in Re Smith Bend Ranch, LTD

IN THE
TENTH COURT OF APPEALS
No. 10-17-00153-CV
IN RE SMITH BEND RANCH, LTD
Original Proceeding
ABATEMENT ORDER
This proceeding was filed to review the trial court’s decision to reinstate a case
that had been pending for five years and then dismissed for want of prosecution. While
this proceeding was pending, a new trial court judge was elected. After the election,
relator filed a motion pursuant to Rule 7.2(b) of the Texas Rules of Appellate Procedure,
asking the Court to abate this proceeding “to consider Respondent’s original decisions
on Relator’s Motion to Dismiss and [real-party-in-interest’s] Motion to Reinstate, so that
he may decide whether to adopt the same rulings or rule differently.” The motion was
granted and this proceeding was abated “to present for review to the Honorable Shaun
Carpenter the Relator’s motion to dismiss and the Real Party in Interest’s motion to
reinstate.” Subsequent to the abatement order, the real-party-in-interest died.
Subsequent to being notified that the real-party-in-interest had died, the trial court held
a hearing and determined that:
The Court, after reviewing all of the information contained in the Appendix
to Petition for Writ of Mandamus is of the opinion that Judge Phil
Robertson's orders relating to the Motion to Reinstate (Motion heard April
7, 2017, order signed April 11, 2017) were correctly decided and adopts
those rulings in their entirety. The Court also adopts the Findings in [sic]
Fact and Conclusions of Law signed on April 11, 2017.”
After this determination, the case was reinstated and set for argument before this
Court. Based on the trial court’s determination and on the arguments made by counsel
to the Court, the Court has determined that the trial court and the parties may not have
understood the scope of the purpose for which the proceeding was abated and the trial
court’s role. It appears that the trial court did not conduct a new hearing. Rather, the
trial court decided, based on its review of the evidence before the trial court at the time
of the former trial judge’s ruling, that he agreed with that ruling. In effect, he performed
a review of the previous trial court’s ruling. That is not the scope of the new trial court
judge’s role when a proceeding is abated under these circumstances.
Accordingly, this proceeding is again abated to the trial court to, within 45 days
from the date of this order, conduct a hearing on the relator’s motion to dismiss and the
real-party-in-interest’s motion to reinstate and independently decide those motions
based on the evidence presented at the hearing.
In re Smith Bend Ranch, Ltd. Page 2
Specifically, the trial court must rule on the motion to reinstate based on all the
evidence that is presented by the parties on the day of the hearing. This is not a review
of how the prior trial court judge ruled nor is it limited to the evidence presented to the
previous judge at the time the judge made the ruling. The ruling that this Court must
review in this mandamus proceeding is the ruling of the present trial court judge, the
Honorable Shaun Carpenter, because it is only the current trial court judge’s ruling that
is the subject of this mandamus proceeding, without regard to the prior ruling of the
Honorable Phil Robertson, the former trial court judge.
Supplemental clerk’s and reporter’s records must be filed within 14 days from the
date of the hearing.
The stay previously issued in this case will otherwise remain in effect.
PER CURIAM
Before Chief Justice Gray,
Justice Davis,* and
Justice Neill
Proceeding abated
Order issued and filed October 21, 2019
RWR
*(Justice Davis dissents with a note. A separate opinion will not issue.
I respectfully dissent to the Court’s additional abatement of this case. The trial
court appropriately considered all of the information considered by his predecessor. Rule
7.2 requires that a successor judge be provided the opportunity “to reconsider the original
party’s decision.” TEX. R. APP. P. 7.2. While the new judge is not limited to considering
only the evidence on which the challenged order was based, there is no requirement that
the new judge hold any additional hearings. See In re Blevins, 480 S.W.3d 542, 544 (Tex.
2013) (“The trial judge is not limited to considering only evidence on which the order was
based.”). This is particularly true when no party identifies new evidence for the court to
In re Smith Bend Ranch, Ltd. Page 3
consider. The direction to the trial court is to “take whatever actions and hold whatever
hearings it determines are necessary for it to reconsider the [prior judge’s] order and
those matters underlying it.” Id. at 544.
The only new evidence in this case, which came to light after our abatement and
before the trial court ruled, was the unfortunate demise of Mr. Ramirez.
In re Smith Bend Ranch, Ltd. Page 4