in Re: Healthmark Partners, L.L.C., D/B/A Gulf Health Care Center in Galveston

Opinion

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed August 26, 2004

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed August 26, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00743-CV

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IN RE HEALTHMARK PARTNERS, L.L.C. D/B/A GULF HEALTH CARE CENTER IN GALVESTON , Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On August 10, 2004, relator filed a petition for writ of mandamus in this Court.  See Tex. Gov=t. Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  Relator asks this Court to issue a writ of mandamus ordering the Honorable Susan Criss, Judge, 212th District Court of Galveston County, to recuse herself or refer Relator=s motion to recuse to the presiding judge of the administrative judicial district.  See Tex. R. Civ. P.  18a.  We originally denied relator=s petition, and it filed a motion for reconsideration.  We grant relator=s motion for reconsideration and conditionally grant the writ of mandamus.

Trial began in this case on August 9, 2004.  The week before trial, on August 4, Judge Criss made statements during a  hearing that relator believes are evidence of bias.  On Friday, August 6, relator filed a motion to recuse.  It served the motion and exhibits by fax, but the real party in interest (Areal party@) did not receive the motion until 5:04 p.m.  Thus, the motion was deemed served the following day.^[1]  See Tex. R. Civ. P. 21a.

On Monday, August 9, relator presented its motion to recuse to Judge Criss.  She refused to either recuse or refer the motion to the presiding judge of the administrative judicial district.  This mandamus followed.

The standards applied in a mandamus proceeding have been clearly set by the Texas Supreme Court in Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).  Mandamus is an extraordinary remedy.  Id. at 840.  To be entitled to the remedy of mandamus, a relator must meet two requirements.  First, relator must show that the trial court clearly abused its discretion.  Id. at 839B40.  Second, the relator must have an inadequate remedy by appeal.  Id.  This court has no power to issue a writ of mandamus in the absence of these conditions.  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).  Mandamus is appropriate when the judge whom the party seeks to recuse refuses to either recuse or refer the motion to the administrative judge.  Winfield v. Daggett, 846 S.W.2d 920, 922 (Tex. App.CHouston [1st Dist.] 1993, orig proceeding);  see In re Presley, 2000 WL 688239, at * 1 (Tex. App.CDallas 2000, orig. proceeding); see also In re Rio Grande Valley Gas Co., 8 S.W.3d 303, 306-07 (Tex. 1999) (Hecht, J., dissenting from denial of petitions for writs of mandamus); McLeod v. Harris, 582 S.W.2d 772, 773-75 (Tex. 1979) (orig. proceeding) (conditionally issuing writ of mandamus because trial judge had mandatory duty to refer motion to recuse to region=s administrative judge).

Real party argues that relator=s motion to recuse was untimely filed because it was filed on Friday, August 6, just three days before trial began.  Texas Rule of Civil Procedure 18a(a) requires a party to file its motion to recuse A[a]t least ten days before the date set for trial or other hearing.@  However, A[t]his ten‑day requirement of Rule 18a does not contemplate the situation in which a party cannot know the basis of the recusal until after a motion for recusal is no longer timely.@  Keene Corp. v. Rogers, 863 S.W.2d 168, 171 (Tex. App.CTexarkana 1993, no writ); see Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex. App.CHouston [14th Dist.] 1997, pet. denied) (post-trial motion to recuse); Kirby v. Chapman, 917 S.W.2d 902, 910 (Tex. App.CFort Worth 1996, no writ) (post-trial).  In such instances, good cause excuses late filing.  Relator=s motion to recuse alleges that Judge Criss evinced bias in comments and rulings she made on August 4, within ten days of trial.  Therefore, Judge Criss could not refuse to act on respondent=s motion based on its untimeliness.^[2]

Real party also argues relator gave less than three days= notice that it intended to present the motion to recuse.  Rule 18a(b) states that a party must serve a notice that movant expects the motion to be presented to the judge three days after the filing of such motion.  We have not found any authority in which lack of such notice alone justified inaction by the trial court.  It makes little sense to allow a trial court to avoid a motion to recuse based solely on less than three days= notice to the opposition when after three days, the defect is defeated.  Additionally, relator twice offered in open court to postpone the hearing for an additional three days.  In these circumstances, the trial court abused its discretion in refusing to recuse or refer the motion to the administrative judge.

Next, real party argues that relator has Aunclean hands@ and is thus precluded from receiving mandamus relief.  AMandamus is a legal remedy, but it is governed to some extent by equitable principles.  Nonetheless, the doctrine of unclean hands has been used to deny issuance of the writ.@  Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 552 n.2 (Tex. 1990, orig. proceeding).  Real party argues that because relator has a history of serving documents late or not at all and because relator is simply trying to delay trial, it has unclean hands.  Relator disputes that it has engaged in gamesmanship with its service of documents.  Given the dispute, it is premature and inappropriate for this court to apply the unclean hands doctrine.  See In re Simon Prop. Group (Del.), Inc., 985 S.W.2d 212, 215 (Tex. App.CCorpus Christi 1999, orig. proceeding).  Further, Rule 18a(h) specifically permits sanctions if a motion to recuse is brought for delay and without sufficient cause.  However, this is determined by the judge who hears the motion to recuse, not this court.  We therefore decline to bar mandamus relief in this case based on the doctrine of unclean hands.

In the circumstances of this case, Judge Criss had only two options, recusal or referral.  Because she took neither, we grant relator=s motion for reconsideration and conditionally grant the petition for writ of mandamus.^[3]  A writ will issue only if the judge fails to comply with this opinion within thirty days of this date.

PER CURIAM

Petition Conditionally Granted and Memorandum Opinion filed August 26, 2004.

Panel consists of Justices Yates, Edelman, and Guzman.

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^[1] Some exhibits were missing in the fax, but real party obtained a complete copy on Monday, August 9.

^[2]  There are conflicting cases whether a trial court may determine the procedural correctness of a motion to recuse before deciding whether to recuse or refer.  Compare, e.g., In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 178‑79 (Tex. App.CCorpus Christi 1999, orig. proceeding); Bourgeois v. Collier, 959 S.W.2d 241, 246 (Tex. App.CDallas 1997, no pet.); Ross v. State, 947 S.W.2d 672 (Tex. App.CTexarkana 1997, no pet.);  Greenberg, Fisk & Fielder v. Howell, 676 S.W.2d 431, 433 (Tex. App.CDallas 1984, orig. proceeding) with DeLeon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004) (orig. proceeding); Barron v. State, 108 S.W.3d 379 (Tex. App.CTyler 2003, no pet.); Spigener v. Wallis, 80 S.W.3d 174, 181 (Tex. App.CWaco 2002, no pet.); Gill v. Tex. Dep=t Crim. Justice, 3 S.W.3d 576 (Tex. App.CHouston [1st Dist.] 1999, no pet.).  This Court has held that even if a motion to recuse is untimely, a trial judge has but two options:  to recuse or refer the case to the presiding judge.  Jamilah v. Bass, 862 S.W.2d 201, 203 (Tex. App.CHouston [14th Dist.] 1993, orig. proceeding); accord Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex. App.CHouston [14th Dist.] 2001, no pet.); but see Watkins v. Pearson, 795 S.W.2d 257 (Tex. App.CHouston [14th Dist.] 1990, writ denied).  Resolution of this conflict is not necessary to the disposition of this proceeding.

^[3] Real party also argues that the motion to recuse takes Judge Criss=s statements out of context and is substantively without merit.  However, these arguments require a determination of the merits of the motion to recuse.  This court is not addressing the merits of the motion.  We are concerned only with the failure to either recuse or refer the motion to the administrative judge.