In the Interest of B.M.B. and K.A.B., Children v. the State of Texas ( 2023 )

Affirmed and Opinion Filed June 6, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01322-CV
IN THE INTEREST OF B.M.B. AND K.A.B., CHILDREN
On Appeal from the 330th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-11-11126
MEMORANDUM OPINION
Before Justices Pedersen, III, Reichek, and Nowell
Opinion by Justice Pedersen, III
In this accelerated appeal involving termination of parental rights, appellant
complains in his first issue that two judges abused their discretion by denying two
separate motions to recuse the trial judge.1 Appellant argues in his second issue that
the trial court abused its discretion by awarding attorney’s fees to appellee in the
final judgment.2 We affirm the judgment.
1
See TEX. R. APP. P. 28.1(a), 28.4 (addressing accelerated appeal in parental termination cases).
2
Appellant’s sole complaint concerning the final judgment is its provision that he pay attorney’s fees to
appellee. Appellant fails to challenge the final judgment’s termination of his parent-child relationship with
B.M.B. and K.A.B. He does not challenge the jury’s finding by clear and convincing evidence that he
engaged in conduct which endangers the emotional well-being of the children. Nor does he challenge the
jury’s finding by clear and convincing evidence that termination of the parent-child relationship would be
in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001((b)(1)(E) (providing the court may
BACKGROUND3
Appellant and appellee were divorced in proceedings in the 301st District
Court, Dallas County, in 2012. They had two minor children, B.M.B. and K.A.B.,
when the subsequent orders and judgment challenged in this appeal were signed.
Appellant was the children’s father and appellee their mother.
The parties have litigated numerous post-divorce issues in the trial court and
in this Court. In 2014, the 301st District Court, Dallas County, rendered an “order in
suit to modify parent-child relationship.” That order addressed possession of and
access to the children and also addressed the school district the children would
attend.
In 2016, appellee filed a “petition to modify parent-child relationship” in the
301st District Court. Appellant filed a competing motion. The case was transferred
to the 302nd District Court, Dallas County. After trial to the court, Judge Jackson
signed a memorandum ruling, dated May 20, 2020.
order termination of the parent-child relationship if the court finds by clear and convincing evidence that
the parent has engaged in conduct . . . which endangers the physical or emotional well-being of the child).
3
Documents related to this proceeding are subject to a sealing order. See, e.g., Kartsotis v. Bloch, 503
S.W.3d 506, 510 (Tex. App.—Dallas 2016, pet. denied). We issue public opinions explaining our decisions
based on the record. See TEX. R. APP. P. 47.1, 47.3 (all opinions are open to the public and must be made
available to public reporting services); TEX. GOV’T CODE ANN. § 552.022(a)(12) (“final opinions,
including concurring and dissenting opinions, and orders issued in the adjudication of cases” are “public
information”). We preserve confidentiality of sealed information and avoid references to sealed information
as much as possible in light of the parties’ arguments. See Masterguard, L.P. v. ECO Techs. Int’l LLC, 441
S.W.3d 367, 371 (Tex. App.—Dallas 2013, no pet.).
–2–
On June 2, 2020, appellant filed a twenty-nine page “respondent’s verified
motion to recuse” Judge Jackson. Appellant attached twenty-five exhibits to the
motion. Appellant alleged in the motion’s “preliminary statement”:
The Court should grant Respondent’s Verified Motion to Recuse and
recuse from further involvement with this matter the Honorable Sandra
Jackson. As fully set forth below, this Motion is brought under Tex. R.
Civ. P. 18b, and recusal is requested due to lack of impartiality toward
Father, bias against Father, disparate treatment of Father and Mother
regarding hearings and interpretation of rulings, continued hindrance of
Father’s appellate rights, and prejudice against Father and in favor of
Mother. Specifically, the knowingly disparate denial of Father’s
possession at a hearing on Father’s Application for Ex Parte
Temporary Restraining Order on May 29, 2020, showed an obvious
lack of partiality (sic) and was Father’s last straw in giving the Court
opportunities to act in an impartial and fair matter.
On July 10, 2020, Judge Levario, a senior retired judge sitting by assignment,
denied appellant’s motion to recuse Judge Jackson. Judge Levario’s order stated, in
full:
On June 2, 2020, Respondent filed a Verified Motion to Recuse the
Honorable Sandra Jackson.
Rule 18a(a)(3) of the Texas Rules of Civil Procedure, states that a
Motion to Recuse must not be based solely on the judge’s rulings in the
case.
After a review of Respondent’s Motion, the court finds that
Respondent’s Motion is based solely on the judge’s rulings in the case.
THEREFORE, IT IS ORDRED that Respondent’s Motion to Recuse is
DENIED without hearing.
–3–
On September 18, 2020, Judge Jackson signed an “order vacating final
modification order of September 16, 2020, and, entry of amended final modification
order.” The order recited it was “the final judgment in this case.”
On September 25, 2020, appellant filed a “petition to modify parent-child
relationship and application for temporary restraining order.” In it, appellant sought
to modify the September 18, 2020 “amended final order in suit for modification.”
On October 9, 2020, appellee filed her “counter petition to modify parent-child
relationship.”
Meanwhile, on October 6, 2020, Judge Jackson signed an order of recusal.
The presiding judge of the First Administrative Judicial Region signed an order,
dated October 7, 2020, transferring the cases to the 303rd District Court of Dallas
County, Judge Garcia presiding.
On November 9, 2020, Associate Judge Olvera signed orders concerning
visitation and related matters.
On November 11, 2020, Judge Garcia signed an order in which she voluntarily
recused herself from service in the case. On November 12, 2020, the presiding judge
of the First Administrative Judicial Region ordered the case transferred to the 330th
District Court of Dallas County, Judge Plumlee presiding.
Also on November 12, 2020, appellant and appellee filed separate requests for
a de novo hearing of Associate Judge Olvera’s November 9, 2022 report. The
–4–
requests for de novo hearing were filed in the 303rd District Court—Judge Garcia’s
court.
On November 13, 2020—before Judge Plumlee could take any action in the
case—appellant’s counsel sent an email to the presiding judge of the First
Administrative Judicial Region. That email stated, in part:
We learned late yesterday that you had issued an order transferring
Cause Number 11-1126 to the 330th District Court following Judge
Garcia's unexpected voluntary recusal. . . .
Unfortunately, this case has brought notoriety at the Dallas Courthouse,
along with a great deal of behind-the-scenes gossip. One of the more
prevalent issues in the rumor mill also has to do with a party with whom
Judge Plumlee shares a special relationship going back many years.
This personal and professional relationship will undoubtedly cause
Judge Plumlee consternation either way, as it is the announced intention
of Mother to seek this person's reinstatement into this case. This
complication is coming strategically at the time that our window of
opportunity is closing, such as you saw by the recent actions of Judge
Garcia having the case for a couple of weeks before recusing herself.
Because of this unique circumstance, and because the 330th District
Court has taken no action in the case whatsoever and amending the
transfer order would be nothing more than ministerial act at this point,
we ask that you amend your transfer order Monday for the [appellant’s]
matter to be transferred to one of the Collin County District Courts, or
alternatively another District Court in Dallas.
The presiding judge of the administrative region did not transfer the case from
Judge Plumlee’s court.
Consequently, Judge Plumlee presided over the de novo hearing on December
15, 2020. She signed an order after the de novo hearing on December 17, 2020. The
–5–
order after de novo review vacated Associate Judge Olvero’s ruling of November 9,
2020, and denied appellant’s requested relief.
Appellant filed his verified motion to recuse Judge Plumlee on December 17,
2020— about one month after the case was transferred to Judge Plumlee’s court and
on the day of Judge Plumlee’s order after de novo review. On December 22, 2020,
Judge Plumlee declined to recuse herself and requested the presiding judge of the
administrative region to assign a judge to hear the motion to recuse. Judge Ginsberg
was assigned to decide the recusal motion. He heard the motion to recuse Judge
Plumlee on January 12, 2021. He signed an order denying the motion to recuse and
denying appellee’s motion for sanctions related to the recusal proceedings on
January 15, 2021.
Subsequently, Judge Plumlee signed two orders relevant here. These orders
included a July 26, 2021 order on appellant’s requested relief. That order denied
appellant’s request for extended summer possession and suspended his visitation.
An August 17, 2021 interim order clarified matters related to appellee’s rights
concerning the children’s education. The interim order also ordered injunctive relief
against appellant related to the children’s education.
On November 12, 2021, appellee filed a “first amended counter-petition to
modify parent-child relationship and to terminate [appellant’s] parental rights.” The
counter-petition sought termination of appellant’s parental rights of B.M.B. and
K.A.B.
–6–
On August 12, 2022—one month before trial was scheduled to begin—
appellant filed his second motion to recuse Judge Plumlee. Judge Pruitt, who was
assigned to decide the recusal motion, presided over a hearing on August 29, 2022.
He denied the motion to recuse and ordered appellant and counsel to pay appellee
$2,500 in attorney’s and paralegal’s fees. The order provided counsel was jointly
and severally liable for payment of the fees.
Jury trial began September 12, 2022. After a five-day trial, Judge Plumlee
signed a judgment, dated November 22, 2022, terminating appellant’s parent-child
relationship with B.M.B. and K.A.B. Judge Plumlee decided the issue of attorney’s
fees pursuant to agreement. The judgment awarded appellee reasonable and
necessary attorney’s fees of $565,867.50.4
This accelerated appeal followed. See TEX. R. APP. P. 28.1(a), 28.4.
APPELLANT’S ISSUES
Appellant brings two issues on appeal. They are:
1. Did the failure to recuse Judge Plumlee result in an effective denial
of due process which ultimately culminated in the termination of
[appellant’s] parental rights?
2. Did the trial court abuse its discretion in ordering [appellant] to pay
[appellee’s] attorney’s fees?
4
Appellee sought $777,150.40 in reasonable and necessary attorney’s fees.
Appellant sought $2,684,948.00 in reasonable and necessary attorney’s fees.
–7–
APPELLANT’S MOTIONS TO RECUSE JUDGE PLUMLEE
Law And Standard Of Review
We review an order denying a motion to recuse for an abuse of discretion. See
TEX. R. CIV. P. 18a(j)(1)(A); Vickery v. Vickery, 999 S.W.2d 342, 349 (Tex. 1999)
(op. on reh’g); Drake v. Walker, 529 S.W.3d 516, 528 (Tex. App.—Dallas 2017, no
pet.); In re H.M.S., 349 S.W.3d 250, 253 (Tex. App.—Dallas 2011, pet. denied).5
An abuse of discretion exists when a court’s decision is arbitrary or unreasonable.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The test
for abuse of discretion is not whether in the opinion of the reviewing court the facts
present an appropriate case for the trial court’s action; rather, it is a question of
whether the court acted without reference to any guiding rules or principles. See E.I.
du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). We
will not reverse the ruling on the motion to recuse if it is within the zone of
reasonable disagreement. See Echols v. Gullege & Sons LLC, No. 10-13-00419-CV,
2014 WL 4629056, at *5 (Tex. App.—Waco Sept. 11, 2014, pet. denied) (mem. op.).
5
Appellant’s notice of appeal concerning the orders denying recusal of Judge Plumlee states,
[Appellant] appeals from the Order on [Appellant’s] Tertiary Motion to Recuse, signed on
August 31, 2022.
[Appellant] appeals from the Order on Motion to Recuse signed on January 15, 2021.
Appellant complains about the orders denying his motions to recuse Judge Plumlee for numerous reasons.
The issue before us is whether the assigned judges abused their discretion in denying the motions to recuse.
See supra. Accordingly, we confine review of the orders denying recusal to appellant’s argument that the
assigned judges abused their discretion.
–8–
The movant bears the burden of proving recusal is warranted, and the burden
is met only through a showing of bias or impartiality to such an extent that the
movant was deprived of a fair trial. See In re H.M.S., 349 S.W.3d at 253; see also
Pettigrew v. Cedar Springs Alexandre’s Bar, L.P., No. 05-16-00269, 2018 WL
1580776, at *5 (Tex. App.—Dallas Apr. 2, 2018, no pet.) (mem. op.). The test
for recusal is “whether a reasonable member of the public at large, knowing all the
facts in the public domain concerning the judge's conduct, would have a reasonable
doubt that the judge is actually impartial.” Hansen v. JP Morgan Chase Bank, N.A.,
346 S.W.3d 769, 776 (Tex. App.—Dallas 2011, no pet.). Courts evaluate the merits
of a motion to recuse from “a disinterested observer’s point of view.” Ex Parte Ellis,
275 S.W.3d 109, 116 (Tex. App.—Austin 2008, orig. proceeding).
The movant’s burden to prove recusal is warranted “is only satisfied when the
movant provides facts demonstrating the presence of bias or partiality ‘of such nature
and extent as to deny the movant due process of law.’” Id. at 117 (quoting Off. of
Pub. Util. Counsel v. PUC, 185 S.W.3d 555, 574 (Tex. App.—Austin 2006, pet.
denied)). Where a party challenges the denial of a recusal motion based on alleged
bias or impartiality, the party must show that the bias arose from an extrajudicial
source and not from actions during the pendency of the trial court proceedings unless
the actions during proceedings indicate a high degree of favoritism or antagonism
that renders fair judgment impossible. See Parker v. Cain, No. 07–17-00211-CV,
2018 WL 4997784, at *2 (Tex. App.—Amarillo, Oct. 15, 2018, pet. denied) (mem.
–9–
op.) (citing Ludlow v. DeBerry, 959 S.W.2d 265, 271 (Tex. App.—Houston [1st
Dist.] 1997, no writ) (citing Liteky v. United States, 510 U.S. 540, 555 (1994)).
Conclusory statements, conjecture, or mere assertions of bias will not satisfy the
burden or overcome the presumption of impartiality. See Ex parte Ellis, 275 S.W.3d
at 117.
Pursuant to Texas Rule of Civil Procedure 18a, a motion to recuse a judge
“must not be based solely on the judge's rulings in the case” and “must assert one or
more of the grounds listed in Rule 18b.” TEX. R. CIV. P. 18a(a)(2), (3). Rule 18b
provides in part that a judge must recuse in any proceeding in which (1) “the judge's
impartiality might reasonably be questioned” or (2) “the judge has a personal bias or
prejudice concerning the subject matter or a party.” TEX. R. CIV. P. 18b(b)(1), (2).
Bias by an adjudicator is not lightly established. See In re City of Dallas, 445
S.W.3d 456, 467 (Tex. App.—Dallas 2014, orig. proceeding). Judges enjoy a
presumption of impartiality. Ex parte Ellis, 275 S.W.3d at 117. A party seeking
recusal must satisfy a “high threshold’ before a judge must be recused. See id.Judicial rulings alone almost never constitute a valid basis for a motion to recuse
based on bias or partiality. See Dow Chem. Co. v Francis, 46 S.W.3d 237, 240 (Tex.
2001); In re H.M.S., 349 S.W.3d at 253 (citing Liteky, 510 U.S. at 555). Rather, it
must be shown that they display a deep-seated favoritism or antagonism that would
make fair judgment “impossible.” See Dow Chem. Co., 46 S.W.3d at 240. A party's
remedy for unfair rulings is to assign error regarding the adverse rulings. See In re
–10–
City of Dallas, 445 S.W.3d at 467; Sommers v. Concepcion, 20 S.W.3d 27, 41 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied).
A judge's ordinary efforts at courtroom administration, even if stern or short-
tempered, are immune. See Dow Chem. Co., 46 S.W.3d at 240. Judicial remarks,
even those that are critical or disapproving of—or even hostile to—parties or their
cases, do not ordinarily support a bias or partiality challenge. See Hansen, 346
S.W.3d at 776.
First Motion To Recuse Judge Plumlee
In his first issue, appellant argues that the first recusal judge, Judge Ginsberg,
abused his discretion by denying appellant’s first motion to recuse Judge Plumlee,
filed December 17, 2022. He asserts, “Judge Plumlee demonstrated a deep–seated
antagonism toward [appellant] and favoritism toward [appellee] in her demeanor, in
her questions to [appellant’s] expert witness, and in her comments to [appellant] and
his counsel so as to make fair judgment impossible.”
Judge Ginsberg’s order on the first motion to recuse Judge Plumlee recites a
hearing on the motion was held on January 12, 2021, and that a court reporter
recorded the hearing. The appellate record contains no reporter’s record of the
January 12, 2021 hearing.6
6
The clerk of this Court contacted the reporter of the trial court and inquired whether there exists a
reporter’s record of the January 12, 2021 hearing. The reporter replied she had no record of the hearing.
We note the appellate record contains appellant’s written request that the reporter’s record of the hearing
be included in the appellate record. We also note appellant’s briefing on the first motion to recuse Judge
–11–
It is appellant’s burden to present a record showing error requiring reversal,
and when an appellant fails to bring forth a record, a presumption arises that the
reporter’s record would support the trial court’s judgment. See Rodriguez v.
Aleskandrany, No. 08-21-00128-CV, 2022 WL 3443643, at *2 (Tex. App.—El Paso
Aug. 17, 2022, no pet.) (mem. op.). This Court has held that when there is no
reporter’s record of a recusal hearing, we must presume that the trial court found all
necessary facts to support the order. See Minor v. Young, No. 05-99-01579-CV, 2000
WL 1023788, at *2 (Tex. App.—Dallas July 26, 2000, no pet.) (mem. op.) (rejecting
argument that recusal judge abused his discretion in denying a motion to recuse the
trial judge) (citing El Chadiac v. Cramer, 756 S.W.2d 325, 326 (Tex. App.—Dallas
1988, writ denied)).
Because Judge Ginsberg “conducted a hearing on the motion to recuse and
our record does not contain a reporter’s record from the hearing, we must presume
that the evidence at the hearing supported the judge’s ruling.” Minor, 2000 WL
1023788, at *2.
Plumlee cites to his motion to recuse and to other documents in the appellate record but not to a reporter’s
record of the hearing. In contrast, appellant’s briefing on the second motion to recuse Judge Plumlee cites
liberally to the reporter’s record of the hearing before Judge Pruitt on the second motion. Appellant’s brief
leads us to conclude appellant knowingly briefed his argument concerning the first motion to recuse Judge
Plumlee without the requisite reporter’s record and nonetheless failed to supplement the appellate record
with a copy of the reporter’s record of the January 12, 2021 hearing, if one exists. See TEX. R. APP. P.
34.6(d) (if anything relevant is omitted from the reporter’s record, any party may by letter direct the official
court reporter to prepare, certify, and file in the appellate court a supplemental reporter’s record containing
the omitted items).
–12–
Accordingly, we apply this Court’s precedent, see id., and reject appellant’s
argument that Judge Ginsberg abused his discretion by denying appellant’s first
motion to recuse Judge Plumlee. See id.Second Motion To Recuse Judge Plumlee
In his first issue, appellant also argues the second recusal judge, Judge Pruitt,
abused his discretion by denying appellant’s second verified motion to recuse Judge
Plumlee. Appellee filed a response. Judge Pruitt presided over a hearing on the
motion and two days later denied the motion in a written order.7
Judge Pruitt Did Not Abuse His Discretion: Waiver
Appellee argues Judge Pruitt did not abuse his discretion in denying
appellant’s second motion to recuse Judge Plumlee because the second motion was
not timely filed and appellant’s complaint was waived.
“A motion to recuse must be filed as soon as practicable after the movant
knows of the ground stated in the motion . . . .” TEX. R. CIV. P. 18a(b)(1)(A).
Complaints that concern recusal can be waived if the party seeking recusal fails to
7
The order was captioned “Order on [appellant’s] Tertiary Motion to Recuse.” The motion was appellant’s
second motion to recuse Judge Plumlee, but it was the third motion to recuse appellant had filed in this
case. His first motion to recuse, concerning Judge Jackson, was filed before his two motions to recuse Judge
Plumlee and was denied. The civil practice and remedies code provides: “‘Tertiary recusal motion’ means
a third or subsequent motion for recusal or disqualification filed against a district court or statutory county
court judge by the same party in a case.” TEX. CIV. PRAC. & REM. CODE ANN. § 30.016(a). “A judge hearing
a tertiary recusal motion against another judge who denies the motion shall award reasonable and necessary
attorney’s fees and costs to the party opposing the motion. The party making the motion and the attorney
for the party are jointly and severally liable for the award of fees and costs.” Id. 30.016(c). Judge Pruitt’s
order provided appellant’s attorney was jointly and severally liable for payment of appellee’s attorney’s
fees.
–13–
file an appropriate motion within the time required by Texas Rule of Civil Procedure
18a(b)(1). See Amrouni v. Bhakhrani, No. 05-21-00278-CV, 2022 WL 3754539, at
*4 (Tex. App.—Dallas Aug. 30, 2022, no pet.) (mem. op.) (citing PS Royal Servs.
Grp. LP v. Fisher, No. 05-17–001139, 2019 WL 3543575, at *5 (Tex. App.—Dallas
Aug. 5, 2019, pet. denied) (mem. op.) (motion to recuse waived as untimely due to
nine-week delay)). We have held the procedural requirements for recusal are
“mandatory” and filing an improper motion will waive the issue on appeal. See id.(citing Vodicka v. A.H. Belo Corp., No. 05-17-00728-CV, 2018 WL 3301592, at *9
(Tex. App.—Dallas July 5, 2018, pet. denied) (mem. op.)).
Appellant filed his second motion to recuse Judge Plumlee on August 12,
2022. Appellant argues Judge Plumlee had previously demonstrated bias and
prejudice in June 2021, July 2021, August 2021, November 2021, and later.
Appellant argues Judge Plumlee sometimes evidenced multiple examples of bias or
prejudice in a single hearing or order. These complained-of incidents occurred after
Justice Ginsberg denied appellant’s first motion to recuse Judge Plumlee.
Indeed, appellant argues, “Throughout the entirety of this case, Judge
Plumlee’s opinions and comments have demonstrated such a deep-seated favoritism
toward [appellee] and antagonism against [appellant] which make her an advocate
for [appellee], rather than an impartial jurist, and make fair judgment impossible.”
(Emphases added.) He similarly argues in reply that Judge Plumlee’s “conduct
–14–
throughout the case had been problematic, and likely justified recusal on its own . .
. .” (Emphasis added.)
Moreover, he argues, “Although the Interim Order likely justified recusal on
its own, because Judge Plumlee represented that it was an interim ruling and
[appellant] would have the opportunity to present additional evidence, [appellant]
did not file a Motion for Recusal at that time and instead sought to modify the Interim
Order.” (Emphasis added.) Appellant’s counsel testified before Judge Pruitt that
appellant did not file the second motion to recuse Judge Plumlee promptly after the
interim order “based upon the procedural posture of the case,” that “[i]t was going
to be a tertiary order,” and that Judge Plumlee had made her comments “pronouncing
her intentions, but she had not yet necessarily acted upon them.”
Rule 18a(b)(1)(A) does not tolerate appellant’s wait-and-see approach to
filing his second motion to recuse Judge Plumlee. See Parker v. Textron Fin. Corp.,
No. 04-12-00564-CV, 2013 WL 979208, at *2 (Tex. App.—San Antonio Mar. 13,
2013, no pet.) (mem. op.) (citing Ex parte Ellis, 275 S.W.3d at 123 (party possessing
information potentially requiring recusal cannot sit on the information and wait and
see how the court rules)).
Judge Plumlee signed the interim order to which appellant refers on August
17, 2001. Appellant filed his second motion to recuse Judge Plumlee almost a year
after that on August 12, 2022. As noted, appellant also argues Judge Plumlee
demonstrated bias and prejudice supporting recusal on several occasions —
–15–
sometimes multiple times on a single day—before entry of the interim order, which
he concedes “likely justified recusal on its own.”
In sum, appellant filed his second motion to recuse Judge Plumlee more than
a year after alleged demonstrations of bias and prejudice in the interim order. And
as noted, appellant argues that Judge Plumlee’s bias and prejudice made fair trial
“impossible” throughout “the entirety of this case,” with numerous alleged occasions
alleged to have occurred before entry of the interim judgment.
We note appellant waited to file the second motion to recuse Judge Plumlee
until a month before trial. See id. (movant waived right to seek recusal when he
delayed in filing the motion until subsequent rulings provided further evidentiary
support for his recusal and filed motion approximately one month before bench trial
was to commence, as appellee did here).
We reject appellant’s remaining arguments that he timely filed the second
motion to recuse Judge Plumlee. He argues he filed the motion more than ten days
before trial, citing Texas Rule of Civil Procedure 18a(b)(1)(B). But that rule allows
filing within ten days of trial when the movant neither knew nor reasonably should
have known that (1) the judge whose recusal is sought would preside at the trial or
hearing or (2) the ground stated in the motion existed. See TEX. R. CIV. P.
18a(b)(1)(B)(i), (ii). Judge Pruitt reasonably could have concluded that appellant
knew or should have known of the alleged grounds for recusal more than a year
before Rule 18a’s ten-day period began. Moreover, appellant filed his second motion
–16–
to recuse Judge Plumlee a month before trial was scheduled to begin, well before
Rule 18a(b)(1)(B)’s ten-day period.
Appellant argues Judge Pruitt concluded the motion was timely filed—
otherwise, he would have denied it without holding an oral hearing. See TEX. R. CIV.
P. 18(a)(g)(3)(A) (“motion to recuse that does not comply with this rule may be
denied without an oral hearing.”) (emphasis added). We interpret our rules of civil
procedure using the same principles we apply when construing statutes. See In re
City of Dickinson, 568 S.W.3d 642, 645-46 (Tex. 2019) (orig. proceeding); In re
Bridgestone Ams. Tire Operations, LLC, 459 S.W.3d 565, 569 (Tex. 2015) (orig.
proceeding); In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex. 2007)
(orig. proceeding). Our review is de novo, and our primary objective is to give effect
to the drafter’s intent as expressed in the rule’s language. In re City of Dickinson,
568 S.W.3d at 645-46. We look first to the rule’s language and construe it according
to its plain meaning. See id.; Galbraith Eng’g Consultants, Inc. v. Pochucha, 290
S.W.3d 863, 867 (Tex. 2001); In re Berry, 578 S.W.3d 173,178 (Tex. App.—Corpus
Christi-Edinberg 2019, orig. proceeding). The plain meaning of “may” is to “have
permission to” or to “be free to.” May, WEBSTER’S NINTH NEW COLLEGIATE
DICTIONARY (1985). Accordingly, we do not interpret Texas Rule of Civil Procedure
18a(g)(3)(A) as requiring that a motion to recuse that does not comply with Rule
18(a) be decided without oral hearing. We reject appellant’s argument that Judge
Pruitt held the motion to recuse was timely filed simply because he held an oral
–17–
hearing on motion. See Sapp v. Williams, No. 07-97-0112-CV, 2007 WL 335568, at
*2 (Tex. App.—Amarillo June 19, 1997, writ dism’d by agr.) (mem. op.) (it is not
the function of an intermediate appellate court to rewrite the Texas Rules of Civil
Procedure).
Judge Pruitt could have reasonably concluded appellant failed to file the
second motion to recuse Judge Plumlee “as soon as practicable after the movant
knows of the ground stated in the motion . . . .” TEX. R. CIV. P. 18(b)(1)(A).
Accordingly, we conclude Judge Pruitt did not abuse his discretion in denying
appellant’s second motion to recuse Judge Plumlee.
Judge Pruitt Did Not Abuse His Discretion: The Merits
But even if appellant had not waived his second motion to recuse Judge
Plumlee, Judge Pruitt would not have abused his discretion by denying the motion
on its merits. See TEX. R. CIV. P. 18a(j)(1)(A)(“An order denying a motion to recuse
may be reviewed only for abuse of discretion on appeal from the final judgment.”);
Vickery 999 S.W.2d at 349 (abuse of discretion); Drake, 529 S.W.3d at 528 (same);
In re H.M.S., 349 S.W.3d at 253 (same).
Appellant asserts Judge Plumlee’s conduct warranted recusal for three main
reasons. He argues Judge Plumlee (1) denied his due process rights; (2) considered
extrajudicial sources of information; and (3) demonstrated such a deep-seated
antagonism toward him and favoritism toward appellee so as to make fair judgment
impossible.
–18–
Due process arguments
Appellant argues, “Judge Plumlee repeatedly refused to rule on [appellant’s]
requested relief, both with regard to his possession and access and the issue of his
residence, refused to modify her Interim Order in the face of uncontroverted
evidence that [appellant] no longer resided in HPISD [Highland Park Independent
School District], refused to conclude the evidence, and continued multiple hearings
thus denying [appellant] the opportunity to be heard in a meaningful manner.” See
Tex. Const. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty,
property, privileges or immunities, or in any manner disenfranchised, except by the
due course of the law of the land”); Mosely v. Tex. Health & Hum. Servs. Comm’n,
593 S.W.3d 250, 265 (Tex. 2019) (“Due process at a minimum requires notice and
an opportunity to be heard at a meaningful time and in a meaningful manner.”). He
argues that typically, notice of a hearing must be served on all parties not less than
three days before the time specified for the hearing. See TEX. R. CIV. P. 21(b).
A. Pre-judgment without hearing all the evidence
Appellant argues that during a June 23, 2021 hearing he attempted to testify
it was appellee’s responsibility pursuant to the amended final order to enroll the
children in school and to ensure their eligibility to attend. He asserts Judge Plumlee
interrupted him, refused to allow him to testify or his counsel to argue that point,
and refused to consider his argument. He relies on the following exchange:
–19–
Q. What you said to [child] was you should return it because you’re
never going to be a Belle, right?
A: That’s not true. Mother controls the school, where they go to school.
Even if I lived in Highland Park Mother still determines where they go
to school. It’s Mother’s determination, not mine. . . .
THE COURT: I am going to tell you this because it’s true, your
statement is disingenuous at best, sir, and it’s an absolute, outright non-
truth. I’m reading the order, sir, and you are a learned man. This was
your request based upon Judge Jackson’s entry of this order that I can
tell by reading the order. . . . But if [appellant] did not live in that school
district, sir, you have to know unequivocally, sir, that you and your
home was the residence which they relied upon, and to say something
different, sir, calls into question for this Court at least, your credibility,
just so you know that . . . .
Q. And which parent has the exclusive right to make decisions about
the children’s education?
A. [Appellee] does.
THE COURT: Okay. Hold on, because I want a clear record. I don’t
know—you’re not trying this to a jury. You’re trying it to a judge that
is sitting here looking at this order who has specifically asked
[appellant] who lived in Highland Park at the time this order was
entered. It is him. So I asked him wasn’t he being relied upon for this
particular provision.
If [appellee] did not live in Highland Park then she made a decision
when this order went into place. Because judges don’t do this, Ms.
Bowman, and you know that. Judge Jackson wouldn’t have done it.
Judge Plumlee wouldn’t have done it. . . . There’s no judge in their right
mind that would have ordered this without it being probably a part of
an agreement because it’s—it’s not doable.
So the fact that [appellant] has indicated that he, in fact, lived in
Highland Park when the order went into place and [appellee] did not,
simply means they had an agreement that the Court ratified and reduced
to an order. Okay. You are not trying this to a jury. Please stop wasting
my time.
–20–
Judge Plumlee explained her understanding of the amended final order. Judge Pruitt
could reasonably have concluded Judge Plumlee’s interpretation was not
unreasonable or the product of bias or prejudice. See Hansen, 346 S.W.3d at 776(the test for recusal is “whether a reasonable member of the public at large, knowing
all the facts in the public domain concerning the judge's conduct, would have a
reasonable doubt that the judge is actually impartial.”); In re Ellis, 275 S.W.3d at
116 (courts evaluate the merits of a motion to recuse from “a disinterested observer’s
point of view.”). Moreover, Appellant in fact testified that appellee controlled where
the children went to school and that appellee had the exclusive right to make
decisions about the children’s education. Judge Pruitt could reasonably have
concluded Judge Plumlee did not prevent appellant from testifying. He could have
concluded appellant’s argument that Judge Plumlee refused to consider his argument
was conclusory, conjecture, or a mere assertion of bias. See Ex parte Ellis, 275
S.W.3d at 117. Moreover, he reasonably could have concluded Judge Plumlee did
not demonstrate bias or prejudice or deep-seated antagonism that would make fair
judgment impossible. See H.M.S., 349 S.W.3d at 253.
Appellant complains Judge Plumlee characterized his decision to move his
residence from Highland Park as “absolutely unforgiveable.” Judge Plumlee stated:
And I want you to know that even if we disagree, because reasonable
people can disagree about the same set of circumstances, I want you to
know that this court believes that to be just absolutely unforgivable.
Okay. So stop wasting my time.
–21–
Do you have anything else?
Judge Pruitt could have reasonably concluded Judge Plumlee based her comment on
evidence and the language of the final amended order and that she stated a standard
of reasonableness rather than one of bias or prejudice. Moreover, opinions formed
by a judge on the basis of facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible. See Hansen, 346 S.W.3d at 776. Indeed,
Judge Plumlee asked appellant if he had additional testimony to offer. He also notes
Judge Plumlee said, “Please stop wasting my time.” Judicial remarks during the
course of a proceeding that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or partiality challenge. See
Id. at 776. “A judge’s ordinary efforts at courtroom administration—even a stern
and short-tempered judge’s ordinary efforts at courtroom administrations—remain
immune.” Liteky, 510 U.S. at 556. Judge Pruitt could have reasonably concluded
Judge Plumlee’s comments did not demonstrate (1) bias or prejudice, (2) that she
decided the issue without hearing all the evidence, or (3) such a deep-seated
animosity to make fair judgment “impossible.”
Appellant argues, “Judge Plumlee also indicated during the June 23, 2021,
hearing that she had already decided the issue of appellant’s request to modify the
–22–
possession schedule without hearing any evidence, telling appellant’s counsel, ‘the
Court can’t get there on that issue [of additional visits].’” The record does not
support appellant’s characterization or argument. Judge Plumlee was hearing
evidence—appellant’s testimony—when she said from the bench:
You're going to have problems getting there, because the children are—
we've already discussed the children are going to be in a—need therapy.
So I'm just telling you now the Court can't get there on that issue, but
I'm listening to you, but just know that they've got to have —there has
to be a therapeutic component to this and those children have to have
that first. So go ahead.
Judge Plumlee heard testimony on the issue of possession before and after her
comment. Judge Plumlee expressly allowed continued testimony, stating “go
ahead.” Judge Pruitt could reasonably have rejected appellant’s assertion that Judge
Plumlee—due to her comments above—decided Barnes’ request to modify
possession without hearing any evidence. Moreover, Judge Pruitt could reasonably
have concluded Judge Plumlee presented a rational explanation concerning therapy
based on past discussions rather than demonstrating evidence of bias or prejudice or
a deep-seated antagonism or favoritism that made fair judgment impossible. And
Judge Pruitt could have concluded appellant’s argument that Judge Plumlee decided
the issue of appellant’s request to modify the possession schedule without hearing
any evidence was conclusory, conjecture, or a mere assertion of bias. See Ex parte
Ellis, 275 S.W.3d at 117.
–23–
Appellant argues Judge Plumlee decided issues prior to hearing all the
evidence because proceedings concerning modification of his summer possession
were continued twice. The trial court’s “Order on Father’s relief” includes a finding
that after the continuances, “The Court still invited the parties to reset the matter so
that each of the parties could be heard fully on the issue before the Court.” Appellant
notes he requested a ruling by submission after the continuances. Notably, appellant
acknowledges Judge Plumlee entered an order on the continued matter after his
request. Consequently, Judge Pruitt could reasonably have concluded appellant did
not meet his heavy burden to demonstrate bias or prejudice or a deep-seated
antagonism making fair judgment impossible. Moreover, a trial court has wide
discretion in managing its docket. See Clanton v. Clark, 639 S.W.2d 929, 931 (Tex.
1982). A complaint that a trial judge is not timely managing the docket in a
reasonable time is remediable, when appropriate, by mandamus. See, e.g., In re
Robinson, No. 05-22-00579-CV, 2022 WL 4306154, at *1 (Tex. App.—Dallas Sept.
23, 2022, orig. proceeding) (mem. op.). Additionally, a trial court’s rulings rarely
constitute a valid basis for a motion to recuse based on bias or partiality. See Dow
Chem. Co., 46 S.W.3d 237, 240; In re H.M.S., 349 S.W.3d at 253 (citing Liteky, 510
U.S. at 555 (1994)).
Appellant argues Judge Plumlee predetermined possession and access issues
without having heard all the evidence. He argues that Judge Plumlee based her denial
of his possession and access to the children on his “unforgivable decision” to relocate
–24–
from HPISD. First, we concluded above that Judge Pruitt did not abuse his discretion
for denying the motion to recuse despite Judge Plumlee’s use of the word
“unforgivable.” Second, appellant’s argument is baseless. The July 26, 2021 order
to which appellant cites does not contain a finding appellant relocated from HPISD.
The order contains other findings that supported denial of appellant’s motion for
increased summer possession, stating,
Based upon the evidence before the Court, there is clear and convincing
evidence that any additional visits for the petitioner would endanger the
emotional development of the children.
There is clear and convincing evidence that the children need an
appropriate therapeutic outlet untethered by litigation.
There is clear and convincing evidence that continued visitation
without appropriate therapeutic intervention would endanger the
physical health and/or emotional development of the children.
Judge Pruitt could reasonably conclude the order denying possession or access was
not based on appellant’s change of residence, much less on bias, prejudice, or a deep-
seated animosity making fair judgment impossible.
Similarly, appellant argues Judge Plumlee pre-determined issues without
hearing all of the evidence because “although [appellant’s] decision to move served
as a basis for the order suspending his possession, [appellee’s] Motion for
Clarification related to that issue was not set to be heard until August 25, 2021.”
Judge Pruitt could reasonably have concluded the July 26, 2021 order denying
possession or access was not based on appellant’s change of residence, as addressed
–25–
above, and not on a basis of bias, prejudice, or a deep-seated animosity making fair
judgment impossible.
B. Hearings held in appellant’s absence
Appellant argues Justice Plumlee denied him due process related to August
2021 proceedings and an interim order concerning the location of his residency.
Appellant argues Judge Plumlee held two hearings in his absence, in at least one
case without sufficient notice. He complains of evidentiary matters that occurred
during the hearings. He argues the order entered after the hearings resulted in a
deprivation of due process. This Court, in a previous opinion, considered and
rejected appellant’s due process arguments. See In re Barnes, No. 05-21-00807-CV,
2022 WL 1702516 (Tex. App.—Dallas May 27, 2022, orig. proceeding) (mem. op.).
In that previous case, appellant argued the family court clearly abused its discretion
by denying him due process of law by conducting the August 2021 hearings when
he was unavailable. This Court concluded appellant’s due process argument had
become moot because he appeared and presented evidence on the issue of his
residence during a hearing on December 1, 2021. Id. Our previous opinion was
Exhibit 49 in the recusal proceeding held by Judge Pruitt. Moreover, Judge Pruitt
heard argument at the recusal hearing from appellant’s counsel that Judge Plumlee
“later gave [appellant] his day in court” on the issue of the location of appellant’s
residence. And Judge Plumlee signed an August 24, 2022 order that recited “the
Court finds that the Armstrong address is no longer the residence of [appellant]”—
–26–
the holding appellant had sought to prove up in the August 2021 hearings. Judge
Pruitt could reasonably have concluded appellant was not deprived of due process
rights as a product of bias or prejudice or a deep-seated antagonism that made fair
trial impossible. See Clanton, 639 S.W.2d at 931 (a trial court has wide discretion in
managing its docket); see also In re Robinson, 2022 WL 4306154, at *1 (a complaint
that a trial judge is not timely managing the docket in a reasonable time is
remediable, when appropriate, by mandamus).
Extrajudicial sources
Appellant argues, “Judge Plumlee considered extrajudicial sources of
information.” He argues Judge Plumlee “repeatedly indicated that her rulings and
opinions, including her critical, disapproving, and hostile statements regarding
[appellant], were based on allegations that preceded the entry of the Amended Final
Order, to which she was not the judge and in no position to judge the credibility of
the witnesses or make findings of fact which were not otherwise made on the
record.” He cites to one judicial opinion in support of this argument, Otto v. Otto,
438 S.W.2d 587, 589 (Tex. App.—San Antonio 1969, no writ) (“Generally, proof of
misconduct of a party prior to the rendition of the original judgment is not ordinarily
admissible in a subsequent proceeding brought for change of custody of the
children.”) (emphasis added). Appellant concedes “Judge Plumlee could take
judicial notice of the case file and record of prior proceedings . . . .”
–27–
Appellant refers to hearings and orders in his “extrajudicial information”
argument. He asserts that at a June 23, 2021 hearing, “Judge Plumlee implied an
agreement which never existed to justify Judge Jackson’s order, support [appellee’s]
position, and question [appellant’s] position.” We decided, above, that Judge Pruitt
could have reasonably concluded Judge Plumlee’s interpretation of the amended
final order—what appellant characterizes as “Judge Plumlee’s impl[ying] an
agreement which never existed”—was not the product of bias or prejudice. Nor did
Judge Plumlee abuse his discretion by rejecting appellant’s argument as a mere
assertion of bias or prejudice. See Ex parte Ellis, 275 S.W.3d at 117.
Appellant argues Judge Plumlee judged his credibility at the June 23, 2021
hearing. The trial court in a non-jury proceeding, of course, is the sole judge of the
credibility of witnesses and the weight to be given their testimony. See In re Y.B.,
No. 05-21-00915-CV, 2023 WL 3451041, at *2 (Tex. App.—Dallas May 15, 2023,
no pet. h.) (mem. op.). Judge Pruitt did not abuse his discretion in rejecting
appellant’s assertions of bias based on credibility. See Ex parte Ellis, 275 S.W.3d at
117.
He argues that at an August 16, 2021 hearing Judge Plumlee erroneously
admitted hearsay emails and also referred to allegations raised in a prior modification
proceeding over which she did not preside. Again, judicial rulings alone almost
never constitute a valid basis for a motion to recuse based on bias or partiality. See
Dow Chem. Co., 46 S.W.3d at 240 (stating the ruling must be shown to display deep-
–28–
seated favoritism or antagonism that would make fair judgment impossible); In re
H.M.S., 349 S.W.3d at 253 (citing Liteky, 510 U.S. at 555). A party's remedy for
unfair rulings is to assign error regarding the adverse rulings. See In re City of Dallas,
445 S.W.3d at 467; Sommers, 20 S.W.3d at 41. Appellant fails to demonstrate that
an impartial person would have a reasonable doubt of whether admitting the
evidence was due to partiality. See Hansen, 346 S.W.3d at 776 (the test for recusal is
“whether a reasonable member of the public at large, knowing all the facts in the
public domain concerning the judge's conduct, would have a reasonable doubt that
the judge is actually impartial.”). Judge Pruitt did not abuse his discretion in rejecting
appellant’s evidentiary argument.
Appellant argues that during the August 16 hearing Judge Plumlee “became
irate and began to lecture him extensively” based on extrajudicial information.
Assuming, without deciding, appellant’s characterizations are accurate, a judge’s
comments that are critical or disapproving of—or even hostile to—parties or their
cases, do not ordinarily support a bias or partiality challenge. See Hansen, 346
S.W.3d at 776. Judge Pruitt could have concluded an impartial person would not
have reasonably doubted Judge Plumlee’s impartiality due to her comments. See id.Appellant argues Judge Plumlee “decided that [appellant] impersonated
[another person] with absolutely no evidence to support such a position, instead
relying on allegations made in a previous modification proceeding.” In short, he
complains of a ruling. For reasons stated above concerning evidentiary argument,
–29–
Judge Pruitt did not abuse his discretion. See Dow Chem. Co., 46 S.W.3d at 240; In
re H.M.S., 349 S.W.3d at 253 (citing Liteky, 510 U.S. at 555); In re City of Dallas,
445 S.W.3d at 467; Sommers, 20 S.W.3d at 41; Hansen, 346 S.W.3d at 776.
Appellant’s remaining assertions that Judge Plumlee considered
“extrajudicial information” fail to argue or demonstrate why such consideration, if
any, supports recusal or demonstrates that Judge Pruitt abused his discretion in
rejecting these remaining arguments. Judge Pruitt did not abuse his discretion in
rejecting these remaining arguments. See Ex parte Ellis, 275 S.W.3d at 117 (mere
assertions, conjecture, or mere conclusory statements do not support recusal); see
also Dow Chem. Co., 46 S.W.3d at 240 (judicial rulings alone almost never
constitute a valid basis for a motion to recuse based on bias or partiality); In re
H.M.S., 349 S.W.3d at 253 (citing Liteky, 510 U.S. at 555).
Deep-seated antagonism and favoritism
Appellant argues, “Judge Plumlee demonstrated such a deep-seated
antagonism toward [appellant] and favoritism toward [appellee] as to make fair
judgment impossible.” (Emphasis added.) Appellant argues, “[he] also filed a
judicial complaint against Judge Plumlee, further prejudicing her.”
A. Judge Plumlee’s Orders
Initially, appellant makes arguments related to the December 15, 2020 de
novo hearing. Judge Ginsberg considered matters related to that hearing in denying
appellant’s first motion to recuse Judge Plumlee. We decided those matters, above,
–30–
and held Judge Ginsberg did not abuse his discretion. We do not reconsider them
here.
Appellant argues Judge Plumlee “weaponized the issue of therapy for the
children” in order to forestall his visitation with the children. In support, he notes
Judge Plumlee stated “the children needed therapy before visitation could resume.”
We decided above that Judge Pruitt could have concluded Judge Plumlee
reasonably—without bias or prejudice—explained her position on the issue of
therapy. Judge Pruitt could have decided Judge Plumlee did not indicate a deep-
seated antagonism or favoritism that made fair judgment “impossible.”
Appellant argues the order on father’s requested relief removed his
possession “with no basis to do so.” Judge Pruitt presumably applied the law that
Appellant’s remedy was to assign the allegedly unfair order as error rather than to
move for recusal. See In re City of Dallas, 445 S.W.3d at 467; Sommers, 20 S.W.3d
at 41; see also Dow Chem. Co., 46 S.W.3d at 240 (judicial rulings alone almost never
constitute a valid basis for a motion to recuse based on bias or partiality); In re
H.M.S., 349 S.W.3d at 253 (citing Liteky, 510 U.S. at 555). Judge Pruitt also could
have concluded that the ruling did not demonstrate fair judgment was impossible.
Appellant argues the order on appellant’s requested relief is factually
inaccurate “and/or” advocates against his interests. He argues a footnote in the order
states, “Petitioner alleges at the close of evidence on March 19th this Court took this
request under advisement. Nothing could be further from the truth.” Counsel
–31–
testified at the hearing on recusal that the statement was inaccurate and that she was
“dumbfounded.” Counsel testified Judge Plumlee has made several statements that
counsel characterizes as inaccurate. Appellant argues the footnote was
“unnecessary.” Justice Pruitt could reasonably have concluded appellant failed to
demonstrate the alleged misstatement evidenced deep-seated antagonism or
favoritism making fair judgment impossible.
Appellant complains the interim order impermissibly granted injunctive relief
concerning his change of residence. He notes this Court partially and conditionally
granted mandamus relief and that Judge Plumlee subsequently vacated the
injunctions. See In re Barnes, 2022 WL 1702516, at *4. Judge Pruitt could have
concluded appellant properly sought and obtained mandamus relief for the
injunctions rather than seeking recusal. See In re City of Dallas, 445 S.W.3d at 467;
Sommers, 20 S.W.3d at 41; and see Dow Chem. Co., 46 S.W.3d at 240 (judicial
rulings alone almost never constitute a valid basis for a motion to recuse based on
bias or partiality); In re H.M.S., 349 S.W.3d at 253. Judge Pruitt did not abuse his
discretion in deciding the interim order did not demonstrate a deep-seated
antagonism or partiality that made fair judgment impossible. For these reasons,
Judge Pruitt could also have concluded footnotes to the interim order failed to
demonstrate deep-seated antagonism or favoritism that made fair judgment
impossible. See Hansen, 346 S.W.3d at 776 (critical, disapproving, hostile
comments made to parties or their cases do not ordinarily demonstrate bias or
–32–
partiality); In re H.M.S., 349 S.W.3d at 254 (opinions formed by the judge based on
facts introduced or events occurring in the course of proceedings do not constitute a
valid basis for a recusal motion unless “they display a deep-seated favoritism or
antagonism that would make a fair judgment impossible.”).
B. Judge Plumlee’s Conduct
Appellant argues “Judge Plumlee’s conduct during hearings demonstrates
deep-seated antagonism toward [appellant] and favoritism toward [appellee].”
Appellant argues that at a June 23, 2021 hearing Judge Plumlee unfairly
excluded evidence favorable to his case but unfairly admitted evidence favorable to
appellee’s case. He asserts Judge Plumlee made “very unfriendly” and “belittling”
statements about his laying an evidentiary predicate but “went out of her way” to lay
an evidentiary predicate for appellee. After appellant’s evidentiary objection, Judge
Plumlee explained her ruling on appellee’s evidence and stated the predicate had
been established through previously given testimony. Consequently, Judge Pruitt
would not have abused his discretion by disagreeing that Judge Plumlee went out of
her way to lay the predicate for appellee. Moreover, appellant’s remedy was to assign
error rather than to move for recusal. See In re City of Dallas, 445 S.W.3d at 467;
Sommers, 20 S.W.3d at 41; see also Dow Chem. Co., 46 S.W.3d at 240 (judicial
rulings alone almost never constitute a valid basis for a motion to recuse based on
bias or partiality); In re H.M.S., 349 S.W.3d at 253 (citing Liteky, 510 U.S. at 555)).
–33–
Judge Pruitt could have concluded these two evidentiary rulings did not indicate
bias, prejudice, or deep-seated antagonism that made fair judgment impossible.
Appellant argues Judge Plumlee “argued” with and “lectured” appellant or his
counsel and demonstrated a demeanor, facial expression, and tone of voice that was
“very antagonistic” at the June 23, 2021 hearing. Judicial remarks, even those that
are critical or disapproving of—or even hostile to—parties or their cases, do not
ordinarily support a bias or partiality challenge. See Hansen, 346 S.W.3d at 776;
Drake v. Spriggs, No. 13-03-429-CV, 2006 WL 3627716, at *5 (Tex. App.—Corpus
Christi-Edinburg Dec. 14, 2006) (mem. op.) (judge’s complained-of hostile
demeanor did not demonstrate bias or partiality). “A judge’s ordinary efforts at
Courtroom administration—even a stern and short-tempered judge’s ordinary efforts
at Courtroom administration—remain immune.” Liteky, 510 U.S. at 556; Echols,
2014 WL 469056, at *6 n.3. Judge Pruitt did not abuse his discretion by concluding
appellant failed to meet his heavy burden to demonstrate Judge Plumlee
demonstrated deep-seated antagonism or favoritism that made fair judgment
impossible.
Appellant argues that during the June 23, 2021 hearing, Judge Plumlee
objected to a form of a question “and lectured [appellant] and his counsel that the
question misrepresented the Order After De Novo Review.” Judge Plumlee
commented on the contents of the order and stated, “Read your order. It is very
clear.” She based her statements on “[a] plain reading of the Court’s order.” Judge
–34–
Pruitt could have reasonably decided Judge Plumlee did not “lecture” appellant and
his counsel but instead stated in reasonable, unbiased, impartial terms her
understanding of the order, as addressed above. He also could have concluded the
exchange did not evidence deep-seated antagonism or favoritism that made fair
judgment impossible.
Appellant asserts that at the June 23, 2021 hearing, Judge Plumlee argued with
appellant regarding the summer schedule under the amended final order. Appellant
testified his relationship with the children during a previous summer possession was
“fantastic.” Judge Plumlee commented it could not have been fantastic because
appellant asked for modified summer visitation. Judge Pruitt could have concluded
Judge Plumlee’s comment was accurate and that appellant nonetheless testified—
twice—that his relationship during the previous summer was fantastic. He also could
have concluded the exchange did not evidence deep-seated antagonism or favoritism
that made fair judgment impossible.
Appellant also argues that during the June 23, 2021 hearing, Judge Plumlee
argued and tried “to entrap him and manufacture a record to support her erroneous
rulings and findings.” He bases this allegation on the following exchange:
THE COURT: Okay. And on a scale of 1 to 10 how important are the
Belles [drill team] to [appellant’s child], would you say?
[APPELLANT]: Again, I haven’t been around her very much in the last
six months, but I would say it was a 10.
–35–
THE COURT: Okay, well I’ve been around [appellant’s child] a whole
lot less than you have, and I’m telling you I would put it—on a scale of
1 to 10, I would put it at 15. . . . Would you agree with that?
[APPELLANT]: You said 1 to 10, so I said 10.
Although not quoted by appellant, the exchange continued:
THE COURT: Oh, I know. But if you were excited about something
I’m asking you would it be more than 10. Would it be—
[APPELLANT]: Yes. She’s worked very hard for it. No doubt.
Absolutely.
THE COURT: Okay. So she’s worked for something, correct?
[APPELLANT]: Yes.
Judge Pruitt could have reasonably concluded the above exchange was not an
attempt to “entrap” appellee and did not demonstrate bias or prejudice, much less a
deep-seated antagonism or favoritism that makes fair judgment “impossible.”
Appellant argues that during the June 23, 2021 hearing, Judge Plumlee
interrupted his counsel “every time” she “was getting to a critical point.” “A judge’s
ordinary efforts at Courtroom administration—even a stern and short-tempered
judge’s ordinary efforts at Courtroom administration—remain immune.” Liteky, 510
U.S. at 556; Echols, 2014 WL 4629056, at *6 n.3. After reviewing the record, Judge
Pruitt could have concluded appellant’s counsel was not precluded from eliciting
testimony and that appellant failed to meet the high burden of demonstrating deep-
seated antagonism or favoritism making fair judgment impossible.
–36–
Appellant asserts arguments based on Judge Plumlee’s demeanor and partial
evidentiary rulings during the August 16, 2021 hearing similar to those he made
about the June 23, 2021 hearing. We decided above that Judge Pruitt did not abuse
his discretion in rejecting appellant’s similar arguments concerning the June 23
hearings. For similar reasons, Judge Pruitt did not abuse his discretion in rejecting
appellant’s arguments concerning the August 16 hearing.
Appellant argues Judge Plumlee erroneously allowed the amicus attorney to
inappropriately use exhibits and make improper closing arguments. We note
appellant cites to the transcript of the trial on the merits. He complains of occurrences
recorded in transcripts of proceedings held on September 15, 2022, and September
16, 2022. These dates are subsequent to the motion, hearing, and order related to
appellant’s second motion to recuse. These matters were not before Judge Pruitt, and
he could not have abused his discretion concerning these subsequent trial matters.
We do not address appellant’s remaining repetitive arguments or his mere
assertions, conclusory statements, or conjecture. See Ex parte Ellis, 275 S.W.3d at
117 (conclusory statements, conjecture, or mere assertions of bias will not satisfy
the burden or overcome the presumption of impartiality).
C. The Judicial Complaint
Appellant briefly asserts, “[appellant] also filed a judicial complaint against
Judge Plumlee, further prejudicing her.” He does not demonstrate the complaint led
to deep-seated antagonism that makes fair trial impossible or to bias or prejudice.
–37–
He fails to cite to a judicial opinion, statute, or rule providing that filing a judicial
complaint against a judge is a ground for recusal. Appellee cites to Cameron v.
Greenhill, 582 S.W.2d 775, 776 (Tex. 1979) (“To hold that merely naming a judge
as a party would disqualify him would put power in the hands of litigants to frustrate
our judicial system.”). This Court has held recusal is not required simply because a
party seeking to recuse a trial judge was a plaintiff in another pending lawsuit in
which the trial judge was a defendant. See Drake, 529 S.W.3d at 528, 530 (quoting
Cameron, 582 S.W.2d at 776). We conclude the considerations expressed in
Cameron and Drake are relevant here in the context of a judicial complaint. Judge
Pruitt could have reasonably concluded appellant has failed to carry his high burden
to overcome the presumption of Judge Plumlee’s impartiality and to demonstrate
bias, prejudice, or animosity making fair trial impossible.
Judge Pruitt did not abuse his discretion in denying appellant’s second motion
to recuse Judge Plumlee on the merits.
...
We overrule appellant’s first issue.8
8
Appellant’s notice of appeal states he desires to appeal from both orders denying recusal of Judge Plumlee
and “from all portions of the judgment.” Appellant fails to assign error to the final judgment terminating
parental rights other than to challenge the award of attorney’s fees.
Appellant brings an additional assertion ostensibly based on the orders denying the motions to recuse
Judge Plumlee. He argues, “The erroneous denial of [appellant’s] multiple requests for recusal culminated
in the termination of [appellant’s] parental rights.” We have held the orders are not erroneous. His
subordinate assertions include: (1) “Judge Plumlee’s unsupported orders and inappropriate commentary
were given undue weight and credibility”; (2) “Judge Plumlee’s appointment of Dr. Robb and refusal to
–38–
ATTORNEY’S FEES
In his second issue, appellant complains the trial court abused its discretion in
ordering him to pay appellee’s attorney’s fees. The trial court’s final judgment
provides that appellee recover $565,876.50 from appellant for reasonable and
necessary attorney’s fees and post judgment interest. The parties agreed the trial
court would determine the amount of attorney's fees.
Appellate courts review a trial court's award of attorney’s fees under an abuse
of discretion standard. See Oliver v. Rowan, No. 05-19-01433-CV, 2021 WL
2948554, at *12 (Tex. App.—Dallas June 29, 2021, no pet.) (mem. op.) (citing
Mohamed v. Ctr. for Sec. Policy, 554 S.W.3d 767, 778 (Tex. App.—Dallas 2018,
pet. denied)). A court abuses its discretion if it rules without reference to guiding
rules or principles. See id.Appellant and appellee submitted the question of attorney’s fees based on
affidavit or declaration with attachments of detailed invoices thereto. Three law
firms—Morales Walker PLLC; Chad Ruback, Attorney at Law; and White &
Wiggins, LLP—represented appellant in the proceeding below. Appellee’s attorney,
remove him as the supervisor further alienated the children”; and (3) “Judge Plumlee’s appointment of a
confidential therapist after institutionally alienating the children from [appellant] ensured that her opinion
was unfavorable to [appellant].” Appellant fails to explain the relevance of these assertions to the
controlling questions of whether Judge Ginsberg or Judge Pruitt abused their discretion in denying motions
to recuse Judge Plumlee. We see none. Our holding that neither judge abused his discretion pretermits
consideration of appellant’s additional assertion of alleged effects of Judge Plumlee’s pretrial orders,
commentary, or appointments. Accordingly, we do not consider or decide appellant’s additional assertions.
–39–
Carlos Morales, averred he prepared his affidavit to offer his opinion as an expert
witness on the issue of appellant’s attorney’s fees.9 He averred reasonable and
necessary attorney’s fees were (1) $777,150.40 for his firm, (2) $136.026.00 for
Chad Ruback’s firm, and (3) $17,200.00 for Wiggins’s firm. He averred to a total
amount of reasonable and necessary attorney’s fees and paralegal fees of
$930,376.40. Three separate sets of invoices are attached to Morales’s affidavit: one
for services provided by Morales Walker PLLC, one for services provided by Chad
Ruback, Attorney at Law, and one for services provided by White &Wiggins, LLP.
Morales’s affidavit averred to numerous matters concerning attorney’s fees for each
of the three firms that represented appellees, including the attorney’s professional
experience, the complexity of the case, the amount of the hourly rates, the
reasonableness of the hourly rates, the reasonableness and necessity of the services
rendered, and the reasonableness and necessity of the attorney’s fees requested.
The final judgment awards attorney’s fees to appellee in one lump sum
without specifying amounts awarded separately to Morales Walker PLLC, Ruback,
Attorney at Law, or Wiggins & White, LLP.
Appellant notes Ruback and Wiggins did not file their own separate affidavits
with attached invoices in support of their own attorney’s fees. He argues,
The Affidavit of Carlos Morales attempted to authenticate the invoice
of Chad Ruback, Attorney at law and White & Wiggins, LLP, in
9
Appellant failed to object to Morales’s qualifications as an expert witness or to offer testimony to
controvert Morales’s testimony.
–40–
addition to Morales Walker, PLLC, invoices. However, Morales is not
a custodian of such records and this the invoices of Chad Ruback and
White & Wiggins are inadmissible hearsay and do not constitute
competent evidence sufficient to support an award of such fees to
[appellee]. See TEX. R. EVID. 803(6) and 902(10).10
Appellant argues a party applying for an award of attorney’s fees bears the burden
of documenting the hours expended on the litigation and the value of those hours.
See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012) (an applicant for a
10
Rule 803(6) provides:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness:
(6) A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by—or from information transmitted by—
someone with knowledge;
(B) the record was kept in the course of a regularly conducted business activity;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified
witness, or by an affidavit or an unsworn affidavit that complies with Rule 9022(10);
and
(E) the opponent fails to demonstrate that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness. “Business” as used in
this paragraph includes every kind of regular organized activity whether conducted for
profit or not.
TEX. R. EVID. 803(6).
Rule 902(10) provides, in part:
The following items of evidence are self-authenticating; they require no extrinsic evidence of
authenticity in order to be admitted: . . .
(10) The original or a copy of a record that meets the requirements of 803(6) or (7), if the
record is accompanied by an affidavit that complies with subparagraph (B) of this rule and
any other requirements of law, and the record and affidavit are served in accordance with
subparagraph (A). For good cause shown, the court may order that a business record be
treated as presumptively authentic even if the proponent fails to comply with subparagraph
(A).
TEX. R. EVID. 902(10).
–41–
fee under the lodestar method must provide sufficient details of the work, including
documentation of services performed, who performed them and at what hourly rate,
when they were performed, and how much time the work required). He argues,
“Without the invoices of Chad Ruback or White and Wiggins, the affidavit of Carlos
Morales does not provide sufficient evidence regarding what services were
performed, when they were performed, or how much time such work required to
support an award of attorney’s fees to [appellee].”
In response, appellee relies on this Court’s precedent and Texas Rules of
Evidence 703 and 705(a). See TEX. R. EVID. 703, 705. Rule 703 provides:
An expert may base an opinion on facts or data in the case that the
expert has been made aware of, reviewed, or personally observed. If
experts in the particular field would reasonably rely on those kinds of
facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.
TEX. R. EVID. 703. Rule 705(a) provides:
If the underlying facts or data would otherwise be inadmissible, the
proponent of the opinion may not disclose them to the jury if their
probative value in helping the jury evaluate the opinion is outweighed
by their prejudicial effect. If the court allows the proponent to disclose
those facts or data the court must, upon timely request, restrict the
evidence to its proper scope and instruct the jury accordingly.
TEX. R. EVID. 705(a).
Appellee cites to Murco Agency, Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex.
App.—Dallas 1990, no writ). In Murco Agency, Inc., this Court upheld an award of
attorney’s fees based on expert testimony. Id. The expert testimony in Murco relied
–42–
on an itemized legal bill that was not introduced in evidence. Id. The expert testified
the fees were fair and reasonable. Id. This Court noted no authority was cited that
required the bill itself be introduced into evidence and that we had not found such
authority. See id. Appellant argues Murco Agency, Inc. is inapplicable because, he
asserts, the expert in Murco Agency, Inc. provided specific testimony based on fee
statements. We find no such distinguishing testimony discussed in Murco Agency,
Inc. We reject appellant’s sole argument that Murco Agency, Inc. is inapplicable.
Moreover, a sister court upheld a trial court’s award of attorney’s fees over an
objection to expert testimony concerning fees of a deceased attorney on grounds that
“[t]he prior lawyer fee statements are hearsay.” Tijerina v. Wyson, No. 14-15-00188-
CV, 2017 WL 506779, at *7 (Tex. App.—Houston [14th Dist.] Feb. 7, 2017, no pet.)
(mem. op.). The Fourteenth Court of Appeals stated,
[T]he trial court did not abuse its discretion by admitting the testimony.
“[A]n expert can testify at trial in appropriate circumstances about
hearsay evidence relied upon in forming an expert opinion if such
evidence reasonably would be relied upon by experts in the field in
forming opinions or inferences regarding the subject at issue.” Niche
Oilfield Servs., LLC v. Carter, 331 S.W.3d 563, 574 (Tex. App.—
Houston [14th Dist.] 2011, no pet.); see TEX. R. EVID. 703. Here, [the
expert] reasonably relied upon invoices and billing statements from
appellee’s former attorney to form an opinion, and these documents
would typically be relied on to determine the reasonableness of the fees
charged. See In re Marriage of Bivins, 393 S.W.3d 893, 901 (Tex.
App.—Waco 2012, pet. denied) (noting that an expert could rely upon
invoices containing hearsay to form an opinion about whether the work
invoiced was reasonable and necessary).
–43–
Id. Appellant asserts Tijerina is inapposite here for the same reasons he asserts
Murco Agency, Inc. is inapposite. We have rejected that Murco Agnecy, Inc. is
inapposite and reject appellant’s related argument concerning Tijerina.
Appellant briefly argues the Morales affidavit is “insufficient” due to lack of
specificity. The only judicial opinion cited in appellant’s brief on attorney’s fees is
In Apple I, LTD, 370 S.W.3d at 761 (“A party applying for an award of attorney’s
fees bears the burden of documenting the hours expended on the litigation and the
value of those hours.”). Appellant argues that when applying for a fee under the
lodestar method, the applicant must provide sufficient details of the work performed,
including, at a minimum, documentation of the services performed, who performed
them and at what hourly rate, when they were performed, and how much time the
work required. See id. The invoices attached to the Morales affidavit do exactly that.
Notably, appellant fails to argue how, specifically, the Morales affidavit and attached
invoices of Chad Ruback, Attorney at Law and White & Wiggins, LLP fail to satisfy
the requirements of El Apple I, LTD. Attached to the Morales affidavit are 131 pages
of detailed invoices of Morales Walker PLLC; Chad Ruback, Attorney at Law; and
White & Wiggins, LLP. We reject appellant’s brief and general argument that the
attached invoices were “insufficient” pursuant to standards announced in El Apple I,
LTD.
Appellant argues in reply that the Morales affidavit contains “generalities”
concerning the experience of Ruback and Wiggins and the reasonableness of their
–44–
hourly rates. In reply, he cites Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
578 S.W.3d 469, 496-97 (Tex. 2010) (“We have clearly held, however, that
generalities such as these are not sufficient to support a fee-shifting award under the
lodestar method, which applies in fee-shifting situations.”) (emphasis added). Id. at
496. Rohrmoos referred to “generalities” in cases in which “some courts have
decided that testimony about an attorney’s experience, the total amount of fees, and
the reasonableness of the fees complies sufficiently with Arthur Andersen to support
an attorney’s fee award.” Id. The Morales affidavit and attachments do not present
the generalities decried in Rohrmoos. As addressed above, Morales averred to
specific information, and his affidavit had attached to it 131 pages of detailed
invoices of Morales Walker, LLC; Chad Ruback, Attorney at Law; and White &
Wiggins, LLP. Appellant’s quoted language from Rohrmoos fails to support his
argument.
We conclude the trial court did not abuse its discretion in awarding attorney’s
fees to appellant.
We overrule appellant’s second issue.
–45–
CONCLUSION
We overrule appellant’s first issue and affirm the orders on both motions to
recuse Judge Plumlee. We overrule appellant’s second issue and affirm the trial
court’s judgment awarding attorney’s fees.
/Bill Pedersen, III/
221322f.p05 BILL PEDERSEN, III
JUSTICE
–46–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVID BARNES, Appellant On Appeal from the 330th Judicial
District Court, Dallas County, Texas
No. 05-22-01322-CV V. Trial Court Cause No. DF-11-11126.
Opinion delivered by Justice
Pedersen, III. Justices Reichek and
JENNIFER LANCASHIRE, Nowell participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED; the January 15, 2021 order denying David Barnes’s motion
to recuse is AFFIRMED; and the August 31, 2022 order denying David Barnes’s
tertiary motion to recuse is AFFIRMED.
It is ORDERED that appellee Jennifer Lancashire recover her costs of this
appeal from appellant David Barnes.
Judgment entered this 6th day of June, 2023.
–47–