Victor Enterprises, Inc. v. Holland, Clifford ( 2013 )

REVERSE and RE’IAND; Opinion issued January 29, 2013
in The
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No. 05-l0-01592-CV
VICTOR ENTERPRISES, INC., Appellant
V.
CLIFFORD HOLLAND, Appellee
On Appeal from the County Court at Law No. I
Dallas County, Texas
Trial Court Cause No. CC-09-07625.A
MEMORANDUM OPINION
Before Justices Bridges. Richter, and Lang
Opinion By Justice Bridges
In eleven issues, appellant Victor Enterprises, Inc. (“VEI”) appeals from a final judgment
entered in favor olappellee Clifford Holland. Because we conclude the trial judge erred in failing
to either recuse herself or refer appellant’s first motion to recuse, we reverse and remand.
Background
Trial of the underlying lawsuit commenced on October 29, 2009, and then progressively
continued on May 6, 2010, September 9, 2010, and September 20, 2010. Nearly 9 months after the
October 2009 commencement oftrial, Holland filed his first supplement to second amended answer’
This supplement is tiled on ink 14. 2010
and, for the first time, asserted a counterclaim br “all damaees Iursuant to TEx. R. Civ. P. 752.
including. but not limited to. attorney s tees, costs, lost time. and mental anguish damages.”
VEI flied its initial motion to recuse Judge Benson (“First Recusal Motion”) on September
1, 2010. The First Recusal Motion. including its certificate of service. was dated August 30, 2010.
On September 9, 2010, the parties appeared before the trial court, and Judge Benson denied the
motion to recuse as follows:
On September 1st. by file mark. [VEIl filed a motion to recuse. It was mailed on
August 30th. which is less than the necessary time for filing a motion for recusah
therefore, the Court is denying the recusal as untimely, and this case will proceed
to trial on September 20th. 2010.
According to its certificate of service, VEI then filed and served a second motion to recuse
(“Second Recusal Motion”) on September 9. 2010. The Second Recusal Motion is file-marked
September 13, 2010. On September 20, 2010, Judge Benson denied the Second Recusal Motion as
follows:
TI-IF COURT: The continuation of the trial in this case was set for today.
. . .
which is September 20th. Your second motion to recuse was not filed until
September 1 3th. which was less than 1 0 clays before the trial setting. 1-lowever. I
believe it was untimely to begin with because it was not filed 1 0 days before the
initial trial date.
[COUNSEL FOR VEIl: So you’re overruling the second motion for recusal?
THE COURT: The second motion for recusal is untimely.
Subsequently, Judge Benson entered a final judgment in favor of holland. On October 4,
2010. VEI filed its request for findings of fact and conclusions of law.
2 VE1 then filed its notice
of past due findings of fact and conclusions of law on October 28. 2010. VEI has represented to
this Court that Judge Benson has failed to file findings of fact and conclusions of law in the
2
The certificate of service on the request is dated September 30. 2010
underlying matter. and we do not find any in the record before us.
Analysis
In its first issue, VEI alleges the County Court at Law No. 1. with Judge Benson presiding.
erred in failing to either recuse herself, or to refer its motion to recuse filed on August 30, 2010. If
a motion to recuse is denied as here, it may be reviewed for abuse of discretion on appeal from the
final judgment. TEx. R. Civ. P. l8a(f.
The version of Rule 1 8a in effect at the time of filing the First Recusal Motion provided, in
pertinent part, as follows:
(a) At least ten days before the date set for trial any party may file with the clerk
of the court a motion stating grounds why the judge before whom the case is pending
should not sit in the case.
(c) Prior to any further proceedings in the case, the judge shall either recuse himself
or request the presiding judge of the administrative judicial district to assign ajudge
to hear such motion.
(d) lithe judge declines to recuse himself, he shall forward to the presiding judge of
the administrative judicial district, in either original form or certified copy, an order
of referral, the motion, and all opposing and concurring statements.
TEx. R. Civ. P. 18a. Thus, in the event a recusal motion is filed, a trial judge must promptly enter
one of the two orders which are permitted: recusal or referral. See Id.; Bourgeois v. Collier, 959
S.W.2d 241. 246 (Tex. App.—Dallas 1997. no writ); Lainberti v. Ts’choepe. 776 S.W.2d 651, 652
(Tex. App—Dallas 1989, writ denied); Greenberg, Benson, Fisk & Fielder v. Howell, 685 S.W.2d
694, 695 (Tex. App.—Dallas 1984, no writ). Instead of recusing herself or referring the motion as
required by rule 1 8a. Judge Benson denied the First Recusal Motion as untimely. However, we have
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already held that, regardless of the procedura1 sufficiency” of the motion, the trial judge has the
option only to act in one ol two specified ways: recuse herself or refer the case to the presiding judge.
See Bourgeois, 959 S.W.2d at 246; Lamberti, 776 S.W.2d at 652; Greenberg, 685 S.W.2d at 695.
By pursuing an option unavailable through any rule or statute, the trial court abused its discretion
as a matter ollaw. Lamberli, 776 S.W.2d at 652: Grecnheig. 685 S.W.2d at 695.
We. therefore. conclude: (1) Judge Benson was not authorized to rule on the First Recusal
Motion, and (2) Judge Benson was required to comply with the mandates of rule I 8a and, after the
First Recusal Motion was filed, was not authorized to take any action except for those actions
specifically authorized by rule I 8a. See Bourgeois. 959 S.W.2d at 246. Accordingly. the denial of
the First Recusal Motion is vacated. Because we have determined Judge Benson was without power
to continue to hear this case, any orders or judgment made subsequent to the denial of the First
Recusal Motion are void. See Lamberti, 776 S.W.2d at 652.
We sustain VET’s first issue and reverse and remand the case to the trial court for proceedings
consistent with this opinion.
DAVID L. BRIDGES
JUSTICE
101 592F.P05
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JUDGMENT
VICTOR ENTERPRISES. iNC.. Appellant Appeal from the County Court at Law No. I
of’ Dallas County, Texas. (Tr.Ct.No. CC-09-
No. 05-10-01592-CV V 07625-A).
Opinion delivered by Justice Bridges,
CLIFFORD HOLLAND, Appellee Justices Richter and Lang.
In accordance with this Court’s opinion of this date, all orders made subsequent to, and
including, the denial of the First Recusal Motion are vacated as void and the judgment of the trial
court is REVERSED and this cause is RENIANI)EI) to the trial court I’or proceedings consistent
with this Court’s opinion. It is ORDERFI) that appellant ictor Enterprises. Inc. recover its
costs of this appeal from appellee Clifford 1-lolland.
Judgment entered January 29. 201 3.
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[)AV1D L. BR1I)G
JUSTICE