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In re Emerson

Court of Appeals of Texas, Sixth District, Texarkana

August 9, 2019

IN RE PHILIP J. EMERSON, JR.

          Submitted Date: August 8, 2019

          Original Mandamus Proceeding

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          SCOTT E. STEVENS, JUSTICE

         In 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 claims.

         We deny 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.

         I. Factual and Procedural Background

         In 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 card.[1]

         Judge 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.[2]

         Besides 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.

         After a 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 mandamus relief.

         II. Standard of Review

         Emerson 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."[3] 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).

         III. Plenary Power to Consider Emerson's Requests in Cause ...


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