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Nelson v. Nelson

Court of Appeals of Texas, First District

June 6, 2019


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

          Panel consists of Justices Lloyd, Kelly, and Hightower.


          Russell Lloyd Justice

         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.


         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.

         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.

         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).

         B. ...

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