Court of Appeals of Texas, Sixth District, Texarkana
IN RE PHILIP J. EMERSON, JR.
Submitted Date: August 8, 2019
Original Mandamus Proceeding
Morriss, C.J., Burgess and Stevens, JJ.
E. STEVENS, JUSTICE
2014, the trial court entered a take-nothing judgment against
Philip J. Emerson, Jr., which was never appealed. Emerson has
now filed a pro se petition for a writ of mandamus seeking
relief from the trial court's denial of his motions to
vacate the final judgment and appoint a receiver over a
successful defendant. Emerson also purported to amend his
petition in the finally decided case to include claims
against previously nonsuited and new defendants and seeks
mandamus relief from the trial court's severance of those
Emerson's petition for writ of mandamus because we
conclude (1) the trial court lacked plenary power over
Emerson's direct attack of the 2014 final judgment and
(2) Emerson cannot show that the trial court abused its
discretion in ordering the severance.
Factual and Procedural Background
2012, the Honorable Timothy Boswell presided over a lawsuit
filed by Emerson against the Holly Lake Ranch Association
(Association) in the 402nd Judicial District Court of Wood
County, Texas. The petition, assigned trial court cause
number 2012-626, showed that Emerson sued the Association
because it charged maintenance and garbage fees and expended
Association funds to hire security personnel who restricted
Emerson's use of the main gate until he paid the
Association's fees and acquired a gate
Boswell entered a take-nothing judgment for the Association
in 2014, which was not appealed. In 2019, under the same
cause number, Emerson filed an unverified motion to vacate
the trial court's prior final judgment. Emerson argued
that Judge Boswell should have recused himself from the case
sua sponte because he "practiced law with counsel for
[the Association]" in the 1990s in a lawsuit filed by
the Association against Debra Miller for violating its rules
by using her property as a dumping or storage area for an
inoperable vehicle. Emerson attached documents showing that
the Association was represented by John W. Alexander in the
1990s and that Judge Boswell and Alexander were partners in
the Alexander & Boswell law firm. Even though Judge
Boswell was not counsel in the case filed by Emerson and
Craig M. Daugherty, Boswell's former firm represented the
Association in the case Emerson filed, and therefore, Emerson
argued that Judge Boswell was constitutionally disqualified
from presiding over the case and that as a result, the
judgment was void.
his motion to vacate, on June 24, 2019, Emerson filed an
amended petition in cause number 2012-626 which (1) asked the
trial court to appoint a receiver over the Association and
(2) raised claims against a new party, Lynwood Champion, and
a previously nonsuited party, Robert E. Mead, Jr. Champion
and Mead moved to sever Emerson's claims against them
from cause number 2012-626.
hearing on Emerson's motion to vacate, in which the trial
court explained that its plenary power had expired over cause
number 2012-626, the trial court, now presided over by the
Honorable Jeff Fletcher, denied Emerson's motion for
appointment of a receiver over the Association, granted
Champion and Mead's severance, and assigned a new cause
number to the severed claims against them. Emerson seeks
Standard of Review
bears the burden to show entitlement to mandamus relief.
See Johnson v. Fourth Court of Appeals, 700 S.W.2d
916, 917 (Tex. 1985) (orig. proceeding), disapproved on
other grounds by In re Columbia Med. Ctr. of Las Colinas,
Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (orig.
proceeding). "Mandamus issues only when the mandamus
record establishes (1) a clear abuse of discretion or
violation of a duty imposed by law and (2) the absence of a
clear and adequate remedy at law." In re Good
Shepherd Hosp., Inc., 572 S.W.3d 315, 319 (Tex. App.-
Texarkana 2019, orig. proceeding) (per curiam) (citing
Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding)). It is an "extraordinary
remedy that will issue only to correct a clear abuse of
discretion, or in the absence of another statutory remedy,
when the trial court fails to observe a mandatory statutory
provision conferring a right or forbidding a particular
action." Id. Also, the relator must show
that he seeks to compel a ministerial act not involving a
discretionary or judicial decision. See Walker v.
Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.
proceeding); In re Pilgrim's Pride Corp., 187
S.W.3d 197, 198 (Tex. App.-Texarkana 2006, orig. proceeding).
Plenary Power to Consider Emerson's Requests in Cause