in Re United Water Restoration Group of Greater Houston and United Franchise Holdings, LLC

• Court: Court of Appeals of Texas
• Decided: December 8, 2022
• Docket: 09-22-00346-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-22-00346-CV __________________

IN RE UNITED WATER RESTORATION GROUP OF GREATER HOUSTON AND UNITED FRANCHISE HOLDINGS, LLC

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Original Proceeding 457th District Court of Montgomery County, Texas Trial Cause No. 21-04-05449-CV __________________________________________________________________

MEMORANDUM OPINION

In a petition for a writ of mandamus Relators United Water Restoration Group

of Greater Houston and United Franchise Holdings, LLC seek to compel the

Assigned Presiding Judge to declare void all orders signed in Trial Cause Number

21-04-05449-CV by the Judge of the 457th District Court, who voluntarily recused

himself on September 28, 2022, two days after Relators filed a motion to disqualify

the judge.

Relators contend the former judge was required sua sponte to disqualify

himself because a lawyer with whom the judge previously practiced law served as a

1 lawyer in the matter in controversy during such association as a lawyer concerning

the matter. See Tex. R. Civ. P. 18b(a)(1) (“A judge must disqualify in any proceeding

in which: (1) the judge has served as a lawyer in the matter in controversy, or a

lawyer with whom the judge previously practiced law served during such association

as a lawyer concerning the matter[.]”). They ask for mandamus relief compelling the

Assigned Presiding Judge to vacate and expunge from the trial court record: (1) a

docket control order signed June 18, 2021; (2) an order granting an agreed motion

to appoint a guardian ad litem for the minor children signed October 17, 2021; (3)

an order granting a motion to set a new trial date signed March 1, 2022; (4) a docket

control order signed March 1, 2022; (5) an order overruling the special appearance

of United Franchise Holdings, LLC, signed April 6, 2022; (6) an order denying

defendants’ first motion for continuance and request for entry of a new docket

control order signed September 20, 2022; and (7) an order denying defendants’

motion to designate a responsible third party signed September 20, 2022.

In response to the mandamus petition, the Real Parties in Interest, Wesley

Jones and Lindsey Jones, Individually and as Next of Kin of three minors, note that

the Assigned Presiding Judge held a hearing on Relators’ motion for continuance

and request for a new docket control order, and on October 27, 2022 signed an order

that reset the trial date to April 10, 2023 and retained the applicable deadlines

established under the previous docket control order. They claim that Relators neither

2 directly addressed their demand to vacate the recused judge’s orders in the hearing

nor followed up with a specific motion to vacate the orders. The Joneses argue that

vacating the prior orders will not affect the operative scheduling order of the

Assigned Presiding Judge. The Joneses also claim the Assigned Presiding Judge

denied Relators’ attempt to designate a responsible third party.

The issue presently before us is not whether a disqualified judge signed void

orders in Trial Cause Number 21-04-05449-CV. That judge is not the respondent in

this mandamus proceeding. Rather, the issue presently before us is whether the

Assigned Presiding Judge abused his discretion by failing to sign an order vacating

seven orders signed by a disqualified judge. Relators have not established that they

asked the respondent judge to vacate the orders, nor have they shown that they have

been harmed by the respondent’s failure to vacate the orders sua sponte. It appears

that five of those orders have been replaced by new orders by a judge who is not

disqualified, and Relators have not shown that they asked the Assigned Presiding

Judge to rule on the agreed motion to appoint a guardian ad litem and the special

appearance of United Franchise Holdings, LLC because the orders presently on file

were signed by a disqualified judge.

The relators have the burden of providing this Court with a sufficient record

to establish their right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837

(Tex. 1992) (orig. proceeding). Under these circumstances, Relators have failed to

3 establish a right to the extraordinary relief sought in the mandamus petition. We

deny the petition for a writ of mandamus. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on November 14, 2022 Opinion Delivered December 8, 2022

Before Golemon, C.J., Kreger and Horton, JJ.