Opinion
NUMBER 13-19-00065-CV
02-27-2019
IN RE MCCARTHY BUILDING COMPANIES, INC. AND THE BRANDT COMPANIES, LLC
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Contreras
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Relators McCarthy Building Companies, Inc. and The Brandt Companies, LLC filed a petition for writ of mandamus seeking to compel the Honorable Jose Manuel Bañales to (1) vacate its September 7, 2018 order denying their motion for summary judgment; (2) admit the affidavits attached to relators' motion for summary judgment into evidence; and (3) render summary judgment in favor of relators. Relators further sought temporary relief to stay all proceedings in trial court cause number 2018DCV-0767-E in the 148th District Court of Nueces County, Texas, pending resolution of this original proceeding.
By order issued on February 11, 2019, this Court requested the real party in interest, Guadalupe Mariscal, or any others whose interest would be directly affected by the relief sought, to file a response to the request for temporary relief and the petition for writ of mandamus. See TEX. R. CIV. P. 52.2, 52.4, 52.8. The Court has now received the requested response from Mariscal. The Court has also received a response to the petition for writ of mandamus from Judge Bañales. Judge Bañales has informed us that, although he presided over the hearing for summary judgment at issue in this original proceeding, he did not sign the September 7, 2018 order subject to review, and that order was instead signed by the Honorable David Stith, the Presiding Judge of the 319th District Court of Nueces County, Texas. Judge Bañales further states, in relevant part, that:
I received by email a copy of the Order of the Court dated February 11, 2019 concerning the petition for mandamus relief in the cause styled above. It took me a while to recall the case, but, once I did, I became confused by what it said. In short, the Petitioner (i.e., the Defendant in the trial court) is complaining of the trial court's rulings. I was confused because, after I recollected the case, I was certain that my rulings had gone for the defense.
As you may know, Judge Guy Williams, the elected Judge of the 148th District Court at the time, did not preside in the Court for most, if not all, of 2018. I was one of a handful of Visiting Judges who was assigned to serve the Court on scheduled weeks. During one of my assignments to the Court, I heard the Defendants' motion for summary judgment on July 31, 2018. After the hourlong hearing, I took the matter under advisement to review the MSJ and the response. The record was about an inch or two thick. I completed my review during the latter part of the week of August 20, 2018. On August 24, 2018, I drafted a letter announcing my ruling and asking defense counsel to submit an Order granting its MSJ before September 4, 2018, because I was going to be out of the country for three weeks and I wanted the case disposed before my departure. . . .
Regrettably, it appears that the letter was not sent out. According to my saved files records, I saved the last version of my letter on August 24, 2018
at 2:30 p.m. I did not email it directly from my laptop. As I had done on other occasions while working in the 148th District Court, I would have printed the letter, signed it and given it to Court staff to enter it and to circulate to counsel. Yesterday, I checked with Court staff to determine whether any record of my August 24, 2018 letter exists, and there is none. Apparently, I did not follow through, the letter never left my saved files, and counsel were not informed of my decision. . . .Bañales further reiterated that he had not signed the September 7, 2018 summary judgment order and confirmed, based on his review of the file, that that there was no hearing on the underlying case held on September 7, 2018.
Although a particular respondent is not critical in a mandamus proceeding, the writ must be directed to someone. In re Blevins, 480 S.W.3d 542, 543-44 (Tex. 2013) (orig. proceeding); In re Schmitz, 285 S.W.3d 451, 454 (Tex. 2009) (orig. proceeding). Generally, a writ will not issue against one judge for what another judge did. In re Blevins, 480 S.W.3d at 543; In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008) (orig. proceeding); see also State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962) ("A writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks."). Texas Rule of Appellate Procedure 7.2 addresses this topic, in part, and provides that when a judge who is a party to an original proceeding ceases to hold office, the court must abate the proceeding to allow the successor to reconsider the original party's decision." TEX. R. APP. P. 7.2(b). When the trial judge who signed the order at issue has not ceased to hold office but has only recused himself or herself from further participation in the case, appellate courts should either deny the petition for mandamus or abate the proceedings pending consideration of the challenged order by the new trial judge. In re Blevins, 480 S.W.3d at 544. Because mandamus is a discretionary writ, the appellate court involved should exercise discretion to determine which of the two approaches affords the better and more efficient manner of resolving the dispute. See id.
Given the current posture of this case, we conclude that that this matter is not properly before us at this time and further proceedings at this juncture should be devoted to the sound discretion of the Honorable Carlos Valdez, who was sworn in as the Presiding Judge of the 148th District Court on January 1, 2019. Accordingly, we deny the request for temporary relief, which we had previously carried with the case, and we deny the petition for writ of mandamus without prejudice.
DORI CONTRERAS
Chief Justice Delivered and filed the 27th day of February, 2019.