Po'well Bin Imam Khidir Khifatan Tufan Sayah Muhammad v. Warden Stalone--Appeal from 1A District Court of Tyler County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 9th District Court of Appeals » 2007 » Po'well Bin Imam Khidir Khifatan Tufan Sayah Muhammad v. Warden Stalone--Appeal from 1A District Court of Tyler County

State: Texas

Court: Texas Northern District Court

Docket No: 09-06-00219-CV

Case Date: 04/26/2007

Plaintiff: Benchmark Insurance Company

Defendant: Robert William Sullivan--Appeal from 273rd District Court of Shelby County

Preview:In re Ceole N. Stearman--Appeal from 13th District
Court of Navarro County
IN THE
TENTH COURT OF APPEALS
No. 10-08-00091-CV
In re Ceole N. Stearman
Original Proceeding
Opinion
Ceole N. Stearman seeks a writ of mandamus compelling Respondent, the Honorable John H. Jackson, Judge of the
13th District Court of Navarro County, to vacate a Stay and Restraining Order he issued while a recusal motion was
pending against him. We will conditionally grant the relief requested.
Background
The underlying proceeding before Respondent is a divorce suit filed by the real party in interest, Justin Stearman, in
December 2007. Ceole filed her own petition for divorce in the County Court at Law of Walker County in February
2008. Because the Stearmans child was born in Walker County on February 2, 2008, Ceole contends that Walker
County has exclusive jurisdiction of the divorce because it is the child s only place of residence.
Ceole answered the Navarro County suit with a Motion to Quash Citation, Motion to Transfer Venue, Original
Answer, and Motion to Dismiss. Among other things, Ceole sought to quash the citation contending that it was invalid
because she was served on Sunday, and she sought transfer of venue based on her contention that venue is proper in
Walker County because it is the child s principal residence.
Respondent set a hearing for temporary orders on February 25. The Walker County court set a hearing for temporary
orders on March 18. The February 25 hearing was rescheduled without notice to Ceole, who was re-served with
citation on that date when she appeared for the hearing. On that date, Ceole s counsel observed Justin s counsel sitting
on the bench as an associate judge for Respondent and hearing other cases on Respondent s docket.
Ceole filed a motion to recuse Respondent three days later, citing in particular Canon 6(D)(2) of the Code of Judicial
Conduct which provides in pertinent part that a [p]art-time commissioner, master, magistrate, or referee should not
practice law in the court which he or she serves. Tex. Code Jud. Conduct, Canon 6(D)(2), reprinted in Tex. Gov t Code
Ann., tit. 2, subtit. G app. B (Vernon 2005). Ceole argued in this recusal motion that Respondent should recuse himself
because his impartiality might reasonably be questioned because of the dual roles played by Justin s counsel. See Tex.
R. Civ. P. 18b(2)(a).
Justin responded by filing an Application for a Stay and Restraining Order. By this application, Justin asked that
Respondent issue an ex parte stay and restraining order: (1) staying all further proceedings in Walker County
(including the upcoming hearing for temporary orders); and (2) restraining Ceole from obtaining further settings in
Walker County or otherwise prosecuting her suit there. Justin prayed that this stay and restraining order remain in
effect until the recusal matter was determined and subsequent determination of jurisdiction in the court of original
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filing.
Respondent granted Justin s application and issued a stay and restraining order which provides in pertinent part that the
Walker County proceedings are stayed until the Motion to Recuse and the issue of [the Navarro County] court s
jurisdiction in the above referenced matter can be heard in Navarro County.
Ceole then sought mandamus relief and temporary relief in this Court. The Court granted Ceole s motion for temporary
relief and issued an order staying all further proceedings in Navarro County, with the exception of the recusal hearing
which had already been set,[1] pending this Court s action on the petition. See Tex. R. App. P. 52.10(b). The Court on
its own motion also ordered that all further proceedings in Walker County be stayed pending this Court s action on the
petition. Id.
Mandamus Requirements
Generally, mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy
by appeal. In re Bexar County Criminal Dist. Attorney s Office, 224 S.W.3d 182, 185 (Tex.2007) (orig.proceeding); In
re Tex. Dep t of Family & Protective Servs., 210 S.W.3d 609, 612 (Tex.2006) (orig.proceeding). However, if the order
being challenged in a mandamus proceeding is void, the relator need not show that he or she has no adequate remedy
by appeal. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam); In re Keeling, 227 S.W.3d 391, 395
(Tex. App. Waco 2007, orig. proceeding).
Effect of Recusal Motion
Ceole contends among other things that Respondent s stay and restraining order is void because Respondent issued it
while the recusal motion was pending.[2] This contention is governed by Rule of Civil Procedure 18a(d), which
provides in pertinent part:
If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district, in
either original form or certified copy, an order of referral, the motion, and all opposing and concurring statements.
Except for good cause stated in the order in which further action is taken, the judge shall make no further orders and
shall take no further action in the case after filing of the motion and prior to a hearing on the motion.
Tex. R. Civ. P. 18a(d).
Once a recusal motion is filed, a trial judge generally has two options: (1) recuse himself/herself; or (2) forward the
motion to the presiding judge and request the assignment of another judge to hear the motion. See id. 18a(c), (d); Tex.
Gov t Code Ann. 74.059(c)(3) (Vernon 2005); In re A.R., 236 S.W.3d 460, 477 (Tex. App. Dallas 2007, no pet.); In re
Norman, 191 S.W.3d 858, 860 (Tex. App. Houston [14th Dist.] 2006, orig. proceeding). However, the judge may make
further orders while the recusal motion is pending for good cause stated in the order. Tex. R. Civ. P. 18a(d).
Our research has disclosed no decisions providing any extensive analysis or discussion regarding the quantum of good
cause required to be stated in an order made after the filing of a recusal motion. Nevertheless, we observe that Rule
18a s good-cause requirement is similar to that of Rule 141, which provides that a trial court may, for good cause, to
be stated on the record tax costs of court otherwise than provided by law. Id. 141. As the Supreme Court has explained,
Rule 141 requires a trial court to state its reasons on the record for taxing costs against a prevailing party. Roberts v.
Williamson, 111 S.W.3d 113, 124 (Tex. 2003). Or as explained by the Dallas Court, a bare finding that good cause
exists is not sufficient. See Dover Elevator Co. v. Servellon, 812 S.W.2d 366, 367 (Tex. App. Dallas 1991, no writ).
Rather, the trial court must set[ ] out the basis for that finding. Id.; accord Guerra v. Perez & Assocs., 885 S.W.2d 531,
533 (Tex. App. El Paso 1994, no writ).
Here, Respondent made the following statements regarding good cause in the stay and restraining order:
The Court examined the pleadings and affidavit and finds that Petitioner is entitled to a restraining order and a stay,
based on the clear existence of good cause to grant such order until the issue or recusal and subsequently, jurisdiction,
of this Court may be decided.
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The Court finds that there is good cause to issue this order.
Respondent s order does not state any basis for these good-cause findings.
Respondent states in his response to the mandamus petition that he found good cause to grant extraordinary relief, but
he does not state what that good cause is. To the extent Respondent s stay and restraining order refers to Justin s
application and counsel s supporting affidavit as a basis for good cause, the application asserts that good cause exists
because the recusal motion was filed simply to have the matter heard in Walker County, Texas, prior to this Court
being able to have the presiding judge decide if recusal is proper. [3] However, it is not for a trial judge to decide
whether an otherwise proper recusal motion is groundless, filed in bad faith, or filed for some other improper purpose.
See Johnson v. Pumjani, 56 S.W.3d 670, 672-73 (Tex. App. Houston [14th Dist.] 2001, no pet.); Carson v. McAdams,
908 S.W.2d 228, 228-29 (Tex. App. Houston [1st Dist.] 1993, orig. proceeding) (per curiam). But cf. In re Union Pac.
Res. Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding) (recusal issue can be waived if not raised by proper
motion );In re Marriage of Samford, 173 S.W.3d 887, 890 (Tex. App. Texarkana 2005, pet. denied) (party who fails to
follow Rule 18a waives right to complain of judge s failure to recuse); Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex.
App. Waco 2002, no pet.) (same).[4]
The stay and restraining order contains only a bare finding of good cause without stating the basis for that finding.
Thus, Respondent abused his discretion by issuing this order while the recusal motion was pending against him. See
Carson, 908 S.W.2d at 228-29; see also Riga v. Comm n for Lawyer Discipline, 227 S.W.3d 795, 797-98 (Tex. App.
Houston [1st Dist.] 2007, pet. denied). Because Respondent issued this order while the recusal motion was pending, the
order is void.[5] A.R., 236 S.W.3d at 477; Riga, 227 S.W.3d at 798; Johnson, 56 S.W.3d at 672.
Because the order is void, Ceole is entitled to mandamus relief without showing that she has no adequate remedy by
appeal. Sw. Bell Tel., 35 S.W.3d at 605; Keeling, 227 S.W.3d at 395. Therefore, we conditionally grant the requested
writ. The writ will issue only if Respondent fails to advise this Court in writing within fourteen days after the date of
this opinion that he has vacated the stay and restraining order.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray does not join the Court s opinion or judgment but a separate opinion will not issue. He notes,
however, that the opinion does not fairly recite the good cause asserted in the motion and the trial court s reliance on
that basis for good cause. As stated by the trial court in his response to the mandamus: It appears to this Court that Mr.
Bays is attempting to exploit the procedural delay obtained by his Motion to Recuse, and thereby manipulate these
circumstances to his client s advantage. )
Petition conditionally granted
Opinion delivered and filed April 30, 2008
[OT06]
[1] Respondent declined to recuse himself and forwarded the recusal motion to the presiding judge for his
administrative judicial region, who assigned another judge to hear the matter on March 19. See Tex. R. Civ. P. 18a(d).
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[2] Ceole also contends: (1) the order is void because it does not satisfy many of the requisites for temporary
restraining orders set forth in Rules of Civil Procedure 680 and 683; (2) the order is improper because the application
was not supported by Justin s affidavit as required by Rule 682 and counsel s supporting affidavit does not provide
sufficient evidentiary support for issuance of a TRO; (3) because of her status as a part-time associate judge for
Respondent, Justin s counsel was not authorized to seek further relief in the underlying proceeding until the recusal
issue was resolved; (4) Respondent has no authority to enjoin a court of co-extensive jurisdiction; (5) the stay and
restraining order is impermissibly overbroad; and (6) the order impermissibly grants, in effect, the ultimate relief
sought by Justin, namely the determination of which court has jurisdiction to adjudicate the parties divorce.
[3] Counsel s supporting affidavit is less helpful, stating, I believe that good cause exists for the court to grant the
requested relief.
[4] Ceole s recusal motion is arguably procedurally defective because it was filed less than 10 days before the
rescheduled hearing on Justin s request for temporary orders. See Tex. R. Civ. P. 18a(a). However, this 10-day
requirement is not absolute and does not contemplate the situation (like that presented in Ceole s case) in which a
party becomes aware of a basis for recusal less than 10 days before the trial or hearing is set. See Metzger v. Sebek,
892 S.W.2d 20, 49 (Tex. App. Houston [1st Dist.] 1994, writ denied); Martin v. State, 876 S.W.2d 396, 397 (Tex. App.
Fort Worth 1994, no pet.).
[5] Having found the order void on this basis, we do not reach Ceole s other challenges to the validity of the order.
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