Order Denying Motion to Recuse Trial Judge Not Immediately Appealable

Larkins-Ruby v Sealy ISD et al, No. 01-17-00716-CV (Tex.App. - Houston [1st Dist.] May 15, 2018) (no appeal from order denying motion to recuse in interlocutory appeal, appeal only feasible from final judgment). 

Opinion issued May 15, 2018

In The

Court of Appeals

For The

First District of Texas

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NO. 01-17-00716-CV

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JENNIFER ANN LARKINS-RUBY, Appellant

V.

SEALY INDEPENDENT SCHOOL DISTRICT, ET AL., Appellees

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Case No. 2017V-0103

MEMORANDUM OPINION

Jennifer Ann Larkins-Ruby, proceeding pro se, attempts to appeal from an
interlocutory order denying her motion to recuse the trial court judge. Appellees
have filed a motion to dismiss the appeal for lack of jurisdiction, asserting that a
final judgment has not issued in the case and an interlocutory appeal of the order is
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not authorized. Appellant’s response failed to demonstrate a basis for our court’s
jurisdiction over the appeal. We grant appellees’ motion and dismiss the appeal.

Generally, appellate courts have jurisdiction only over appeals from final
judgments. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); N.E.
Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). A judgment is final
for purposes of appeal if the judgment disposes of all pending parties and claims
before the trial court. Aldridge, 400 S.W.2d at 895. The clerk’s record filed in this
appeal does not show, and appellant has not asserted, that the trial court has signed
a final judgment that disposes of all parties and claims before the Court.

An appellate court also has jurisdiction to consider an appeal from an
interlocutory order if a statute explicitly provides jurisdiction. Stary v. DeBord, 967
S.W.2d 352, 352–53 (Tex. 1998); see, e.g., TEX.R.CIV. PROC. § 51.014 (authorizing
appeals from certain interlocutory orders). But no statute authorizes an appeal from
an interlocutory order denying a motion to recuse. See Rizk v. Gray, No. 01–16–
00374–CV, 2016 WL 7104020, at *1 (Tex. App.—Houston [1st Dist.] Dec. 6, 2016,
no pet.) (mem. op.). To the contrary, Texas Rule of Civil Procedure 18a(j)(1)(A)
expressly provides that “[a]n order denying a motion to recuse may be reviewed only
for abuse of discretion on appeal from the final judgment.” TEX. R. CIV. PROC.
18a(j)(1)(A); see Rizk, 2016 WL 7104020, at *1 (explaining interlocutory order
denying motion to recuse “is appealable only on appeal of the final judgment”). We,
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thus, lack jurisdiction over appellant’s attempted appeal of the order denying her
motion to recuse.

Accordingly, we dismiss the appeal for lack of jurisdiction. We dismiss any
other pending motion as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

Unopposed motion to transfer appeal to avoid conflict of interest denied by newest member of First Court of Appeals, Justice Russell Lloyd

In one of his first official acts as a member of the First Court of Appeals, freshman Justice Russell Lloyd on January 15, 2015 denied a motion to transfer a case from the First to the Fourteenth Court of Appeals, which was filed to avoid a conflict of interest. The motion was not objected to by the other party in the appeal. Both appellate courts sit in Houston, and hear cases from the same counties, which are assigned randomly to one or the other.  
 
Attorney Orjanel Lewis requested the transfer after an appeal in which his firm - RADACK AND BORUNDA, P.C. -  represents a medical malpractice plaintiff who had summary judgment entered against her by a Harris County District Court was assigned to the First Court of Appeals. The transfer was sought because Jeremy Radack, a name partner and shareholder of the law firm that handles the appeal for the unsuccessful plaintiff in the trial court, is the son of Sherry Radack, the First Court's Chief Justice.

In denying the motion in a short order, Judge Lloyd acted individually, rather for the court. He did not give a reason, other than to cite to the rules governing transfer, disqualification, and recusal.

 RADACK AND BORUNDA, P.C. - Public Information 

Attorneys are notoriously loath to file recusal motions against sitting judges because they do not want to question the impartiality of a judge before whom they may appear in the future, and make themselves unpopular.

Justice Russell Lloyd took office January 1, 2015, replacing Jim Sharp, who lost his re-election bid. Justice Lloyd does not yet have an official biography on the First Court of Appeal's website (as of 1/21/2015).  Attorney Russell T. Lloyd's profile on file with the State Bar of Texas was last certified on 04/17/2014 and reflects that he practiced law as a solo. He received his law license in 1978 after earning his law degree from the University of Texas that same year. Judge Lloyd's LinkedIn profile provides much more detailed information about his background.

Probate Court Recusal Saga Involving Judge Wood Continues

In the latest installment of a series of appellate opinions involving recusal motions under TRCP 18a stemming from the same underlying probate dispute, a panel of the 14th Court of Appeals today granted mandamus relief, disapproving of Probate Judge Wood's denial of a motion to recuse him, based on a procedural technicality. Faced with a motion to recuse, timely or otherwise, the judge - as target of the motion - should have referred it to the administrative judge for a decision on its procedural propriety (and, if so, its merits) by another judge. The reviewing court finds that both the order adjudicating the recusal motion signed by the judge sought to be recused, and a transfer order signed by him while the recusal motion was pending are void.

MEMORANDUM OPINION BY JUSTICE ANDERSON

In this original proceeding, relator, Miguel Angel Guilbot, seeks a writ of mandamus ordering the respondent, Judge Mike Wood, judge of Probate Court No. 2, to vacate orders signed April 17, 2009, June 18, 2009, and June 19, 2009. We conditionally grant the writ.

Factual and Procedural Background

This dispute centers on a family business and the litigation that ensued among family members after one of the business's co-founders died. The co-founder's will was probated in 2003, and litigation began in 2004.

The original suit was filed in Probate Court No. 2 and bore the cause number 344,157-401. In that case, relator filed a motion to recuse Judge Wood. Judge Wood refused to recuse himself and forwarded relator's recusal motion to Judge Guy Herman, presiding judge of the statutory probate courts. Judge Herman assigned Judge Gladys Burwell to hear the motion to recuse Judge Wood. Relator thereafter filed motions to recuse both Judge Herman and Judge Burwell. Judge Herman denied all of the motions to recuse, including the motion to recuse directed at him. Judge Wood then held a bench trial and signed a final judgment.

Relator and two other parties appealed Judge Wood's judgment. Among other issues, they asserted that Judge Wood's judgment was void because Judge Herman erred in ruling on a motion to recuse Judge Herman. This court held that Judge Herman erred when he ruled on a motion to recuse directed at him. Guilbot v. Estate of Gonzalez, 267 S.W.3d 556, 561 (Tex. App.- Houston [14th Dist.] 2008, pet. filed). Because Judge Herman erroneously ruled on the motion to recuse directed at him, this court concluded that Judge Herman's order denying the motion to recuse Judge Wood was void.

Because a recusal motion was pending against Judge Wood when he signed the final judgment, Judge Wood's judgment also was void. Id.

While the appeal from the original suit was pending, relator filed a second suit on December 21, 2007, in the 295th District Court of Harris County against the real parties in interest. The second suit asserted that the will at issue was forged and was procured through fraud. On March 27, 2009, the real parties in interest filed a motion to transfer the second suit to Probate Court No. 2 on grounds that the issues were identical to those in the original case tried in Judge Wood's court. The motion to transfer was set for a hearing on April 17, 2009. On April 15, 2009, relator filed a motion to recuse Judge Wood. On April 17, 2009 Judge Wood signed an order granting the real parties' motion to transfer the case to Probate Court No. 2.

On June 18, 2009, Judge Wood signed an order denying relators' motion to recuse him. On June 19, 2009, Judge Wood signed an order referring the recusal to Judge Guy Herman, presiding judge of the statutory probate courts.

Relator challenges Judge Wood's orders of April 17, 2009, June 18, 2009, and June 19, 2009. Relators contend these orders are void because Judge Wood did not recuse himself in response to the April 15, 2009 recusal motion and did not refer that motion to the presiding judge.

Generally speaking, mandamus relief is available upon a showing that (1) the trial court abused its discretion; and (2) there is no other adequate remedy in law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

With respect to the first prong, a trial court abuses its discretion when it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005).

With respect to the second prong, “Texas law has long held that mandamus will issue where the trial court's order is void and that it is unnecessary for a relator to pursue other available remedies." South Main Bank v. Wittig, 909 S.W.2d 243, 244 (Tex. App.- Houston [14th Dist.] 1995, orig. proceeding).

Denial of a motion to recuse is appealable upon final judgment. Tex. R. Civ. P. 18a(f). Thus, a relator challenging the denial of a recusal motion ordinarily has an adequate remedy by appeal of the denial of a motion to recuse. However, mandamus relief is available when a judge violates a mandatory duty to recuse or refer a motion to recuse. In re Norman, 191 S.W.3d 858, 860 (Tex. App.- Houston [14th Dist.] 2006, orig. proceeding).

Analysis

Under Rule 18a, Judge Wood had a mandatory duty to recuse himself or to refer the recusal motion to the presiding judge. Tex. R. Civ. P. 18a. The real parties in interest contend that Judge Wood properly granted the motion to transfer and denied the recusal motion because the motion was not timely filed pursuant to section 25.00255 of the Government Code.

Under section 25.00255, a recusal motion must (1) be filed at least 10 days before the date of a hearing or trial; (2) be verified: and (3) state with particularity the alleged grounds for recusal. Tex. Gov't Code Ann. § 25.00255(b) (Vernon Supp. 2009). Real parties contend that Judge Wood was entitled to deny relator's April 15, 2009 recusal motion because it was filed only two days before the hearing on the motion to transfer.

Regardless of whether a motion to recuse may be defective or untimely, the challenged judge must recuse or refer the motion so that another judge can determine the procedural adequacy and merits of the motion. Norman, 191 S.W.3d at 861.

Judge Wood did not have the option of denying the motion to recuse as untimely. Jamilah v. Bass, 862 S.W.2d 210, 203 (Tex. App.- Houston [14th Dist.] 1993, orig. proceeding) (The trial judge must recuse himself or refer the motion to the presiding judge “regardless of the timeliness of the motion.").

Thus, we hold that Judge Wood abused his discretion by signing (1) the April 17, 2009 order granting the motion to transfer; and (2) the June 18, 2009 order denying the motion to recuse.

Both orders are void, and mandamus is the appropriate remedy to address these void orders. In re Norman, 191 S.W.3d at 860. The June 19, 2009 order referring the recusal motion to the presiding judge is proper, and that order stands.

Conclusion

Because the orders signed on April 17, 2009 and June 18, 2009 are void, we conditionally grant the writ of mandamus. The writ will issue only if the trial court fails to vacate the orders signed on April 17, 2009 and June 18, 2009.

/s/ John S. Anderson

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.

In Re Guilbot (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Anderson)(motion to recuse trial judge) (Probate court judge did not have the option of denying the motion to recuse as untimely).
MOTION OR WRIT GRANTED: Opinion by Justice John Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00595-CV In Re Miguel Angel Gonzales Guilbot
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood

Judge Cagle's indiosyncrasies subject of non-recusal appeal

[This post has been removed - upon reconsideration - upon a polite request by Judge Cagle]