Johnson, Arthur v. Amco Ins Agency of Gobin-Bhatia ( 2005 )

Affirmed and Memorandum Opinion filed June 2, 2005

Affirmed and Memorandum Opinion filed June 2, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00260-CV

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ARTHUR JOHNSON, Appellant

V.

AMCO INSURANCE AGENCY AND GOBIN-BHATIA, Appellees

On Appeal from County Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 782,394

M E M O R A N D U M   O P I N I O N

In this pro se appeal, appellant appeals a take nothing judgment.  In four points of error, appellant complains (1) the trial court abused its discretion in not complying with his motion for recusal; and (2) the trial court  erred in not setting and holding a hearing on his motion to reinstate.  We affirm.

Motion for Recusal

Appellant argues in his first and fourth points of error that the trial court abused its discretion in Anot complying@ with his motion for recusal. 

To recuse a judge, a party must follow the procedure prescribed by Texas Rule of Civil Procedure 18a.  Tex. R. Civ. P. 18a.  According to Rule 18a, on the day a motion for recusal is filed, copies must be served on all other parties or their counsel of record, together with a notice that the movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge.  Tex. R. Civ. P. 18a(b).  Rule 18a additionally requires that a motion to recuse be verified and state with particularity the grounds why the judge before whom the case is pending should not sit.  Tex. R. Civ. P. 18a(a). The motion must be made on personal knowledge and set forth such facts as would be admissible in evidence, provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated.  Id.  If a party fails to follow these mandatory requirements of Rule 18a, he waives the right to complain of a judge=s failure to recuse himself.  Carson v. Serrano, 96 S.W.3d 697, 698 (Tex. App.CTexarkana 2003, pet. denied); Gill v. Texas Dept. of Criminal Justice, Insitutional Div., 3 S.W.3d 576, 579 (Tex. App.CHouston [1st Dist.] 1999, no pet.). 

Here, appellant filed a general motion for recusal.  There is no evidence he gave notice of expectancy of presentment to the judge three days after filing, and there is no evidence the judge was presented with the motion three days after filing.  Appellant=s motion to recuse is not verified, does not state with particularity the grounds why the trial judge should not sit, and is not made on personal knowledge or information and belief.  Because appellant did not follow the procedures prescribed by Rule 18a, appellant waived his right to complain on appeal and may not complain about the trial judge=s failure to recuse herself.

          Accordingly, we overrule points of error one and four.

Hearing on Motion to Reinstate

In points of error two and three, appellant argues the trial court erred in not setting and  holding an oral hearing on his motion to reinstate pursuant to Texas Rule of Civil Procedure 165a.  Tex. R. Civ. P. 165a.  The trial court=s final judgment signed January 28, 2004 states the following:

On January 12, 2004, this case was called for trial.  [Appellant] appeared in person and announced ready for trial. [Appellees AMCO Insurance Agency and Gobin-Bhatia appeared and] announced ready for trial.

All matters in controversy, legal and factual, were submitted to the Court for its determination. The Court heard evidence and arguments of the parties and announced its decision for [appellees].

It is therefore ORDERED, ADJUDGED and DECREED that:

1.       [Appellant] take nothing by his suit against [Appellees].

2.       All costs of court are taxed against Plaintiff.

3.       This judgment is final, disposes of all claims and parties, and is appealable; and

4.       All relief not expressly granted is denied.

Findings of fact and conclusions of law were not requested or filed, and there is no reporter=s record.

Appellant=s reliance on Rule 165a on appeal as authority for his contention that the trial court was required to conduct a hearing on his motion to reinstate is misplaced; Rule 165a governs dismissals for want of prosecution and does not apply here because this case was disposed of on the merits and was not dismissed for want of prosecution.  See Tex. R. Civ. P. 165a(1), (3).  Moreover, the record does not show appellant requested a setting or hearing on his motion in the trial court.  Having presented nothing for review, we conclude points of error two and three are without merit.

Accordingly, we overrule points of error two and three.

CONCLUSION

We affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed June 2, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.