De La Garza, Javier E. and Javier E. De La Garza, M.C., P.A. v. Knapp Medical Center

• Court: Court of Appeals of Texas
• Decided: April 28, 2000
• Docket: 13-98-00612-CV
• Status: Published

Opinion

NUMBER 13-98-612-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JAVIER E. DE LA GARZA

AND JAVIER E. DE LA GARZA,

M.D., P.A., Appellant,

v.

KNAPP MEDICAL CENTER, Appellee.

___________________________________________________________________

On appeal from the 370th District Court

of Hidalgo County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez, and Rodriguez

Opinion by Justice Dorsey

This case concerns the procedure for properly and timely objecting to a visiting judge. Appellant, De La Garza, is a physician who filed suit against Knapp Medical Center (KMC), where he formerly had active staff privileges, alleging various causes of action. On July 20, 1998, assigned Judge Robert Barnes signed an order dismissing the case. De La Garza contends that he filed a timely objection to assignment of Judge Barnes, and that Barnes' order dismissing the case is void. Appellee contends that De La Garza did not make an adequate and timely objection to assignment of Judge Barnes, and that De La Garza has presented this court with an insufficient record to show entitlement to any relief.

De La Garza filed the original petition in this suit in May of 1994. The case was removed to federal court, then remanded to the 275th Judicial District Court of Hidalgo County in October of 1994. It appears from the clerk's record that all orders were signed by the judge of the 275th District Court, Juan R. Partida, until August of 1996. Notably, on April 21, 1996, Judge Partida signed an order requiring De La Garza to give security for costs accruing in the suit within twenty days. (Because the suit sought an accounting, substantial auditor's fees had accumulated.) It appears that De La Garza failed to give security in accordance with this order, and defendant KMC filed a motion to dismiss on that basis in September of 1996. No hearing was held on the motion to dismiss until much later.

In early 1997, the case was transferred from the 275th District Court to the 370th District Court. This transfer was done by agreement between Judge Partida (of the 275th District) and Judge Noe Gonzales of the 370th District.

Then, in August of 1997, and again in February of 1998, Judge Noe Gonzales signed orders of referral requesting the Presiding Judge assign yet another judge to the case due to the fact that Judge Gonzales had two capital murder cases scheduled for trial. Both these orders indicate they were sent to each attorney of record. On February 17, 1998, the Presiding Judge assigned the case to Judge Robert Barnes pursuant to Texas Government Code section 74.056. The clerk's record does not indicate if notice of the assignment was given to the attorneys. On July 15, 1998, Judge Barnes signed an order setting a hearing on KMC's motion to dismiss for the 20th of July. De La Garza filed a pro se written objection to the assigned judge at 9:00 a.m. the morning of the hearing.

Although De La Garza appears to have filed a timely objection to the assigned judge, there is no indication that he presented the objection and obtained a ruling before Judge Barnes proceeded to hear and make a ruling on KMC's motion to dismiss. After hearing the motion to dismiss, Judge Barnes dismissed De La Garza's suit. There is no indication that De La Garza presented his objection to any court for a ruling, or indeed, that he did anything other than file the objection. Because no transcript was made of that hearing, we are unable to determine whether De La Garza urged his objection orally at any time during the hearing.

After the suit was dismissed, De La Garza filed a motion for new trial. His basis for seeking new trial was that his suit was improperly dismissed for failure to pay costs because he had been led to believe by his attorneys that the security for costs had been paid, and thus, it would be unfair to penalize him for the attorneys' misrepresentations. No issue was raised in the written motion for new trial regarding objection to Judge Barnes. The oral hearing on De La Garza's motion for new trial was held on September 21, 1998, again, before Judge Barnes. The transcript of that hearing reveals that, again, De La Garza never mentioned any objection to Judge Barnes' assignment. Upon denial of his motion for new trial, De La Garza timely perfected this appeal.

His sole point is that the trial court erred in continuing to hear issues in the case after he filed his objection to assignment of Judge Barnes. He contends that disqualification was mandatory, and thus, all orders issued by Judge Barnes are void. We hold that he waived his objection by failing to timely present and obtain a ruling upon it.

Section 74.056 of the Texas Government Code allows a presiding judge to assign judges of the administrative region to hold special or regular terms of court to try cases and dispose of accumulated business. Tex. Govt. Code Ann. 75.056(a) (Vernon 1998). Under section 74.053, the presiding judge must give notice of the assignment to each attorney representing a party in the case if it is reasonable and practicable and time permits. Id. at 74.053(a). A party may object to the assignment of a judge. Id. at 74.053(b). "The objection, which may be made without cause or reason, automatically disqualifies the assigned judge." In re Houston Lighting & Power Co., 976 S.W.2d 671, 672 (Tex. 1998). Unless the case is assigned to a former judge or justice who was not a retired judge, each party is only entitled to one objection to the assignment. Tex. Govt. Code Ann. 75.056 (b), (d) (Vernon 1998).

The statute requires an objection to be filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside. Id. at 74.053 (b). Once a timely objection is made, disqualification is automatic, and mandamus is available if the assigned judge overrules the timely objection to having him or her preside over the case. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437, 440-41 (Tex. 1997). Any subsequent orders made by that judge are void. Id. at 437.

However, the right to object under section 74.053 may be waived. Texas Employment Commission v. Alvarez, 915 S.W.2d 161, 164-65 (Tex. App.--Corpus Christi 1996, no writ); see also Chandler v. Chandler, 991 S.W.2d 367, 383-84 (Tex. App.--El Paso 1999, pet. denied) (holding that party waived objection although written objection timely filed where party did not present and obtain a ruling before judge conducted hearings on other matters in the case). The objection must be the first matter presented to the visiting judge for a ruling. Chandler, 991 S.W.2d at 383; Morris v. Short, 902 S.W.2d 566, 569 (Tex. App.--Houston [1st Dist.] 1995, writ denied). This requirement imposes an obligation on the complaining litigant to urge the objection at the commencement of the first hearing if it has not already been determined by the visiting judge stepping aside or by the administrative presiding judge directing the visiting judge to step aside. Chandler, 991 S.W.2d at 383. The objection must be presented to the assigned judge and ruled upon as a preliminary matter before the visiting judge is prohibited from hearing the case. Id.

While we agree that the prohibition from hearing a case is mandatory upon a proper objection, under the circumstances of this case, however, we hold that De La Garza's objection was insufficient to trigger the mandatory prohibition. De La Garza has provided this court with no indication that the assigned judge was presented with sufficient information to know that he was the subject of a timely objection under section 74.053. Cf. Flores v. Banner, 932 S.W.2d 500, 502 (Tex. 1996) (holding adequate an objection that gave assigned judge "sufficient information to know that he was the subject" of objection). The objection must be presented to the assigned judge and ruled upon as a preliminary matter before the assigned judge becomes prohibited from hearing the case. Alvarez, 915 S.W.2d at 164-65; see Chandler, 991 S.W.2d at 383-84; Morris v. Short, 902 S.W.2d 566, 568-69 (Tex. App.--Houston [1st Dist.] 1995, writ denied); see also Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 709 (Tex. App.--San Antonio 1996, writ denied); $19,070 v. State, 869 S.W.2d 608, 614 (Tex. App.--Houston [14th Dist.] 1994, no writ). The purpose of the requirement that the objection be the first matter heard is to avoid a situation that would encourage litigants to delay objections until they "get a feeling" for how a judge is going to rule in a case. Logic Sciences, Inc. v. Smith, 798 S.W.2d 394, 395 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding). We hold that De La Garza's failure to present his timely-filed objection and obtain a ruling prior to proceeding with other matters in the case before the court waived his automatic strike under section 74.053.

The decision of the trial court is AFFIRMED.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 28th day of April, 2000.