Appeal from the 1st Multicounty Court at Law Nolan County,
Texas Trial Court Cause No. CC-6479.
consists of: Wright, C.J., Willson, J., and Bailey, J.
M. BAILEY JUSTICE
November 23, 2011, Appellant filed for divorce from Appellee.
The trial court initially entered a no-answer
"default" decree of divorce on January 24, 2012.
Appellee subsequently sought to set aside the initial decree
by timely filing a motion for new trial. Among other things,
Appellee asserted that service of citation was defective and
that the evidence supporting the initial decree was
insufficient. The trial court granted Appellee's motion
for new trial on February 14, 2012.
numerous hearings, including two hearings seeking the recusal
of the trial court judge, the trial court entered a final
decree of divorce on February 20, 2015. Appellant brings four
issues on appeal. In his first three issues, Appellant
asserts that it was improper for the trial court to grant the
motion for new trial on February 14, 2012, which set aside
the initial default decree of divorce. In his fourth issue,
Appellant asserts that the trial court abused its discretion
in denying his motions to recuse the Honorable David Hall. We
first three issues challenge the trial court's order
granting Appellee's motion for new trial. In presenting
these issues, Appellant contends that the trial court did not
have a valid basis for setting aside the initial default
divorce decree. Appellee contends that the trial court's
act of granting the motion for new trial is not reviewable on
appeal because the motion was granted during the period in
which the trial court retained plenary power. We agree.
order granting a motion for new trial rendered within the
trial court's plenary power is not reviewable on appeal.
Wilkins v. Methodist Health Care Sys., 160 S.W.3d
559, 563 (Tex. 2005); Cummins v. Paisan Constr. Co.,
682 S.W.2d 235, 236 (Tex. 1984). As noted by the Texas
Supreme Court in Cummins, "An order granting a
new trial within that period is not subject to review either
by direct appeal from that order, or from a final judgment
rendered after further proceedings in the trial court."
682 S.W.2d at 236 (quoting Burroughs v. Leslie, 620
S.W.2d 643, 644 (Tex. Civ. App.-Dallas 1981, writ ref'd
n.r.e.)). Appellee timely filed the motion for new trial, and
the trial court granted it during its period of plenary
power. Tex.R.Civ.P. 329b(a), (d). Accordingly, we overrule
Appellant's first three issues because they are not
reviewable on appeal.
fourth issue, Appellant challenges the denial of his motions
to recuse Judge Hall. We review the denial of a motion to
recuse under an abuse of discretion standard. Tex.R.Civ.P.
18a(j)(1)(A). A trial court abuses its discretion by acting
arbitrarily, unreasonably, or without consideration of
guiding principles. Walker v. Gutierrez, 111 S.W.3d
56, 62 (Tex. 2003).
asserted in his initial motion to recuse that Judge
Hall's impartiality might reasonably be questioned.
Appellant asserted that Judge Hall had taken a personal
interest in the outcome of the case and had engaged in
inappropriate ex parte communications with a receiver
appointed by the court. Appellant based his second motion for
recusal on the same allegation.
trial court appointed Russell Riggan as a receiver in the
case on September 14, 2012. On October 7, 2013, the trial
court received an e-mail from Riggan stating in part,
"Here is correspondence that I received from Jeff Rank
who is representing Robert Ochoa. They continue to harass
me about the distributions being made on your order. I
also tried to place a follow up call last week in reference
to the distribution of the remaining $19, 951.73"
(emphasis added). That same day, the trial court entered a
final disbursement order with the above-quoted e-mail
attached to it. However, the italicized portion of the e-mail
was omitted in the attachment.
Appellee's filing of her second motion for new trial on
September 27, 2013, Appellant filed his first motion to
recuse Judge Hall on October 23, 2013, alleging that Judge
Hall had engaged in ex parte communications with Riggan and
had initiated collections for Appellee. The first recusal
motion was heard by the Honorable Billy John Edwards on
October 31, 2013. At the conclusion of an extensive hearing,
Judge Edwards denied the motion, finding that there were no
improper ex parte communications concerning the merits of the
the trial court granted Appellee's second motion for new
trial, Appellant subsequently filed his second motion to
recuse Judge Hall on December 10, 2013. The second recusal
was heard by the Honorable Judge Charles Chapman on January
9, 2014. At the conclusion of a brief hearing, Judge Chapman
denied the second motion for recusal, finding that there was
no reasonable question as to the impartiality of Judge Hall.
party seeking recusal must satisfy a 'high threshold'
before a judge must be recused." Ex parte
Ellis, 275 S.W.3d 109, 116 (Tex. App.-Austin 2008, no
pet.) (quoting Liteky v. United States, 510 U.S.
540, 558 (1994) (Kennedy, J., concurring)). Rule 18b requires
a judge to recuse himself in any proceeding in which his
impartiality might reasonably be questioned. Tex.R.Civ.P.
18b(b)(1). In determining whether a judge's impartiality
might be reasonably questioned so as to require recusal, the
proper inquiry is whether a reasonable member of the public
at large, knowing all the facts in the public domain
concerning the judge and the case, would have a reasonable
doubt that the judge is actually impartial. Burkett v.
State, 196 S.W.3d 892, 896 (Tex. App.-Texarkana 2006, no
pet.) (citing Kirby v. Chapman, 917 S.W.2d 902, 908
(Tex. App.-Fort Worth 1996, no pet.)); see Rogers v.
Bradley, 909 S.W.2d 872, 881 (Tex. 1995) (Enoch, J.,
responding to Gammage, J.'s declaration of recusal). We
evaluate the merits of a motion to recuse from "a
disinterested observer's point of view."
Ellis, 275 S.W.3d at 116 (quoting Rogers,
909 S.W.2d at 882 (Enoch, J., responding to Gammage, J.'s
declaration of recusal).
of the judiciary are prohibited from engaging in ex parte
communications "concerning the merits of a pending or
impending judicial proceeding." Tex. Code Jud. Conduct,
Canon 3(B)(8), reprinted in Tex. Gov't Code Ann., tit. 2,
subtit. G, app. B (West 2013); see Randolph v. Texaco
Expl. & Prod., Inc., 319 S.W.3d 831, 836 (Tex.
App.-El Paso 2010, pet. denied). The parties and the trial
court questioned Riggan extensively at the hearing on the
first motion to recuse Judge Hall. Riggan testified that he
received "countless calls from all parties
involved" in serving as the receiver in the case and
that he contacted Judge Hall to obtain clarification on how
he should proceed. Riggan also testified that he did not feel
like Judge Hall had "pressured" him into doing
something that he thought was wrong. Near the end of the
hearing, Judge Edwards stated that he had reviewed the
e-mails between Riggan and Judge Hall and that he
"didn't see any that talked about the merits of the
case itself." At the conclusion of the hearing, Judge
Edwards "specifically" ...