Gulf Maritime Warehouse Co. v. Towers

858 S.W.2d 556, 1993 WL 284890
CourtCourt of Appeals of Texas
DecidedJuly 1, 1993
Docket09-92-055 CV
StatusPublished
Cited by64 cases

This text of 858 S.W.2d 556 (Gulf Maritime Warehouse Co. v. Towers) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 1993 WL 284890 (Tex. Ct. App. 1993).

Opinions

OPINION

WALKER, Chief Justice.

This appeal comes from the 172nd Judicial District Court of Jefferson County, Texas, Hon. Donald J. Floyd, presiding. A jury, by ten-two verdict, found appellant Gulf Maritime one hundred percent (100%) liable for injuries suffered by Jarrett Towers, Sr. (“Towers”). Towers recovered a judgment in his favor for $2,212,929.58. Mary Towers, wife of Towers, recovered a judgment in her favor for $319,000 and Jarrett Towers, Jr., son, recovered a judgment in his favor for $120,833.33. Appellant, Gulf Maritime, makes its appeal. Other appellees appearing herein are Quantum Chemical, a defendant below, and Texas Employers Insurance Association, an in-tervenor below.

We reverse and remand this case to the trial court from whence it came for reason that the Hon. Donald J. Floyd, presiding, was disqualified by law to sit as a judge in this ease. In view of our determination that Judge Floyd was disqualified, we make no address to the merits and substantive issues in this appeal. Our address shall be directed solely to the legal concerns requiring disqualification of the trial judge raised in point of error one.

Factually, Jarrett Towers, Sr., at the time of the accident resulting in his injuries, was working for Coastal Technicians, Inc. Coastal was in the business of contracting hired labor to various other companies. Towers was injured while working at the premises of appellant, Gulf Maritime Warehouse Company.

Appellant, Gulf, had facilities for handling, storing, packaging, and shipping various products. Appellee, Quantum Chemical Corporation, U.S.I. Division, produced plastic pellets and shipped them to Gulf Maritime in railroad hopper cars. Appellant, Gulf, using some of its own employees and some of the employees obtained from Coastal, unloaded these plastic pellets from the hopper cars. On September 30, 1988, Towers climbed a ladder to the top of a hopper car to open some hatches and apparently lost his balance and fell off onto the concrete below, sustaining serious injuries.

Appellee Towers filed his original lawsuit against appellant on October 19, 1989. On January 25, 1990, the Towers family, as plaintiffs, joined appellee Quantum as a defendant in the suit. On October 28, 1991, a jury was selected to hear this case and during the third day of trial appellant, Gulf, became aware that Judge Donald Floyd’s wife was an employee of defendant, Quantum Chemical Corporation. Upon learning of this fact, appellant Gulf requested a hearing on the matter. Appellant, Gulf, learned that Judge Floyd’s wife had been employed at Quantum Chemical for some fourteen years in a management position as Employee Relations Supervisor. [558]*558Judge Floyd and his wife had been married for fifteen years. Resulting from her employment with Quantum Chemical Corporation, Mrs. Floyd receives a salary, owns stock in Quantum through its pension plan and its employee stock ownership plan, and/or a 401(k) plan.

When Gulf became aware of Judge Floyd’s wife’s employment with Quantum, Gulf asked the trial judge to disqualify himself pursuant to Tex.R.Civ.P. 18b. Without detail, suffice it to say that Gulf and Quantum were adverse to each other on a number of issues in the trial. When Gulf first raised the question of disqualification or recusal, Judge Floyd responded that he would recuse himself if Gulf so moved. Judge Floyd, having made this offer, changed his mind after lunch break and refused to step down. Judge Floyd stated, “I think that I can be fair and I won’t recuse myself.” From this statement we presume that the foremost consideration given by Judge Floyd was as to his ability to be fair. Fairness may be an issue on recusal but is of no consideration on the question of disqualification.

A judge’s refusal to recuse • is viewed on appeal by an abuse of discretion standard. J-IV Investments v. David Lynn Machine, Inc., 784 S.W.2d 106, 107 (Tex.App.—Dallas 1990, no writ); Petitt v. Laware, 715 S.W.2d 688, 692 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.); Tex.R.Civ.P. 18a(f).

Regarding disqualification of a judge, we have two bases of consideration. First, is Tex. Const, art. V, § 11 which states as follows:

Sec. 11. No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case ... (emphasis ours)

The second basis is Tex.R.Civ.P. 18b(l) which reads as follows:

(1) Disqualification. Judges shall disqualify themselves in all proceedings in which:
(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter; or
(b) they know that, individually or as a fiduciary, they have an interest in the subject matter in controversy; or
(c) either of the parties may be related to them by affinity or consanguinity within the third degree.

There is a distinction between Rule 18b(l)(b) and Rule 18b(2)(e). Rule 18b(2) deals with recusal as opposed to disqualification. Under the disqualification portion of Rule 18b the reference is to “an interest”. Under the recusal section of Rule 18b(2)(e) the interest is described as a “financial interest”. Is an “interest” under the disqualification portion of the rule different from a “financial interest” under the recusal section of the rule? We think not, for, the interest of a judge, in order that he may be disqualified, must, in general, be a direct pecuniary or property interest in the subject matter of litigation. City of Pasadena v. State, 428 S.W.2d 388 (Tex.Civ.App.—Houston [1st Dist.] 1967), overruled on other grounds, (concurring opinion on rehearing) 442 S.W.2d 325 (Tex.1969); see also, Narro Warehouse, Inc. v. Kelly, 530 S.W.2d 146, 149 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.) (interest must be direct, real and certain, immediately resulting from the litigation in question); Moody v. City of University Park, 278 S.W.2d 912, 919 (Tex.Civ.App.—Dallas 1955, writ ref’s n.r.e.) (judge must stand to gain or lose a measurable benefit as direct consequence of suit); Wagner v. State, 217 S.W.2d 463, 464 (Tex.Civ.App.—San Antonio 1948, writ ref’d n.r.e.) (interest necessary to disqualify must be direct or pecuniary interest in subject matter of litigation). Once a pecuniary interest is shown to exist, the judge is disqualified no matter how slight the interest. See Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.), cert. denied, 444 U.S. 868, 100 S.Ct. 142, 62 L.Ed.2d 92 (1979); Lindsley v. Lindsley, 152 S.W.2d 415, 433 (Tex.Civ.App.-Dallas 1941) (opinion on rehearing), rev’d on other

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858 S.W.2d 556, 1993 WL 284890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-maritime-warehouse-co-v-towers-texapp-1993.