Appeal from the 308th Judicial District Harris County, Texas
Trial Court Case No. 2017-42777
consists of Justices Lloyd, Kelly, and Hightower.
Russell Lloyd Justice
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.
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.).
26, 2017, Retaka, proceeding pro se,  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.
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.
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
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.
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.
to Recuse and Disqualify
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.
Standard of Review and Applicable Law
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).
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).