Mandamus must be sought against judge who signed order complained of; new judge to be asked to reconsider

In re Allianz Global Risk US (Tex.App.- Houston [1st Dist.] Feb. 29, 2008)(per curiam) (mandamus not appropriate against judge who did not sign the order)
Panel members: Justices Tim Taft, Sam Nuchia and Laura Higley
Style: In re Allianz Global Risk US, Allianz Life Insurance Company of North America, Allstate Insurance Company, Chubb Indemnity Insurance Company, Continental Casualty Company, Fireman's Fund Insurance Company, et al.
Appeal from 11th District Court of Harris County (Judge Mark Davidson)
Dispostion: Denied

Original Proceedings on Petitions for Writs of Mandamus

MEMORANDUM OPINION

The relators complain of a November 30, 2005, order signed by the Honorable Jack Hunter, former presiding judge of the 94th District Court of Nueces County. (1) Judge Hunter denied the relators' motions to dismiss the underlying consolidated case with prejudice and for special exceptions. Relators have not asked the successor judge, the Honorable Bobby Galvan, to reconsider Judge Hunter's order as is normally required by Texas Rule of Appellate Procedure 7.2(b). Instead, relators suggest the proper respondent is the Honorable Mark Davidson, judge of the 11th District Court of Harris County, because Judge Davidson has been assigned as the presiding judge of the pretrial court in which the case is now pending based on asbestos-related injury claims. (2) See Tex. R. Jud. Admin. 13.6(a).

Because mandamus does not lie against a trial judge who did not personally sign the order, we will not grant mandamus relief directed at a trial judge based on an order signed by another judge. See In re Alsenz, 152 S.W.3d 617, 623 (Tex. App.--Houston [1st Dist.] 2004, orig. proceeding). After we requested that the parties address the issue raised in Alsenz, relators asked Judge Davidson to reconsider Judge Hunter's order. On November 5, 2007, Judge Davidson took the position that he is prohibited by statute from ruling on the merits of relators' requested relief. See Tex. Civ. Prac. & Rem. Code Ann. § 90.010 (Vernon Supp. 2007). Relators have not amended their petitions to request mandamus relief specific to Judge Davidson's November 12, 2007 order denying them leave to file motions to set aside Judge Hunter's order denying their pleas to the jurisdiction and special exceptions. Instead, relators continue to request mandamus relief directing Judge Davidson to grant their motions to dismiss with prejudice the underlying consolidated case . Judge Davidson has never reached the merits of those motions.

We deny the petitions for writs of mandamus.

PER CURIAM

Panel consists of Justices Taft, Nuchia, and Higley.

1. Atkinson v. Union Carbide Corp., No. 05-04515-C (94th Dist. Ct., Nueces County, Tex. Nov. 20, 2005). The relators in case number 01-06-00165-CV are Allianz Global Risk US, Allianz Life Insurance Company of North America, Allstate Insurance Company, Chubb Indemnity Insurance Company, Continental Casualty Company, Fireman's Fund Insurance Company, Hartford Steam Boiler Inspection and Insurance Company, Hartford Steam Boiler Inspection and Insurance Company of Connecticut, Liberty Mutual Insurance Company, Maryland Casualty Company, St. Paul Fire and Marine Insurance Company, United States Fidelity and Guaranty Company, The Fidelity and Casualty Co. of New York, and Zurich American Insurance Company. The relators in case number 01-06-00166-CV are Marsh USA Inc. (Delaware) and Marsh USA Inc. (Texas). The real parties in interest in both cases are Filiberto Atkinson, J.C. Diggs, Jimmie Fleeman, Thomas King, and Emilio Mireles.

2. Atkinson v. Union Carbide Corp., No. 2004-03964 (11th Dist. Ct., Harris County, Tex.).