal because his counsel’s arguably negligent actions kept that issue from our review during his ‘first bite at the apple.’”

The Court of Special Appeals further affirmed the lower court finding that Johnson failed to demonstrate “extrinsic fraud” when he moved to vacate Gordy’s judgment against him in the real estate case.

In that case, filed in 2005, Johnson alleged a real estate firm sold the land he owned in western Maryland for less than fair market value. However, Johnson failed to comply with defense discovery requests and was consequently barred from presenting evidence or testifying at trial in support of his case, resulting in Gordy’s ruling for the defense.

“Appellee’s decision to grant judgment for the defense in the real estate matter was the only logical decision to be reached in light of the discovery sanctions imposed by the circuit court,” Hotten wrote.

“Assuming… that appellee did in fact have animus towards appellant stemming from his representation of appellee’s ex-wife, appellant would be unable to show that appellee’s decision was the product of that
animus, and was therefore fraudulent.”

Neither Johnson’s attorney, Derek Challenger of Smith, Barlow & Challenger LLC in Columbia, nor Gordy’s attorney, Michele J. McDonald of the Office of Courts & Judicial Affairs in the attorney general’s office, immediately returned calls for comment on the ruling Monday.