Victor Enterprises, Inc., v. Holland, Clifford--Appeal from County Court at Law No. 1 of Dallas County (memorandum opinion )

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REVERSE and RE IAND; Opinion issued January 29, 2013 in The (!mtrt nf iprat, .?fiftIi Jitrict uf ixa at 1a1Ia 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. VE1 then filed its notice 2 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 3 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 (!nitrt uf \v1Tczt1! fiftI! iitrirt uf Itxai at a11a JUDGMENT VICTOR ENTERPRISES. iNC.. Appellant No. 05-10-01592-CV V CLIFFORD HOLLAND, Appellee Appeal from the County Court at Law No. I of Dallas County, Texas. (Tr.Ct.No. CC-0907625-A). Opinion delivered by Justice Bridges, 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. 7 1 / [)AV1D L. BR1I)G JUSTICE -

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