Retaka Nelson v. Shannon Brochette Nelson

• Court: Court of Appeals of Texas
• Decided: June 6, 2019
• Docket: 01-18-00336-CV
• Status: Published

Opinion

Opinion issued June 6, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00336-CV ——————————— RETAKA ROMEO NELSON, Appellant V. SHANNON BROCHETTE NELSON, Appellee

On Appeal from the 308th Judicial District Harris County, Texas Trial Court Case No. 2017-42777

MEMORANDUM OPINION

Retaka Romeo Nelson appeals the trial court’s dismissal of his petition for bill

of review seeking to set aside the divorce decree dissolving his marriage to Shannon

Brochette Nelson and related rulings. We affirm. Background

On June 26, 2013, the 308th District Court of Harris County, Texas, Judge

Lombardino presiding, signed a final decree of divorce between the parties, in cause

number 2012-04063. Retaka appealed the final judgment in the divorce suit,

challenging the trial court’s order striking his jury demand and his pleadings. This

Court affirmed the trial court’s judgment, and his attempt to appeal to the Texas

Supreme Court was unsuccessful. See Nelson v. Nelson, No. 01-13-00816-CV, 2015

WL 1122918 (Tex. App.—Houston [1st Dist.] Mar. 12, 2015, pet. denied) (mem.

op.).

On June 26, 2017, Retaka, proceeding pro se,1 filed a petition for bill of

review, in cause number 2017-42777, asserting, among other things, that (1) he had

a meritorious defense; (2) Shannon made multiple material misrepresentations of

fact at trial; and (3) he was denied the opportunity to testify at trial. He also asserted

a claim of fraud against Shannon and sought injunctive relief, attorney’s fees, and a

declaration that the divorce decree was void.

1 Although we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Morris v. Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex. App.—Houston [1st Dist.] 2011, no pet.). 2 On July 18, 2017, Retaka filed a motion to disqualify and recuse Judge

Lombardino from presiding over the bill of review proceeding. On August 18, 2017,

Judge Lombardino signed an order declining to recuse himself voluntarily and

referring the case to the Presiding Judge of the Second Administrative Judicial

Region. On September 6, 2017, Judge Olen Underwood, the presiding regional

judge for the Second Administrative Judicial Region, signed an order denying

Retaka’s motion for recusal and disqualification.

On February 5, 2018, the trial court issued the final Scheduling Order and

Intent to Dismiss, setting the case for trial on March 27, 2018, at 9:00 a.m.

Accompanying the order was a document entitled “Procedures for Setting Cases For

Trial in the 308th District Court,” which stated, in part, that “[f]ailure to timely

appear at docket call on the trial date may result in the dismissal of the case or a

default judgment.”

On the date of trial, Retaka did not appear and the trial court dismissed

Retaka’s bill of review for want of prosecution. The docket sheet reflects the

following entry for 3/27/18: “Case called at 9:00 am and 10:09 am. No response

from P on Bill of Review. R present with counsel. DWOP.”

On April 2, 2018, Retaka filed a motion to reinstate the case on the docket.

On April 4, 2018, he filed a request for findings of fact and conclusions of law. The

motion and the request were overruled by operation of law. This appeal followed.

3 Motion to Recuse and Disqualify

In his main brief on appeal, Retaka contends that the trial court abused its

discretion when it denied his motion to recuse and disqualify Judge Lombardino for

two reasons. First, he argues that Judge Lombardino improperly referred his motion

to the former regional presiding judge, Judge Olen Underwood. Second, he asserts

that Judge Underwood erred in not assigning another judge to hear his motion.

A. Standard of Review and Applicable Law

We review an order denying a motion to recuse for abuse of discretion. TEX.

R. CIV. P. 18a(j)(1)(A); Joannides v. Joannides, No. 01-13-00090-CV, 2013 WL

1222584, at *1 (Tex. App.—Houston [1st Dist.] Mar. 26, 2013, no pet.) (mem. op.)

(citing TEX. R. CIV. P. 18a). “A trial court abuses its discretion if it acts in an

arbitrary or unreasonable manner without reference to any guiding rules or

principles.” Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

Texas Rule of Civil Procedure 18a governs the procedures for the recusal and

disqualification of judges. See TEX. R. CIV. P. 18a. After a party in the case has

filed a motion to recuse or disqualify, the respondent judge must sign and file with

the clerk either an order of recusal or disqualification or an order referring the motion

to the regional presiding judge. See id. (f)(1). The regional presiding judge must

then rule on a referred motion or assign a judge to rule. See id. (g)(1).

4 B. Analysis

Retaka argues that the trial court abused its discretion in failing to grant his

motion to recuse and disqualify because, once Judge Lombardino declined to

voluntarily recuse or disqualify himself, he was required to refer the motion to Judge

Susan Brown rather than Judge Underwood.

Prior to September 1, 2017, the State of Texas had nine administrative judicial

regions, and Harris County was part of the Second Administrative Judicial Region.

See Act 2017, 85th Leg., R.S., ch. 954 (S.B. 1893), § 2, eff. Sept. 1, 2017 (current

version at TEX. GOV’T CODE § 74.042). Effective September 1, 2017, two new

administrative judicial regions were created—the Tenth and Eleventh—and Harris

County became part of the Eleventh Administrative Judicial Region. See id.

On August 18, 2017, Judge Lombardino signed an order declining to recuse

himself voluntarily from the case and referred the case to the presiding judge of the

Second Administrative Judicial Region. At the time Judge Lombardino signed the

order, Harris County belonged to the Second Administrative Judicial Region, of

which Judge Underwood was the regional presiding judge. Judge Lombardino did

not err in referring the case to Judge Underwood. See TEX. R. CIV. P. 18a(f)(B).

Next, Retaka argues that, even if Judge Lombardino did not err in referring

the case to Judge Underwood, the trial court abused its discretion when Judge

Underwood failed to assign a judge to hear the motion. Under subsection (g), “[t]he

5 regional presiding judge must rule on a referred motion or assign a judge to rule.”

Id. 18a(g)(1) (emphasis added). Here, the regional presiding judge, Judge

Underwood, signed an order denying Retaka’s motion to recuse or disqualify. This

conforms to the requirements of the statute.

Retaka also relies on section 4(b) of Senate Bill 1893, which amended

Government Code section 74.042 and placed Harris County in the Eleventh

Administrative Judicial Region. Section 4(b), states, in relevant part:

On September 1, 2017, the governor, with the advice and consent of the senate, shall appoint judges to serve as presiding judges in the Tenth and Eleventh Administrative Judicial Regions and any administrative judicial region in which a vacancy in office occurs because the presiding judge of a judicial region is no longer qualified to serve as the presiding judge of the region because of the composition of the region on that date.

See Act 2017, 85th Leg., R.S., ch. 954 (S.B. 1893), § 2, eff. Sept. 1, 2017. Retaka

reasons that because Senate Bill 1893 became effective on September 1, 2017—six

days before Judge Underwood signed the order on September 6, 2017—Judge

Underwood lacked the authority to sign the order. However, section 4(b) of Senate

Bill 1893, which concerns the governor’s appointment of presiding judges in the

newly created Tenth and Eleventh Administrative Judicial Regions, says nothing

about when a regional presiding judge must rule on a properly referred motion.

The trial court did not abuse its discretion in denying Retaka’s motion for

recusal and disqualification. See Walker, 111 S.W.3d at 62.

6 Dismissal for Want of Prosecution

In his supplemental brief, Retaka contends that the trial court abused its

discretion in dismissing his bill of review for want of prosecution.

We review a dismissal for want of prosecution under a clear abuse of

discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial

court abuses its discretion when it acts arbitrarily or unreasonably, or without

reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985).

“The trial court’s authority to dismiss for want of prosecution stems from two

sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s

inherent power.” Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630

(Tex. 1999). A trial court may dismiss under Rule 165a on “failure of any party

seeking affirmative relief to appear for any hearing or trial of which the party had

notice,” TEX. R. CIV. P. 165a.1, or when a case is “not disposed of within the time

standards promulgated by the Supreme Court . . . .” TEX. R. CIV. P. 165a.2. In

addition, the common law vests the trial court with the inherent power to dismiss

independently of the rules of procedure when a plaintiff fails to prosecute his or her

case with due diligence. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980).

7 B. Analysis

On February 5, 2018, the trial court sent to the parties a final Scheduling Order

and Notice of Intent to Dismiss. The order stated, in pertinent part:

NOTICE OF INTENT TO DISMISS ON TRIAL DATE. THIS CASE MAY BE DISMISSED FOR WANT OF PROSECUTION ON DATE OF TRIAL if, by the trial date there is no:

a. Service with citation; or

b. Answer on file; or

c. Properly executed Waiver on file;

d. Alternative Dispute Resolution;

e. Compliance with local rules 4.2, 4.3, and 4.4.

03/27/2018 TRIAL at 9:00 AM. THIS CASE IS SET FOR TRIAL ON THE MERITS ON THIS DATE.

Accompanying the order was a document entitled “Procedures for Setting Cases for

Trial in the 308th District Court,” which stated that “[f]ailure to timely appear at

docket call on the trial date may result in the dismissal of the case or a default

judgment.”

On March 27, 2018, the trial court signed an order dismissing Retaka’s bill of

review for want of prosecution. The trial court’s docket sheet reflects the following

entry on that day: “Case called at 9:00 am and 10:09 am. No response from P on

bill of review. R present with counsel. DWOP.” Retaka filed a motion to reinstate

the case on the docket which was overruled by operation of law. 8 Retaka contends that his bill of review was not dismissed for failure to appear

for a hearing or trial but, rather, for failure to prosecute his case. This is so, he

contends, because the dismissal order expressly states, “DISMISSED FOR WANT

OF PROSECUTION by order of the court.” As stated above, Rule 165a provides

that “[a] case may be dismissed for want of prosecution on failure of any party

seeking affirmative relief to appear for any hearing or trial of which the party had

notice.” TEX. R. CIV. P. 165a.1. The docket sheet reflects that Retaka did not appear

on March 27, 2018, the date of trial. Thus, pursuant to the terms of the statute, the

trial court properly dismissed his bill of review for want of prosecution because he

failed to appear at trial. See id.

Retaka also argues, as he did in his motion to reinstate, that he believed a

phone appearance was reasonable for several reasons. First, he asserts that because

he resided in California at the time of the proceedings, Associate Judge David Sydow

told him, “And if you want to have a hearing, sir, within reason, if you request on a

non-final hearing, you can appear by phone.” Retaka then filed notice of a request

for “telephone hearing.” Second, he asserts that “Shannon misled me to believe that

3/27/18 was a summary judgment hearing,” and that no oral testimony may be

presented under Texas Rule of Civil Procedure 166a(c). Third, he asserts that he

made a phone appearance at 8:36 am on the date of trial, and that the court

coordinator told him, “okay,” and “to standby . . . the Court may call [you] within

9 minutes to several hours.” He alleges that he waited eight hours but that the court

coordinator never called him back, and that when he called back at 4:25 p.m. he

learned that Judge Lombardino had dismissed his case for want of prosecution

because he failed to appear at trial.

With regard to the associate judge’s statement, the record reflects that Judge

Sydow made this statement at a January 9, 2018 hearing on Retaka’s request for

temporary orders related to his 2013 divorce. Judge Sydow stated that the parties

could appear by phone at a non-final hearing. Judge Sydow further stated that Judge

Lombardino would hear the bill of review case. At no time during the hearing did

Judge Sydow tell the parties that they could appear by phone at the trial on Retaka’s

bill of review.

Retaka’s assertion that Shannon misled him to believe that March 27, 2018

was the date of the summary judgment hearing is equally unavailing. The record

reflects that Retaka filed a “Notice of Submission (Without a Hearing, or Telephone

Hearing in the Alternative)” requesting that the trial court consider his special

exceptions and motion for leave to answer Shannon’s no-evidence motion for

summary judgment as his own traditional summary judgment motion, and to rule on

the motion without a hearing or, alternatively, to arrange for a telephone hearing.

He also filed an order to that effect for the court’s signature. Retaka’s request for a

telephone hearing related solely to the summary judgment hearing—not the trial on

10 Retaka’s bill of review. Further, the trial court never signed Retaka’s proposed order

or otherwise granted permission to Retaka to appear by phone.

Finally, Retaka’s assertion that his exchange with the court coordinator on the

morning of trial does not support a conclusion that the trial court abused its discretion

in dismissing his bill of review. The trial court sent the parties a scheduling order

and notice of intent to dismiss which expressly stated that trial was set on March 27,

2018 at 9:00 a.m., and that “[f]ailure to timely appear at docket call on the trial date

may result in the dismissal of the case or a default judgment.” Retaka did not appear,

and the trial court did not abuse its discretion in dismissing his bill of review. TEX.

R. CIV. P. 165a.1 (“A case may be dismissed for want of prosecution on failure of

any party seeking affirmative relief to appear for any hearing or trial of which the

party had notice.”).

Underlying Divorce Proceedings

In his second amended reply brief, as in his motion to dismiss, Retaka urges

this Court to dismiss this appeal on the basis of an order granting a separate motion

to recuse in the parties’ underlying divorce case.

On February 27, 2013, during the pendency of the divorce case in cause

number 2012-04063, Judge Farr signed an order recusing himself. The order stated

that “all parties’ claims should be heard in the Court assigned.” The case was

11 subsequently assigned to Judge Lombardino. The case proceeded to judgment, and

the trial court signed the final decree of divorce on June 26, 2013.

Retaka contends that the trial court did not permit him to testify in the

underlying divorce proceedings. He argues that because not all parties’ claims were

heard, Judge Farr’s recusal order was actually an order for new trial which

effectively set aside the divorce decree. Although he acknowledges that Judge Farr’s

February 27, 2013 order predates the June 26, 2013 final divorce decree, he

nevertheless asserts that the “new-trial order had the sua sponte after-effect of

simultaneously setting aside the (1) dismissal of the bill of review and (2) the divorce

judgment[.]”

Retaka’s appeal is from the trial court’s dismissal of his bill of review in cause

number 2017-42777. The parties’ underlying divorce case in cause number 2012-

04063—including Judge Farr’s recusal order—is not before us. See TEX. R. CIV. P.

329b(f); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010) (noting

bill of review is proceeding to set aside judgment that is no longer appealable or

subject to motion for new trial); see also State v. 1985 Chevrolet Pickup Truck, 778

S.W.2d 463, 464 (Tex. 1989). Moreover, we note that Retaka did, in fact, appeal

the final judgment in cause number 2012-04063. See Nelson, 2015 WL 1122918, at

*1. This Court affirmed the trial court’s judgment, and the Texas Supreme Court

denied Retaka’s petition for review. See id. Judge Farr’s recusal is part of the

12 procedural history of a case that has proceeded to final judgment and was affirmed

on appeal. It has no effect on this subsequently filed, and separate, bill of review

proceeding.

Accordingly, we overrule Retaka’s issues.2

Conclusion

We affirm the trial court’s judgment dismissing Retaka’s bill of review.

Russell Lloyd Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

2 In light of our disposition, all pending motions are dismissed as moot. 13