Lead Opinion
OPINION
Howard Ludlow appeals the denial of his motion to recuse the trial judge, certain discovery rulings, and a post-verdict order granting summary judgment in favor of ap-pellees. Appellant raises seven points of error. We affirm in part and reverse and remand in part.
Ludlow filed suit against Scott DeBerry
According to one of the jurors, when they left the courtroom, the trial judge, Judge Eugene Chambers, angrily told the dismissed jurors they had delivered “the worst verdict that he had heard in eight and a half years_” Upset by the judge’s outburst and criticism, the presiding juror called Ludlow’s counsel and advised him about the incident. Ludlow’s counsel contacted other jurors who confirmed the presiding juror’s account of the incident. After obtaining several affidavits, Ludlow filed a motion to re-cuse Judge Chambers. On the same day, Deberry filed motions for new trial and for judgment n.o.v. Judge Chambers refused to recuse himself and the recusal was referred to a visiting judge, Judge Curt Steib.
During the recusal hearing, Judge Steib refused to allow Ludlow to call Judge Chambers to the stand. Judge Steib later admitted talking with Judge Chambers before the recusal hearing. Judge Steib denied the re-cusal motion on May 13,1993.
Ludlow filed a motion for leave to file a petition for writ of mandamus in this court, which this court initially granted, but later withdrew leave to file and overruled the motion, stating that Ludlow had an adequate remedy by appeal. The trial court granted Deberry’s motion for new trial and set aside a prior order denying Deberry’s motion for partial summary judgment. On June 11, 1993, Deberry dropped his counterclaim and moved for summary judgment. Judge Chambers granted final summary judgment for DeBerry and assessed court costs against Ludlow. Ludlow moved to re-open the recu-sal hearing and moved the court to reconsider its prior rulings. The trial court denied these motions.
I. Recusal Issues
In point of error three, appellant contends Judge Steib committed reversible error in refusing to allow appellant to call Judge Chambers as a witness at the recusal hearing. In point of error four, appellant claims the trial court erred in refusing to reopen the recusal hearing after Judge Stovall, the chief administrative judge, produced a letter from Judge Steib stating he had talked with Judge Chambers prior to the recusal hearing about the necessity for Judge Chambers’ testimony.
On August 17, 1995, this panel issued an order sustaining point of error three and holding it was error to refuse to allow the testimony of Judge Chambers. Accordingly, we abated the appeal and ordered the trial court to hold another hearing on appellant’s motion to recuse during which appellant could question Judge Chambers. The hearing ordered by this court was never held. On November 28, 1995, appellant filed a motion for en bane reconsideration of our August 17, 1995 order. In that motion, appellant argued that, because Judge Chambers is no longer on the bench, the issue of whether the district court should recuse Judge Chambers was now moot. Therefore, appellant asked that we vacate our August 17, 1995 order. We granted the motion and withdrew our August 17, 1995 order by order dated December 7,1995.
Appellant claimed in his motion for reconsideration that his “third point of error is moot to the extent it seeks as an alternative remedy a remand to the district court for a new recusal hearing....” Appellant’s third point of error alleged reversible error in Judge Steib’s refusal to allow appellant to call Judge Chambers as a witness at the recusal hearing. The statement of facts for the recusal hearing reflects that appellant requested the recusal judge to call Judge Chambers as a witness, and that request was denied. After a brief discussion of the holding in Joachim v. Chambers,
Rule 103(a)(2) of the Texas Rules of Civil Evidence provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and the substance of the objection was made known to the court by
In points of error one and two, Lud-low claims Judge Steib committed reversible error by refusing to recuse Judge Chambers under Rule 18b(2)(a)-(b). Rule 18b requires a judge to “recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned [or] (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding_” Tex.R. Crv. P. 18b(2)(a)-(b).
DeBerry argues that both bases for recu-sal require a showing of extrajudicial bias. Ludlow contends that a showing of extrajudicial bias is not required to show impartiality under Rule 18b(2)(a). In support of his argument, Ludlow cites Canon 3 of the Code of Judicial Conduct, entitled “Performing the Duties of Judicial Office Impartially and Diligently.” This Canon sets forth the standards that apply to a judge in performing his adjudicative or administrative responsibilities. For example, Canon 3, pt. B(4) requires a judge to be “patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity_” Texas Supkeme COURT, Code of Judicial Conduct, Canon 3, pt. B(4) (1994) [hereinafter Tex.Code of Judicial Conduct, Canon 3 (1994)]. A judge must also perform his duties without bias or prejudice. Tex.Code of Judicial Conduct, Canon 3, pt. B(5) (1994). Ludlow contends that violation of any of the standards set out in Canon 3 is impartiality per se.
Canon 8 describes the intent of the Code:
The code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.
It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the test and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.
Tex.Code of Judicial Conduct, Canon 8, pt. A (1994). Thus, a judge may be disciplined for violating one of these rules, but a violation does not necessarily mean that the judge should be recused.
In Grider v. Boston Co., Inc.,
In Liteky v. U.S.,
The judge who presides át a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task. As Judge Frank pithily put it: “Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.”
Id. Regarding whether judicial rulings can establish bias, the Supreme Court observed that judicial rulings alone almost never constitute a valid basis for a recusal motion because they cannot possibly show reliance upon an extrajudicial source and can rarely evidence the degree of favoritism or antagonism required when no extrajudicial source is involved. Id. at 554-56,
Applying Liteky
In point of error four, Ludlow claims the trial court erred in refusing to re-open the recusal hearing. Ludlow asserts the re-cusal hearing was “tainted by an appearance of impartiality” because Judge Steib communicated with Judge Chambers before the re-cusal hearing regarding whether Judge Chambers would testify. The substance of that communication was described by Judge Steib in a letter to Judge Stovall, the presiding judge of the Second Administrative Judicial Region. In pertinent part, this letter states:
On the afternoon of April 28, 1993, I walked to the Congress Plaza before returning to the Allen Park Inn. I consideredJudge Chambers an interested party to the recusal motion. However, he did not and does not have counsel to represent him. Judge Chambers was on the bench trying a jury case. I waited until a break was taken, at which time I talked to him in his office for less than three minutes. I told him that I understood that I was being assigned the recusal motion. I wanted him to know that I could not hear the motion on the morning of April 30th, and I had reset it for 2:00 p.m. of that day. In my opening remarks to Judge Chambers, I told him I did not want to discuss the allegations or anything about the motions. None were discussed. Judge Chambers inquired if he would be required to be present, and my response was that as far as I was concerned he did not have to be there, because under my reading of the reasoning in Joachim v. Chambers, 815 S.W.2d 234 (Tex.1991), it was my practice not to permit any party to place a judge on the stand, unless it was first established that his testimony could not be procured from any other source. I think I said that if he was not present, and his testimony was required, I would have someone call him on 15 to 30 minutes notice. After that conversation on the afternoon of the 28th, I had no further discussion with Judge Chambers to this very moment.
Ludlow contends this communication is ex parte and constitutes a showing of per se partiality. Alternatively, Ludlow claims this was obstruction of justice under the Texas Code of Judicial Conduct, Canon 3, pt. A(4).
Nothing in Judge Steib’s letter indicates that his communication with Judge Chambers concerned the merits of the recusal motion. Absent any showing that the discussion concerned the merits of the proceeding, we hold this communication did not taint the proceedings. We overrule point of error four.
II. Summary Judgment
In point of error five, Ludlow claims the trial court erred in granting summary judgment in favor of DeBerry and SDI on all claims. A movant for summary judgment must show there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co.,
A. Contract Claims
Ludlow alleged breach of contract claims against DeBerry individually and against SDI. DeBerry contends the trial court’s grant of summary judgment was proper as to Ludlow’s breach of contract claim against DeBerry individually because there was no meeting of the minds on the essential terms of the agreement alleged by Ludlow. For an agreement to be enforceable, there must be a meeting of the minds with respect to the subject matter of the agreement and as to all of its essential terms. Calvin v. Koltermann, Inc. v. Underream Piling Co.,
The summary judgment proof shows that Ludlow and DeBerry agreed that Lud-low would become a “partner” in SDI and would get 25% of the profits. Although Lud-low alleges DeBerry promised to continue paying commissions to Ludlow in addition to the partnership profit share, Ludlow admits in the record that he and DeBerry never specifically discussed this. Furthermore, Ludlow concedes he never asked about continuation of his 60% commissions in addition to the 25% of profits because, in Ludlow’s opinion, “there was no reason to.”
A. Payment due S. DeBerry per Doane Statements, plus
B. Commissions paid Ludlow, plus
C. Accrual due Ludlow, equals
D. Total profits of Falcon Products, D x .25 Minus
E. Payments already made to Ludlow, equals Payment owed Ludlow (if any).
This answer is consistent with DeBerry’s testimony that Ludlow was to be paid the commissions as a draw against his partnership share. Thus, DeBerry’s answer to the previous interrogatory does not support a finding that fact issues exist regarding the meeting of the minds on the terms of the agreement.
Finally, Ludlow points to the testimony of Ronald H. Spath:
Q. Do you have a good memory of what Mr. DeBerry told you about Ludlow’s compensation?
A. No. I mean, he received 60 percent plus a certain— some other percentage, and I don’t know what that— I don’t recall even what that percentage was, offhand.
This testimony does not clearly show what compensation DeBerry and Ludlow agreed upon; however, it is some proof Ludlow was to continue receiving the 60% commissions he had received as a salesman. Although the proof reveals objective manifestations of intent by DeBerry to enter into a partnership agreement with Ludlow and to pay him 25% of the profits,we believe the proof also raises a fact issue concerning whether there was a meeting of the minds on the essential terms of the agreement.- Based on the summary judgment proof, we hold the trial court erred in granting summary judgment on the ground there was no meeting of the minds on an alleged agreement to receive compensation beyond the 25% profit share.
Other contractual defenses raised by Deberry were lack of consideration and no bargained for exchange. SDI also argued lack of consideration on the breach of contract claim. An agreement must be supported by consideration. Fourticq v. Fireman’s Fund Ins. Co.,
At the time DeBerry and Ludlow allegedly agreed to become partners, DeBer-ry was the sole stockholder of SDI. Ludlow was already an employee of SDI. DeBerry testified that SDI did not bargain for any additional performance by Ludlow and that Ludlow did not perform any additional services. Ludlow argues that DeBerry was acting in his individual capacity and that there is no summary judgment proof that DeBerry was ever acting on behalf of SDI or Falcon in his dealings with Ludlow. Ludlow insists there was consideration for payment of additional compensation beyond the 25% profit share because Ludlow agreed to undertake extra duties and responsibilities. Ludlow testified that DeBerry asked Ludlow to “pick up the slack” while DeBerry took time off from work to be with his family. We find this testimony sufficient to raise a fact issue regarding the existence of consideration. Thus, to the extent the summary judgment in favor of DeBerry and SDI was based on lack of consideration, the trial court erred.
B. Statute of Frauds
In the motion for summary judgment, DeBerry claimed the alleged agreement was barred by the Statute of Frauds. DeBerry claimed the only conceivable basis for holding DeBerry personally liable was by alleging a promise by DeBerry to pay Lud-
Ludlow responds that DeBerry remains personally liable under the main purpose doctrine. The main purpose doctrine is an exception preventing application of the Statute of Frauds where a promisor accepts primary responsibility for the debt of another and his main objective or “main purpose” is to serve some interest of his own. See Haas Drilling Co. v. First Nat’l Bank,
There are three inquiries the courts use to determine whether an oral promise to pay the debt of another is outside the Statute of Frauds and enforceable. Id. These are (1) whether the promisor intends to accept primary responsibility to pay the debt or merely intends to be a surety; (2) whether there was consideration for the promise; and (3) whether the consideration given for the promise is the sort of consideration which the courts hold is necessary to take the promise out of the Statute. Id.
In applying the main purpose doctrine, the court must also look to the consideration received and determine: “(a) whether the promisor obtained, as part of that consideration, a benefit accruing directly to him personally; and (b) if so, whether the obtaining of that benefit was his main purpose for making the promise.” Id. (quoting Cooper Petroleum Co. v. La Gloria Oil & Gas Co.,
The record shows that DeBerry offered to treat Ludlow as a 25% partner. Ludlow testified he understood DeBerry would pay Ludlow a 25% share as a partner in addition to Ludlow’s compensation of 60% of gross brokerage commissions. Ludlow further testified DeBerry offered the partnership profits, in addition to Ludlow’s 60% commissions, because DeBerry stated he wanted to take time off from work and spend more time with his family. Thus, Ludlow argues DeBerry would have personally benefitted from the agreement. DeBerry, however, testified there was no bargain for additional performance by Ludlow. Given the conflicting testimony, we find a fact issue exists regarding consideration and intent. Therefore, the issue whether the promise was within the Statute of Frauds, or was outside the statute based on the main purpose doctrine, was a disputed fact issue precluding summary judgment.
C. Quantum Meruit; Unjust Enrichment
In addition to challenging the summary judgment on the contract claims, Lud-low claims the trial court erred in granting summary judgment in favor of DeBerry and SDI on the claims of quantum meruit and unjust enrichment. Ludlow was paid more than $450,000.00 for his services (his commissions as a draw against the 25% partnership share), but he claimed he was owed approximately $159,000.00 more for the extra efforts he expended after he and DeBerry discussed a partnership. SDI and DeBerry responded that Ludlow was not entitled to additional monies when SDI and DeBerry received nothing more of value than that already required under Ludlow’s employment agreement.
Generally, a plaintiff may recover in quantum meruit only when there is no express contract covering those services or materials. Truly v. Austin,
Ludlow testified DeBerry asked that, in exchange for a partnership share, Ludlow “take up the slack” while DeBerry took time off from work to be with his family. Although Ludlow admitted he did not perform any duties additional to those performed before the alleged partnership agreement,
Ludlow also alleged unjust enrichment against DeBerry and SDI, claiming he deserved extra compensation for the extra duties and responsibilities he undertook. Again, the summary judgment proof reveals Ludlow did not perform any extra duties beyond those required under the employment agreement; however, there is proof sufficient to raise a fact issue whether De-Berry and SDI were unjustly enriched by any extra responsibilities Ludlow may have assumed. Thus, we find the trial court erred in granting summary judgment in favor of DeBerry and SDI on this claim.
D. Fraud Claims
Ludlow alleged claims of fraudulent and negligent misrepresentation, and breaches of fiduciary duty and of the duty of good faith and fair dealing. DeBerry argued in his motion for summary judgment two reasons for granting summary judgment on Ludlow’s fraudulent inducement claim: (1) there is no proof that any promise by DeBerry was false at the time it was made; and (2) Ludlow’s alleged damages are economic and, therefore, Ludlow’s claim sounds in contract rather than tort.' As to the negligent misrepresentation claim, DeBerry argued Ludlow’s alleged damages were economic, and therefore this tort claim also sounds in contract.
Texas courts have long struggled with the relationship between contract claims and tort claims. The El Paso Court of Appeals aptly described the law of “contorts” as a “muddy area, devoid of bright line rules or easy answers.” Airborne Freight Corp. v. C.R. Lee Enter., Inc.,
Three years later, the supreme court restated the rule that when the only loss or damage is to the subject matter of the contract the plaintiff’s action is ordinarily on the contract. Southwestern Bell Tel. Co. v. DeLanney,
Turning to Ludlow’s claim of negligent misrepresentation, we must determine whether the damages sought are purely contractual damages. See DeLanney,
The determination whether the trial court properly granted summary judgment on the fraud claim is more problematic. Both Jim Walter Homes and DeLanney involved claims of negligence in the performance of the contract rather than a tort accompanying the formation of the contract. The supreme court has not explicitly extended Jim Walter Homes and DeLanney to fraud claims. Although benefit of the bargain damages are not recoverable under a negligence cause of action, they are recoverable under a fraud theory. Leyendecker & Assoc., Inc. v. Wechter,
A number of courts of appeals, however, have extended the holdings in DeLanney and Jim Walter Homes to fraud claims without explaining the basis for the extension or determining whether the case involved a claim of fraudulent inducement to contract. See, e.g.,Grace Petroleum Corp. v. Williamson,
The Corpus Christi Court of Appeals was the first to attempt to reconcile the holdings in Jim Walter Homes and DeLanney with case law allowing recovery of contractual damages under a fraud cause of action. In Schindler v. Austwell Farmers Co-op., the plaintiff alleged fraudulent inducement and the jury found appellant liable. Id. at 286. The appellate court upheld liability, actual damages, attorney’s fees, and exemplary damages. Id. at 287-89. On rehearing, appellant raised the rule announced in Jim Walter Homes, arguing that the exemplary damages should not stand. Id. at 289. The Corpus Christi court advanced two arguments for declining to extend Jim Walter Homes to a claim of fraudulent inducement to contract. Id. at 291. First, the court reasoned that contractual remedies are limited to compensatory damages regardless of the culpable mental state of the breaching party and, under this breacher-friendly rule, “the aggrieved party deserves the benefit of the bargain, but the aggrieving party does not deserve punishment.” Id. The court found no policy reasons for extending the holding in Jim Walter Homes to benefit parties who fraudulently enter contracts they have no intention of performing. Id.
Second, the court reasoned that applying Jim Walter Homes to a claim for fraudulent inducement would completely eliminate fraudulent misrepresentation in procurement of a contract as a tort. Id. The court concluded that eliminating this tort contravenes the Texas Supreme Court’s holdings in Spoljaric and Crim Truck. See Id,
Schindler appealed to the Supreme Court and argued that Austwell could not recover both attorney’s fees for breach of contract and punitive damages for fraud based on the same event and the same injury. Schindler v. Austwell Farmers Co-op.,
Other courts have followed the holding in Schindler. See American Nat’l Ins. Co. v. International Business Machines Corp.,
This court is not immune from the confusion experienced by other courts of appeals in addressing these types of cases. Panels of this court have applied Jim Walter Homes and DeLanney to claims of fraudulent inducement without exploring the differences between claims of common law fraud and claims of fraudulent inducement. See Barbouti v. Munden,
Hebisen is another case from this court involving a claim of fraudulent inducement. In Hebisen, the jury found: (1) appellants represented, at the time the lease was signed, they would make rental escalation payments; (2) appellee relied on these representations to his detriment; and (3) at the time appellants made these representations, appellants did not intend to pay the rental escalation payments.
In the instant case, Ludlow claimed DeBerry made fraudulent misrepresentations which induced him to enter a partnership agreement with DeBerry. In appellees’ motion for summary judgment it is asserted that Ludlow’s only damages are economic damages flowing from appellees’ failure to perform the agreement. Thus, ap-pellees conclude that, where the only loss is to the subject matter of the contract, Lud-low’s claim sounds only in contract. Appel-lees seek to extend DeLanney and Jim Walter Homes to tort claims based on fraudulent inducement. We believe such an extension is ill-advised and we are persuaded by the analysis in Schindler, American Nat’l Ins. Co., and Matthews that an attempt to recover benefit of the bargain damages is permitted where the plaintiff alleges a cause of action for fraudulent inducement. See Schindler,
Another basis for granting summary-judgment in favor of DeBerry was lack of a fact issue on an element of Ludlow’s fraud claim. According to DeBerry, there was no proof showing DeBerry’s promise was false when it was made.
Failure to perform, standing alone, is not evidence the promise was false at the time it was made. Spoljaric,
Ludlow reasons that, using DeBerry’s argument regarding calculation of Ludlow’s compensation, the representation of additional income was misleading. In support of this statement, Ludlow points to DeBerry’s deposition testimony that his review of the 1988-89 Doane statements was the basis for his representation Ludlow would make an extra $50,000-100,000 per year under the oral partnership agreement. Ludlow observes that if DeBerry indeed reviewed the Doane statements as he claimed to have done, there was no basis for his representation to Ludlow that he would make an additional $50,000-100,000 per year as a partner. Additionally, Ludlow submitted with his response an affidavit of Mary Anne Capo, a manager at Arthur Andersen & Co. She also reviewed the Doane statements for the 14 month period leading up to the partnership agreement and concluded that the net profits of Falcon had to be almost 18 percent higher than they were for Ludlow to make an additional $100,-000. We agree that this proof is sufficient to raise a fact issue about the possible falsity of DeBerry’s representation to Ludlow at the time it was made. We further believe the determination whether DeBerry intended to perform as allegedly represented is a question of fact for the jury. Therefore, the trial court erred to the extent it found no material issue of fact on the question whether DeBer-ry’s representation was false when made.
In addition to alleging fraudulent and negligent misrepresentation, Ludlow alleged breach of fiduciary duty and the duty of good faith and fair dealing. DeBerry claimed in his motion for summary judgment that no duty of good faith and fair dealing or fiduciary duty was owed to Ludlow because there was no confidential relationship giving rise to such a duty. In his petition, Ludlow alleged the existence of a fiduciary duty arising from a confidential relationship and from the partnership relationship.
A fiduciary duty arises from the relationship of the parties, and not just from the contract. Kline v. O’Quinn,
Ludlow claims that DeBerry’s calculation of his compensation as a partner for less than Ludlow claimed was due him was a breach of fiduciary duty. As discussed previously, De-
III. Discovery Disputes
In point of error six, Ludlow claims the trial court erred in granting DeBerry’s motion for protection from discovery
Under Rule 166b(5), a party from whom discovery is sought may file a motion for protection and the court may enter any order “in the interest of justice necessary to protect the movant from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights.” Tex.R. Civ. P. 166b(5). The scope of discovery lies largely within the court’s discretion and we may not set aside the court’s action without a clear showing of abuse of discretion. Ginsberg v. Fifth Court of Appeals,
Ludlow requested production of disability claims submitted by DeBerry from January 1990 to August 1991 because he believed they were relevant to the reasons DeBerry left the company and entered the agreement with Ludlow. In response to this request, DeBer-ry objected on the grounds that it was outside the scope of permissible discovery, irrelevant, burdensome, and would constitute an invasion of his personal rights. The trial court granted DeBerry’s motion for protection as to these documents.
Ludlow claims in his brief that DeBerry “never intended to make good on the partnership agreement” and that the “circumstances surrounding where, when, and why DeBerry decided to leave Falcon are more than relevant to the issues in this case.” Ludlow further argues the production of these documents could have led to the discovery of other material evidence, “particularly where DeBerry advised Ludlow that, during the events that [led] to the institution of the present lawsuit he [DeBerry] was seeking medical treatment and intending to file a medical disability claim.” Ludlow’s assertions do not show that DeBerry’s medical disability claims are in any way relevant to a determination of the terms of the partnership agreement, if it was breached, whether a fiduciary duty existed, and if so, whether it was breached. We find no abuse of discretion with respect to the protective order and overrule points of error six and seven.
IV. Conclusion
We affirm the trial court’s denial of the recusal motion and the trial court’s grant of a protective order. As to the summary judgment rendered by the trial court, we affirm the judgment with respect to Ludlow’s claim of negligent misrepresentation, and we reverse and remand Ludlow’s remaining claims for trial.
Notes
. During the pendency of this appeal, Scott De-Berry died. His death, however, does not affect our disposition of this appeal. TexR.App. P. 9.
. The federal rule requires a federal judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C.A. 455(a) (West 1993). This rule also requires disqualification if the judge has "a personal bias or prejudice concerning a party_” Id. at 455(b)(1).
. Although the Court in Liteky is construing a federal rule, we may consider the Court's interpretation since it is essentially the same as the Texas rule on recusal and disqualification. Eckerdt v. Frostex Foods, Inc.,
. The following excerpt is illustrative of Ludlow’s testimony regarding additional performance beyond that required by his employment agreement:
Q. Mr. Ludlow, we were talking about what you claimed to do for the $159,000 you’re suing for. Is there — can you pinpoint anything particular that you did that you hadn’t done before when the agreement was made?
A. Specific action?
Q. Yes.
A. No, I can’t pinpoint a specific action other than to tell you that I would have done it with more energy or fervor.
. The supreme court offered the following analysis of the history of fraud:
The modem fraud cause of action developed from an action on the case for deceit, and was related to debt as an evolution of the action of assumpsit. Assumpsit was a contractual or quasi-contractual action involving a promise and leading to a claim of debt (but not the pure common law action for a debt). Actually the fraud and deceit cause of action developed through the action of Assumpsit as a hybrid of the original common law action for debt and action for Account.
Williams,
. Barbouti does contain dicta suggesting the fraud claim is properly one for breach of contract, but this was not the basis for the ultimate holding. See Barbouti,
. Although the Hebisen court found no evidence of fraud damages, the court remanded the cause for trial because appellants failed to lay the proper predicate for reversal and rendition.
. Several Texas courts of appeals have followed our decision in Hebisen. See Parker v. Parker,
.In Spoljaric, the supreme court upheld the jury’s award of punitive damages on a claim of fraudulent inducement to enter a contract despite allegation and award of actual damages giving the plaintiff the benefit of the bargain. See Spoljaric,
. Ludlow had requested production of disability claims submitted by DeBerry to his disability carrier.
Lead Opinion
Appellant, Howard Ludlow, raises two points in Ms motion for rehearing challenging our analysis and disposition of points of error one and two concerning the ruling on Lud-low’s motion to recuse the trial judge. Ap-pellees, Scott DeBerry, Scott DeBerry Interests, Inc., and Falcon Products, Inc., have also filed a motion for rehearing. We overrule both motions for rehearing, but issue an opmion on rehearing addressing Ludlow’s concerns regarding points of error one and two.
Ludlow first argues that we erred in overruling point of error one, which challenged Judge Steib’s refusal to recuse the trial judge under Texas Rule of Civil Procedure 18b(2)(a). As a second ground for rehearing, Ludlow claims we erred in overruling point of error two in which Ludlow complained of Judge Steib’s determination that Rule 18b(2)(a) did not state a separate ground for recusal.
A short summary of the facts pertinent to the recusal motion will aid our discussion. In moving for recusal, Ludlow primarily complained about the trial judge’s comments to the jury after the jurors had rendered their verdict and been dismissed. As the jury was leaving the courtroom, the judge angrily stated that their verdict was the worst he had ever seen. Jurors were upset about tMs comment and contacted Ludlow’s attorney. Ludlow’s attorney then filed a motion to recuse the trial judge.
In response to Ludlow’s complaints, De-Berry argued that recusal was inappropriate unless Ludlow established extrajudicial bias on the part of the judge. In our original opinion, we agreed with DeBerry and held that Ludlow had not shown the judge’s actions emanated from an extrajudicial source. Accordingly, we overruled points of error one and two. Ludlow now contends we erroneously decided point of error one under authority concerning Rule 18b(2)(b) rather than 18b(2)(a). Ludlow not only disputes the authority we cited, but chastises us for failing to cite other authority.
Ludlow contends we should have applied the reasonable person standard enunciated in Rogers v. Bradley,
In some instances, Texas appellate courts have applied the reasonable person standard in determining whether a recusal motion should have been granted. See, e.g., Keene Corp. v. Rogers,
Ludlow misconstrues Liteky. The first sentence in the opinion states that the Court is determining whether the extrajudicial source rule applies to the rule in 28 U.S.C. 455(a) requiring recusal “in any proceeding in which [a judge’s] impartiality might reasonably be questioned.”
As the United States Supreme Court’s opinion indicates, the federal ground for recusal, regarding questions as to a judge’s impartiality, is a broad ground, encompassing many more specific grounds. Liteky,
Disagreeing with our construction of the rule, Ludlow insists that Rogers and Kirby v. Chapman, 917 S.W.2d 902 (Tex.App.—Fort Worth 1996, no writ), which cites to Rogers, are controlling. As we have already discussed, the portion of Rogers to which Lud-low cites is not an opinion by a majority of the Texas Supreme Court. Indeed, in Rogers only two justices articulated their views on recusal; neither the Chief Justice nor the other six justices revealed their views on the issue. Furthermore, both Rogers and Kirby concern challenges to judges’ impartiality based, not on in-court statements and rulings, but on political support during the judges’ candidacy for election or appointment to office. Rogers,
Ludlow cannot escape the effect of Liteky and Grider by focusing on the term “bias” and ignoring the factual basis for the courts’ application of the extrajudicial source rule. In determining whether to apply the extrajudicial source rule when a litigant cites Rule 18b(2)(a), a court must consider the facts upon which recusal is sought. In this ease, Ludlow sought recusal based on the trial judge’s demeanor and in-court statements. The statements occurred while the case was pending before the judge. Regard
Applying the extrajudicial source rule to the facts of this case, we find Ludlow did not meet the burden of proof required to show an abuse of discretion. The action complained about by Ludlow arose during the pendency of the trial court proceedings. Ludlow has not shown that these statements emanated from any source other than the judge’s opinion based on his perception of the evidence presented. None of the actions by Judge Chambers indicate such a “high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky,
Ludlow also argues that we should have found Judge Steib’s refusal to recuse the trial judge per se error. Ludlow claims that the rationale behind Rule 18(b)(2)(a) is Canon 3 of the Code of Judicial Conduct,
Ludlow contends that violation of any of the standards set out in Canon 3 is impartiality per se.
Several of the directives under Canon 3A use the word “shall.”
Although a number of the directives in Canon 3 are mandatory and assist in determining when a trial judge’s impartiality may reasonably be questioned, the determination whether to grant or deny a recusal motion, regardless of the ground asserted, is within the discretion of the judge assigned to hear the motion and-this determination must stand unless the assigned judge abused his discretion. See Tex.R. Civ. P. 18a(f). As discussed by the Supreme Court in Liteky, a trial judge necessarily forms opinions based on the evidence presented in a case. See Liteky,
Based on the evidence presented at the recusal hearing, Judge Steib could have determined that the outburst in front of the jury was improper, but not an action requiring recusal because he was not presented with any evidence it emanated from an extrajudicial source or revealed deep-seated and unequivocal antagonism that rendered fair judgment impossible. Finding no abuse of discretion, we adhere to our original decision to overrule points of error one and two, as clarified herein.
. Ludlow also complains that we cite to a provision of the Code of Judicial Conduct that was not in effect at the time this lawsuit was filed. We agree with Ludlow as to this complaint and delete any reference to Canon 8A of the Code of Judicial Conduct as the wording of that canon as cited in our opinion was not effective until March 2, 1994.
. The extrajudicial source rule is applied where recusal is sought based on a judge’s in-court statements or rulings. Liteky v. U.S.,
. Case law frequently defines the "impartiality” standard as used in Rule 18b(2)(a) as avoidance of the appearance of judicial bias. See Rogers,
. The majority in Liteky stated the following to exemplify the applicable standard to be applied under 28 U.S.C. § 455(a): “Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible .... Not establishing bias or partiality, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display."
. Because this case was filed before the effective date of the 1994 Code of Judicial Conduct, we refer to the prior code.
. Ludlow urges us to find that a violation of the Code of the Judicial Conduct should result in recusal on a per se basis, much like violation of a statute or ordinance can result in a finding of negligence per se. See Nixon v. Mr. Property Mgmt. Co., Inc.,
. Ludlow cites to the Black’s Law Dictionary definition of “canon.” We, however, are unpersuaded by this authority. Other authority cited by Ludlow concern the rules of procedure and do not mention the canons regarding judicial conduct.
. For example, Canon 3A(8) states that a "judge shall abstain from public comment about a pending or impending proceeding....” TexCode of Judicial Conduct, Canon 3A(8) (1989) (amended 1992, 1994).
. In 1984, the Texas Constitution was amended to provide the following:
Any Justice or Judge of the courts established by this Constitution or created by the Legislature as provided in Section 1, Article V. of this Constitution, may, subject to the other provisions hereof, be removed from office for ... willful violation of the Code of Judicial Conduct. ...
Tex. Const, art. 5, § 1-a (6). By making a willful violation of the Code of Judicial Conduct a ground for removal of a judge, the constitutional amendment elevated the importance of the Code. See Kilgarlin & Bruch, supra, at 635.
. If the defendants had filed a motion for judgment notwithstanding the verdict, the judge would have been within his power to grant it and enter judgment in much the same manner as he did in this case. See TexR. Civ. P. 301. The granting of a motion for judgment notwithstanding the verdict or a motion for new trial may indicate the judge’s disagreement with the juiy verdict, but such non-vocal disagreement is permitted and the judge may not be recused even though a juror might find such action by the judge objectionable. See TexR. Civ. P. 301, 320. A juror’s impression, under such circumstances, that the judge was impartial would not mandate recusal because the rules specifically allow the judge to express his disapproval of the verdict by granting motions for new trial or for judgment notwithstanding the verdict.