Lugo, Jennifer v. Sampley, Mark

DISMISS; Opinion Filed June 14, 2012.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-01351-CV
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IN THE INTEREST OF H.M.S., A CHILD
 
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On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-52595-2008
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MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
        Jennifer Lugo and her counsel, Cary Schulman, appeal a stand-alone order denying their motions to disqualify/recuse the trial judge and the Presiding Judge of the First Administrative Judicial Region of Texas. In four issues, appellants complain that Presiding Judge John Ovard (1) erred in failing to find 401st District Court Judge Mark Rusch constitutionally disqualified, (2) erred in failing to find himself disqualified and in failing to recuse himself, (3) lacked jurisdiction to preside and enter orders in this matter, and (4) failed to provide proper notice of his self-assignment over appellants' motions to recuse. For the reason set out below, we dismiss the appeal for lack of jurisdiction.
This is the third appeal in this custody case involving H.M.S., the child of Lugo and Mark Sampley. Schulman represented Lugo at the trial court and in all three appeals. In September 2009, Judge Rusch signed a final order appointing Sampley as sole managing conservator of the child. Two months later, Lugo filed a motion to recuse Judge Rusch, who declined to recuse himself, and Judge Ovard assigned the motion to Judge Alvin Khoury. After an evidentiary hearing, Judge Khoury denied the motion and imposed monetary sanctions against Lugo and Schulman. Before Judge Khoury signed the order, Lugo filed a second motion to recuse Judge Rusch. Judge Ovard summarily denied this motion without hearing. Lugo filed motions to reconsider and ultimately appealed Judge Khoury's order to this Court, and we affirmed. See In re H.M.S., 349 S.W.3d 250, 252 (Tex. App.-Dallas 2011, pet. denied). On the same day, we affirmed the trial court's September 2009 final order in a second appeal in which Lugo argued Judge Rusch was constitutionally disqualified and violated her federal and Texas constitutional rights to due process. See In re H.M.S., No. 05-09-01456-CV, 2011 WL 3905926, *1 (Tex. App.-Dallas 2011, pet. denied) (mem. op.).
In May 2010, months after the rendition of the final order and denial of the recusal motions, Lugo filed another motion seeking to remove Judge Rusch, and for the first time Judge Ovard, from the case. The motion, titled “Plea to the Chief Justice & Motion to Disqualify Trial Judge and Presiding Judge,” was initially addressed to the Chief Justice of the Texas Supreme Court. When Chief Justice Jefferson declined to intervene, Lugo pursued the motion in the trial court. In the 113- page motion, Lugo argued both judges were “constitutionally” disqualified and thus any orders Judge Rusch signed were void, necessitating a new trial in the case. On his own behalf, Schulman also filed a 55-page motion to recuse and disqualify Judges Rusch and Ovard. In their brief, appellants assert the motions were a response to two motions filed by Sampley that month and set for hearings: (1) a motion for turnover orders to aid in the collection of the judgment against Lugo and Schulman and (2) a motion to enforce child support order. Both Lugo and Schulman's motions complained about bias and partiality on the part of both judges and, with respect to Judge Rusch, relied on the same complaints previously addressed by this Court. See In re H.S.M., 349 S.W.3d at 254-55. Judge Ovard did not assign the motions to another judge but instead heard them himself without objection from appellants. At the hearing, Judge Ovard made clear he would consider any evidence pertinent to the recusal of Judge Rusch that had come to light since Judge Khoury completed the December 2009 recusal hearing. At the conclusion of the hearing, Judge Ovard denied the motions and ultimately levied monetary sanctions against Lugo and Schulman. In findings of fact and conclusions of law, Judge Ovard found the evidence was “repetitive of previous allegations, irrelevant, conclus[ory], and wholly failed to merit recusal of the Trial Judge and the Presiding Judge.” In an amended order, Judge Ovard also prohibited Lugo, Schulman, and anyone acting on their behalf from filing a motion to recuse Judge Rusch without obtaining Judge Ovard's prior approval. Appellants brought this direct appeal from the order denying the motions.
        An order denying a motion to recuse is an unappealable interlocutory order. Hawkins v. Walker, 233 S.W.3d 380, 401 (Tex. App.-Fort Worth 2007, no pet. ). Specifically, rule 18a of the Texas Rules of Civil Procedure provides that an order denying a motion to recuse may be reviewed only “on appeal from the final judgment.” Tex. R. Civ. P. 18a(f) (amended Aug. 1, 2011, now found at 18a(j))   See Footnote 1 ; Hawkins, 233 S.W.3d at 401.
        In the Hawkins case, the appellants appealed a judgment against them for statutory fraud and negligent misrepresentation. After the appeal was filed, the appellees contested the appellants' affidavit of net worth filed to support their supersedeas bond as allowed by Texas Rule of Appellate Procedure 24. Hawkins, 233 S.W.3d at 388. Following a hearing on the supersedeas bond issue,
appellants filed a motion to recuse the trial judge alleging impartiality. The trial judge forwarded the motion to the presiding judge of the Eighth Administrative Judicial Region who held a hearing and denied the motion to recuse and assessed sanctions against the appellants. Id. The appellants then separately appealed the order denying recusal. Id. at 401.         Relying on rule of procedure 18a, the court explained that an order denying a recusal motion may be reviewed only on appeal from the final judgment. Id. Although the appellants argued the appeal was allowable because they also appealed the trial court's final judgment, the court explained that the appellants had not complained of the trial judge's participation in any pre-appeal proceedings affecting the final judgment. Instead, the motion sought to recuse the trial judge from participating in post-judgment supersedeas proceedings based on conduct at a supersedeas hearing held after the appeal from the final judgment was filed. Id. at 401. Consequently, the court concluded the order was not reviewable “on appeal from the final judgment” because it had no effect on the final judgment. Id.
        Additionally, the court explained the appellants were not seeking to have the order reviewed on appeal from a post-judgment order signed by the trial judge, noting the supersedeas issue remained pending in the trial court. The court held that the “post-judgment order denying appellants' motion to recuse may be reviewed by this court only upon the filing of a motion under appellate rule 24.4 complaining of the trial court's exercise of its discretion under rule 24.3(a).” (Texas Rule of Appellate Procedure 24 governs the suspension of enforcement of judgments pending appeal in civil cases.) Because the order was an unappealable interlocutory order and appellants had not brought a complaint challenging the trial judge's exercise of discretion under rule 24.3(a), the court determined it had no jurisdiction to review the recusal order. Id. at 402.
        Like the order in Hawkins, the order appealed from in this case is unconnected to any final judgment or order.   See Footnote 2  The record does not contain any ruling on either the motion to enforce child support or the motion for turnover orders. In fact, the record shows that the motion to enforce was withdrawn on the morning of the June 2010 recusal hearing. Although the motion for turnover orders was set hearing the following month, a docket sheet entry shows that on the hearing date the court declined to proceed “at this time” and stated the motion “may be reset in future,” and there is nothing in our record to indicate the motion was ever heard and decided.
Moreover, appellants' brief does not complain about any ruling on either motion. Instead, appellants appear to tie their complaint to the September 2009 final order. We note that the 2009 final order was previously appealed and affirmed, see In re H.S.M., No. 05-09-01456-CV, 2011 WL 3905926, at *1, and even if it had not been, the time has long passed for a timely appeal. See Tex. R. App. P. 26.1. Because the order appealed from in this case is not subject to direct appeal, we conclude we do not have jurisdiction.
In a cross-point, appellees ask us to deem this appeal frivolous and to render “appropriate sanctions.” We decline to do so.
We dismiss the appeal for want of jurisdiction.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
101351F.P05
 
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF H.M.S., A CHILD,
 
No. 05-10-01351-CV
 
V.
 
 
                                Appeal from the 401st Judicial District Court of Collin County, Texas. (Tr.Ct.No. 401- 52595-2008).
Opinion delivered by Justice Francis, Justices Bridges and Lang participating.
        In accordance with this Court's opinion of this date, the appeal is DISMISSED for want of jurisdiction. It is ORDERED that appellee MARK SAMPLEY recover his costs of this appeal from appellants JENNIFER LUGO and CARY SCHULMAN.
 
 
Judgment entered June 14, 2012.
 
 
 
                                                          /Molly Francis/
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
 
 
Footnote 1 Rule 18a was amended effective Aug. 1, 2011, and this appeal was perfected many months earlier. Consequently, to the extent the rule is now substantively different, we rely on the earlier version of the rule.
Footnote 2 Although in their motion and in their brief, they characterize the ground as “constitutional disqualification,” the substance of the motion and the argument in the brief are directed at bias and impartiality, neither of which is a ground for constitutional disqualification. See Tex. R. Civ. P. 18b(1) (now found at Tex. R. Civ. P. 18b(a)). Instead, impartiality and personal bias or prejudice are grounds for recusal. See Tex. R. Civ. P. 18b(2)(a),(b) (now found at Tex. R. Civ. P. 18b(b)(1),(2)).