Ludlow v. DeBerry

Agreement its Loan Sale to claim protection.17 We overrule & A’s fifth C points

sixth of error. points of six Finally, addition why argues specifically A error in which C & erroneously summary granted the trial court judgment, point asserts seventh omnibus error, point

of error. C & A claims generally that “[t]he trial court erred

granting the of Bank and Bonnet motion One and, Summary Judgment” support, arguments. its incorporates earlier We over- point rule rea- error seven for same points of sons we overruled C & A’s earlier error. not reach & A’s third We need C error, summary point challenges which that, law, judgment ground as a matter of alleged wrongful Bank One Bonnet’s & conduct could not have caused C A dam- 90(a). age. See Tex.R. App. P. judgment. We affirm trial court’s LUDLOW, Appellant, Howard DEBERRY, Individually, Scott H. Scott DeBerry Interest, Inc., and Falcon Inc.,

Products, Appellees. No. 14-93-01090-CV. Texas, Appeals Court of (14th Dist.). Houston July 1997. Opinion Overruling Rehearing Jan. Smith, entity party to the not a Corpus Bank Trust v. inure benefit 17. Christi & (Tex. 1975) (recognizing contract). 503-04 circumstances, contract terms under certain

268 Docloux, Bohn, P. H. A. Glenn

Jon Cecilia Houston, Diddell, III, appellant. Houston, Mazzone, Beverly, Michael J.W. appellees. for MURPHY, C.J., Before and ANDERSON HUDSON, JJ.

OPINION

ANDERSON, Justice. appeals the denial of his

Howard Ludlow judge, certain dis- motion to recuse the trial post-verdict covery rulings, and a order summary judgment ap- in favor of pellees. Appellant points of er- raises seven part and reverse and ror. We affirm part. remand DeBerry against Ludlow filed suit Scott (“SDI”) (for Interests, Inc. Scott Falcon), Prod merly known as and Falcon contract, ucts, alleging quan Inc. breach enrichment, meruit, unjust tum breach of duty good dealing, fair breach of faith and negligent fiduciary duty, and fraudulent and presenta misrepresentation. Following the evidence, jury found in favor of tion of claims of breach of contract Ludlow on his jury quantum The awarded meruit. $124,051.00 damages plus in actual attorney’s for the contract claim. On fees claim, jury quantum meruit found TexR.App. appeal, disposition appeal. P. 9. During pendency of Scott De- our of this this death, however, Berry does not affect died. His Stovall, Judge hearing after open services to be the recusal reasonable value Ludlow’s judge, $25,000.00. jury produced found favor of De- the chief administrative The stating had talked Berry fiduciary he Judge letter from Steib on claims breach of duty prior to the recusal Judge fraud. Chambers necessity Judge for Cham- hearing about the jurors, According to one of the when testimony. bers’ courtroom, judge, Judge left the trial Chambers, Eugene angrily told the dis- 17, 1995, panel August issued On jurors they had “the missed delivered worst sustaining point of error three and order eight and a half verdict that had heard allow the holding it error to refuse to years_” judge’s Upset outburst Accordingly, testimony Judge Chambers. criticism, juror presiding called the trial appeal and ordered we abated the counsel and advised him about the hearing appellant’s to hold another contacted other incident. Ludlow’s counsel appellant during which motion recuse juror’s jurors presiding who confirmed the Judge question hear- could Chambers. obtaining sev- account of incident. After was never held. ing by this court ordered affidavits, Ludlow to re- eral filed motion 28, 1995, appellant filed mo- On November Judge day, cuse Chambers. On the same our tion en reconsideration of Au- bane Deberry filed new motions for trial motion, appel- gust 1995 order. In that Judge refused to n.o.v. Chambers that, argued lant because Chambers recuse himself and recusal was referred bench, longer no on the issue of whether visiting judge, Judge ato Curt Steib. Judge Cham- court should recuse district During hearing, Judge the recusal Steib Therefore, appellant bers moot. was now Judge refused to allow Ludlow to call Cham- 17, August that vacate our 1995 asked Judge bers to the stand. Steib later admit- granted withdrew order. We the motion and Judge talking ted Chambers before 17, by August 1995 order order dated our hearing. Judge denied the re- recusal Steib 7,1995. December 13,1993. May cusal motion on for recon- Appellant in his motion claimed file filed a motion for leave to a Ludlow point of error is sideration that his “third court, petition in for writ of mandamus the extent it as an alternative moot to seeks initially granted, which this court but later court for a remedy a remand to the district leave withdrew to file and overruled mo- hearing....” Appellant’s third new recusal tion, stating adequate that had an Ludlow alleged error point of reversible error appeal. granted remedy by The trial court appellant allow Judge refusal to Steib’s Deberry’s motion for new trial and set aside Judge a witness at the call Chambers as Deberry’s prior denying motion for a order facts for hearing. The statement of recusal 11, judgment. partial summary On June appellant hearing the recusal reflects 1993, Deberry dropped his counterclaim judge Judge call requested recusal summary judgment. Judge for moved witness, request and that Chambers granted summary final Chambers of the hold- After a brief discussion denied. against assessed court costs for Chambers, ing v. 815 S.W.2d 234 in Joachim re-open recu- moved to Ludlow. Ludlow (Tex.1991), acquiesced in appellant’s counsel hearing and moved the court to reconsid- sal ruling stating, light “In of the the court’s rulings. its The trial court denied prior er you’re allowing ruling not me Court’s these motions. put Judge ... I’ll have to put Chambers on myself.” on I. Recusal Issues 103(a)(2) three, Rules of the Texas appellant con Rule point of error may provides that error not Evidence Judge er Civil

tends Steib committed reversible predicated upon ruling which excludes be appellant to call refusing to allow ror of the right unless substantial at the recusal evidence as witness Chambers affected, of the four, substance appellant party is point of hearing. error court objection made known refusing to re- trial court erred claims the Supkeme capacity_” proof. primary purpose an official offer of Texas 3, proof appellate court Canon Conduct, offer of enable COURT, Code Judicial B(4) (1994) erro pt. to determine whether the exclusion was [hereinafter Tex.Code (1994)]. and harmful. A Goode, neous Canon Conduct, & WellboRN Judicial judge perform his duties without must also ShaRlot, of Evi Guide to Texas Rules (2nd ed.1993). dence, § A prejudice. 103.3 at sec bias or Tex.Code Judicial B(5) (1994). ondary purpose permit pt. is to the trial Canon Conduct, ruling light reconsider his of the actual that violation of of the stan- contends proof impartiality per evidence. Id. An offer of is sufficient out in Canon 3 is dards set apprised the court of the substance of the se. testimony presented in the form describes the intent of the Canon 8 Chance, of a concise statement. Chance Code: (Tex.App. 51-52 — Beaumont provide guid- designed The code is denied). 1995, writ We have examined the judicial judges ance to and candidates hearing not record of the recusal and have regu- provide office and to structure proof. the trial found an offer of When lating through the Commis- conduct State evidence, failure to make an offer of excludes It is not de- sion on Judicial Conduct. proof any complaint the exclu waives about signed or intended as a basis for civil Nemir, appeal. Porter v. sion liability prosecution. Further- or criminal writ). no — Austin more, purpose of the Code would be Walker, also Hibbler v. if the were invoked subverted Code (Tex.Civ.App. Dist.] [14th — Houston lawyers advantage in a for mere tactical writ) (holding there can be no refus proceeding. al to admit evidence that has not been of fered). Accordingly, point we overrule intended, however, every It error three. disciplinary transgression will result disciplinary action is action. Whether two, points one Lud- In of error degree discipline appropriate, and the of Judge reversible low claims Steib committed imposed, should be determined to be by refusing Judge error to recuse Chambers ap- through a reasonable and reasoned 18b(2)(a)-(b). requires Rule 18b under Rule plication depend and should of the test judge any proceeding in to “recuse himself of on such factors as the seriousness (a) impartiality might in reason which: his transgression, pat- there is a (b) personal ably questioned be he has [or] improper activity the effect tern of subject prejudice concerning the mat bias or improper activity on or on others knowledge party, personal ter or a or judicial system. concerning disputed evidentiary facts 8, 18b(2)(a)-(b). pt. Canon Conduct, P. proceeding_” Tex.R. Crv. Tex.Code of Judicial (1994). Thus, judge may disciplined A DeBerry argues that bases for recu- both rules, violating these but a viola- one of extrajudicial showing bias. require a sal judge necessarily mean that the tion does not showing extrajudi- that a Ludlow contends should be recused. required impartiality show cial bias is not Co., Inc., 18b(2)(a). In v. support In of his ar- Grider Boston under Rule 1989, writ de of the Code of 346 gument, Ludlow cites Canon 3 — Dallas nied), Conduct, in the trial “Performing appellants claimed error entitled Judicial himself because the judge’s Dili- refusal to recuse Impartially and Duties of Judicial Office judge antagonistic attitude to “exhibited an gently.” This sets forth the stan- Canon rulings them and ... his were consis judge performing in his ward apply that to a dards tently court held that a responsibili- unfair.” The Dallas adjudicative or administrative B(4) judge recuse party attempting require pt. re- example, Canon ties. For judge’s bias was himself must show that the judge “patient, dignified and quires a to be rul witnesses, extrajudicial on in-court jurors, and not based litigants, law- courteous to appellants’ ings. Id. The court added judge deals yers others with whom

271 ceedings not a basis for a recu- remedy assign concerning the do constitute was to error they display deep-seated rulings. Id. sal motion unless adverse antagonism that make favoritism or would U.S., Liteky 510 U.S. S.Ct. Thus, impossible. judgment fair Id. the Su- (1994), L.Ed.2d United judicial remarks preme Court reasoned Supreme the “extra- States Court discussed of a trial that are critical during the course judicial Although source” doctrine. counsel, hostile to disapproving or or even disqualifica- construing Court was the federal cases, sup- ordinarily not parties, or do their rule, essentially it same tion contains may do so port Id. remarks recusal. Such language not- as Rule 18b.2 The Court first deriving they opinion from an ex- reveal an “prejudice” ed that the terms “bias” and do trajudicial remarks will source and such disposi- or “connote a favorable unfavorable high degree such a favor- so if reveal opinion wrongful tion or that is somehow judg- antagonism as to make fair itism or inappropriate_” Id. at S.Ct. impossible. ment original). following (emphasis in The explains passage opinion from this the kind facts Applying Liteky3 and Grider to the requiring prejudice of bias or recusal: case, we find Ludlow did not establish may, judge presides who át a trial Judge alleged arose Chambers’ bias evidence, upon completion of the be ex- extrajudicial Although we from an source. ceedingly disposed ill towards defen- Chambers’outbursts, Judge do not condone dant, who has been shown to be a thor- complained all Lud- of the actions about oughly reprehensible person. But during pendency the trial low arose thereby judge not recusable bias proceedings. None of the actions court prejudice, knowledge since and the “high such a de- Judge Chambers indicate opinion produced nec- properly were gree antagonism to make of favoritism or essarily acquired pro- the course Liteky, fair impossible.” 510 U.S. (as ceedings, and are indeed sometimes Thus, at 1157. we find S.Ct. trial) necessary completion a bench by Judge refusing to recuse error Steib judge’s As pithily task. Frank points of Judge Chambers and we overrule put “Impartiality it: gullibility. is not Dis- error one and two. interestedness does mean child-like in- four, point of error Ludlow claims judg- If the nocence. did not form refusing re-open the trial erred ments of actors in those court-house hearing. the re- the recusal Ludlow asserts trials, dramas called he could never render appearance an hearing was “tainted cusal decisions.” Judge impartiality” because Steib commu Regarding judicial rulings Id. can Judge before the re- nicated with Chambers bias, Supreme establish Court observed Judge hearing regarding whether cusal judicial rulings con- alone almost never testify. The Chambers would substance a a stitute valid basis for recusal motion by Judge that communication was described possibly because cannot show reliance Stovall, Judge presid in a Steib letter upon extrajudicial rarely source and can ing judge of the Administrative Judi Second antago- degree or evidence favoritism Region. pertinent part, In this letter cial extrajudicial required no nism when source is states: 554-56, 114 involved. Id. at S.Ct. at 1157. 28, 1993, I April On the afternoon opinions The Court further stated Congress Plaza before re- judge walked to the formed basis of facts during pro- turning the Allen Park Inn. I considered occurring introduced or events construing Although Liteky a requires judge a 3. the Court The federal rule federal rule, any proceeding "disqualify may himself in which we consider the Court's inter federal impartiality reasonably questioned.” might his essentially pretation it is the same as since 1993). 455(a) (West This 28 U.S.C.A. requires disqualification rule also disqualification. Eck Texas rule on recusal judge per- "a if the has Foods, Inc., 70, 72 802 S.W.2d erdt Frostex prejudice concerning party_” a sonal bias 1990, writ). (Tex.App. — Austin 455(b)(1). Id. at 272

Judge party Chambers an summary interested claims. A movant judgment However, the recusal motion. genuine he did not must show there is no issue of mate- represent does not have counsel to rial fact and that he is entitled to Judge him. Chambers was on the bench Property as matter of law. Nixon v. Mr. Co., (Tex.1985). trying jury 546, Mgmt. case. I waited until a break taken, was at which I reviewing summary judgment time talked to him in to deter- his office for less than I if disputed precluding three minutes. mine fact issue exists him told I I summary judgment, understood that was we must take as true all being assigned proof non-movant, the recusal motion. I indulging favorable to the wanted him I every to know that could not hear resolving reasonable inference and all morning 30th, the motion on the April doubts the non-movant’s favor. and I p.m. mind, had reset it for 2:00 Bearing of that 548-49. this standard day. my opening Judge remarks to turn first to Ludlow’s contract claims. Chambers, I told him I did not want to A. Contract Claims allegations

discuss the anything about the motions. None were discussed. alleged breach of contract Judge inquired Chambers if he would be against DeBerry individually claims required present, my response to be against SDI. the trial contends was that as far as I was concerned he did grant summary judgment court’s was there, my not have to be because under proper as to Ludlow’s breach of contract reading reasoning in Joachim v. against DeBerry individually claim because Chambers, (Tex.1991), 815 S.W.2d 234 meeting there was no of the minds on the my practice was permit any party not to agreement alleged by essential terms of the place stand, on the unless it was agreement Ludlow. For an to be enforce first testimony established that his could able, meeting there must be a of the minds procured not be from other source. I respect subject to the matter of the think I said that if he not present, agreement and as to all of its essential terms. testimony required, I would have Koltermann, Calvin v. Inc. v. Underream someone call him on 15 to 30 minutes (Tex.Civ. 950, Piling notice. After that conversation on the af- n.r.e.). App. Antonio writ refd — San 28th, ternoon of the I had no further dis- missing, Where essential terms are courts cussion with very Chambers to this often agreement find no more than an moment. Ass’n, agree. See Pine v. Gibraltar Sav. (Tex.Civ.App. S.W.2d [1st Ludlow contends this communication is ex — Houston n.r.e.). Only parte par Dist.] writ refd showing per and constitutes a se objective ties’ manifestations of intent partiality. Alternatively, Ludlow claims this Int’l, Inc., justice be considered. Adams v. Petrade was obstruction of under the Texas [1st pt. Canon Conduct, Code Judicial — Houston denied). A(4). Dist.] writ Nothing in Judge Steib’s letter indicates summary judgment proof shows that his communication with Cham- DeBerry agreed that Ludlow and that Lud- bers concerned the merits of the recusal “partner” low would become a in SDI and any showing motion. Absent that the discus- get profits. Although would of 25% the Lud- sion proceeding, concerned the merits of the alleges DeBerry promised low to continue we hold this communication did not taint the paying commissions to Ludlow in addition to proceedings. point We overrule of error share, partnership profit Ludlow admits four. DeBerry in the record that he and never Furthermore, specifically discussed this. Summary Judgment II. Ludlow concedes he never asked about con five, point of error Ludlow claims the tinuation of his 60% commissions addition summary because, granting judg- profits trial court erred in to the 25% of in Ludlow’s DeBerry opinion, ment in favor of on SDI all “there was no reason to.” summary agreement.- of is Based support In further his claim there of court erred proof judgment, judgment proof, we hold trial precluding summary Ludlow summary judgment on the in- DeBerry’s affirmative answer to an cites meeting no of the minds on DeBerry ground there was terrogatory asking whether ever agreement compensa- to receive alleged an an agreement entered into with Ludlow beyond profit the 25% share. tion pay compensation in addition to Ludlow commissions earned as a broker. Ludlow by defenses raised Other contractual very interrog- does not mention that the next no Deberry of were lack consideration description atory for a of asks the terms bargained exchange. argued for SDI also agreement(s) prior in the referenced of con lack consideration on breach question. interroga- response to this next sup agreement An must be tract claim. DeBerry tory, stated that addition- Fourticq v. Fire ported consideration. compensation al calculated fol- was be as 562, Fund Ins. man’s S.W.2d lows: writ). It un (Tex.App no is . —Dallas DeBerry Payment per A. due S. Doane necessary any benefit accrue to the Statements, plus promisee it is promisor; sufficient Ludlow, paid plus B. Commissions subjected to or inconvenience. See loss Ludlow, equals Accrual due C. Inc., & Gas Roark v. Stallworth Oil Products, x profits of D D. Total Falcon (Tex.1991). 492, 496 Minus .25 DeBerry At the time and Ludlow Ludlow, already Payments E. made to partners, allegedly agreed to become DeBer- (if equals Payment any). owed Ludlow ry was stockholder of Ludlow the sole SDI. DeBerry’s This answer is consistent with DeBerry already employee was SDI. testimony paid that Ludlow was any bargain testified that did not SDI against partner- commissions a draw his performance Ludlow and that additional Thus, ship DeBerry’s share. answer to the perform additional ser Ludlow did not previous interrogatory support a does not DeBerry act argues Ludlow vices. finding regarding that fact issues exist ing capacity individual and that there his meeting the minds on the terms DeBerry summary judgment proof agreement. acting ever on behalf of SDI or Falcon Finally, points testimony Ludlow to the dealings with Ludlow. Ludlow insists his Spath: Ronald H. payment of addi there was consideration beyond profit 25% compensation tional

Q. you good memory Do have a what agreed to undertake DeBerry you share because Mr. told about Ludlow’s responsibilities. Ludlow extra duties and compensation? DeBerry “pick testified that asked Ludlow to mean, percent I he A. No. received 60 DeBerry off up the took time slack” while plus percent- a certain— some other family. We find from work to be with age, I and I don’t know what that— testimony to raise a fact issue sufficient percentage recall don’t even what that regarding the existence of consideration. was, offhand. Thus, judgment in summary the extent testimony clearly show This does not what DeBerry and was based on lack favor of SDI compensation agreed and Ludlow consideration, the trial court erred. however, proof it is some Ludlow was upon; receiving the 60% commissions to continue Frauds B. Statute Although as a salesman. had received summary judg objective in- In the motion for proof reveals manifestations of ment, DeBerry alleged agree by DeBerry partnership claimed the to enter into a tent by of Frauds. him ment barred the Statute agreement pay with Ludlow and 25% only DeBerry conceivable basis profits,we proof also raises claimed of the believe the by DeBerry personally concerning holding a liable was a there was for fact issue whether by DeBerry pay Lud- alleging promise meeting the minds on the essential terms money allegedly by corporation, low for pur owed Ludlow force and their main promise pay pose purpose SDI. Because a debt was to subserve their own writing signed by promote gain, another must be in their financial interest or an enforceable, DeBerry promise by to be oral made one of this class can be Tex. Bus. & Com. 26.01(b)(2), DeBerry argued categorized original that as and not within the Ann. Code promise pay even he had made an oral statute.” Id. SDI, money by Ludlow for owed to him DeBerry The record that offered to shows would be barred the Statute Frauds. partner. treat Ludlow as a 25% Ludlow DeBerry pay testified he understood would responds DeBerry Ludlow re partner Ludlow a 25% share as a in addition personally pur mains liable under main compensation gross of 60% of pose purpose doctrine. The main doctrine is brokerage commissions. Ludlow further tes- exception preventing application DeBerry partnership prof- tified offered promisor accepts of Frauds where a Statute its, commissions, in addition to Ludlow’s 60% primary responsibility for the debt of another DeBerry because stated he wanted to take objective purpose” and his main or “main time off and spend from work more time with to serve some interest of his own. Haas Thus, family. argues DeBerry Bank, Drilling Co. v. First Nat’l 456 S.W.2d personally would have benefitted from the (Tex.1970). prom To take the oral however, agreement. DeBerry, testified Statute, promisor ise out of the must be bargain perfor- there no for additional bargaining for a consideration that is benefi conflicting mance Ludlow. Given the tes- primary cial to him and constitutes his ob timony, regarding we find a fact issue exists ject. Id. Therefore, consideration and intent. the is- inquiries There are three the courts promise sue whether the was within the Stat- promise use to determine whether an oral Frauds, ute was outside the statute pay the debt of another is outside the Statute doctrine, purpose based on the main was a (1) of Frauds and enforceable. Id. These are disputed precluding summary fact issue promisor accept pri whether the intends to judgment. mary responsibility pay merely the debt or (2) surety; Quantum intends to be a Meruit; Unjust whether there was Enrich- C. (3) promise; consideration for the and wheth ment given promise er the consideration for the challenging addition to the sum the sort of consideration which the courts claims, mary judgment on the contract Lud- necessary promise hold is to take the out of low claims the trial court erred the Statute. Id. summary DeBerry judgment in favor of quantum SDI on the claims of meruit and applying purpose the main unjust paid enrichment. Ludlow was more doctrine, the court must also look to the (his $450,000.00 than his services commis “(a) consideration received and determine: against partnership sions as draw 25% obtained, promisor part share), approxi but he claimed he was owed consideration, accruing directly benefit $159,000.00 mately more for the extra efforts (b) so, personally; to him if whether the expended DeBerry after he and discussed obtaining pur of that benefit was his main partnership. DeBerry responded SDI and pose making promise.” (quoting that Ludlow was not entitled to additional Cooper Petroleum Co. v. La Gloria Oil & monies when SDI received (Tex.1969)). Gas 436 S.W.2d nothing already more of value than re The mere fact that a benefit will accrue to quired employment agree under Ludlow’s stockholder, officer, promisor as a ment. deny promise place director does not its Generally, quan Dyer plaintiff may within v. A-I recover in the Statute of Frauds. Automotive, Inc., (Tex. only express tum meruit when there is no writ). App. covering Paso contract or materials. “[W]here those services — El (Tex. Austin, moving Truly stockholders and directors are the misrepresen- 1988). negligent As to the express In of contract than tort.' the absence claim, claim, al- subject DeBerry argued Ludlow’s covering of the the matter tation economic, quan in plaintiff may damages nevertheless recover and therefore leged were plaintiff partially tum meruit when the has sounds contract. this tort claim also but, performed the because of defendant’s struggled with the long have Texas courts breach, prevented plaintiff the from com and tort relationship contract claims between pleting Id. the contract. Appeals aptly El Paso Court claims. The that, DeBerry Ludlow testified asked “muddy “contorts” as a the law of described share, exchange partnership Ludlow for area, easy bright line rules devoid up DeBerry “take the slack” while took time Corp. v. Freight C.R. answers.” Airborne family. Al- off from work be with his (Tex. Inc., Enter., Lee perform though admitted he did not Ludlow denied). writ Jim App. Paso — El performed any additional to those be- duties Homes, Reed, S.W.2d 617 Inc. Walter alleged partnership agreement,4 fore the (Tex.1986), Supreme ob the Texas Court proof sufficient raise a fact there is issue that, injury the deter the nature of served to recover in whether Ludlow was entitled breached, are and duty which or duties mines responsi- quantum the meruit for increased injury resulting from a breach the where DeBerry bilities he assumed when took time only the the economic loss to contract is off. itself, the action subject the contract alleged unjust Ludlow also enrichment Id. 618. The in contract alone. at sounds against DeBerry SDI, claiming he de- liable for jury had found Walter Homes Jim compensation for the extra served extra workmanship warranty good breach responsibilities he duties and undertook. gross negligence for in the contract Again, summary judgment proof reveals supervision the house. of construction of any perform Ludlow did not extra duties the court found that the at 617. Because beyond required employ- those under the contract, injury breach of substance a however, agreement; proof ment there support of contract cannot recov and breach sufficient raise a fact issue De- damages, court re ery exemplary unjustly Berry were enriched and SDI damages. Id. exemplary award of versed the responsibilities extra have Ludlow 618. at Thus, find trial court erred assumed. later, supreme court re granting summary judgment years in favor of Three only on this rule when the loss and SDI claim. stated the subject damage matter of con is to the D. Fraud Claims ordinarily on the plaintiff’s action is tract the De Bell Tel. Co. v. contract. Southwestern alleged claims of fraudulent and (Tex.1991). Lanney, misrepresentation, and negligent breaches alleged negligence DeLanney, plaintiff fiduciary duty good duty and of faith Bell’s DTPA in Southwestern violations dealing. DeBerry in his argued fair Pages advertise publish a Yellow failure to summary judgment reasons motion for two jury The Bell liable found ment. Id. 493. summary judgment Ludlow’s for damages (1) actual negligence and assessed for inducement claim: there is fraudulent profits. future lost Id. at past and by DeBerry proof any promise was false award, (2) appeals affirmed but court of made; time it was reversed, holding therefore, supreme and, alleged damages are economic only failure to damages from Bell’s flowed in contract rather Ludlow’s claim sounds you you thing particular that did that hadn’t following excerpt is of Ludlow’s 4. The illustrative performance agreement was testimony regarding be- made? additional done before when employment agree- yond required Specific A. action? Q. ment: Yes. No, specific pinpoint action other Ludlow, I can’t A. talking Q. about what we were Mr. $159,000 you have done tell that I would you’re than to you do claimed to energy any- or fervor. you pinpoint with more suing Is for. there—can 276 advertisement, 651, (Tex.1990);5

publish Khalaf, and that such fail 802 S.W.2d 656 Ass’n, ure Following is not tort. Id. at 495. its Matthews v. AmWest Sav. 825 S.W.2d Homes, analysis in Jim Walter the court held 552, 1992, (Tex.App. 554 writ de — Beaumont Delaney’s contract, solely claim was and nied). action, however, Fraud as a cause of Delaney request jury ques because did not plaintiff is distinct from contract in that the contract, recovery tions on breach of prove must fraudu additional element of negligence awarded under the claim was re intent, i.e., lent the intent to deceive. Tren Delaney versed with take (Tex. 927, Ratcliff, v. holm 646 S.W.2d 930 nothing. DeLanney Id. The court also ad 1983). Supreme The Texas Court has reiter claims, analysis dressed the DTPA but that general perform ated the rule that “failure to pre not relevant to the issue contract/tort the terms of contract is a breach of con judice sented in the case sub and we need tract, not a tort.” Crim Truck & Tractor Co. not include here. Transp. Corp., v. Intern. 823 Navistar Turning (Tex.1992). Nevertheless, negli 591, to Ludlow’s claim of 597 gent misrepresentation, we must determine party when one enters the contract with no damages sought purely whether the are con performing, supreme intention of court damages. tractual DeLanney, 809 has held that this claim is still viable Id. summary judgment S.W.2d at 495. The rec cases, party Based on these we believe a sought ord shows that Ludlow “benefit damages still seek to recover based on a bargain” damages in sought that he the addi claim of fraudulent inducement. tional income he would have received De- however, A appeals, number of courts of Berry complied alleged had with the oral holdings DeLanney have extended the facts, Applying DeLanney contract. to these Jim to fraud claims without negligence we must hold that Walter Homes claim sought only explaining must fail. Because Ludlow eco basis the extension or de damages nomic negligent under his claim of termining whether the case involved a claim misrepresentation, properly See, the trial court of fraudulent inducement to contract. granted summary judgment on this cause Williamson, e.g.,Grace Corp. Petroleum v. action. 1995, (Tex.App. Tyler 906 S.W.2d 66 no — writ). acknowledged One court that DeLan- The determination whether the trial ney negli and Jim Walter Homes involved properly granted summary judgment claims, gence in but nevertheless found “no problematic. on the fraud claim is more negligence tended distinction” between the DeLanney Both in Jim Walter Homes and claim in those cases and fraud. Airborne negligence perfor volved claims of Enter., Inc., Freight Corp., Inc. v. C.R. Lee mance of the contract rather than a tort 847 S.W.2d 296 Paso accompanying the formation of the contract. — El denied). courts writ Other have held supreme explicitly court has not extend DeLanney Walter Homes do Jim DeLanney ed Jim Walter Homes apply not of fraud in the induce to claims Although fraud claims. benefit of the bar ment. See Schindler v. Austwell Farmers gain damages are recoverable under a Coop., (Tex.App 829 S.W.2d action, negligence cause of are recovera . —Cor Christi), pus grounds, on other theory. Leyendecker ble under a fraud & modified (Tex.1992); Assoc., Wechter, S.W.2d 853 American Nat’l Ins. Inc. v. (Tex.1984). type damages Co. International Business Machines Contract are re Corp., (Tex.App quasi- coverable for fraud because fraud is a . —San requested); contractual cause of action. See v. Antonio writ Matthews v. Williams (but supreme following analy- leading pure 5. The court offered the to a claim of not the debt history debt). Actually sis of the of fraud: common law action for a developed fraud and deceit cause of action developed The modem fraud cause of action deceit, through Assumpsit hybrid the action of as a from an action case original for debt and common law action related to debt as an evolution of the action of assumpsit. Assumpsit action for Account. contractual or Williams, (citations omitted). quasi-contractual involving promise action 802 S.W.2d at 656 (Tex. (2) therefore, Ass’n, purchases; evidence existed S.W.2d 552 AmWest Sav. (3) denied). 1992, fraud; recovery and App. writ a support — Beaumont there liability damages, for actual was absent Corpus Appeals The of Christi Court punitive damages. for an award of no basis attempt holdings the the first to reconcile the de- Id. The court modified DeLanney in and Jim Walter Homes punitive damages, of and af- lete the award allowing recovery case law of contractual Id. It is judgment as so modified. firmed the damages under a cause action. fraud of the important analysis here that su- to our Co-op., Schindler v. Austwell Farmers preme in not extend court Schindler did plaintiff alleged fraudulent inducement and to vitiate DeLanney and Jim Walter Homes appellant jury found at liable. Id. 286. claim, a inducement asserted fraudulent appellate upheld liability, The court actual claim, fees, with a on the basis damages, attorney’s connection contract exemplary and damages separate extant. damages. rehearing, that no fraud were ap- Id. at 287-89. On pellant raised rule announced Jim holding in Other courts have followed the Homes, exemplary arguing Walter that the See American Nat’l Ins. Co. v. Schindler. damages should not stand. Id. at 289. The Corp., 933 International Business Machines Corpus argu- Christi court advanced two 685, (Tex.App 687 Antonio S.W.2d . —San declining ments for to extend Jim Walter summary requested) (reversing writ Homes to a claim of fraudulent inducement judgment on claims fraudulent inducement First, Id. to contract. at 291. the court holding rule in Jim Walter reasoned that contractual remedies are limit- to the apply not tort of fraudu Homes does compensatory damages regardless ed to of lent to contract with no intention inducement culpable breaching mental state of the contract); performing Swanson and, rule, party breacher-friendly under this Schlumberger Technology Corp., 895 S.W.2d aggrieved “the party deserves the benefit of (Tex.App. grant 719 writ — Texarkana bargain, party but aggrieving does ed) (holding party may exemplary recover punishment.” not The deserve Id. court damages for fraudulent inducement con policy extending found no reasons for tract); Guajardo, Peco Constr. Co. v. 919 holding par- in Jim Walter Homes to benefit (Tex.App. Antonio — San fraudulently ties who enter contracts denied) (holding party writ seek have no performing. intention of Id. bargain damages benefit of the recover Second, applying the court reasoned that action) under a fraud cause of Jim Walter Homes a claim for fraudulent completely inducement would eliminate is not immune from the confu This court misrepresentation procurement fraudulent appeals experienced sion other courts of a as a Id. contract tort. The court con addressing types these cases. Panels eliminating cluded that this tort contravenes applied have Jim Homes court Walter Supreme holdings Spol the Texas Court’s DeLanney in to claims of fraudulent Id, jaric and Crim Truck. See exploring the differences ducement without fraud between claims of common law appealed Supreme to the Court Schindler claims fraudulent inducement. See Bar argued that Austwell could not recover (Tex. Munden, 288, 293 bouti v. attorney’s both for breach of contract fees App. writ [14th Dist.] de punitive damages for fraud based — Houston nied); Hebisen v. Nassau Dev. injury. same event and the same Schindler [14th 858, S.W.2d Co-op., v. Austwell Farmers — Houston denied). Barbouti, (Tex.1992). Dist.] writ complained He also there of fraudu panel of this court found claim recovery support evidence to substantively one for lent inducement to be agreed fraud. The court with the latter Id. breach of contract such that the Statute and therefore did not reach the contention Id, (1) 293. This applied. S.W.2d at held: there was no Frauds former. that, prom- that a claim of fraudulent at court did hold the time made evidence ise, only damages alleged pay for fails if the Schindler did not intend to inducement induce- raise a fraudulent damages.6 plaintiff id. cannot bargain

are benefit of the damages are only alleged Instead, ment claim his held there was the court 295-97. type bargain contract dam- finding benefit jury’s supporting no evidence may be inter- ages. To the extent Hebisen specifically, More fraud. preclude recovery of benefit of preted to present that Munden failed to court stated a claim of fraudulent bargain damages on that, promise time the evidence at the action, impli- Hebisen inducement cause made, Dr. did representation was Barbouti Supreme Court edly with the Texas conflicts perform to it. Id. at 296. not intend damages in recovery of such approval of the case from this court Hebisen is another Tours, Inc., 708 Spoljaric v. Percival S.W.2d inducement. involving a claim of fraudulent (Tex.1986).9 432, 435-36 (1) Hebisen, jury appellants found: In the the lease was represented, at the time case, Ludlow In the instant signed, they would make rental escalation misrepre DeBerry fraudulent claimed made (2) repre- payments; appellee relied on these him to enter a which induced sentations (3) detriment; at the to his sentations DeBerry. In agreement with partnership representations, appellants time made these summary judgment it is appellees’ motion for pay rental appellants did not intend to the damages are only asserted that Ludlow’s payments. 754 at 847. On escalation S.W.2d flowing appellees’ damages from economic court, appellants claimed there appeal to this Thus, ap- agreement. perform to the failure jury’s support the find- no evidence to that, was only is pellees the loss conclude where injury damages. Id. at 348. We ings of contract, subject of the Lud- to the matter damages the actual awarded observed that only Appel- in contract. low’s claim sounds pursuant to the lease amounts due were DeLanney to extend and Jim Wal lees seek and, therefore, essentially agreement were on fraudulent to tort claims based ter Homes that, damages. held “irre- Id. We contract an extension believe such inducement. We they spective appellants’ intent at the time persuaded by the and we are is ill-advised pay Schindler, escala- signed the lease not to the rental American Nat’l Ins. analysis in damages Co., awarded were charges,” attempt tion the an to recov and Matthews that damages proxi- damages bargain damages permit and not contract er benefit Therefore, mately plaintiff alleges fraud.7 Id. a cause of caused ted the where support inducement. See held there was no evidence action for fraudulent Schindler, 291; By American damages fraud.8 Id. at award of actual 829 S.W.2d Matthews, 687; damages at holding proof no of actual Nat’l Ins. 933 S.W.2d there was contract, Accordingly, the trial damages at 554. sounded 825 S.W.2d for fraud summary judgment granting that a court erred construed to hold Hebisen can be (Tex.App. Worth suggesting does contain dicta 6. Barbouti — Fort denied) alleged (finding injury from writ properly one for breach of con- fraud claim is tract, bargain; there ultimate was loss of benefit of not the basis for the fraud fore, but this was Barbouti, solely in con holding. action sounded 866 S.W.2d 295. the cause of See Inc., Conoco, tract); 892 S.W.2d Leach v. (Tex.App. dism’d [1st Dist.] Although found no evidence — Houston the Hebisen court 7. bargain equate w.o.j.) (appearing to benefit of damages, remanded the cause fraud the court sounding damages an action measure lay prop- appellants failed for trial because contract); v. solely Central Sav. & Loan Ass'n predicate for reversal and rendition. er Bank, A.,N. Northwest Stemmons preserve Appellants' failure S.W.2d at 348. writ) no 240-241 appellees point gave a second chance rendition — Dallas solely (holding in contract of action sounds nonetheless, cause claim; they prove are their fraud alleged "only damages were economic because holding contract-type by this court’s bound contract"). injury subject matter of damages damages in a fraudu- no evidence of are Thus, to succeed lent inducement case. remand, appellees would have the Hebisen upheld Spoljaric, supreme 9.In damages other eco- suffered than establish damages jury’s punitive on a claim of award of damages. nomic contract de- to enter a fraudulent inducement damages allegation actual spite and award of bargain. giving plaintiff the benefit of the appeals have followed Texas courts 8. Several Parker, Spoljaric, at 434-436. See Parker decision Hebisen. our material it found no on the claim of fraudulent inducement to the court erred to extent application ruling question extent such was based on whether DeBer- issue fact on of the rule announced in ry’s representation Jim Walter Homes false when made. was DeLanney. alleging fraudulent addition to summary- Another basis negligent misrepresentation, Ludlow al DeBerry favor of was lack of duty duty fiduciary and the leged breach of fact issue on element of fraud good dealing. and fair faith According DeBerry, no claim. there was summary judgment in motion for claimed his DeBerry’s promise proof showing false was dealing duty good no faith and fair when it was made. fiduciary duty was to Ludlow because owed alone, perform, standing Failure to relationship giving confidential there promise at the evidence false time duty. petition, rise to such a Spoljaric, 708 was made. S.W.2d at fiduciary duty alleged the of a aris existence Although party’s we must focus on intent relationship and from ing from confidential made, representation the time the was intent relationship. partnership the party’s be inferred from the after acts duty fiduciary A arises from the representation Id. the was made. at 434. just relationship parties, the and not from question uniquely Intent is a fact within the O’Quinn, Kline v. 874 S.W.2d the contract. depends realm of the trier of fact because it 776, Dist.] 786 [14th upon the credibility witnesses and the — Houston denied), denied, 1994, 515 writ cert. U.S. testimony. weight given their to be (1995) 2579, 1142, 115 132 L.Ed.2d 829 S.Ct. (citing Crim Truck & Tractor v. Navistar that, using DeBerry’s ar- Ludlow reasons 591, Corp., Transp. Int’l 594-97 823 S.W.2d gument regarding calculation of Ludlow’s (Tex.1992)). relationship part The between compensation, representation of addition- fiduciary duty gives to a as a mat ners rise misleading. support al income was of this Peckham, of law. v. 132 ter See Johnson statement, DeBerry’s points depo- Ludlow (1938). 148, 786, Tex. 120 S.W.2d 787 testimony sition that his review of the 1988- addition, informal, rela certain confidential 89 Doane was his statements the basis for fiduciary duty, tionships give to a can rise representation Ludlow would make an extra upon relies person “where one trusts $50,000-100,000per year part- under the oral another, moral, relation is a nership agreement. Ludlow observes that social, personal merely one.” domestic DeBerry indeed reviewed the Doane state- Hull, 39, 150 Tex. 237 S.W.2d Fitz-Gerald v. done, ments as he to have was claimed there (1951). 256, fiduciary princi A its 261 owes representation no basis for his to Ludlow faith, pal high duty dealing, good fair $50,000- that he would make an additional performance, honest and strict accountabili 100,000 year partner. Additionally, per as a Tanglegrove Con ty. Sassen v. Townhouse response Ludlow affi- submitted with an (Tex. Ass’n, 492 dominium Mary Capo, manager davit of Anne denied). App. The writ — Texarkana Arthur also Andersen & Co. She reviewed relationship is existence of a confidential usu peri- for the 14 month Doane statements question jury. ally a of fact for Weaver up agreement leading partnership od Stewart, (Tex.App.— profits the net of Falcon and concluded that denied). [14th Dist.] Houston writ they percent higher had to almost than no evidence of a confidential When there is $100,- were for Ludlow to make an additional however, relationship, the existence of fidu agree proof 000. We is sufficient Truck, ciary duty question of law. is a Crim falsity possible issue raise fact about 823 S.W.2d at 594. DeBerry’s representation Ludlow at the DeBerry’s calculation made. further believe the Ludlow claims that time was We compensation partner for less than DeBerry of his as a determination whether intended represented ques- is a was him was a breach of perform allegedly Ludlow claimed due Therefore, fiduciary previously, De- jury. duty. trial As discussed tion of fact for the that, improper judgment. Tex. of an Berry partnership the rendition testified under R.App. 81(b)(1); P. Bruner v. Exxon agreement, was to receive 25% of the Ludlow U.S.A., already (Tex.App profits, any payments less annual net . —Dal denied). claimed he received Ludlow. Ludlow las writ profits in addition should receive 25% of the disability production requested already payments he to the 60% commission January DeBerry from claims submitted allegation, receiving. Based on this August he believed 1991because he was due an additional Ludlow calculated DeBerry left to the reasons were relevant $159,000. dispute DeBerry does not he of- agreement with company and entered the company; in the partnership fered Ludlow a response request, to this DeBer- Ludlow. In enforceability any agree- disputes grounds that it was out- ry objected on the alleged agree- ment the terms of the permissible discovery, irrel- scope side created, then partnership ment. If a burdensome, evant, and would constitute fiduciary duty DeBerry to Ludlow. owed rights. trial personal invasion of his existing there are fact issues re- Because protec- DeBerry’s motion for granted garding partnership, existence of a tion as to these documents. summary judg- trial court erred DeBerry in his brief that Ludlow claims duty good claim of breach of a ment on the part- good on the intended to make “never dealing. point of faith and fair We sustain agreement” the “circum- nership error five. when, where, why surrounding stances Falcon are more decided to leave Discovery Disputes III. in this case.” relevant to the issues than six, point Ludlow claims In of error production of argues further Ludlow DeBerry’s in the trial court erred led to the discov- documents could have these discovery10 protection from be motion for evidence, “particularly ery of other material DeBerry failed to meet their cause and SDI that, during DeBerry advised where Ludlow or as showing of lack of relevance burden to the institution of the [led] the events that entitling them to such serting privilege [DeBerry] seeking present lawsuit seven, Ludlow point relief. In of error intending to file medical treatment and in trial court abused its discretion claims the disability asser- claim.” Ludlow’s medical sanctioning respect to this dis Ludlow with DeBerry’s medical tions do not show that covery request. any way to a disability are in relevant claims 166b(5), whom party Rule from Under partnership of the determination of the terms discovery sought may file a motion for is breached, agreement, if it was whether any order protection and the court enter so, existed, fiduciary duty justice necessary pro- “in the interest of of discre- find no abuse was breached. We burden, undue unneces- tect the movant from protective order and respect to the tion with sary annoyance, or expense, harassment or and seven. points of error six overrule constitutional, prop- personal, invasion of 166b(5). The erty rights.” Tex.R. P. Civ. IV. Conclusion largely scope discovery lies within of denial of affirm the trial court’s may not set aside We discretion and we court’s grant of a court’s showing motion and the trial recusal action without a clear the court’s summary judg- to the protective order. As Ginsberg v. Court of discretion. abuse Fifth court, (Tex.1985). affirm by the trial we ment rendered Appeals, 686 S.W.2d Ludlow’s claim reversal, respect refusal support the trial court’s To re- negligent misrepresentation, and we discovery such a must have been permit remaining claims Ludlow’s reasonably verse and remand rights as was denial of Ludlow’s cause, cause, probably for trial. did calculated to disability requested production of carrier. had

10. Ludlow disability by DeBerry to his claims submitted points Accordingly, of error one REHEARING we overruled OPINION ON Ludlow now contends we errone- and two. ANDERSON, Justice. ously point error one under au- decided Ludlow, 18b(2)(b) Appellant, raises two concerning Howard rather than thority Rule points rehearing challenging 18b(2)(a). in only Ms motion for disputes not au- Ludlow cited, analysis disposition points failing our of error thority us for but chastises concerning ruling one and two on Lud- authority.1 We have reviewed to cite other judge. Ap- low’s the trial authority motion recuse and we arguments and Ludlow’s pellees, DeBerry, Inter- Scott Scott of error original disposition points find our ests, Inc., Products, Inc., and Falcon have one two was correct. rehearing. also filed a motion for We over- applied should have Ludlow contends we rehearing,

rule both motions for but issue an person enunciated in standard reasonable opmion rehearing addressing (Tex. Rogers Bradley, regarding points of one concerns error 1995), the stan Ludlow maintains is which two. complaints under Rule applicable dard argues 18b(2)(a). Ludlow first that we erred over- Rogers “opinion” is a main one, ruling challenged point of error which Gammage, Justice declaration of recusal Judge refusal to recuse the trial justice. Steib’s joined by Id. 873- not other Rule of Procedure under Texas Civil (including appendix). declaration and 18b(2)(a). ground rehearing, As a second for cites is found The standard to wMch Ludlow overruling point Ludlow claims we erred response the declara Justice Enoch’s complained of error two which Ludlow (response tion of recusal. 878-884 recusal). determination that Rule Steib’s Neither regarding the declaration 18b(2)(a) separate ground did state opinion majority response nor of a recusal. hesitate to hold court and we controlling Enoch discussion Justice summary A pertinent short facts authority. the recusal motion will aid our discussion. recusal, moving primarily com- instances, appellate Texas some plained judge’s the about trial comments person applied courts the reasonable have jury jurors the the had after rendered their determining whether recusal standard jury verdict and been dismissed. As the was See, granted. e.g., motion have been should courtroom, leaving angrily the stat- (Tex. 168 Corp. Rogers, Keene v. ed he had that their verdict was worst 1993, Agui stayed); App. writ — Texarkana upset ever seen. Jurors were about tMs Anderson, 799, v. 804-05 lar 855 attorney. comment and contacted Ludlow’s (Os denied) 1993, (Tex.App. Paso writ — El attorney then filed a motion to Ludlow’s born, concurring opinion). A reasonable J. judge. recuse the trial person standard makes sense because judge’s provides for where a complaints, In De- rule recusal response might reasonably questioned. impartiality be Berry inappropriate argued recusal 18b(2)(a). However, apply P. extrajudicial bias Tex.R. Civ. unless Ludlow established we original ing person standard con judge. the reasonable part on the of the our determine whether tinue we must opinion, agreed DeBerry and held to believe we with impartiality indicating bias or judge’s alleged act had not shown the ac- that Ludlow extrajudicial extrajudicial from an source.2 source. emanated tions emanated from an applied provi- extrajudicial rule where source is complains that we cite to The 1. Ludlow also sought judge’s on a in-court based recusal is not sion the Code Judicial Conduct U.S., Liteky rulings. v. 510 U.S. or statements lawsuit was filed. We in effect at the time this 1147, 540, 550-552, 127 L.Ed.2d S.Ct. complaint agree and de- with Ludlow as to 474, (1994). rulings arise If or from the remarks any the Code of lete reference to Canon 8A of during proceedings, do the case and occur wording canon as of that Judicial Conduct as extrajudicial source and not from an emanate opinion was not effective until cited in our they display a actions unless are not recusable 2, 1994. March antagonism deep-seated that would favoritism or original ground, regarding questions as to opinion, Liteky our we relied on reasonable U.S., v. judge’s impartiality. ground 510 U.S. S.Ct. This broad (1994) Grider Boston spe- L.Ed.2d v. than encompass actions other those Inc., (Tex.App. cifically (b)-(g). in sections Con- enumerated — Dallas denied). 18b(2)(a) writ Both eases discuss the sequently, we do construe Rule extrajudicial application source rule its ground, completely separate as a discrete sought is where recusal based on in-eourt 18b(2)(b) regarding on and unrelated bias rulings. rehearing, or statements On Lud- judge.3 part of the Liteky inapplicable low contends that is be Disagreeing our construction of occurring it concerns bias with cause “actual rule, Rogers Kirby insists that judicial proceeding.” in the context of the Chapman, 917 S.W.2d 902 — Fort Liteky allegation Because concerned an writ), Rogers, cites Worth no which prejudice, Liteky bias is Ludlow claims already controlling. are As have dis we authority for a claim for recusal under Rule cussed, portion Rogers which Lud- 18b(2)(a). challenged Ludlow asserts opinion by majority cites is not an low judge’s impartiality the trial under Rule Indeed, Rog Supreme Texas Court. 18b(2)(a), impar regarding judge’s whether a only justices ers articulated their views two tiality might reasonably questioned, rath be recusal; on neither Justice nor the the Chief 18b(2)(b) ground concerning er than the Rule justices six revealed their on the other views part judge. bias on the Furthermore, Rogers Kirby issue. both Liteky. Ludlow misconstrues first challenges judges’ impartiality concern in the opinion sentence states that the Court based, rul not on in-court statements and determining extrajudicial during the ings, political support on but applies source rule to the in 28 rule U.S.C. judges’ candidacy appointment for election 455(a) requiring “in proceeding recusal Rogers, to office. 909 S.W.2d at 873-874 judge’s] impartiality might [a which rea- (challenge justices’ appearance based 541,114 sonably questioned.” 510 U.S. produced by Texas statements made video ground S.Ct. at 1150. This federal for recu- political action Medical Association commit 18b(2)(a). Thus, sal identical to Rule (child tee); custody Kirby, 917 S.W.2d at 908 Liteky applicable find to this ease. senator, uncle, supported case where child’s Supreme As United States judge’s appointment attor trial to bench and indicates, opinion ground Court’s federal ney participated from firm senator’s law recusal, regarding questions trial). factually find these cases distin We judge’s ground, en impartiality, is a broad guishable from case at bar. compassing many specific grounds. more escape Ludlow cannot the effect 2,114 n. Liteky, 510 U.S. at 553-554 S.Ct. at by focusing Liteky on term and Grider the is 1156 n. 2. We believe this true of Rule ignoring for the “bias” and the factual basis 18b(2)(a) Kilgarlin as well. William W. extrajudicial application courts’ of the source Bruch, Disqualification & Jennifer and Re- determining apply Maey’s to the rule. Judges, cusal 17 St. L.J. of extrajudicial litigant a cites (1986) source rule when (stating grounds that the such as those 18b(2)(a), a the 18b(2)(b)-(e) Rule court must consider in Rule are instances found upon sought. In this facts which recusal is judge’s impartiality might reason where a ease, the sought recusal based on Ludlow ably questioned). Although Rule be in-court state judge’s trial demeanor and 18b(2)(b)-(g) specific where address instances the ments. The statements occurred while partial to or judge the be found be 18b(2)(a) biased, judge. Regard- provides pending a broad case before the Rule 550-556, "judicial (referring judgment impossible. 909 S.W.2d at 882 to bias" make fair Id. at 18b(2)(a)); 114 S.Ct. at 1155-1157. of recusal under Rule discussion (after Aguilar, quoting lan- S.W.2d at 802 "impartiality” frequently 3. Case law defines the 18b(2)(a), guage court refers to bias from Rule 18b(2)(a) standard as used in Rule as avoidance recusal). necessitating Rogers, appearance judicial of bias. See of pub- litigant provides judge to a shall abstain from phrases less of how a his motion that 18b(2) pending or of case in a man- recuse on which section Rule lic about a comment relies, extrajudicial applies rule “suggests person source to a reasonable ner which case, motion, any recusal such as one this judge’s particu- on probable decision judicial regarding Supreme CouRt, targets that statements case.” Texas lar Code during 3A(8) (1989) the case and made the course Canon Conduct, JUDICIAL proceedings.4 1994) (amended 1992, [hereinafter Tex.Code (1989)(amend- Conduct, Canon 3 of Judicial extrajudicial Applying the source rule 1994) judge perform must also A]. ed case, facts of find Ludlow did not this we prejudice. judicial or his duties without bias proof required meet the burden show 3A(9) Conduct, Canon an action Tex.Code of Judicial abuse of discretion. The com (amended (1989) 1992,1994). plained by during the about Ludlow arose pendency proceedings. of the trial court any of that violation of Ludlow contends has Ludlow not shown that these statements impar- set out Canon the standards emanated from source other than force tiality per compares the se.6 Ludlow judge’s opinion perception based his given effect to be these canons by presented. None of actions evidence appellate force and effect rules civil Judge “high Chambers indicate such a de however, author- procedure; Ludlow cites no gree antagonism or of favoritism as make Furthermore, Lud- ity for contention.7 this judgment impossible.” Liteky, fair 510 U.S. authority primary for con- cites no his low 555, 114 S.Ct. 1157. requires a violation of a canon tention that argues that should have also per se to recuse is recusal and refusal found Steib’s refusal to recuse the error. judge per se that trial error. Ludlow claims 3A 18(b)(2)(a) of the directives under Canon Several the rationale behind Rule is Can- Conduct,5 argues that “shall.”8 Ludlow use word on 3 of the enti- Code Judicial mandatory language the use of indicates “Performing the tled Duties of Judicial Office nondiscretionary stan- are Diligently.” these directives Impartially and This canon sets man- and that a violation apply judge the standards dards conduct forth sure, authority performing adjudicative To there or administrative dates recusal. 3A(8) code,9 example, violating responsibilities. For Canon of a removal majority Property Liteky following negligence per stated the se. See Nixon Mr. Inc., applicable Mgmt. exemplify applied standard to be “Thus, se). 455(a): (Tex.1985)(discussing negligence per § judicial under U.S.C. re- during the of a that are criti- marks course trial to, of, disapproving even cal or or hostile coun- Dictionary defi- to the Black’s Law 7. Ludlow cites sel, cases, ordinarily parties, We, however, or their do unpersuad- are nition of “canon.” partiality challenge. They may support a or bias authority authority. ed Other cited they opinion do so if reveal an that derives from procedure do the rules of Ludlow concern source; extrajudicial they will do so if regarding judicial con- not mention canons degree high or reveal such of favoritism duct. antagonism judgment impossi- as to make fair establishing partiality, bias are ble .... Not 3A(8) "judge example, 8. For Canon states that dissatisfaction, impatience, annoy- expressions of pend- public abstain from comment about shall ance, anger, are within the bounds even ing impending proceeding....” TexCode women, imperfect what men and even after 3A(8) (1989) (amended Conduct, Canon Judicial having judges, confirmed as some- been federal 1992, 1994). 555-556, display." 510 U.S. at 114 S.Ct. times original). (emphasis in at 1157 Constitution was amended 9. the Texas following: provide 5. case filed before the effective Because this was Any Judge or of the courts established Justice Conduct, Judicial date of 1994 Code of by Legisla- by or created this Constitution prior to the code. refer provided Article V. of ture in Section as Constitution, subject provi- may, the other urges 6. us find that a violation of hereof, ... be removed from office for sions Code of the Judicial Conduct should result basis, Con- a of the Code of Judicial per on se much like violation of willful violation recusal a finding in a duct. ... statute or ordinance can result authority mandatory unequivocal antagonism but we locate no rendered fair challenged in- impossible. Finding recusal where the actions are no abuse of rulings. discretion, or original statements we adhere to our decision two, points error one to overrule Although a number of the di clarified herein. mandatory are rectives Canon 3 and assist in determining judge’s impartial a trial when

ity may reasonably questioned, the deter grant deny

mination whether a recusal motion, asserted, ground regardless of the is assigned judge within the discretion of the hear the motion and-this determination must assigned

stand judge unless the abused his 18a(f). discretion. See Tex.R. Civ. P. As by Supreme Liteky, Court in a discussed necessarily judge opinions trial forms based JOHNSON, Appellant, Johnny Ray presented in evidence a case. See 550-552, Liteky, 510 U.S. 114 S.Ct. opinion, produced 1155. judge’s properly A Texas, Appellee. STATE necessarily during pro course of the judge render ceedings, does not the trial No. 05-95-00806-CR. impartiality. Al

recusable for bias though inappropriate to it is shout these Texas, Appeals Court opinions jurors to the after have ren Dallas. verdict, nothing dered their in the record opinions judge shows uttered Sept. that the 1997. anything this case arose from other than Discretionary Review Refused hearing present the evidence and witnesses 25, 1998. Feb. Indeed, judge ed at trial. in this case

denied the defendants’ motion for directed jury verdict and allowed to render rendered, a verdict has verdict. After been however, judge within his act power opinions by granting

on his for new motion trial or to order a new his own even trial on

motion. Tex. R. Civ. P.S20.10 presented at the

Based on the evidence hearing, recusal Steib could have de- termined that the outburst front of the jury improper, requir- but not an action

ing presented he was recusal because not it emanated an extra- evidence from judicial deep-seated revealed source or Const, (6). By disagreement juiy making judge’s § with the Tex. 1-a a willful indicate the art. verdict, disagreement per- violation of the Code ground Judicial Conduct non-vocal but such judge, of a for removal the constitutional judge be recused even mitted importance elevated the of the Code. amendment though juror might find such action Bruch, supra, Kilgarlin & at 635. judge Civ. objectionable. See TexR. P. 320. circumstances, juror’s impression, A under such judg- If had filed a the defendants motion for impartial judge that the would not mandate verdict, notwithstanding ment specifically recusal the rules allow the because power grant been within his it and would have disapproval express verdict judgment in much same manner as enter judgment for new trial motions did TexR. P. 301. The in this case. See Civ. notwithstanding the verdict. granting ing a motion for notwithstand- verdict or a motion new trial

Case Details

Case Name: Ludlow v. DeBerry

Court Name: Court of Appeals of Texas

Date Published: Jan 29, 1998

Citation: 959 S.W.2d 265

Docket Number: 14-93-01090-CV

Court Abbreviation: Tex. App.