in Re Miguel Angel Gonzales Guilbot

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed November 3, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-09-00595-CV ____________ IN RE MIGUEL ANGEL GUILBOT, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS M E M O R A N D U M   O P I N I O N In this original proceeding, relator, Miguel Angel Guilbot, seeks a writ of mandamus ordering the respondent, Judge Mike Wood, judge of Probate Court No. 2, to vacate orders signed April 17, 2009, June 18, 2009, and June 19, 2009. We conditionally grant the writ. Factual and Procedural Background This dispute centers on a family business and the litigation that ensued among family members after one of the business=s co-founders died. The co-founder=s will was probated in 2003, and litigation began in 2004. The original suit was filed in Probate Court No. 2 and bore the cause number 344,157-401. In that case, relator filed a motion to recuse Judge Wood. Judge Wood refused to recuse himself and forwarded relator=s recusal motion to Judge Guy Herman, presiding judge of the statutory probate courts. Judge Herman assigned Judge Gladys Burwell to hear the motion to recuse Judge Wood. Relator thereafter filed motions to recuse both Judge Herman and Judge Burwell. Judge Herman denied all of the motions to recuse, including the motion to recuse directed at him. Judge Wood then held a bench trial and signed a final judgment. Relator and two other parties appealed Judge Wood=s judgment. Among other issues, they asserted that Judge Wood=s judgment was void because Judge Herman erred in ruling on a motion to recuse Judge Herman. This court held that Judge Herman erred when he ruled on a motion to recuse directed at him. Guilbot v. Estate of Gonzalez, 267 S.W.3d 556, 561 (Tex. App.CHouston [14th Dist.] 2008, pet. filed). Because Judge Herman erroneously ruled on the motion to recuse directed at him, this court concluded that Judge Herman=s order denying the motion to recuse Judge Wood was void. Because a recusal motion was pending against Judge Wood when he signed the final judgment, Judge Wood=s judgment also was void. Id. While the appeal from the original suit was pending, relator filed a second suit on December 21, 2007, in the 295th District Court of Harris County against the real parties in interest. The second suit asserted that the will at issue was forged and was procured through fraud. On March 27, 2009,the real parties in interest filed a motion to transfer the second suit to Probate Court No. 2 on grounds that the issues were identical to those in the original case tried in Judge Wood=s court. The motion to transfer was set for a hearing on April 17, 2009. On April 15, 2009, relator filed a motion to recuse Judge Wood. On April 17, 2009 Judge Wood signed an order granting the real parties= motion to transfer the case to Probate Court No. 2. On June 18, 2009, Judge Wood signed an order denying relators= motion to recuse him. On June 19, 2009, Judge Wood signed an order referring the recusal to Judge Guy Herman, presiding judge of the statutory probate courts. Relator challenges Judge Wood=s orders of April 17, 2009, June 18, 2009, and June 19, 2009. Relators contend these orders are void because Judge Wood did not recuse himself in response to the April 15, 2009 recusal motion and did not refer that motion to the presiding judge. Generally speaking, mandamus relief is available upon a showing that (1) the trial court abused its discretion; and (2) there is no other adequate remedy in law. See Walker v. Packer, 827 S.W.2d 833, 839B40 (Tex. 1992). With respect to the first prong, a trial court abuses its discretion when it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). With respect to the second prong, ATexas law has long held that mandamus will issue where the trial court=s order is void and that it is unnecessary for a relator to pursue other available remedies.@ South Main Bank v. Wittig, 909 S.W.2d 243, 244 (Tex. App.CHouston [14th Dist.] 1995, orig. proceeding). Denial of a motion to recuse is appealable upon final judgment. Tex. R. Civ. P. 18a(f). Thus, a relator challenging the denial of a recusal motion ordinarily has an adequate remedy by appeal of the denial of a motion to recuse. However, mandamus relief is available when a judge violates a mandatory duty to recuse or refer a motion to recuse. In re Norman, 191 S.W.3d 858, 860 (Tex. App.CHouston [14th Dist.] 2006, orig. proceeding). Analysis Under Rule 18a, Judge Wood had a mandatory duty to recuse himself or to refer the recusal motion to the presiding judge. Tex. R. Civ. P. 18a. The real parties in interest contend that Judge Wood properly granted the motion to transfer and denied the recusal motion because the motion was not timely filed pursuant to section 25.00255 of the Government Code. Under section 25.00255, a recusal motion must (1) be filed at least 10 days before the date of a hearing or trial; (2) be verified: and (3) state with particularity the alleged grounds for recusal. Tex. Gov=t Code Ann. ' 25.00255(b) (Vernon Supp. 2009). Real parties contend that Judge Wood was entitled to deny relator=s April 15, 2009 recusal motion because it was filed only two days before the hearing on the motion to transfer. Regardless of whether a motion to recuse may be defective or untimely, the challenged judge must recuse or refer the motion so that another judge can determine the procedural adequacy and merits of the motion. Norman, 191 S.W.3d at 861. Judge Wood did not have the option of denying the motion to recuse as untimely. Jamilah v. Bass, 862 S.W.2d 210, 203 (Tex. App.CHouston [14th Dist.] 1993, orig. proceeding) (The trial judge must recuse himself or refer the motion to the presiding judge Aregardless of the timeliness of the motion.@). Thus, we hold that Judge Wood abused his discretion by signing (1) the April 17, 2009 order granting the motion to transfer; and (2) the June 18, 2009 order denying the motion to recuse. Both orders are void, and mandamus is the appropriate remedy to address these void orders. In re Norman, 191 S.W.3d at 860. The June 19, 2009 order referring the recusal motion to the presiding judge is proper, and that order stands. Conclusion Because the orders signed on April 17, 2009 and June 18, 2009 are void, we conditionally grant the writ of mandamus. The writ will issue only if the trial court fails to vacate the orders signed on April 17, 2009 and June 18, 2009. /s/ John S. Anderson Justice Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.