General Motors Corp. v. Evins

830 S.W.2d 355, 1992 WL 130585

• Court: Court of Appeals of Texas
• Decided: July 30, 1992
• Docket: 13-92-239-CV
• Status: Published

Opinions

OPINION

DORSEY, Justice.

In this original proceeding, relator, General Motors (GM) complains that the Honorable Joe B. Evins has abused his discretion in either failing to recuse himself from further proceedings in the underlying suit or to refer GM’s motion to recuse to the presiding judge of the administrative district in accordance with Tex.R.Civ.P. 18a. We believe that the mandamus action is premature because relator has presented us with a record which shows neither a clear abuse of discretion nor the failure to perform a ministerial act. We deny the writ of mandamus with instructions.

The plaintiffs in the underlying lawsuit sued GM for injuries allegedly suffered when a GM automobile, which they claim was in “park,” moved rearward because the transmission shifted into reverse unassisted. Prior to trial, GM filed a motion to recuse Judge Evins.¹ The recusal motion alleged that Judge Evins’ impartiality was in serious question because the plaintiff’s attorney, Ramon Garcia, and the trial judge had an ongoing attorney-client relationship. GM also asserted that the trial judge and Garcia had formerly been associated in the practice of law.

Judge Evins neither recused himself nor referred the case to the presiding judge of the administrative district. The case was tried on the merits, resulting in a jury verdict in GM’s favor. No motion for judgment or judgment have been presented to the court in the case to date.²

After the verdict was announced by the jury, GM again sought to recuse Judge Evins from hearing any post-verdict motions in the case. This motion was filed on March 4, 1992. The second recusal motion reiterated as grounds the existence of the attorney-client relationship and the former association of Garcia and the judge. The motion stated as an additional ground an allegation that Judge Evins had not filed or made public the jury verdict even though two months had elapsed since the verdict. GM alleged also that Judge Evins had refused to permit GM’s counsel to view the verdict. GM also raised additional claims which it alleges are proof that Judge Evins was not impartial in the handling of the ease, including: insinuations by the judge that GM’s counsel had acted dishonorably, partiality in evidentiary rulings and overall partiality in his post-trial dealings with GM.

After the recusal motion was filed, the plaintiffs filed a motion for mistrial. On April 17, 1992, GM notified the trial court that it had not received word on what action the trial court intended to take on the recusal motion. Judge Mancias signed an order setting both the motion to recuse and the motion for mistrial for April 30, 1992, in the 206th District Court.³ This hearing never took place because, in the interim, we granted GM’s motion for leave to file petition of writ of mandamus and request for a temporary stay.

Tex.R.Civ.P. 18a provides:

(a) At least ten days before the date set for trial or other hearing ... 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 a judge to hear such motion. If a judge decides to recuse himself, he shall enter an order of recusal and request the presiding judge of the administrative judicial district to assign another judge to sit, and shall make no further orders and shall take no further action in the case except for good cause stated in the order in which such action is taken,

d) If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district — an order of referral, the motion, and all opposing and concurring statements.

We agree with GM that a trial judge, when presented with a proper recu-sal motion, has the option of either recus-ing himself or referring the case to the administrative judge. Greenberg, Benson, Fisk & Fielder v. Howell, 685 S.W.2d 694, 695 (Tex.App.—Dallas 1984, orig. proceeding). The cases vary concerning whether a trial court may make the initial procedural inquiries concerning such matters as timeliness of the motion or sufficiency of the grounds for disqualification, etc.⁴ We need not reach that issue in order to dispose of the case before us.

Mandamus may issue only to correct a clear abuse of discretion or a trial court’s failure to perform a ministerial duty. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917-18 (Tex.1985). In a sense, the limited discretion allowed a trial judge in a recusal case is nearly ministerial in nature.

Our review of the record here shows that a motion to recuse was filed after verdict but before judgment. The trial judge has not recused himself, referred the case, or refused to rule. Although the trial court has not acted promptly on the recusal motion, we find that not so much time has passed that he has clearly refused to act. Further, the record does reflect that the court set a hearing on the recusal motion. We believe that when a trial judge is faced with a recusal motion, he may hold a hearing to determine if he will recuse himself from the case or refer the case to the administrative judge and enter an order. See Crawford v. State, 807 S.W.2d 597 (Tex.App.— Dallas 1991, no pet.). We prematurely granted leave before the hearing scheduled for April 30, 1992. We note that there was also a setting on the same date to determine plaintiffs’ motion for a mistrial. It clearly would have been improper for the trial court to have considered any other motion before it until the recusal motion was resolved.

We understand that filing recusal motions at a time other than prior to a trial is fraught with problems. However, the rule allows for sanctions if the presiding judge determines that the motion was sought for purposes of delay or without just cause. Tex.R.Civ.P. 18a(h). The purpose of the rule is to insure that all litigants may know that they have received a fair trial because the judge who presides over their case is impartial. The safeguards of the rule surely outweigh any delay tactic problems the rule may create.

In sum, we hold that the trial court did not clearly abuse his discretion. He should be given the opportunity to determine if he chooses to recuse himself or to refer the case to the administrative judge. If at the initial hearing, the trial court refuses to comply with Rule 18a, GM may then seek relief before this Court. At this point, the relief GM seeks is premature.

We deny the petition for writ of mandamus.

1 . The timeliness of the first motion to recuse was hotly disputed. We believe that the timeliness of the first motion is irrelevant to any disposition we make.

2 . GM candidly admits that it has not moved for judgment because it fears Judge Evins will grant either a mistrial or a new trial in the case. The trial court has great discretion with respect to granting both mistrials and new trials.

3 . Judge Evins is the presiding judge of this court.

4 . Procedural requirements are mandatory and a party who fails to comply with Rule 18a waives the right to complain of a judge's failure to recuse himself. Vickery v. Texas Carpet Co., 792 S.W.2d 759 (Tex.App.—Houston [14th Dist.] 1990, writ denied). The provisions of Rule 18a requiring a trial judge to either recuse himself or refer the motion never come in to play if the motion to recuse is not timely. Watkins v. Pearson, 795 S.W.2d 257 (Tex.App.—Houston [14th Dist.] 1990, writ denied). A trial judge, when presented with a recusal motion, regardless of the procedural sufficiency of that motion, has the option to act in one of two specified ways: to recuse himself or to refer the case to the presiding judge. Lamberti v. Tschoepe, 776 S.W.2d 651 (Tex.App.—Dallas 1989, writ denied).