Monroe v. Blackmon

946 S.W.2d 533, 1997 Tex. App. LEXIS 2605, 1997 WL 253571
CourtCourt of Appeals of Texas
DecidedMay 15, 1997
Docket13-96-642-CV
StatusPublished
Cited by10 cases

This text of 946 S.W.2d 533 (Monroe v. Blackmon) 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
Monroe v. Blackmon, 946 S.W.2d 533, 1997 Tex. App. LEXIS 2605, 1997 WL 253571 (Tex. Ct. App. 1997).

Opinions

OPINION

CHAVEZ, Justice.

By the present mandamus proceeding, re-lators, Jeffrey and Gena Monroe, complain that the respondent, Judge Robert Black-mon, abused his discretion in failing to re-cuse a trial Judge, the Honorable Max Bennett, from presiding over the underlying lawsuit. The basis of the sought recusal is that Judge Bennett is represented in another matter, currently before the Supreme Court of Texas, by counsel for a defendant in the underlying cause. The real party in interest is Union Pacific Resources Company (“Union Pacific”), a defendant in the underlying lawsuit. We conditionally grant the writ.

We are guided by a paucity of reported Texas decisions addressing the narrow issue raised by this proceeding: Is recusal required of a trial judge when an attorney for a party to a proceeding in the judge’s court is concurrently representing the judge as attorney of record before another tribunal? We determine that recusal is the singular appropriate response.

Facts

In 1994, relators filed the underlying lawsuit against Union Pacific and other defendants in Nueces County, Texas, and were assigned to the 319th District Court, over which Judge Bennett presides. The law firm of Hunt, Hermansen, McKibben & English, L.L.P. (“Hunt, Hermansen”) respresents Union Pacific in that cause. Meanwhile, the Hunt, Hermansen firm also represents Judge [535]*535Bennett in a mandamus proceeding in the supreme court, Bennett v. Thirteenth Court of Appeals, No. 96-0598.2

On September 23, 1996, relators filed a motion a recuse Judge Bennett in the underlying cause, arguing that Judge Bennett’s representation by the Hunt, Hermansen firm caused his impartiality to reasonably be questioned. Judge Bennett referred the motion to recuse and the presiding judge for the administrative judicial region appointed Judge Blackmon to hear it. At the recusal hearing on October 29, 1996, Judge Bennett called himself as a witness, and then testified about the origins and nature of his relations with attorney Carlos Villarreal of the Hunt, Hermansen firm.

On November 5, 1996, Judge Blackmon issued his “Order on Motion to Recuse,” which stated:

[I]t appears from the evidence that an attorney-client relationship exists between Mr. Villarreal and Judge Bennett.
This Court is of the opinion that Plaintiff could reasonably question the Judge’s impartiality based on this relationship.
The recusal is, therefore, appropriate, and is ordered.

Judge Bennett’s response was immediate. In a letter to Judge Blackmon of the same date, and “[i]n view of your [i.e., Judge Blackmon’s] ruling,” Judge Bennett requested a rehearing of the recusal matter. Noteworthy is the fact that Judge Bennett did not challenge Judge Blackmon’s conduct of the recusal hearing until after the court issued its order, approximately one week after the initial recusal hearing.

On November 7, 1996, Judge Blackmon forwarded a letter to all parties and Judge Bennett, stating that a rehearing was scheduled for November 15, 1996, “at the Judge’s request.” We consider Judge Bennett’s letter to Judge Blackmon to have been in the nature of a pleading, insofar as rehearing of the recusal matter was responsive thereto.

At the rehearing, the appearance of attorney Villarreal of the Hunt, Hermansen firm engendered some initial confusion as to precisely who he was representing (Judge Bennett or one of the defendants?). Judge Bennett again called himself as a witness, testifying at length and being cross-examined by the parties. Judge Bennett also gave an oral argument, just as the parties did, at the close of the hearing. Judge Bennett even offered exhibits, consisting of his orders underlying the matter in which the Hunt, Hermansen firm represents him.

On November 18,1996, the court issued its order following the rehearing, denying the motion to recuse, providing that “Judge Bennett’s impartiality cannot reasonably be questioned under the circumstances.” We find it curious that a different result obtained on rehearing, although a near identity of evidence and core arguments existed as between the two recusal hearings. No new findings of fact were made, and there exists no apparent justification for Judge Black-mon’s change of position.

Standard for issuance of writ

Mandamus is proper (1) to correct a clear abuse of discretion committed by the trial court, (2) when there exists no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992); Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 885 (Tex.App.—El Paso 1993, orig. proceeding) (conditionally granting writ on relator’s claim of mandatory recusal of trial judge).

Availability of adequate remedy on appeal

We must determine whether an adequate remedy exists on appeal. See [536]*536Schwartz v. Jefferson, 930 S.W.2d 957, 959 (Tex.App.—Houston [14th Dist.] 1996 orig. proceeding). Rule 18a(f) of the Texas Rides of Civil Procedure provides: “If the motion [to recuse or disqualify] is denied, it may be reviewed for abuse of discretion on appeal from the final judgment.” Obviously, an appellate remedy exists for relators, so we consider whether the appeal allowed under Rule 18a(f) would be “adequate.”

To demonstrate the absence of an adequate remedy on appeal, the relators must have suffered an effective denial of the reasonable opportunity to develop the merits of their case. See AMR Corp. v. Enlow, 926 S.W.2d 640, 645 (Tex.App.—Fort Worth 1996, orig. proceeding). The nonexistence of an adequate appellate remedy has been determined in analogous situations, wherein appeal from final judgment arguably exists. See, e.g., Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787, 789-90 (Tex.1996); K.J. Eastwood Investments, Inc. v. Enlow, 923 S.W.2d 255 (Tex.App.—Fort Worth 1996, orig. proceeding); Sweezy Const., Inc. v. Murray, 915 S.W.2d 527, 530 (Tex.App.—Corpus Christi 1995, orig. proceeding). We have also held that the availability of other remedies will not prohibit mandamus to issue to correct a gross abuse of discretion. See Corpus Christi Caller-Times v. Mancias, 794 S.W.2d 852, 854 (Tex.App.—Corpus Christi 1990, orig. proceeding). Under the factual pattern (i.e., attorney for litigant concurrently representing trial judge) of the instant case, we determine that the harm engendered by Judge Blackmon’s second order will permeate all phases of proceedings in the trial court, thus precluding availability to relators of an adequate appellate remedy.

Clear abuse of discretion

Aside from the “clear abuse of discretion” threshold set forth in Walker, supra, the supreme court has also stated that mandamus will lie to correct a “gross” abuse of discretion by the trial court. State v. Sewell, 487 S.W.2d 716, 718 (Tex.1972).

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Monroe v. Blackmon
946 S.W.2d 533 (Court of Appeals of Texas, 1997)

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Bluebook (online)
946 S.W.2d 533, 1997 Tex. App. LEXIS 2605, 1997 WL 253571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monroe-v-blackmon-texapp-1997.